Crest Property Group v Nillumbik SC [2001] VCAT 2333 (12 December 2001)

Planning List; Nillumbik Planning Scheme; Residential 1 Zone; Subdivision; Site Responsive Design; Lot Size, response to slope, aspect and existing vegetation; Road Layout and Intersection Safety

Medium Neutral Citation [2001] VCAT 2333

Subject Land 76-84 Old Diamond Creek Road, Diamond Creek

A. In Application for Review No. 2001/50311, Permit No. 4/2001/P is granted and the Responsible Authority is directed to issue the permit, for the land at 76-84 Old Diamond Creek Road, Diamond Creek. The permit will allow:

The subdivision of the land into two lots (boundary realignment) in accordance with the endorsed plans.

It is directed that the permit must contain the following conditions:

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

2. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

3. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

4. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

B. In Application for Review No. 2001/020302, Permit No. 546/2000/14P is granted and the Responsible Authority is directed to issue the permit for the land at 76 Old Diamond Creek Road, Diamond Creek. The permit will allow:

The removal of native vegetation and the subdivision of the land into 32 lots in accordance with the endorsed plans.

It is directed that the permit must contain the referral authority Conditions Nos. 7 to 20 as set out in the draft of conditions tendered to the Tribunal in Application for Review 2001/020302 and with Conditions No. 1 to 6 on that draft amended to read as follows:

1. Prior to the certification of the plan of subdivision three (3) copies of a plan, drawn to scale and dimensioned, shall be submitted to the Responsible Authority. The plan must be generally in accordance with the plan (reference 2280000 26 June 2001) substituted by the Tribunal in Application for Review No. 2001/020302, but modified to show:

(a) Only the trees required to be removed for road construction purposes and Trees 5, 8, 9, 10, 14, 21, 23 and 24 shown with a cross;

(b) The inclusion of Trees 3 and 17 as trees to be retained;

(c) "Building Exclusion Zone" as defined in the notations section on the plan dated 31 January 2001;

(d) Hatched building exclusion zones as found on the advertised plan dated 14 November 2000 but amended to include Trees 3 and 17. Such zones shall include dimensions and boundary setbacks;

(e) A sealed pedestrian path through the reserve from the long court to the west boundary and from the west boundary to Jacaranda Drive at a minimum grade of 1:14 (in anticipation of the subdivision of the adjacent land and to the west a path through this land);

(i) The consolidation of Lots 11 to 14 into three lots, deleting one lot and with the current Lot 11 increased in size so that Trees 2 and 17, including critical root zones, are located within Lot 11. The Building Exclusion Zone for the new Lot 11 must include the canopy of all trees. The excess area of the deleted lot must be apportioned between the remaining six lots.

(ii) If desired by the permit applicant, a northwards extension to the depth of Lots 19 to 22 to include Trees 15 to 18 and a more balanced lot size.

(iii) The consolidation of Lots 26 to 31 into five lots, deleting one lot. These lots must have a minimum area of 800 sq m.

(iv) Re-design of the court bowl adjacent to Lots 11 and 12 to ensure retention of Tree No. 3.

Such plan shall be to the satisfaction of the Responsible Authority and when approved, shall be endorsed and form part of this permit.

2. Prior to the certification of the plan of subdivision:

(a) Post and wire fencing shall be constructed on the boundary of open space reserves and residential allotments and bollards shall be constructed at 1.5m intervals on the boundary of open space reserves and road reserves. No new fencing or bollarding is required on the west boundary of the proposed reserve.

(b) Any "tree to be retained" shall be fenced with 1.2m high, three strand, post and wire fencing located at the canopy dripline of the tree. Such fencing should make allowance for trees which cross boundaries, anticipating the construction of boundary fencing. Trees located within Council's open space reserve do not need to be fenced, however the canopy of these trees which extend into private lots and road reserves do need to be fenced. The fenced land shall not be used for any purpose during construction activities.

(c) Detailed construction plans and computations prepared in accordance with Nillumbik Shire Council's "Subdivisional Design and Construction Standards" and "VicCode 1" or any successor code, shall be submitted to the Responsible Authority for approval. These plans shall generally provide for full road construction, underground drainage to service each allotment and roads, provision of service conduits, vehicle crossings, street signs and landscaping including landscaping to the Old Diamond Creek Road frontage. Except with the consent of the Responsible Authority no services shall go through Old Diamond Creek Road. Such plans shall show all trees as per the endorsed plan and be designed with the Building Exclusion Zones and trees in mind, locating easements, services and other works outside of these areas wherever possible.

