13 All parties made written and/or oral submissions.

14 Mr Peake called three expert witnesses who each gave evidence in chief and were made available for cross examination:

i

Mr R Umbers provided town planning evidence;

ii

Mr M O'Brien provided traffic engineering evidence; and

iii

Mr S Wallbrink provided landscape evidence.

15 Ms Davis only attended the hearing during the morning on 7 February 2005, when she presented her submission.

16 This matter was initially set down for a one day hearing on 7 February 2005, however this proved to be insufficient time to complete the hearing. Hence, with the agreement of the Council and the permit applicant, this matter was set down for a further half day hearing on 21 February 2005.

17 Mr Kearney and Ms Wallace-Smith, on behalf of Melbourne Water, came to the hearing on 21 February 2005 and advised the Tribunal that the reason for their attendance was to answer any questions that the Tribunal may have regarding the conditions recommended for inclusion on any permit issued by Melbourne Water. Mr Peake did not object to the Melbourne Water representatives speaking to their conditions. However, it must be noted that Melbourne Water is not a referral authority to this permit application and did not request to be joined as a party to this proceeding. Therefore, Melbourne Water has no status in this matter.

18 The review site is situated on the edge of the established residential area of Langwarrin. It is located on the north east side of Potts Road and has a battleaxe shape as it is narrower at the front. It has a frontage to Potts Road of 29.89 metres, a rear boundary width of 56.03 metres, a depth of approximately 180 metres, and a total area of 8,231 square metres.

19 The site currently contains a single storey dwelling setback 18 metres from the Potts Road frontage. It also contains an in-ground swimming pool, garage, sheds and other outbuildings. There is an existing vehicle crossover on the north west side of the frontage. The land falls approximately 5 metres to the rear (north east) boundary of the site.

20 There are trees scattered across the site, and dense vegetation adjacent to the rear boundary of the site. An open cut drain is situated amongst this dense vegetation.

21 Mr Cameron advised that there is an 8.05 metre wide drainage easement that runs across the rear section of the site.

22 Mr Cameron explained that the site is one of several lots in the order of 10,000 square metres in size on the north east side of Potts Road; zoned Residential 1; and generally containing only one dwelling. He stated these lots "have yet to be fully developed for residential purposes", and advised that a planning permit was granted on 29 December 2004 for one of these lots (40 Potts Road) to be developed with 15 dwellings.

23 The adjoining property to the north west abuts the review site along its side and rear boundary. It contains a double storey brick dwelling setback 15 metres from Potts Road and 2.4 metres from the common side property boundary with the review site.

24 The adjoining property to the south east is owned by Ms Davis and contains a single storey dwelling and rear bungalow. The dwelling is setback 18 metres from Potts Road and 9.7 metres from the common property boundary.

25 The land at the rear (to the north east) is used for extractive industry by Burdett's Quarries and the land immediately adjacent to the review site contains dense vegetation. I noted during my inspection a sign stating the quarry operates 6am to 6pm Monday to Friday and 6am to 12noon Saturday. Mr Cameron explained there was an Amendment to rezone this land to Residential 1 back in 2001/2002, but the Panel was not in favour of the Amendment and it has now lapsed.

26 The land on the opposite side of Potts Road is part of the established residential area of Langwarrin. It contains existing residential dwellings on allotments that are generally much smaller than the review site.

27 It is proposed to retain the existing dwelling, remove the swimming pool, garage and other outbuildings and construct 20 new single storey dwellings.

28 Six different dwelling types are proposed, with an average floor area of 98.4 square metres. The majority contain one or two bedrooms, however 5 dwellings have the capacity to provide three bedrooms. Car parking and an average of 61.9 square metres of private open space is provided for each dwelling.

29 Communal open space and visitor car parking is also provided within the development.

30 All of the new dwellings are accessed via the existing crossover to Potts Road with a common driveway winding through the site. A second crossover will be constructed adjacent to the southeast side boundary to provide vehicular access to a new single garage for the existing dwelling.

31 No development is proposed within 40 metres of the rear boundary.

32 The review site and surrounding land to the south east, south west and north west is contained within a Residential 1 Zone pursuant to clause 32.01 of the Frankston Planning Scheme ('the Planning Scheme'). The purpose of this zone includes:

• To implement the 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.

• To encourage residential development that respects neighbourhood character.

