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[2005] VCAT 2156
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2005-10-17
Mr J, Ms J
Original judgment source is linked above.
Application under section 79 of the Planning and Environment Act 1987; Nillumbik Planning Scheme; Environmental Rural Zone; Rural Conservation Zone; Subdivision of Land and Development and Use of Dwellings; Planning Policy Support for Effective Land Management and Rural Living Opportunities; Appropriateness of Re-Subdivision of Land; Environmental Values of Land; Net Gain; Wildfire Risk and Management; Dwelling Use and Development.
Department of Sustainability and Environment, Country Fire Authority, Bend of Islands Conservation Association Incorporated and others
With respect to permit application 388/2003/14P, the Responsible Authority's decision to refuse to grant a permit is affirmed.
The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.
Mr Townshend called the following expert witnesses:
Mr E Kyriacou and Mr R Costello of Department of Sustainability and Environment
Mr A Bonny on behalf of Bend of Islands Conservation Association Inc and Round the Bend Conservation Co-Operative Ltd
Ms J Bundy on behalf of Green Wedge Protection Group Inc
1 This is an application to review the failure by Nillumbik Shire Council ('the Council') to grant a permit within the prescribed time. The subject site is a rural property comprising 60 hectares at 488 Skyline Road, Christmas Hills. Planning approval is sought for the re-subdivision of the land into 6 lots, the use of a dwelling on each lot, the development of a dwelling on 3 of the lots and native vegetation removal.
2 The permit application was lodged with the Council on 14 July 2003. Further information was requested in August 2003 and this request was satisfied in January 2004. The application was then referred to the subdivision referral authorities, the Country Fire Authority ('CFA') and the Department of Sustainability and Environment ('DSE'). The application was also publicly advertised and 6 objections were received on grounds relating to the environmental significance of the site; overdevelopment; isolated and inappropriate rural residential development; and conflict with the planning policies and controls.
3 This application to review the Council's failure to grant a permit was lodged on 7 January 2005. The Council held a consultation meeting with the applicant and objectors in March 2005 and then resolved at a Council meeting on 19 April 2005 to refuse the application on the following grounds:
a) The proposal is contrary to the intent of the Rural Conservation Zone, Environmental Rural Zone, Environmental Significance Overlay, Municipal Strategic Statement, Clause 22.02 Small Lot Subdivision Policy and Clause 22.04 Siting and Design Policy for Buildings in Non-Urban Areas of the Nillumbik Planning Scheme.
b) The proposal fails to comply with the purpose and aims of Melbourne 2030, including Clause 57 of the Nillumbik Planning Scheme.
c) The proposal will adversely impact on a locality of high environmental significance.
4 The hearing of this matter occurred over three periods. The hearing of the merits commenced on 12 and 13 May. A site inspection accompanied by representatives of all parties took place on 6 June and Mr Henry's evidence in chief and cross examination was completed during this time. The hearing of the merits was concluded on 7 June and a hearing to discuss draft permit conditions was held on 15 July 2005.
5 Additional plans were provided at the site inspection on 6 June and during the hearing on 7 June. Mr Townshend explained they were provided as additional information only. A wildfire management option 3 report was also provided at the site inspection on 6 June.
6 All parties made both written and oral submissions. The expert witnesses presented their evidence in chief and were made available for cross examination. A number of documents were tabled during the course of the hearing. All of this information has been taken into consideration.
7 This hearing involved the Council, objectors, the Department of Sustainability and Environment, the Country Fire Authority and the permit applicant and expert witnesses. All parties and various experts forming part of the applicant's case attended the on-site inspection. The co-operative and respectful manner displayed by all parties throughout this hearing process is appreciated.
8 The site is located on the east side of Skyline Road in Christmas Hills, situated between the Sugarloaf Reservoir (on the west side of Skyline Road) and the Yarra River (to the east). It is located a reasonable distance from the nearest townships of Yarra Glen and Christmas Hills.
9 The site is rural land containing a significant amount of vegetation, including a pine plantation. The northern end abuts Skyline Road which is a gravel road that effectively links Christmas Hills and Yarra Glen. The southern end, near the Yarra River, has being used for grazing, and a gravel quarry exists near the Yarra River that is used to construct access tracks.
10 The site consists of 6 lots that comprise areas of 39.9 hectares, 0.84 hectares, 2.68 hectares, 1.6 hectares, 1.29 hectares and 13.76 hectares. The total area of the site is 60.07 hectares.
11 The site contains no dwellings.
12 The site is bisected by the Maroondah Aqueduct. Mr Townshend and Mr Gold advised they believe this is redundant and has been decommissioned. It is owned by Melbourne Water together with land that abuts the site to the northeast and southwest.
13 The Yarra River forms one boundary of the subject site and actually splits the site and farming land on the opposite bank that is in the same ownership.
14 The site has a significant slope. The land along the Skyline Road frontage has an AHD level of between 220 and 250 metres, whilst the land adjacent to the Yarra River has an AHD level of 60 metres. The site features four main ridgelines and four valleys, slopes in excess of 20% and flatter land located adjacent to Skyline Road, on the ridgelines, in the lower sections of the valleys and adjacent to the Yarra River.