(d) A landscaping and works plan consistent with the construction plans shall be submitted for the upgrading of the road reserve and public reserve. Such scheme shall consist of informal tree planting works, with trees to be of local progeny and to consist of Yellow Box Eucalyptus melliodora, Red Box Eucalyptus polyanthamus or other species indigenous to the area. Such scheme shall include planting densities and a costing structure for the undertaking of all works.

3. Prior to the certification of the plan of subdivision the owner of the land must enter into an agreement with Council pursuant to Section 173 of the Planning and Environment Act 1987. The purpose of the agreement must be stated as being to provide open streetscapes with native tree canopy, to protect vegetation within road reserves, on private land and on public land, to minimise the impact of excavation works and to allow sufficient areas on site for the planting of trees with a spreading canopy. It must also be stated, within the agreement that consistent with its purposes, the agreement provides for front fencing controls, tree protection controls, street planting and planting on lots. The agreement must be prepared and registered on all lots pursuant to Section 181 of the Planning and Environment Act 1987, at the cost of the owner and provide that:

(a) Except with the consent of the Responsible Authority all buildings and works including excavation, trenching, filling, paving and installation of underground services are to be kept outside of all Building Exclusion Zones.

(b) No "tree to be retained" as shown on the endorsed plan shall be removed.

(c) Fencing around any "tree to be retained" shall be maintained until all works or buildings have been completed and only removed with the written consent of the Responsible Authority. Upon the issue of occupancy permits for a dwelling the owner can contact Council in writing to request permission for the removal of fencing. The fencing must be maintained at all times to the satisfaction of the Responsible Authority.

(d) Except with the consent of the Responsible Authority fencing must not be constructed forward of the front dwellings. This is intended to give the development a more open bush feel and applications to construct fencing within the frontage will not be supported.

(e) An application to Council is required to remove any "tree to be retained" or to carry out any buildings and works within a "Building Exclusion Zone". Any application must be accompanied by an arborist report which details the health and vigour of the protected tree and examines in detail any remedial works to be undertaken to retain the tree. Development should be located to respect and acknowledge trees and their critical root systems. Applications to remove healthy trees will not be supported.

(f) Within six months of the issue of an occupancy permit for a dwelling the owner must plant three native trees of local progeny on the site (Yellow Box Eucalyptus melliodora, Red Box Eucalyptus polyanthamus or other species indigenous to the area) and the owner shall notify Council in writing that these planting works have been carried out.

(g) The endorsed plan and the landscaping and works plan shall be included in the agreement.

(h) The developer must contribute $22,000.00 (for 32 lots) towards the provision of a suitable stormwater litter trap treatment device of sufficient capacity to treat all stormwater from the proposed development within the catchment.

(i) The developer must contribute to half the cost of reticulated water connection to the open space reserve. The remainder to be provided by the Council until reimbursed by the developer of the adjoining land.

4. Only trees shown with a cross on the endorsed plan may be removed as part of the subdivision process. All other trees must be retained and maintained in good health to the satisfaction of the Responsible Authority, unless otherwise approved for removal.

5. Prior to the issuing of a Statement of Compliance:

(a) Jacaranda Drive must be constructed to a width of 7.2m between kerb inverts and with a 1.2m wide footpath on one side.

(b) The southern court must be constructed to a width of 5.5m between kerb inverts with a 1.2m wide footpath on one side.

(c) Other than at its intersection with Old Diamond Creek Road, the north-south road must be constructed to a width of 5.5m between kerb inverts and with a 1.2m wide footpath on one side as well as appropriate traffic measures, including speed management devices, speed limit signs, minor deviations (eg. page 39 VicCode 1) and the like, to the satisfaction of the Responsible Authority. The north-south road must be wider and flattened at its intersection with Old Diamond Creek Road to ensure safe sight distances and to reduce the gradient.

(d) Old Diamond Creek Road must be fully constructed for half its width from the existing constructed road to the east to westernmost portion of the frontage, with 100mm deep crushed rock and a 25mm deep asphalt seal, and with shoulders and table drains as required.

(e) Each lot shown on the certified plan shall be drained to the satisfaction of the Responsible Authority. All works constructed must be in accordance with the approved construction plans and computations unless otherwise approved by the Responsible Authority.

(f) Roads and drainage must be constructed in accordance with plans and specifications prepared to the satisfaction of the Responsible Authority.

(g) The applicant shall provide a bond to the value of the landscaping works shown on the landscaping and works plan required by Condition 2(d). Such bond to be agreed by the Council in order to undertake the landscaping works upon completion of the majority of residential development within the subdivision.

(h) The open space reserve shall be landscaped as follows:

* Top dress, level, landscape, pave and generally prepare the public open space reserve(s) in accordance with the endorsed plan.

* Remove any noxious weeds located on the reserve.