33 Clause 32.01-4 requires a permit to construct two or more dwellings on a lot and states that consideration must be given to the objectives, standards and decision guidelines of clause 55 of the Planning Scheme.

34 The land to the north east (adjacent to the rear) of the review site is zoned Special Use Zone Schedule 2, Extractive Industry.

35 The review site and surrounding land to the south east, south west and north west is affected by the Development Plan Overlay Schedule 1 ('DPO1'), and its purpose is:

•

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

•

To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

•

To exempt an application from notice and review if it is generally in accordance with a development plan.

36 Pursuant to clause 43.04-1 of the Development Plan Overlay, a permit must not be granted to construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority. Mr Cameron advised that a development plan exists in the form of the Langwarrin Outline Development Plan ('ODP').

37 Pursuant to clause 52.17 a permit is required to remove native vegetation from land with an area in excess of 4,000 square metres.

38 I have had regard to the provisions of the State Planning Policy Framework. Of particular relevance, I note that clause 14 encourages the consolidation of existing urban areas and requires planning authorities to facilitate orderly planning of developing urban areas through the preparation of structure plans that provide the broad planning framework for an area. I also note that clause 17.09 requires the provision of buffer areas between existing extractive industries and sensitive land uses to be determined on the following principles:

•

The buffer areas are determined so that appropriate limits on effects can be met at the sensitive locations using practical and readily available technology.

•

The required buffers are taken into consideration if a change of land use in the vicinity of the extractive industry is proposed.

•

Land within the buffer areas may be used for purposes that are not adversely affected by the extractive industry.

39 The review site and other properties on the north east side of Potts Road abut the urban growth boundary ('UGB') implemented as part of Melbourne 2030. The UGB wraps around their rear property boundaries, delineating the extent of urban development permissible, therefore the review site is located on the northeast edge of the urban area of Langwarrin.

40 In regard to the Local Planning Policy Framework, Mr Cameron highlighted that urban growth is identified as a significant issue in the Municipal Strategic Statement ('MSS'), as the population is expected to grow by more than 20% by 2011. Clause 21.04-1 states areas of undeveloped residential land and opportunities for new housing exists in Langwarrin. As a result, the housing issues identified in the MSS include providing greater diversity in housing stock and encouraging medium density housing in appropriate areas.

41 There is a local planning policy at clause 22.12 relating to the outline development plans in Carrum, Langwarrin and Baxter, which are described as the developing parts of the municipality. The policy states that the ODP for each area is the framework for development in each of these areas and contributions will be required for community facilities and upgrading infrastructure. The policy references include the Langwarrin ODP and the Langwarrin ODP "in preparation".

42 Mr Cameron referred to the Council's Neighbourhood Character Study and advised that the recommendations of the study are contained in Amendment C24 that has been publicly exhibited. However, he also advised that the review site is not located within any of the character precincts of the study. Instead the north east side of Potts Road is nominated as a new area and the study provides development principles for new areas, which focus upon the provision of a well vegetated landscape setting.

43 The first matter to be considered is whether the review site is an appropriate site for medium density housing. Despite the content of the Council's grounds of refusal, Mr Cameron advised that the Council does consider the review site appropriate for medium density housing as it is "not devoid of services". Mr Peake elaborated on this point by highlighting that there is a bus service along Potts Road with a bus stop outside the review site; there are shops 600 metres away and a school 300 metres away.

44 I find that the review site is contained within the existing urban area of Langwarrin, is appropriately located near services and is zoned for residential purposes. The State and local planning policy frameworks encourage urban consolidation and recognise the need for increased housing in this municipality. Given this, I find that the appropriateness of the review site for medium density housing is supported by both its locational attributes and the policy framework in the Planning Scheme.

45 There were a range of other matters raised during the course of this hearing that require my consideration. Many of them are what I would call peripheral issues as they do not relate specifically to the detail of this proposal for medium density housing. Instead they relate to the fact that the site is proposed to be developed. Therefore I will deal with each of these peripheral issues before turning to the design detail of the proposed medium density housing development.

46 This site is zoned Residential 1 and is also affected by DPO1, which requires a development plan for Langwarrin that shows:

•

The location and extent of areas set aside for various uses, including housing, shops and, where relevant, industry.

•

The proposed road network and traffic control measures.

•

A network of pedestrian and bicycle paths.

•

The distribution of schools and other community facilities.

•

A proposed open space network including land set aside for both active and passive activities.