15 This proposal is a complex application due to the size of the site, the details of the application and the permit requirements of the Nillumbik Planning Scheme (which will be explained in the following sections of my decision). The components of the proposal are best summarised as:
i
The re-subdivision of the site into 6 lots with areas of 13.4 hectares (lot 1), 7.5 hectares (lot 2), 8.1 hectares (lot 3), 14.4 hectares (lot 4), 6 hectares (lot 5) and 10.6 hectares (lot 6);
ii
Works associated with the subdivision of the land;
iii
The use of each lot for the purpose of a dwelling;
iv
Building and works on lots 3, 5 and 6 to facilitate the development of a dwelling and driveway on each lot, a pool on lot 3 and a terraced garden on lot 5;
v
The construction of a driveway to the nominated building envelopes on lots 1, 2 and 4;
vi
The removal of native vegetation; and
vii
Building and works within the Wildfire Management Overlay.
16 The documentation submitted with the permit application included a subdivisional layout plan; building envelopes for lots 1, 2 and 4; conceptual plans and elevations for dwellings on lots 3, 5 and 6; an emergency fire plan; an effluent disposal and stormwater management strategy; and an ecological assessment of the flora and fauna on the site.
17 During the course of the hearing, many detailed aspects of the proposal were discussed including the lots being serviced by underground power from the existing overhead power lines that cross the site.
18 There are a plethora of planning controls and policies of relevance to this site and this proposal, particularly in relation to rural land, conservation, environment and residential use and development. Given this, I consider it important to provide an outline of the various controls and policies that I have considered in this decision.
19 The site is contained within a Rural Conservation Zone Schedule 4 pursuant to the Nillumbik Planning Scheme ('the Planning Scheme'). The purpose of this zone includes the implementation of State and local planning policies and:
•
To conserve the values specified in the schedule to this zone.
•
To protect and enhance the natural environment and natural processes for their historic, archaeological and scientific interest, landscape, faunal habitat and cultural values.
•
To protect and enhance natural resources and the biodiversity of the area.
•
To encourage development and use of land which is consistent with sustainable land management and land capability practices, and which takes into account the conservation values and environmental sensitivity of the locality.
•
To provide for agricultural use consistent with the conservation of environmental and landscape values of the area.
•
To conserve and enhance the cultural significance and character of open rural and scenic non urban landscapes.
20 The values specified in Schedule 4 "encourage large lot rural living and rural land use opportunities that protect the environmental and landscape values of the major environmental assets such as the Plenty Gorge, Kinglake National Park and the Yarra River.
21 A permit is required to develop and use a dwelling and there must only be one dwelling on a lot.
22 A permit is required to subdivide land and the minimum lot size specified in Schedule 4 is 40 hectares; however, the zone provisions allow a permit to be granted to create smaller lots if:
The subdivision is the re-subdivision of existing lots, the number of lots is not increased, and the number of dwellings that the land could be used for does not increase. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.
23 The Rural Conservation Zone was introduced into the Planning Scheme with Clause 57, Metropolitan Green Wedge Land, in 2004. The purpose of this clause includes:
•
To protect metropolitan green wedge land from uses and development that diminishes its agricultural, environmental, conservation, landscape natural resource or recreation values.
•
To ensure that the scale of use is compatible with the non-urban character of metropolitan green wedge land.
•
To encourage the location of urban activities in urban areas.
24 The subdivision of land into lots smaller than the minimum specified in the applicable zone is prohibited under this clause unless it is a re-subdivision with the same conditions I outlined in the zone provisions[1]. The use of land as a dwelling is prohibited unless it is the only dwelling on the lot.
25 This clause provides transitional arrangements for permit applications lodged with the Council before 19 May 2004 (such as this application), stating re-subdivision applications must be under the current Rural Conservation Zone whilst applications for dwellings must be considered under the previous Environmental Rural Zone Schedule 4.
26 The Environmental Rural Zone Schedule 4 contains a similar purpose to the Rural Conservation Zone. A permit is required in this zone to develop and use land as a dwelling.
27 The site is affected by three overlay controls.
28 The entire site is affected by the Wildfire Management Overlay and its purpose includes ensuring development satisfies fire protection objectives and does not significantly increase the threat to life and surrounding property from wildfire. A permit is required to subdivide land, and to undertake building and works associated with accommodation (dwellings).
29 The entire site is affected by the Environmental Significance Overlay Schedule 1 (Sites of Faunal and Habitat Significance) and a small linear strip of this site adjacent to the Yarra River is affected by Schedule 2 (Yarra River Environs). The purpose of this overlay includes identifying areas where development may be affected by environmental constraints and ensuring development is compatible with the identified environmental values. A permit is required under both schedules to subdivide land, construct a dwelling or construct or carry out works, and to remove vegetation.
30 Part of the site in proximity to the Yarra River is affected by the Land Subject to Inundation Overlay, and its purpose includes ensuring development maintains free passage and temporary storage of floodwaters. A permit is required to subdivide land, construct a building and construct or carry out works.
31 Clause 52.17 of the Planning Scheme requires a permit for native vegetation removal on land with an area in excess of 0.4 hectare, however there are a number of exemptions related to, amongst others, rural activities and the removal of the minimum extent of native vegetation necessary to construct, use and maintain a dwelling and ancillary swimming pools and vehicle accessways.
32 Clause 12.02-2 of the State Planning Policy Framework defines the non-urban area of Melbourne, outside of the urban growth boundary (that includes this site). It encourages this land to be retained for rural and agricultural uses, natural resources, landscape and conservation values.
33 The state planning policies also aim to control the subdivision of land (clause 19.01) and assist in the protection of biodiversity which includes native vegetation retention and providing habitats for native plants and animals (clause 15.09).