* Arrange for the connection of the public open space reserve(s) to a reticulated water supply.

* The planting, and where possible, mounding of the tree reserve in accordance with a plan to be submitted to and approved by Council.

* Construction of footpath to the satisfaction of the Responsible Authority.

6. This permit will expire if one of the following circumstances applies:

(a) The subdivision is not started within two years of the date of this permit.

(b) The subdivision is not completed within five years of the date starting.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

For the applicant for review: Mr Mark Naughton, solicitor with Minter Ellison, lawyers. Mr Naughton called the following persons to give evidence:

* Mr Andrew Rodda, town planning consultant with Contour Consultants;

* Mr Stephen Hunt, traffic engineer with Grogan Richards.

For the Responsible Authority : Mr Terry Montebello, solicitor with Maddock Lonie and Chisholm, lawyers.

For the respondent objector in Mr Victor Colvin, in person.

1. Two applications for review were the subject of this proceeding. Both were applications under Section 79 of the Planning and Environment Act 1987 (P & E Act) to review the failure of the Responsible Authority to grant permits within the prescribed time. Application for Review No. 2001/020302 was for a 34 lot subdivision and Application for Review No. 2001/050311 is for a two lot subdivision which in effect is a boundary realignment between two lots, one of which is the lot comprising the land in the former application for review. The two lot subdivision would in effect widen the subject land in the former application in order to facilitate access into that land from Old Diamond Creek Road. It would be fair to say that there was no contest in relation to this latter application. The Responsible Authority had failed to determine the application within the prescribed time as it affects the other application. There is no need to refer in any detail to the two lot subdivision other than to find that its approval will facilitate the proper development of the other subdivision. Given my findings in relation to the former subdivision it is appropriate to grant a permit for the two lot subdivision subject to the statutory conditions set out at Clause 66.01 of the Planning Scheme and a further condition relating to endorsed plans.

2. Permit Application No. 546/2000/14P was lodged with the Responsible Authority on 1 August 2000. Originally the proposal was for 35 lots and included acquisition of a Council reserve on abutting land within the Juane Park Estate. The plans were subsequently amended to delete this acquisition and to reduce the number of lots to 34.

3. Following the giving of public notice of the application for permit 10 objections were received. The grounds for objection were summarised by Mr Montebello as follows:

"* The identification of lots for dual occupancies (subsequently deleted from the application);

* Too many lots and the lot sizes are too small (ie. overdevelopment of the land);

* Lot sizes are too small - the average in the area is 850m2 and the proposal is at 750m2;

* The private open space is too steep and too small;

* Insufficient tree protection (all trees should be protected);

* The shire is a green wedge and the land should be maintained as open space;

* Increased traffic and safety hazard at the intersection of Old Diamond Creek Road and Ryans Road;

* The acquisition of the reserve (subsequently deleted from the application);

* The proposal fails to acknowledge the site's proximity to the Low Density Residential Zone;

* Fencing needs to be constructed prior to approval."

4. As noted by Mr Colvin this summary fails to include his own objection which raised concerns in respect of access from the subdivision onto Old Diamond Creek Road. Mr Colvin, relying on the advice of an engineer, had contended that the land was too steep and the road connection could constitute a safety hazard.

5. The application for review against failure was lodged in March 2001 and the Responsible Authority eventually considered the application in August when, contrary to its Planning Officer's recommendation, it determined that it would have refused a permit for the following reasons:

"* The intensity of the development is not consistent with or sympathetic with the character of the surrounding area.

* The proposal does not acknowledge significant site constraints such as topography.

* The proposal will cause significant traffic and safety issues for the area."

6. Subsequent to the application for review being lodged, but prior to the Council's consideration of the application, the Council commissioned T.T.M. Consulting to prepare a traffic engineering assessment of Old Diamond Creek Road and in particular its intersection with Ryans and Edinburgh Roads to the east of the subject land. VicRoads, although not a statutory referral authority for the purpose of this application, had nevertheless objected to the grant of a permit owing to its concerns about this intersection's capacity to accommodate more traffic. As a result of the T.T.M. study - which indicated that the subdivision would not have an adverse impact - VicRoads withdrew its objection.

7. The hearing of these two applications for review took place over two days. Except for Mr Colvin who made an oral submission and relied on the written report of a civil engineer engaged by him to assist in the drafting of his original objection, the parties' representatives and the witnesses called by Mr Naughton tabled and spoke to written submissions or reports. These, together with the plans, photographs and other documents tabled in the course of the hearing have been attached to the Tribunal's file.