•

For land at the eastern boundary of the Carrum Downs urban area, the treatment of the interface between rural and residential areas generally in accordance with diagram 1 to this schedule.

47 Mr Cameron advised that the Langwarrin ODP was originally included in the former Cranbourne Planning Scheme in approximately 1987. When the new format Frankston Planning Scheme was introduced, it was determined to change the ODP from an incorporated document to a reference document and to initiate a review of this (and other) ODPs. I was told the reason for doing this was to allow flexibility for the ODPs to be changed without the need to go through a planning scheme amendment process as the ODP review was underway.

48 The current Langwarrin ODP is based upon a 1997 text document prepared by consultants with a map contained in an appendix. Mr Cameron advised that this document was not adopted by the Council but has been further refined and updated by Council officers since then. Mr Cameron advised that the current ODP is a working document that is subject to on-going refinement. This is evident in the version of the ODP tabled at the hearing. It illustrates a new weaving road along the rear of the review site and other properties on the north east side of Potts Road, part of which has been cross out by hand and a straight road hand drawn on instead. This and other hand written and drawn modifications are not notarised by either a signature, stamp or date, therefore it is unclear when, why or by whom each modification has been made.

49 Mr Umbers gave evidence that the ODP to be considered pursuant to DPO1 is the version incorporated into the former Cranbourne Planning Scheme, as the other version is a changing, fluid document. Mr Peake and Mr Umbers both referred to a facsimile provided to the permit applicant by the Council that contains an extract from an ODP depicting a new weaving road at the rear of the review site. They both stated the Issue C plans have allowed for this design of the new road. Clearly, there is uncertainty as to what version of the ODP should be relied upon and it appears that there may well be differing versions of the ODP being provided to individuals. I agree with Mr Umbers that the fluid nature of the latest version of the ODP provides uncertainty due to the continuing variation of its content and the unsubstantiated changes/variations, as evidenced by the altered alignment to the proposed new road at the rear of the review site.

50 The Council was unable to provide any evidence or assessment such as a report to Council or a report by a Council delegate/department to explain why the alignment of the road was changed. Therefore, I am not persuaded that the altered version of the ODP can be given any significant weight as it is, at best, "a working document" that is subject to change apparently at the whim of Council officers of unknown identity, status or authority. This is an entirely unsatisfactory situation and the Council would be well advised to review its procedures for alterations to the Langwarrin ODP.

51 In addition to which, the Langwarrin ODP is a reference document rather than an incorporated document in the Planning Scheme. The Victoria Planning Provisions Practice Note on Incorporated and Reference Documents (August 2000) states:

Planning schemes should be transparent and complete in terms of policies and provisions that are relied upon to make decisions about planning matters. Studies, strategies, guidelines and policies that inform the planning scheme, guide decision-making or affect the operation of the planning scheme should be part of the planning scheme in some form. This can be achieved by incorporating documents into the planning scheme or using them as reference documents.

52 It goes on to state that the decision to incorporate or refer to a document should be based on the way in which the document will be used or relied upon. A reference document is defined in the Practice Note as:

Reference documents provide background information to assist in understanding the context within which a particular policy or provision has been framed. A variety of different types of documents may perform this role. They may be wide-ranging in their content and contain information not directly relevant to specific decisions under the planning scheme.

Reference documents have only a limited role in decision-making as they are not part of the planning scheme. They do not have the status of incorporated documents or carry the same weight.

53 Therefore, whilst the Council's intention may be to implement the content of the ODP 'working document', the fact is the ODP is a reference document and can only be given limited consideration.

54 Mr Cameron submitted that the Council requires the provision of a road at the rear of properties on the north east side of Potts Road as illustrated in the ODP. This road is to be an extension of Raneen Drive which is accessed off the Cranbourne-Frankston Road to the south east of the review site. In response to my questions as to why the hand drawn modification to the alignment of the road was made to the ODP, Mr Cameron advised that the ODP road alignment is not confirmed by the Council.

55 The Council justification for requiring the extension of Raneen Drive relies upon its existence in the ODP, and the advice of its transportation engineering department that Potts Road will be upgraded to form part of a north-south link through the outer eastern part of the municipality. The Council wants the extension of Raneen Drive to provide alternate access to properties on the north-east side of Potts Road thereby reducing the Potts Road traffic volumes with road safety and operational benefits.