34 The Municipal Strategic Statement ('the MSS') in the Local Planning Policy Framework contains objectives for rural land use that seek to limit fragmentation of land, minimise infrastructure servicing demand, and protect and enhance the rural landscape character. The Framework Plan in the MSS designates this site for "conservation".
35 The Small Lot Subdivision local planning policy at clause 22.02 applies to land zoned Rural Conservation/Environmental Rural and includes any proposed lot with an area less than the zone's specified minimum, which is 40 hectares in this case. The objectives of the policy are:
•
To protect the productive agricultural potential of land so as to maintain farmland as a long term resource.
•
Maintain farm scale and avoid constraints on rural land use resulting from increasing development densities in rural areas.
•
Provide a sustainable basis for consideration of proposal for small lot subdivision for an existing dwelling, as exceptional variations to the Rural Conservation/Environmental Rural minimum subdivision area provisions.
•
Protect the agricultural, landscape and environmental values of the Shire.
36 Mr Szymanski highlighted the following policy guidelines as being relevant to this proposal:
•
The re-subdivision of existing lots reflects minor common boundary changes to reflect man-made features (such as fence lines) or natural characteristics of the land.
•
Proposals for re-subdivision of lots demonstrate that new property boundaries are based on planning grounds including consideration of the land capability and the environmental characteristics of the land capability and environmental characteristics of the site.
•
Proposal for re-subdivision of lots demonstrates that the subdivision will result in net environmental and/or agricultural benefits for the site and surrounding area.
•
Proposals for re-subdivision of lots should not include former reservations or lots subject to flooding or lots otherwise unable to be developed for residential purposes due to location/physical characteristics. Such lots will be encouraged to be consolidated with adjoining lots.
•
Property boundaries have been determined with consideration to land capability and environmental characteristics of the site and surrounding area.
•
The creation of lots that are smaller than the minimum lot size specified in the zone for land, should not be detrimental to environmental and landscape values in the area, and the continuation of established rural activities in the area.
37 The Siting and Design Policy for Buildings and Works in Non-Urban Areas at clause 22.04 aims to encourage appropriate and respectful siting and design of dwellings and other buildings in rural areas.
38 Amendment C11 proposes to include a Wildfire Management local planning policy in the Planning Scheme. It has been adopted by the Council and forwarded to the Minister for Planning for approval. The policy requirements include discouraging subdivision which would intensify wildfire risk to people and property, and encouraging safe siting and design of buildings, particularly at the base of slopes or on gentle south or southeast facing slopes.
39 Having considered the submissions and evidence, I have determined that effective land management of this site is best achieved through rural living in the form of fewer and larger allotments. I have outlined my findings on the environmental values of this site, its wildfire risk and development implications that have led me to conclude that this proposal should not be approved. However, I hope that my findings will assist the parties, and particularly the applicant, to understand the opportunities for this site in the event that subsequent planning permission is sought.
40 This site is rural land in one of the 12 green wedges located outside of the State government's metropolitan urban growth boundary and it is a reasonable distance from nearby townships. It has characteristics such as steep slopes, ridges and valleys that appear to have limited its use for farming (grazing) purposes. In fact, the area adjacent to the Yarra River appears to be the only part of the land that is regularly used for grazing at present. Mr Townshend and Mr Gold advised that the current owner of the site has had problems with trespassers, four wheel driving and the dumping of car bodies and other items. In addition, they acknowledged the land has not been actively managed so as to protect, maintain and enhance its conservation and environmental significance.
41 Mr Townshend submitted the major benefits of this proposal are the re-subdivision of the land into 6 more evenly sized lots; and the low density residential land use of each lot enabling the conservation and environmental significance of the site to be effectively managed and enhanced. This is the key question arising from this permit application that I must consider - are the benefits arising from this proposal sufficient justification for its approval? In order to answer this question, I have considered the planning policies and controls and the various aspects of this proposal in turn.
42 Clause 12.02-2 seeks to protect the green wedges of Metropolitan Melbourne from inappropriate development by, amongst others:
•
Ensuring strategic planning and land management of each green wedge area to promote and encourage its key features and related values.
•
Supporting development in the green wedge that provides for environmental, economic and social benefits.
•
Consolidating new residential development with existing settlements and in locations where planned services are available and green wedge area values can be protected.
•
Protecting areas of environmental, landscape and scenic value.
43 Similar outcomes are sought in the MSS in the Local Planning Policy Framework. Ms Bundy submitted the MSS strongly discourages inappropriate development in rural areas and emphasises environmental landscape objectives. The MSS designates this site for "conservation", which is described in clause 21.04-4 as:
Conservation farming (comprising a mix of bushland management and farming) and compatible rural activities on land ... in the Christmas Hills and Smiths Gully areas.
44 Conservation farming is an interesting term to use as I would think conservation and farming are two very different and potentially incompatible activities. However, with the emphasis in the policy framework upon management, protection and enhancement of the environment, I agree there needs to be some permitted activities or uses on green wedge or "conservation" land that will support and enhance the rural landscape character and environmental values. Hence, I note the policy framework is supportive of bushland management and farming.
45 The Council and objectors highlighted the fact that just because a dwelling is a permissible use (subject to obtaining planning approval) does not mean that a permit should issue and I agree. However, the same situation applies to farming activities, as agriculture is also a permissible use subject to obtaining planning approval. Therefore, I am of the view there is recognition in the zone that residential and farming land uses may be appropriate land uses, but they need to be considered on their merits. Furthermore, this zone actually provides a very limited range of uses that do not require planning approval, and this leads to the question as to whether land zoned Rural Conservation should be developed and used.