8. At the conclusion of the hearing I directed the Responsible Authority to provide further written submissions in relation to the suggested conditions for permit set out in the officer's report to the Council. These conditions had been tabled by Mr Montebello, on a without prejudice basis, during the hearing and were commented on in detail by Mr Naughton towards the close of his submissions. A similar invitation was extended to Mr Colvin with leave to respond in writing within a further five days to Mr Naughton's clients. Submissions were subsequently received from the Responsible Authority together with responses from the permit applicant. Unfortunately the correspondence accompanying these conditions was coloured by some rather unnecessary accusations which suggested at first instance that the Responsible Authority did not have leave to make further submissions. I trust what I have said above clarifies that the Responsible Authority was so directed.

9. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), Mr Naughton requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application. These revised plans were dated 26 June 2001 and, compared to the advertised plans, show trees to be removed and survey numbers for those trees. There was no objection to the substitution of these plans and although differences are only very minor, in order to put the matter beyond doubt, I made the amendment in the manner requested.

10. The following description of the subject land and surrounding locality derives primarily from Mr Rodda's witness statement. Because I have made a number of changes and clarifications I have not formally quoted from his report but I should acknowledge it.

11. The subject land is located on the south side of Old Diamond Creek Road, west of Juane Park Drive.

12. The part of the site to be subdivided into 34 lots has an area of approximately 3.46h and is mostly rectangular in shape other than for the cut-out to accommodate Lot 1 in the two lot subdivision. Lot 1, No. 76 Old Diamond Creek Road, contains a dwelling and outbuildings. The remainder of the land is presently vacant with a number of, mostly native trees of varying size and health. These trees are generally located towards the centre of the site. There is also a stand of mostly immature native trees within the road reserve, abutting the site's northern boundary. The topography of the land is generally steep with a minor gully to the north and a more significant gully running through the southern third of the land.

13. Old Diamond Creek Road is a partly sealed/partly unsealed road and has been closed to through traffic approximately mid-way along its length and to the west of the subject land. To access the review site, vehicles must enter Old Diamond Creek Road from Ryans Road to the west. Following the two lot subdivision or boundary realignment, the review site would have a frontage of approximately 60.39m to Old Diamond Creek Road.

14. Jacaranda Drive, which is accessed via Juane Park Drive to the east, presently terminates at the review site towards its southern end and in line with the significant gully referred to earlier.

15. The subject land and land to the south of Old Diamond Creek Road is located within a developing urban residential area. Land adjoining to the east, including land accessed via Juane Park Drive, has recently been subdivided into residential lots ranging in area from 800 sq m to 1,500 sq m. These lots are currently being developed for dwellings. Land immediately to the west and south is undeveloped at this stage. It is however zoned Residential 1 and can therefore be said to be planned for conventional urban residential development. Land on the north side of Old Diamond Creek Road is zoned and developed for low density residential living with lot sizes of approximately 4,000 sq m. Mr Colvin occupies one of these lots. His driveway is almost directly opposite the northern access road into the proposed subdivision. His and many of the other properties on the north side date from the 1960s and are well vegetated with dwellings being mostly obscured or nestled into the landscape.

16. The application, being the subject of Application for review No. 2001/020302, is to subdivide Lot 2 of the two lot subdivision or boundary realignment into 34 residential lots ranging in area between 710 sq m and 1,024 sq m. A public open space reserve with an area of 1,700 sq m is also proposed, adjacent to the western boundary and towards the centre of the land.

17. A court is proposed with access from Old Diamond Creek Road. This court would contain 18 lots and provide access to the northern part of the open space reserve. As noted earlier this road access relies on the approval of the two lot subdivision or boundary realignment. A westward extension of Jacaranda Drive is proposed through the site from Juane Park Drive, together with a court extending south of Jacaranda Drive. A total of 16 lots is proposed with access from Jacaranda Drive or this court. Access to the southern end of the open space reserve is also provided from Jacaranda Drive.

18. It is proposed to retain a number of trees, most of which lie within the proposed Public Open Space Reserve although, significantly for this review, there are a number on the lots immediately abutting the reserve to its east namely Lots 11 and 12 with a further tree on Lot 22, to the south-east of those lots. These trees are mostly Eucalyptus polyanthemos (Red Box) and Eucalyptus goniocalyx (Long Leaf Box) with a scattering of Eucalyptus rubida (Candlebark). There are, in addition, a few wattles that while native, are not indigenous to the area. One Wattle, Cootamundra Wattle, is an acknowledged weed species for the area and would not be protected by the native vegetation controls as Clause 52.17.

19. The subject land is zoned Residential 1 under the Nillumbik Planning Scheme. At Clause 32.01 the relevant purposes of the Residential 1 Zone are:

"* To implement State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households."