56 However, Mr O'Brien gave evidence that the Council's approach is flawed in proposing to extend Raneen Drive. It has not conducted a traffic analysis or study for Potts Road to ascertain what traffic it might absorb in the future and whether an extension to Raneen Drive is really required. Mr O'Brien stated that there is no scheme in place for the creation of this road other than via individual development applications along the north east side of Potts Road, therefore the result could be sections of road constructed leading nowhere. Mr O'Brien also questioned the appropriateness of constructing a road that will only be used along one side of its length, given the existence of the quarry and the urban growth boundary along the other side.

57 The Council wants conditions imposed on the permit, if granted, requiring:

•

A road reserve width of 15 metres;

•

Full construction of the road across the review site in accordance with plans and specifications approved by the Council containing details such as road pavement, drainage system, kerb and channel, footpaths, street trees and street lighting; and

•

A Section 173 Agreement providing an easement of way in favour of the Council over the driveway from Potts Road to provide access to the new road built at the rear of the review site.

58 I find that these conditions will result in the scenario suggested by Mr O'Brien, being a section of road existing in isolation that leads nowhere. I also find it difficult to understand how a road constructed only on one property can provide kerb and channel, a drainage system and street lighting. Mr Cameron suggested that if I had concerns with these conditions, I should consider imposing a condition similar to that imposed on the permit for 15 dwellings at 40 Potts Road. This condition requires a Section 173 Agreement that states, when the subdivision of the land occurs, security is to be provided in the form of a financial contribution equivalent to the cost of the road across the property. The Agreement also requires that when the road is constructed any additional costs required are to be paid to the Council.

59 For the reasons I discuss below, I do not think that the Council's conditions are justified on traffic engineering grounds. In addition, I would be reluctant to impose a condition requiring a section 173 agreement of the type referred to by Mr Cameron because I think it lacks certainty, and because it does not specify the precise details of the contribution or the standard of construction, which it ought to do. In the matter of Ringrose v Shire of Metcalfe (1990) 5 AATR 269, the appropriateness of imposing a condition requiring a permit holder to "contribute" to the construction of a road is discussed on page 271:

... It states that the holder of the permit "shall contribute to the construction of the government road, etc". The question immediately arises shall contribute what labour, the whole cost, part of the costs and, if so, what part. None of this is specified.

60 The Council has not finalised the construction details of the road, was not able to advise when or even if this work would ever be completed.

61 Mr O'Brien gave evidence that the traffic from this proposed development will be in the order of 100 vehicle movements per day and he is satisfied all can be accommodated via Potts Road. He stated that Potts Road is designated as a collector road capable of accommodating 3,500 vehicles per day. Mr O'Brien also stated that transport planning for an extension to Raneen Drive should be revisited and analysed having regard to the function and capacity of Potts Road, and a design prepared and then implemented by the Council.

62 I was not provided with any evidence regarding the estimated future traffic volumes in Potts Road or along an extended Raneen Drive. The extension of Raneen Drive has been contained in the Langwarrin ODP since at least 1987 and yet the Council has undertaken no further work to finalise its design and construction. Now, 18 years later, with Potts Road fully constructed and the surrounding residential development opportunities largely taken up, the Council is unable to provide any traffic analysis, design details or timeframe for the construction of the Raneen Drive extension. Given the lack of this information, I think it is at least questionable as to whether the extension of Raneen Drive is necessary or will take place.

63 I acknowledge that the requirement for a road is contained in the ODP/development plan, however as I have already explained above, the ODP is only a reference document in the Planning Scheme, and I have previously discussed the limited weight to be given to a reference document in the Planning Scheme. The limited weight of the ODP combined with the absence of any information regarding the analysis, design or construction programme for the Raneen Drive extension, the imposition of the urban growth boundary and Mr O'Brien's evidence, reinforces my scepticism about the necessity for the Raneen Drive extension.

64 Mr Cameron stated that the Council has no trigger for the construction of the Raneen Drive extension, instead the Council is dealing with it on a case by case basis. He tabled an email from the Council's transportation engineering department that comments:

The issue is not the impact of a single development but the combined impact of the development of all the properties along the east side of Potts Road.

65 I agree with this comment and I also agree with Mr O'Brien that a case by case or piecemeal approach to the construction of the Raneen Drive extension through requirements on individual planning permits, as they are sought, is not an appropriate way to undertake this extension. If the Council is of the view that this extension is required, then appropriate analysis and design work should be undertaken. Following that work, processes leading to the formal acquisition of the land and/or any development contributions required should be initiated by the Council. I note that this process is not new to the Council as Mr Peake tabled a decision by the Tribunal in the matter of Stow & ors v Frankston CC [2002] VCAT 467 as evidence of a special charge implemented by the Council for the construction of Potts Road, north of the review site.