46 Mr Gold submitted the green wedge is all about sustainable management of land, therefore there needs to be ways for a private land owner to manage their land, such as through agriculture or rural living.
47 I agree with Mr Gold that there needs to be ways to manage land zoned Rural Conservation, and I note Melbourne 2030[2] states the green wedges are not parks, but are "active, living areas that include agriculture and many other non-urban activities"[3]. It acknowledges that each green wedge has unique features and will require a tailored management approach to promote and encourage its diversity. The identified features of the Nillumbik green wedge include "areas of environmental and landscape quality in the vicinity of the Yarra River" and Sugarloaf Reservoir, which are nominated as having environmental and social value. So, the question in this case is whether residential land use will promote, manage and encourage the recognised values?
48 The Nillumbik Planning Scheme contains 5 schedules to the Rural Conservation Zone and I have formed the view that the Council's answer to the above question is that residential land use is considered to be potentially suitable to promote, manage and encourage the environmental values of the land for at least 3 of the scheduled areas, including schedule 4 that affects this site. The evidence of this is found in the nominated conservation value (with my highlighted emphasis) and minimum subdivision area of each schedule, being:
To provide for rural residential development that is compatible with the environmental values of the land given the close proximity to the Plenty Gorge.
To provide for rural residential development that is compatible with the environmental values of the land given the close proximity to the Plenty Gorge and the potential environmental hazards in the area.
To ensure land use changes do not have an adverse impact on the landscape or strategic environmental values of the land.
To encourage large lot rural living and rural land use opportunities that protect the environmental and landscape values of the major environmental assets such as the Plenty Gorge, Kinglake National Park and the Yarra River.
To conserve and permanently maintain the existing rural character of the area by encouraging suitable agricultural pursuits while conserving the environmental characteristics.
49 Mr Gold stated a distinction needs to be made between rural living and rural residential development. Rural residential development is defined in the State government's Ministerial Direction No. 6 as lots of between 0.4 and 2 hectares intended primarily for residential use. I am not aware of any formal definition for rural living, but note Mr Gold described it as partly cleared land that is larger than 2 hectares and enables living on the land in harmony with its conservation value.
50 Melbourne 2030 specifies policy requirements for rural residential development in the green wedges[4], including protecting existing environmental qualities such as native vegetation, biodiversity and habitat. However, it makes no specific comment or distinction between rural residential and rural living. I note the Rural Conservation zone schedules do provide a distinction as schedules 1 and 2 refer to "rural residential development" with a minimum lot area of 1 or 2 hectares whilst schedule 4 (affecting this site) refers to "large lot rural living" with a minimum area of 40 hectares.
51 This leads me to the conclusion that there is planning policy support for effective land management of the conservation and environmental values of land, including this site, within the green wedge. The planning controls contained in the Rural Conservation zone specifically encourage rural residential or rural living development that is compatible with or protects the environmental values of the land. In the case of this site, the zone schedule encourages both large lot rural living and rural land use opportunities.
52 The Council, DSE and the objectors submitted that three of the lots have frontage to either Skyline Road (to the north) or the government road (to the west), but the remaining lots are landlocked. I agree with Mr Townshend that the site contains 6 titles (lots), and all but the existing lot 6 have access to a road, including the existing tracks on the site that lead to either Skyline Road or the government road. In regard to lot 6, there is an existing track that extends across Melbourne Water's land to connect it to the government road, and I accept Mr Townshend's submission that this has expressive or reciprocal rights in the form of a common law easement. Either the Subdivision Act 1988 or the Planning and Environment Act 1987 could be used to formalise this access arrangement. For these reasons, I am satisfied that there are 6 existing lots capable of being re-subdivided.
53 However, having said that, the fact that there are 6 existing lots does not mean that a re-subdivision will automatically be granted a permit as the proposal must be assessed on its merits. This approach to re-subdivision has previously been discussed by the Tribunal in the matters of Green Wedge Protection Group Inc & Ors v Nillumbik SC [2002] VCAT 1751 and Morris v South Gippsland SC & Ors [2002] VCAT 508. In the latter case, Senior Member Monk stated:
It is clear to me that a significant factor in the selection of the number of lots proposed here has been the fact that the subject land already comprises eight lots. The fact however that a permit may be granted for eight lots under the specific exemption provision at Clause 35.01-4 is not to imply however that a permit should or will be granted. This much is made very clear at Clause 65 of the Planning Scheme. This clause goes on to say that the Responsible Authority must decide whether a proposal will "produce acceptable outcomes in terms of the decision guidelines of the clause". These decision guidelines refer to the State and Local Planning Policy Framework, the purpose of the zone and any matter required to be considered under the provisions of the zone. In addition, specific guidelines are set out for subdivision ...
I am not persuaded that this present amalgam of eight lots must necessarily stand as justification for an eight lot outcome.
54 I agree that, in this case, the fact that there are 6 existing lots is not sufficient justification for 6 new lots. The decision guidelines of the zone, the overlays and clause 65 must all be considered, together with the relevant State and local planning policies. I must consider, amongst others, whether the site is suitable for subdivision[5] and whether the proposal will produce acceptable outcomes[6]. The outcomes include the capability of the land to accommodate the proposed residential development and use, and how the proposal conserves the values identified for the site.