20. A permit is required under Clause 32.01-2 of the Scheme to subdivide land within a Residential 1 Zone. In addition to the decision guidelines at Clause 65, the Responsible Authority must consider the provisions of the Victorian Code for Residential Development - Subdivision and Single Dwellings, April 1992 (VicCode 1) when considering such applications lodged prior to 24 August 2001.

21. The subject land is also affected by two overlay controls, namely Nillumbik's Schedule 1 to the Environmental Significance Overlay (ESO1 - Site's of Faunal and Habitat Significance) and the Wildfire Management Overlay. The subdivision of land affected by either of these overlays also requires a permit. ESO1 affects only a very minor part of the subject land along its eastern boundary. The Wildfire Overlay affects the whole of the land although it is relevant that the overlay terminates at the site's western boundary. It would be fair to say that the provisions of these overlays and their impact on the proposed subdivision were not in contention in this application for review. Accordingly I see no reason to set out their provisions in any greater detail. Mr Rodda's evidence and the officer's report to Council, relied upon by Mr Montebello, make sufficient reference.

22. Because the subject land has an area in excess of 0.4h, a permit is also required - as noted by Mr Rodda at paragraph 4.5 of his witness statement - pursuant to the native vegetation controls at Clause 52.17 of the Scheme. I have noted that vegetation removal is not specifically referred to in the application for permit although clearly it is an important consideration that the Responsible Authority has regard to. I find in the circumstances that it is appropriate to amend the application for permit to make reference to this vegetation removal. At Clause 52.17, the relevant decision guidelines that must be considered, as appropriate, before deciding about an application to remove native vegetation are:

"* The policy on retention and re-establishment of native vegetation.

* The preservation of and impact on the natural environment or landscape values.

* Whether provision is made for or is to be made to establish and maintain native vegetation elsewhere on the land.

. planting, re-planting or other treatment of any part of the land

. the retention of a buffer strip of native vegetation within specified distances of wetlands, waterways, roads and property boundaries

. the fencing off of areas of native vegetation, in particular to exclude stock or vermin."

23. At paragraph 4.3 of his witness statement Mr Rodda identified the relevant strategies in the State Planning Policy Framework. As these are mostly picked up within the Municipal Strategic Statement I see no particular reason to re-state them here.

24. The Municipal Strategic Statement (MSS) draws from the State Policy Framework and provides the strategic framework for the future use and development of land within a municipality. An MSS also provides the basis for the zone and overlay controls selected by a planning authority as the statutory mechanisms for implementing or realising its land use and development objectives for an area. Local policies at Clause 22 provide more specific guidance as to preferred outcomes and the way to exercise the otherwise broad discretion provided for under the new format schemes - especially where the VPP's decision guidelines may not be sufficiently specific as an indicator of what outcomes are intended for a particular area or type of use or development. As noted by Mr Rodda there are no relevant local policies at Clause 22 that affect this land or subdivision in general.

25. The Municipal Strategic Statement identifies areas with potential for further residential subdivision in order to satisfy an identified need to accommodate a further 4,800 new households by the year 2021. The subject land is located within an identified growth area. The Council seeks to focus residential development within existing township areas and the review site is located within the Diamond Creek Urban/Township Area. At Clause 21.05-1 of the Scheme, objectives and strategies are set out which seek to ensure that future development for residential purposes occurs in an orderly manner and maintains the existing settlement pattern consisting of distinct urban areas and clearly defined rural townships.

26. Whilst clearly encouraging future residential development to meet the projected increase in household numbers, the Municipal Strategic Statement also identifies the need to balance this against objectives to respect local community and environmental values and to promote energy efficiency in the layout of subdivisions and in the siting and design of dwellings. At Clause 21.03 it is recognised that "while there may be no distinct building style, residential areas in the Shire are generally characterised by extensive indigenous tree canopies and bush streetscapes". At Clause 21.04-1 it is suggested that "all future land use and development will enhance the aesthetic qualities of the urban and rural environment, responding in particular to the character defined by land form, landscapes and vegetation cover".

27. On the topic of settlement and housing at Clause 21.05-1, Objective 5 is to:

"Maintain and enhance the character of urban and township areas and strategies to achieve this objective include:

* Encourage new development to respond to the characteristics of the local landscape and built form, including the retention of existing vegetation in recognition of housing styles and setbacks.

Discourage development which would dominate and detract from the streetscape and which does not consider the neighbourhood character."

28. Later in this clause the need for further strategic work to be undertaken, in relation to the preparation of a Neighbourhood Residential Character Study and Residential Design Guidelines, is identified. Draft copies of character precinct brochures prepared as part of a character study were tendered in the course of the hearing. The relevant map has the subject land included in Precinct R a "rural precinct". The Juane Park Estate appears to have been missed in the character study, there being no precinct brochure for it and land to the south and west of the subject land, which like Juane Park Drive and the subject land is undergoing subdivision, is within a "Garden Court Character Precinct".