66 Therefore, I find that it is not appropriate to include requirements for a road reservation and construction of a road in the permit conditions for this proposed development.

A Drainage Reserve at the Rear of the Review Site

67 Mr Cameron advised that the Council forwarded the Issue C amended plans to Melbourne Water on 21 January 2005. Melbourne Water replied by letter dated 2 February 2005 stating, pursuant to section 56(1) of the Planning and Environment Act 1987, it had no objection to the proposal subject to the inclusion of conditions and footnotes on any permit issued. Melbourne Water wrote to the Tribunal by letter dated 3 February 2005 stating the same.

68 Section 56(1) refers to actions required by a referral authority for a permit application, however Melbourne Water is not a referral authority pursuant to the Planning Scheme. There are no planning controls such as overlay controls or referral requirements that require the application to be referred to Melbourne Water. As I stated earlier, Melbourne Water was not an objector to the application and did not apply to be made a party to this proceeding.

69 There is already a drainage easement and a Melbourne Water drainage scheme affecting the review site.

70 An 8.05 metre wide drainage easement runs across the site in favour of lots on LP52070. It is setback between 3.62 and 14.08 metres from the rear (north east) boundary. In response to my question as to who benefited from this easement, Mr Peake provided a copy of a plan of subdivision marked LP 52070 Edition 2 that depicts the beneficiaries of the drainage easement being 12 properties on the north east side of Potts Road, including the review site.

71 Mr Peake also advised that Melbourne Water's website includes the review site in the Potts Road West Drainage Scheme No 1222, which requires a residential contribution rate of $16,971/hectare. However, I feel it is important to point out that this is a Melbourne Water drainage scheme and is not contained or mentioned in the Planning Scheme in any way.

72 A useful summary of Melbourne Water's interest in the review site is contained in a letter to Council dated 2 February 2005 that was tabled during the hearing:

Thank you for your enquiry regarding Melbourne Water's position on the waterway at the rear of the properties on the north eastern side of Potts Road Langwarrin. This area lies within Melbourne Waters Potts Road West Drainage Scheme where drainage works are funded by development within the drainage scheme. The drainage scheme plan that was prepared in the 1980s has since being reviewed and the pipeline proposed along the waterway that runs along the rear of the Potts Road properties has been replaced by a 'natural' open waterway.

Melbourne Water require a reserve along the rear of the properties, however its width is dependent on the topography and location of the waterway on each individual property. For the majority of the drainage reserve it is expected that the width will be 40 metres.

Melbourne Water is unsure at this time who will undertake the design of the waterway and is currently in discussion with the owner of property 70 and 74 Potts Road.

On 30/06/04 Council forwarded an outline development plan to Melbourne Water. Melbourne Water requested that the road shown on the submitted plan run along the south western side of the future reserve as shown on the attached plan. This would improve the visibility and amenity of the creek reserve.

73 Melbourne Water's letters to the Council and the Tribunal seek the imposition of permit conditions that include no development or filling within the rear 40 metres of the review site (unless otherwise agreed). The letters also advise that a waterway corridor reserve will be required at the time of subdivision of the land, but that remodelling of the waterway is required to calculate more accurate flood levels and the extent of the waterway corridor. Melbourne Water also stated that the waterway corridor is not on its capital works program and is unlikely to be for at least 4 to 5 years.

74 What this all means is that the review site is being asked to provide a 40 metre waterway corridor for Melbourne Water plus a 15 metre road for the Council, resulting in no development within the rear 55 metres of the site.

75 Mr Peake submitted that this existing drainage corridor is not a valuable waterway as it is not a declared waterway (which is recognised in the State Planning Policy Framework of the Planning Scheme). He pointed out Melbourne Water's requirement for a 40 metre wide waterway corridor is obviously the total width of the corridor, on both sides of the waterway. Therefore, the extent of the corridor may well be less than 40 metres on the review site. Mr Peake submitted if Melbourne Water wants 40 metres of the site, it should purchase or compulsorily acquire the land.