55 Mr Townshend suggested that I give consideration to the possibility that each of the existing lots could be developed now with a dwelling. Whilst I agree that a planning application for a dwelling on each lot could be sought, this does not mean that each application would be approved. The development and use of an existing lot for a dwelling needs to be considered on its merits, and the considerations are likely to be similar to those of this proposal. Therefore, this existing development possibility does not persuade me that the re-subdivision into 6 lots is justified.
56 Another aspect of the existing conditions that I acknowledge is the potential for the 6 existing lots to be disposed of individually now, thereby breaking up the large parcel of land that exists now. However, if the lots were disposed of (sold) separately, any development on them would still need to be considered on its merits and the fact that a lot is in separate ownership does not mean that a planning application would be approved. Therefore, this possibility does not persuade me that the re-subdivision is justified.
57 Ms Bundy submitted that not every lot in Nillumbik is useable due to its environmental and/or topographical constraints. She pointed out that this site is isolated as it is surrounded by rural land or land contained in a Public Use Zone, including the Sugarloaf Reservoir and the aqueduct that splits this site. In order to determine the appropriateness of large lot rural living or a rural land use on this site (as suggested in the conservation value of schedule 4 of the Rural Conservation Zone), the environmental and conservation values of the site require consideration.
58 The Environmental Significance Overlay schedule 1 that affects the whole of this site contains the following statement of environmental significance:
Much of the Shire is heavily vegetated and supports a diverse range of native fauna and flora. Some of the species are listed under the Flora and Fauna Guarantee Act. There are specific sites occurring on both private and public land that have been identified as being of particular importance within the Sites of Faunal and Habitat Significance in North East Melbourne (Beardsell 1997). Identification, protection and enhancement of the environmentally significant sites and strengthening of connecting habitat links will assist in the maintenance of biodiversity within the Shire and surrounding areas.
59 Mr Bonny stated the site has been grazed and quarried and has weed infestation, and suggested environmental management has not occurred on the site to date. Mr Townshend agreed that parts of the site are degraded and stated the site is difficult to manage. Despite these circumstances, Mr McMahon provided ecological evidence describing the site as:
...substantially forested and forms part of an important contiguous habitat link, including the Yarra River, from Warrandyte State Park through the Bend of Isles (Environmental Living Zone), extending along the Yarra River Escarpment to Kinglake National Park[7]
60 Mr McMahon identified the following Ecological Vegetation Classes on the site:
Riverine Forest (within broader Floodplain Riparian Woodland)
61 Ms Stoddart explained that the Yarra River is identified as a strategic habitat link for the region, which is crucial for faunal movements as a number of species are dependent upon this link. The entire site forms part of an area defined as being of State Faunal Significance, and of high to very high Habitat Significance by the NEROC (Beardsell) Report. The NEROC Report also nominates a significant proportion of the site (adjacent to and south of the aqueduct) as a Critical Conservation Area, which is an area for threatened species, habitat or assemblages attributes. She expressed concern about the potential impact upon significant species likely to be found on or in close proximity to the site, being the Powerful Owl, the Common Bent-Winged Bat, the Bush Tailed Phascogale, the Growling Grass Frog, the Barking Owl and Latham's Snipe.
62 Mr McMahon gave evidence that the site has "considerable intrinsic conservation value and its viability [is] important to the long-term utility of the Warrandyte-Kinglake habitat link", and he had no concerns about the impact of the proposed residential development and use of the land. I highlighted earlier that the zone schedule encourages both large lot rural living and rural land use opportunities. In light of the submissions by the Council and DSE, and Mr McMahon's evidence, I am of the opinion that rural land use on this site as a whole, such as agriculture and grazing, are not desirable as they could have a greater impact upon the conservation values of the site than the current limited grazing activities. So this brings me back to merits of this proposal for rural living on lot sizes of between 6 and 14.4 hectares. The zone schedule encourages large lot rural living and the question is the appropriateness of the size, and hence the number, of the proposed lots.
63 Ms Stoddart submitted the NEROC Report recommends critical conservation areas (i.e. the area adjacent to and south of the aqueduct) should have the following conditions:
•
Management for the conservation of flora and fauna.
•
Conservation controls/planning overlays which preserve their designated biological attributes and consolidate the existing and potential occurrences of these attributes under conservation management.
•
The full address of environmental impacts on biological significance during planning consideration for any major development, extractive or habitat (including ground and surface water) alteration proposal.
•
No alteration to the hydrological cycle or waste disposal.
•
No public roadways or service easements (unless already approved or present).
•
No mining or substrate or native vegetation removal, logging and other non-renewable land uses.
•
No high level recreational use.
•
The preparation and implementation of conservation management plans.
64 Mr McMahon stated the proposal reasonably complies with 7 of the 8 conditions, with the exception being the recommendation for no vegetation removal. He gave evidence that it is not possible to avoid vegetation removal with this proposal, so the strategy has been to minimise impacts and achieve offsets for the loss of vegetation and old trees.
65 His analysis of the habitat hectare vegetation offset requirement has been based upon a total vegetation loss within the nominated building envelope areas and Mr McMahon stated the calculated offset could be achieved by a sustained improvement of 10% across the remainder of the site (outside of the building envelopes and wildfire fuel reduction zones) and the implementation of a 10 year vegetation management plan.
66 Mr Townshend submitted the site has been thoroughly assessed by Mr McMahon and is the only evidence before me, therefore I should be satisfied that the environmental values of the site will be protected and proactively managed. Mr Townshend also submitted that the net gain outcome on this site is a compelling reason to approve the re-subdivision.