29. There was some dispute as to whether the rural precinct brochure which refers to key characteristics such as "flat to rolling topography, long bush roads, generally unsealed roads, dwellings on large lots" is entirely appropriate for a Residential 1 Zone precinct. In Mr Rodda's opinion the Garden Court Character Guidelines were more apposite. Stated key characteristics for this precinct include

"rolling to hilly topography, curvilinear street layouts with many cul de sacs, sealed roads, generally upstand kerbs and footpaths both sides, 1980s to 1990s dwellings - large site coverage often reproduction architectural elements, open feel due to intermittent street trees and immature canopy ..."

30. I find Mr Rodda's opinion as to what is the more accurate description of the subject land to be persuasive. I do note however that the preferred character statement for both precincts seeks to encourage development that is "sited so that it nestles into the land form and vegetation, or appears to float above the land form (but still within the tree canopy)". In the Garden Court Precinct the preferred future character is described as:

"Residential development is set among predominantly native trees. Hillsides of residential development viewed from the distance appear to be lushly vegetated. In typical streetscapes substantial native trees dominate the skyline and are common in gardens. Garden planting is mostly native and flows uninterrupted to the edge of the roadway.

There is little physical evidence of the boundary between private and public property at the front of the house and no solid front fence."

31. In both character precincts large bulky dwellings that dominate the landscape are seen as threats to the preferred future character, as is the removal of canopy trees.

32. I am not persuaded that I can give too much weight to these draft character brochures particularly given the apparent inconsistency and confusion in relation to their application to this subject land. I do note however that they appear to reinforce the observations and objectives of the Municipal Strategic Statement in relation to the value of retaining canopy trees and encouraging future development to adopt a landscape character where native bushland vegetation makes a significant visual contribution. It is relevant also that, as observed by Mr Rodda, "in relation to vegetation retention and landscaping in the private domain, the Garden Court (GC2) Precinct suggests that at least one substantial indigenous or native species tree should be retained or planted for every 200 sq m of land".

33. The principal issues for consideration raised in this application for review could be summarised as:

1. Does the size and orientation of the lots give sufficient recognition to the slope, orientation and existing vegetation on the land to constitute an appropriate outcome in terms of the stated objectives and policies of the Municipal Strategic Statement and VicCode 1?

2. Will the increase in traffic on Old Diamond Creek Road result in any unacceptable increase in safety problems at its intersection with Ryans Road and Edinburgh Street?

3. Does the layout of the north-south court give sufficient regard to the steep topography and intersection treatment with Old Diamond Creek Road?

34. The lot size and layout was the issue most hotly contested by Mr Montebello for the Responsible Authority. The officer's report to Council observed that the average lot size in the proposed subdivision is 788 sq m whereas adjacent subdivisions to the east range between 1,067 sq m, where vegetation controls have been employed and 873 sq m where they have not. In his submission because the land has significant slopes, with falls across some lots of between 6 and 10m over a distance of 40m, there is a prospect that the need for excavation coupled with currently fashionable large, "boxy" house designs could preclude achievement of the landscape character envisaged by the MSS and character studies. In his submission, notwithstanding the fact that most lots are oriented east-west consistent with the VicCode 1 preferred orientation, the topography may encourage houses to be sited in a manner inconsistent with appropriate energy outcomes. The lots singled out for particular attention were those off the more southerly court and those on the slopes above the proposed extension to Jacaranda Drive. The latter are steeply sloping to the south. The former have a mostly northern aspect but in many cases are very narrow and the court providing access to them would be very steep.

35. On proposed Lots 11 and 12, at the southern end of the north-south court, there are a number of existing trees - not all in particularly good health as identified by the Tree Logic Arborist Report accompanying the application. In Mr Montebello's submission greater effort could have been made in the design of these lots to reduce the need to remove this vegetation. In particular Tree No. 3, which has been identified as having potential for retention but which has been marked for removal should, he submitted, be retained. In his submission by amalgamating Lots 11 and 12 all trees, including Trees 2 and 3 in particular could be retained and a building envelope set aside that would require no trees to be removed. Mr Montebello's primary submission was that the whole subdivision ought to be re-drawn with substantially larger lots to achieve better siting and energy outcomes and greater retention of trees. His fallback position, as I might call it, and which could be said to derive from the officer's report to Counci, was for at least three lots to be removed. This could be achieved firstly by amalgamating Lots 11 and 12, secondly by amalgamating and re-subdividing the steep lots on the northern side of Jacaranda Drive (an additional outcome of which would be to provide more latitude for a building envelope where "the most significant tree on the site" is located on proposed Lot 22) and thirdly to amalgamate and re-subdivide the lots off the southerly court.