67 Whilst I agree with Mr Townshend that Mr McMahon has undertaken a thorough assessment of the environmental values of the site, I am not satisfied that the values of some of the lots will be adequately protected. During the hearing, the Council and DSE expressed concern about the building envelope for lot 1 requiring the removal and fragmentation of vegetation in an intact bush area of very high conservation significance that is listed as vulnerable in this bioregion. The draft government document "Native Vegetation Management - A Framework for Action" requires clearing of vulnerable, very high conservation significance vegetation "be prohibited except in exceptional circumstances". Mr Costello stated DSE does not believe this proposal is an exceptional circumstance.
68 During the onsite inspection, the applicant provided a modified house site (building envelope) plan for lot 1 and explained the Ironbark trees are mostly on the ridge adjacent to Skyline Road. Therefore, the dwelling and driveway locations have been changed to avoid tree removal as much as possible. DSE suggested all vegetation losses need to be considered and I agree. Based on Mr McMahon's analysis[8], the vegetation in and around house site 1 is of high quality; and the house site, driveway and wildfire fuel reduction zone remain mainly within the Box-Ironbark Forest EVC. Having regard to the size of this overall site and the size of proposed lot 1, this EVC extends over about a third of lot 1 as well as a small portion of lot 4. Given its very high conservation significance, I am of the opinion vegetation removal and development within this area should be avoided. Therefore, I do not consider the subdivision between proposed lots 1 and 4 to be a good outcome and I do not support the development sought in lot 1.
69 Lots 5 and 6 are proposed to be located within the critical conservation area and within the Riverine Escarpment Shrubland EVC, which is rare and of very high conservation significance. I note that these lots contain areas of land that has been quarried and/or grazed, however the house site and fuel reduction areas for lot 6 are partly within existing bushland and the terraced garden for lot 5 is within close proximity of a creek environment. In my opinion, any new house site and fuel reduction zone should be confined primarily to the existing disturbed areas of this EVC. Mr McMahon acknowledged that the net gain required between these two lots may require some offset from one lot being provided on the other lot. Given the rare or very high conservation significance, I am of the opinion it is desirable for this EVC to be contained primarily within one allotment rather than two.
70 DSE expressed concern that the habitat hectare loss for lots 1, 5 and 6 has not dealt with the need to provide like for like replacement within the same EVC. Mr McMahon expressed concern about the ability to provide like for like replacement on this site. Whilst I appreciate that net gain can be provided off site, I find these EVCs have very high conservation significance. Mr Townshend submitted the evidence suggests there are good opportunities in and around the site to achieve like for like vegetation replacement. Given the high conservation significance of these lots, I am of the opinion that any loss of native vegetation should be replaced within the same EVC and this should be detailed in the environmental or land management plan.
71 The Council submitted lots 3 and 4 appear to be on the edge of the critical conservation area. I agree with this and note the majority of these lots are generally contained within an area of high habitat significance. DSE expressed concern that the new access roads proposed for these lots and the breaks created by the dwellings will impact upon the linear habitat corridor. Based on Mr McMahon's analysis[9], the vegetation in and around the house sites, access tracks and modified fuel zones (for wildfire management) of lots 2, 3 and 4 are within the Grassy Dry Forest EVC that is nominated as being of least concern and the vegetation assessment around the house sites is generally of moderate quality. Based on these environmental characteristics, I am satisfied with the proposed location of the house sites. I note that the Siting and Design for Buildings and Works in Non-Urban Areas local planning policy supports the clustering of buildings, therefore the proximity of house sites 3 and 4 is the type of outcome that should be encouraged.
72 The Environmental Significance Overlay Schedule 1, the Environmental Rural Zone and the Rural Conservation Zone all require consideration of the need for an integrated land management plan. Mr Gold acknowledged that, in hindsight, a draft land management plan could have been done by the time of this hearing but submitted it is reasonable for it to be a condition of permit. Mr Townshend elaborated on this on the last day of the hearing by explaining the following draft conditions would achieve the land/vegetation management:
i
Subdivision and works plans showing all required works to facilitate the subdivision, including indicative fuel reduction zones associated with each lot's building envelope.
ii
A construction management plan for the subdivision works containing the location and detail of vegetation removal, weed management and tree protection measures.
iii
An environmental management plan containing the location and details of vegetation removal as well as replacement planting throughout the subdivision; weed control; provision for offsets for native vegetation loss; measures to improve the habitat value; environmental improvements to be implemented prior to a Statement of Compliance; and ongoing site and lot management objectives.
iv
A section 173 agreement containing a list of rules of occupation of each lot including no livestock or domestic animals, no agricultural uses, development limited to the building envelope of each lot, vehicle access limited to identified tracks, and observing the obligations of the environmental management plan.
v
No indigenous vegetation removal outside the building envelopes on each lot without Council consent.
vi
A construction management plan for building and works on lots 3, 5 and 6 outlining how compliance with the earlier construction management plan (at point ii above) will be addressed.
73 Mr McMahon pointed out that this proposal provides for the consolidation of land with a unified conservation regime. He stated some of the requirements of the environmental management plan will include "umbrella requirements" for the whole of the site, and in some instances offsets for one lot may need to be provided on another lot (e.g. between lots 5 and 6). However, he did acknowledge the detail of the implementation of the net gain and old tree offsets have not yet been finalised. In addition, Mr McMahon advised the new owners of each lot would need training to develop skills to manage their lot or they would need to engage someone to do it for them. He suggested that the section 173 agreement will be the "encouragement" to owners to undertake the required environmental management as it will be enforceable at VCAT if necessary.
74 The extent of documentation required, the permit conditions required and the legal obligations necessary in order to achieve what Mr McMahon and Mr Gold consider to be an acceptable outcome appears comprehensive, potentially cumbersome and almost onerous for each new lot owner.
75 Whilst I have outlined concerns in regard to the environmental issues for lots 1, 5 and 6, I am of the view that a form of rural living on this site would be an appropriate outcome. I consider that 'large lot' rural living would enable this site to be better and more effectively managed. However, I do not consider 6 lots to be an appropriate response to the environmental values of this site because of the concerns I have already expressed and the extent of works required (e.g. new/altered access tracks, provision of services, and the extent of development and fuel reduction areas). Further, the extent of control (by way of permit conditions) necessary for the new owners as part of a planning permit has also been an influencing factor in making this decision. I am of the opinion a more manageable and acceptable outcome on this site would be fewer lots, larger lots and therefore fewer land owners who collectively will need to manage this site.
76 Mr Adair explained that the southeast aspect of this site does not normally generate fire behaviour of risk to life, but the combination of slope, vegetation and topographical features on this site does present a fire risk. He advised that, in the event of a fire, CFA assistance to lots 3, 4, 5 and 6 is not guaranteed as the safety of the fire fighters themselves is paramount.
77 Mr Gold acknowledged this and stated that the site is expected to be self sufficient, particularly in regard to fire protection; therefore each lot has been designed with a building envelope, fuel reduction zones and on-site water supplies to comply with the standards for wildfire protection contained in the Planning Scheme and sought by the CFA.
78 Early in the hearing, CFA and DSE had concern about the extent of fuel reduction required in the road reserve of Skyline Road for the building envelopes on lots 1 and 2 and along the Yarra River for the building envelopes on lots 5 and 6. However, at the site inspection on 6 June, modified plans of the fuel reduction zones and a wildfire management option 3 report were provided, which removed the requirement to modify the adjoining public land at Skyline Road and the Yarra River. Mr Adair advised this report satisfied the CFA's concerns with regard to all lots except lot 5.
79 The house to be built on lot 5 is proposed to be setback 2 metres from Melbourne Water's land and 2 metres from the Yarra River reserve. The Melbourne Water land in particular contains significant vegetation and the CFA is concerned about the potential for direct flame contact, despite the proposed additional protection provided by 12m long by 2m high steel radiant heat barriers. Mr Adair suggested that the CFA's concerns may be overcome by either a greater setback of about 20 metres from, or greater vegetation management (including fuel reduction) on, Melbourne Water's land. Alternatively, Mr Townshend suggested that the CFA's concerns could be dealt with via permit conditions regarding the detailed construction of the dwelling and its fire protection features.
80 Having considered the submissions and inspected the proposed house site, I agree with the CFA that the proximity of this dwelling to vegetated land that is in separate ownership creates a fire risk and the proposed siting of the dwelling has not adequately addressed this risk. Given the size of the proposed lot, I am of the opinion a house should be sited further away from the existing vegetated areas of both Melbourne Water's land and the Yarra River reserve.
81 Mr Adair stated CFA is seeking modifications to the fine (ground) fuels rather than tree removal in the fuel reduction zones nominated around each building envelope. These modifications could entail clearing of about 50% of existing understorey vegetation ranging in height from 5cm to 2m. However, I note the option 3 report provided on 6 June contains "ground fuel" management techniques and a requirement that "elevated fuels" for each lot (including 4 metre high Burgan on lots 5 and 6) be sparsely distributed clumps not exceeding 50% cover of the fuel reduction zone. This suggests to me that there may be elevated fuel/vegetation reduction in each lot. Mr McMahon's analysis of vegetation removal referred to the "potential loss of a proportion of the tree and shrub layers" of the inner and outer fire protection zones[10]. In light of the environmental values of the site and the Council's and DSE's concerns about the extent of vegetation removal, I suggest that any new permit applications should clearly identify the extent of vegetation removal for fuel reduction and whether an appropriate balance has been reached with the ecological values/analysis of the same areas. Mr Adair also pointed out that the location of the net gain offsets required may impact upon the CFA's assessment of fire risk, and again I suggest that any new permit applications should consider where any offsets will be provided so that the fire reduction and net gain requirements accord.
82 During the hearing and the on-site inspection, Mr Adair questioned whether the slope of the land and the topographical features will make it difficult to sustain the vegetation management requirements. For example, it was suggested by some of the parties during the site inspection that the house site for lot 1 had a slope of about 22%, lot 2 had a slope of about 25-30% and the area where the new track to access lot 3 will be had a slope of 40%. I agree with Mr Adair that sloping land of varying degrees can make land management and fuel reduction management a difficult and arduous task. Wildfire management is an important characteristic of this area that is recognised in the Planning Scheme. As such, I am inclined to adopt the earlier statement by Mr McMahon that the section 173 agreement should provide the "encouragement" to owners to undertake the required fuel reduction management as well as the overall vegetation management. I note that this aspect of the development is not specifically mentioned in the draft condition for the section 173 agreement and was discussed by Mr Townshend and Mr Adair on the last day of the hearing. I am of the opinion the inclusion of a condition for a section 173 agreement on any subsequent permit for this site should include the obligations for fuel reduction management.