36. I have not been persuaded to adopt Mr Montebello's primary submission. Whilst I acknowledge that the decision guidelines at Clause 65 refer to the need to have regard to the future development of lots, Mr Montebello's assumption that the dwellings would all be large and that as a result of this there would be insufficient space left for landscaping is not necessary an assumption that I agree with. Or if I did agree with it, I would suggest that the appropriate response for the Responsible Authority to adopt is to introduce a Design and Development Overlay in relation to site coverage. My inspection of the subdivisions to the east of Ryans Road demonstrated to me that far smaller but equally steep lots can still exude a bush landscape character. Accordingly it is not so much lot size as dwelling size that has the impact countenanced against by Mr Montebello. This application for permit is about lot size not about future building size. I am not persuaded either that merely by increasing the size of these allotments will necessarily result in more energy efficient dwellings. Indeed one argument could be that a reduction in lot yield leads to less efficient use of land and greater energy consumption. I accept Mr Rodda's opinion that at an average of 788 sq m, even having regard to the topography, energy efficient designs can be achieved.

37. The suggested permit conditions make provision for street plantings and for landscaping of the open space reserve as well as for each householder to be required to plant at least three native trees of a species that will achieve some size. I am confident that with the public realm addressed in this way and households required to provide at least three such trees, that an outcome consistent with the character study and MSS objectives in relation to a balance between built form and landscape can be achieved.

38. There is one exception to the above findings and that concerns the lots abutting the more southerly court. Having observed the outcome emerging on Grey Gum Rise off Juane Park Drive, which is also a steep court with relatively narrow fronted lots to the court bowl, I am persuaded that such narrow frontages unacceptably reduce the likelihood of the sort of outcome envisaged by the Municipal Strategic Statement and character guidelines. One of the issues raised by Mr Naughton in support of his submission that the lot sizes were adequate was the fact that they were not dissimilar, in terms of frontage width, to those in Juane Park Drive even though these are much larger lots in terms of area. These Juane Park Drive lots have areas in excess of 1,200 sq m yet their frontages range between 16 and 20m which is not dissimilar to most proposed on the subject land. The exceptions are the 13m wide lots proposed to front the southern court. I find, given the steep rise of this court, that the likely outcome would be for a built form dominated character which would be inconsistent with that enunciated in the MSS or the character guidelines. I agree that removal of a lot within and around the court bowl area, in order to allow for wider frontages is likely to achieve a better outcome.

39. The other issue in relation to lot size was that of vegetation retention. I accept Mr Montebello's submission, which relied on the report by Ms Megan McCarthy, the Council's Environmental Projects Officer, that Tree No. 3 adjacent to the court bowl in Lot 11 should be retained and the collection of trees to the rear of Lot 12 should not be removed at this stage but rather only if they prove incompatible with future development of the land. By requiring the retention of Tree 3, the prospect of two dwellings being accessed between the two trees is reduced and I am persuaded that an altogether better outcome would be facilitated by amalgamating these two lots such that any dwelling would most logically lie between them and the cluster of vegetation towards the rear. Such an amalgamation could also allow the adjacent Lots 13 and 14 to be marginally widened. Retention of Tree No. 3 may also require a re-design of the court bowl and I will include conditions to this effect. I will also provide the opportunity for the lots on the northern side of Jacaranda Drive to be increased in their depth if a more balanced outcome in terms of lot sizes is thought desirable by the permit applicants. It makes no difference whether the trees to be maintained are located towards the rear of Lots 11 and 12 or the rear of Lots 21 and 22.

40. A final issue was that of the size of Lot 22 and the ability to have a dwelling constructed upon it whilst maintaining the most significant tree on the land, Tree No. 22. Having inspected the site I am persuaded that a dwelling and retention of this tree are not mutually incompatible. At 1,024 sq m the lot is the largest in the subdivision and the tree is located 18m from the frontage. There is an easement across the front of the allotment however I am persuaded that provided a building exclusion zone that takes account of the optimum root zone is introduced for this tree that the purchaser of this property would have sufficient opportunity to construct a dwelling below that root zone.