83 For the reasons outlined already, I have found that lots 1, 5 and 6 are problematic for environmental and wildfire management reasons. Therefore, I am of the opinion that the re-subdivision of the site into 6 lots is not an appropriate planning outcome. However, I have also acknowledged in a general sense that the use and development of the site for rural living is encouraged by the planning policy framework as an effective way to manage its conservation and environmental values. Given this general support for rural living, and in anticipation that the applicant may wish to pursue another application in the future for dwelling use and development, I have provided comments and/or findings on the use and development components of this proposal[11].
84 Planning approval is required to use each lot for the purpose of a dwelling and the Table of uses in the Environmental Rural Zone state that this use is conditional as it must meet the requirements of clause 35.02-2. This clause states that a lot may be used for a dwelling provided specific requirements are met relating to vehicle access, sewerage, water supply and electricity. In other words, there must be sufficient infrastructure in place, or there must be details of the infrastructure to be provided to meet these requirements, in order for the site to be considered suitable for use as a dwelling.
85 In this instance, each lot will require the installation of a waste water treatment system; either a new driveway or modified access tracks to each house site; a water supply and electricity connections. The draft permit conditions require the final location of the proposed access tracks; any retaining walls and batters for the tracks; and indicative effluent disposal envelopes that avoid slopes greater than 25% and watercourses. For each lot, these requirements will entail some building and works, and all buildings and works associated with a permit required use also require planning approval. In addition to which, the overlay controls also require planning approval for buildings and works, including the construction of a dwelling. In other words, the use of a dwelling on this site will be contingent upon certain works taking place and these works will require planning approval as well. Given this, I suggest any subsequent planning application for rural living on this site should at least contain the details of the building and works necessary to achieve and satisfy the use requirements for a dwelling.
86 It is proposed to construct dwellings on lots 3, 5 and 6, a terraced garden on lot 5 and a pool on lot 3, as well as a driveway to lots 1, 2 and 4. Building envelopes of 1,000 square metres are nominated for lots 1, 2 and 4.
87 I have already expressed concern about lots 5 and 6 having regard to the environmental values and wildfire risk. I also wish to comment that I do not consider the terraced garden for lot 5 to be appropriate given the environmental characteristics of this lower section of the overall site.
88 I was advised during the on-site inspection that the pool for lot 3 may involve a cut of about 1.5 metres into the site. Mr McMahon advised that he had not given specific regard to the backwash of the pool and this would need to be considered so that it is released slowly and possibly in different locations so as to dissipate the impact upon the surrounding vegetation. I suggest that this detail should be considered as part of any subsequent proposal for the development of the house and associated infrastructure.
89 Mr Bonny highlighted that development in other areas of Christmas Hills has been located close to roads or in clusters to limit the extent of development and activity on the land. He submitted that the terrain of this site is more challenging than, say, the Bend of Islands area and yet the activity is spread throughout it because of the layout of the lots, the dwellings/building envelopes, associated infrastructure (including waste water treatment) and the roads.
90 I have already determined that there needs to be fewer lots and larger lots, and this will assist in minimising the impacts upon the environmental values of the site. I note that there are existing access tracks and power lines crossing the site that, in my opinion, provide opportunities for development that can minimise the environmental impacts. Mr Gold explained that the house sites are located on the flatter sections of the site, such as ridge tops, and on generally disturbed areas, such as the existing access track system and grazing/quarrying areas. I agree with Mr Gold that utilising the flatter ridge tops and existing disturbed areas is an appropriate design response for this site. This proposal contains a realignment of the existing access track on lots 3 and 4, which would require fill of 1.5-2.0 metres and retaining walls on a slope of about 40%. Whilst this aspect of the design would not be sufficient reason to refusal the proposal, I am concerned about the appropriateness of such works given the slope and potential impact upon the surrounding vegetation, and I suggest that its necessity be reviewed as part of any new permit application.
91 I agree with Mr Gold's evidence that the proposed house sites along the ridgelines are below the tree canopy so that any view of the dwellings will be localised, which accords with the policy requirements of the Siting and Design for Buildings and Works in Non-Urban Areas local policy in the Planning Scheme.
92 There is planning policy support for effective land management of the conservation and environmental values of this site. The Rural Conservation zone schedule specifically encourages large lot rural living and rural land use opportunities that protect the environmental and landscape values. Having regard to these values, I am of the opinion that a large lot rural living outcome would be an appropriate method of achieving effective land management of this site.
93 The fact that there are 6 existing lots does not mean the proposed 6 lots should be approved. The suitability of the proposed lots and whether they produce acceptable outcomes must be considered, and this includes how the proposal conserves the environmental values of the site. There are environmental and wildfire constraints associated with the subdivision and development of lots 1, 5 and 6. There is also the necessity to implement a series of strict environmental management conditions and I am of the opinion effective land management of this site is best achieved through fewer and larger allotments.
For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.
[5] The Rural Conservation Zone and the clause 65 decision guidelines
[7] Page 1 of Mr McMahon's evidence report
[8] Refer to pages 7 and 11 of Ecology Australia's Flora, Fauna & Net Gain Assessment report
[9] Refer to pages 7 and 11 of Ecology Australia's Flora, Fauna & Net Gain Assessment report
[10] Refer to table 10 on page 40 of Ecology Australia's Flora, Fauna & Net Gain Assessment Report
Cock
Nillumbik SC [2005] VCAT 2156