Old Diamond Creek Road Intersection at Ryans Road and Edinburgh Street

41. Mr Hunt was called to give evidence primarily in relation to the safety of this intersection. Appended to his witness statement was a report by Mr Raj Muthusamy, Principal Road Safety Auditor. Consistent with the T.T.M. Report it was Mr Hunt's evidence that the additional turning traffic at the intersection can be accommodated without capacity or safety implications. In Mr Hunt's opinion a subdivision of 34 lots at this location would result in approximately 340 vehicle movements per day with 34 per hour at peak times. The resultant volumes on Juane Park Drive and on Old Diamond Creek Road would accordingly remain well within acceptable limits for collector streets as defined by VicCode 1. The auditor's report, whilst identifying a number of road safety deficiencies at the intersection, remarked that these deficiencies exist irrespective of the proposed development and will not be worsened by it. These findings are consistent with those of T.T.M. Consultants. It was recognised that it would be most unreasonable to require this development to contribute towards the rectification of this intersection to an extent likely to make any material difference. In its subsequent submissions on conditions the Responsible Authority acknowledged that it would be unreasonable to require contributions and any suggestion to this effect - as foreshadowed in the draft permit conditions - was abandoned. In the light of these submissions and evidence I find there to be no basis for refusing a permit or incorporating conditions related to this intersection. I also accept the evidence of Mr Hunt and the findings of T.T.M. Consultants which was to the effect that the likely future extension of Jacaranda Drive westwards will ultimately enable users within this general redevelopment area to gain access to the more westerly end of Old Diamond Creek Road. The intersection between the old and new section of Diamond Creek Road is far better than that at Ryans Road. This subdivision assists in achieving this longer term outcome.

42. Mr Colvin's principal objection to this application was the prospect of a new road intersecting with Old Diamond Creek Road opposite his own driveway. The engineer's report commissioned by him countenanced against such an intersection on the basis that the gradient would be as steep if not steeper than that in existence at Juan Park Drive's intersection with Old Diamond Creek Road. In the engineer's opinion a better design would be one that had single lots fronting the south side of Old Diamond Creek Road with any other lots accessed via a cul de sac extending northwards from Jacaranda Drive. As it transpired the very early plans for this subdivision showed just such a layout. However such a layout would result in significant tree losses and would have made the proposed reserve less viable.

43. Under cross-examination Mr Hunt acknowledged that the gradient would be steep in its more northerly section although further to the south it follows the contour. In his opinion however with proper engineering practice the intersection could be appropriately graded and belled out to ensure safe sight distances. Mr Hunt also contended that with an anticipated 18 vehicles in the peak hour (or with the reduced lots required by the conditions I intend to impose 17 vehicles), would not result in queuing on the steeper gradient. Accordingly, whilst steep, the prospect of accidents was unlikely. I accept this evidence. Mr Hunt also was of the opinion that a kerb to kerb road width of 5.5m was all that was required to serve 18 (or 17 in this case) lots although he acknowledged that given the very straight alignment, some treatment to adopt a more curvilinear and traffic calming effect could be appropriate and would be consistent with VicCode 1. The Responsible Authority in its further submissions, sought a kerb to kerb width of 6m however, in view of Mr Hunt's evidence, I am persuaded to adopt the lesser figure. The Responsible Authority also sought a kerb to kerb width of 7.5m for Jacaranda Drive and 6m for the southern court. In its later submissions and consistent with the T.T.M. recommendations, the Responsible Authority accepted 5.5m for the southern court but maintained its position in relation to Jacaranda Drive. Jacaranda Drive is to become part of a collector network providing access to the west however it was T.T.M. Consultant's view that 7.2m was adequate. Given that the existing width of Jacaranda Drive is 7.2m and in view of the consistency of the traffic engineering evidence on this issue, I see no reason for any greater width to be provided.

44. As noted by Mr Rodda the subject land is located within an area undergoing transition from semi-rural to one that is urban residential in nature. The Residential 1 Zone and the absence of any Design and Development Overlay must be taken at this stage to indicate a reasonably conventional residential subdivision. However, the clear objectives within the Municipal Strategic Statement for future subdivision within the municipality to maintain and enhance a bush landscape character is a relevant consideration to have regard to. The native vegetation clearance provisions and underlying policy also provide strategic support in this regard. I have been persuaded therefore that whilst there are no overriding reasons for not adopting the general lot sizes proposed here there are, in specific instances, opportunities for more tailored responses having regard to the landscape objectives and the opportunity to retain a little more of the existing canopy tree vegetation than proposed. I have, accordingly, made the minor amendments as I find them to be appropriate in the circumstances. As provided for in the draft permit conditions, I have also found it appropriate to require landscaping and other works to be carried out within the public open space reserve. These works will better enable the reserve to be used safely by future residents of the subdivision and will ensure that its open space and landscape qualities are maintained and enhanced. I was not persuaded by Mr Naughton's submission that having contributed the open space, as provided for under the Subdivision Act, that the proponent should be under no further obligation in relation to the reserve. I find that there is sufficient nexus between the works and the permission being granted, as well as a need for such works, to justify a condition to this effect.