76 I agree with Mr Peake. If Melbourne Water wishes to create a waterway corridor, it should be undertaken via the purchase or compulsory acquisition of the necessary land. For this to occur, Melbourne Water may well need to undertake the necessary modelling of the waterway itself rather than hoping an affected land owner will bear the cost. The imposition of conditions on a permit should have a nexus with what is sought to be approved in the proposal. I was not presented with any evidence or submission to the effect that the drainage of the proposed development requires the provision of a 40 metre wide drainage reserve. I see no nexus between the drainage reserve and this proposal. Therefore I find that it is completely inappropriate to seek to include conditions on a permit for this development to create a waterway corridor serving the wider area.

77 In regard to the suggestion that the review site needs to provide 55 metres of its length for both the Raneen Drive extension and the waterway corridor, I agree with Mr Peake's submission that a total length of 40 metres from the rear of the review site should be more than enough to provide both a road and drainage reserve. I suggest that some discussion between Melbourne Water and the Council might assist both organisations to determine the appropriate combined extent of road and drainage reserve.

78 The Council has requested a condition on the permit requiring a footpath to be constructed along the Potts Road frontage of the site. Mr Cameron pointed out that the Council has made a similar request on the permit issued for 15 dwellings at 40 Potts Road. Mr Peake submitted that a footpath does not currently exist elsewhere along the north east side of Potts Road and therefore opposed the condition.

79 A footpath was not apparently required at the time of the original subdivision creating the review site. In the event that the Council considers a footpath is now required, the Council should prepare a design that complies with the appropriate standards and can consider seeking contributions from the affected property owners through a development contribution or special charge scheme.

80 Clause 17.09 of the State Planning Policy Framework requires the provision of buffer areas between existing extractive industries, such as the quarry at the rear of the review site, and sensitive land uses, such as the proposed residential medium density housing development.

81 A number of letters from the Department of Primary Industries ('DPI') were tabled during the hearing in relation to the required buffer distance. On 2 December 2004 DPI advised the quarry has permission to extract up to 20 metres from the property boundary and its position is that residential development should not be closer than 60 metres to the quarry boundary, despite previously advising of a 50 metre separation.

82 On 6 December 2004 DPI advised that it would accept the reduced 50 metre buffer in this instance. It further advised that a reduction to a 45 metre buffer would require a demonstration that "the dwellings are designed so that the performance standards can be met by the quarry operator within this buffer distance".

83 On 10 February 2005, between the first and second days of the VCAT hearing on this matter, DPI wrote to the permit applicant advising:

The Minerals and Petroleum Division of the Department of Primary Industries (DPI) has assessed the amended proposal (plan ref. 0538/TP04 Issue C 21/12/04) and has no objection to a permit being granted. The Department notes that the amended proposal maintains a 50 metre separation distance between the rear of the proposed dwellings and the north east property boundary as a buffer to the adjoining extractive industry. The Department would not support any further residential encroachment into this buffer area.

84 I am satisfied that, based on this latest letter from the DPI, it has no objection to the separation between the proposed dwellings and the rear boundary with the quarry as shown on the Issue C amended plans. I was not provided with any rationale as to why a greater separation distance should be required.

85 I also note Mr Peake's submission that the future of the quarry is not considered by the Council to be indefinite as the Municipal Strategic Statement highlights the quarry on its Strategic Land Use Framework Plan as a "development opportunity or investigation" and contains the following main strategic direction:

Extractive industry and landfill are significant transitory uses that require sensitive management and the end use of those sites needs to be investigated.

86 Pursuant to section 52.17 of the Planning Scheme, a permit is required to remove native vegetation from the review site as it has a land area in excess of 4,000 square metres. Whilst the land area is well in excess of 4,000 square metres, it is largely cleared other than along the front naturestrip and adjacent to the rear boundary as it has been used for animal grazing and the growing of fruit and vegetables.

87 Mr Wallbrink stated in his evidence that the locally indigenous vegetation type is Heathy Woodland. The permit applicant included an arborist report by Arbor Co Pty Ltd dated 10 June 2004 that identified, amongst others, a group of trees of mixed eucalypt species in the front naturestrip; a red flowering gum in the frontage that is stressed with a moderate lerp infestation; a manna gum in the centre of the property in poor health and an area of remnant vegetation at the rear of the site. Mr Wallbrink highlighted the following indigenous species included in the above mentioned trees:

•

1 Eucalyptus prioriana (Manna Gum);

•

4 Eucalyptus cephalocarpa (Silver Leaf Stringybark); and

•

1 Eucalyptus radiata (Narrow Leaf Peppermint).

88 The majority of these are located in the front naturestrip and will be retained. Clause 52.17 requires an assessment of the loss of native vegetation so that a net gain can be achieved. Arbor Co Pty Ltd states that the majority of the trees located on the review site are exotic species. Of the native trees, only two are of any significance and they are generally in a poor condition. The remnant dense vegetation at the rear of the site has been compromised by exotic weed species including blackberry. Arbor Co has made a number of recommendations in regard to the protection of the various trees to be retained and/or relocated, as well as the area of remnant vegetation and states:

.... there is also the potential to revegetate a significant proportion of the area abutting the remnant stand and increase the overall environmental amenity of the site.

89 Mr Wallbrink gave evidence that extensive areas of indigenous planting is proposed with 695 indigenous shrubs, ground covers and tussocks to be planted, together with 10 large canopy trees, 23 medium canopy trees and 9 small canopy trees. He stated that 70% of the proposed planting is indigenous to this area and responded to the Council's list of preferred species for this specific area.

90 Having regard to the existing, largely cleared character of the review site, I am of the opinion that the native/indigenous vegetation retention at the front and rear of the site, combined with the new plantings of indigenous and canopy vegetation will result in a net gain for the site that will benefit the landscape character of this neighbourhood.

91 The Council considers the proposal to be an overdevelopment with a lack of dwelling diversity. However, I disagree. I am of the opinion that the proposal is a good design response, subject to some modifications.

92 The diversity of proposed dwellings was considered by the Council to be primarily one and two bedroom dwellings. Mr Peake tabled an extract from the Frankston Housing Strategy for Langwarrin/Langwarrin South that states there is a growing number of emerging empty nesters; significant growth in persons aged 45-64 years; and the average household size is expected to fall slightly to 2.78 persons. Therefore, I find that this development will contribute to the identified growing number of smaller households.

93 I agree with the findings of Senior Member Liston in Archicert (Vic) Pty Ltd v Frankston CC & Anor [2002] VCAT 1004, relating to the development of 40 Potts Road, where he stated at paragraph 4:

I do not agree that the proposal "does not respect the existing neighbourhood character", in many respects a good medium density development could be consistent with the emerging neighbourhood character. It is clear that the existing character of the east side of Potts Road is intended to be substantially changed.

94 In addition to which, I note that the only change to the frontage of the site will be the creation of a second driveway and new garage for the existing dwelling to be retained. These works, in my opinion, will not significantly change the existing streetscape appearance of the review site.

95 In regard to the Council's concern that this proposal is an overdevelopment of a site, I am of the opinion that such a circumstance would be evident through poor siting of the dwellings, amenity impacts such as overlooking and overshadowing, inadequate provision of private open space and inadequate or difficult car parking arrangements.

96 However, I find that this design response provides dwellings with appropriate areas of car parking and private open space and the layout has appropriately dealt with the potential amenity impacts upon neighbouring properties by way of overlooking and overshadowing. Therefore, I do not agree with the Council's concern.

97 My concerns with this proposed design response are matters of design detail and they are discussed in the following paragraphs.

98 Mr Umbers and Mr Peake both stated that dwellings 3 and 4 need to be modified to include a tandem car space as they contain a separate multi-purpose room that could be used as a third bedroom. Having reviewed the plans, I note that dwelling 3 is of 'type B' design containing a multi-purpose room without a door and dwelling 4 is of 'type A' design containing a multi-purpose room with a door. In total, dwellings 2, 4 and 5 are of 'type A' design and dwellings 3 and 6 are 'type B' design; however dwellings 2, 5 and 6 all provide two car spaces, with a tandem car space in front of the single garage. Mr Peake suggested that dwellings 3 and 4 can be modified by moving the garage and rooms behind 1.0 metre further away from the common driveway to accommodate a tandem car space. This change will not unreasonably impact on the amount of private open space provided; therefore I am of the opinion that Mr Peake's suggested modification should be included in the plans.

99 The other observation I wish to make in regard to these 5 dwellings, which equate to a quarter of the dwellings proposed, is that they have the capacity to contain 3 bedrooms. Therefore, I find there is a diversity of one, two and three bedroom dwellings provided in this proposal.

100 Ms Davis expressed concern about the setback of dwellings 10 and 12 from her property as she is thinking of building a new dwelling in the vicinity of these dwellings. I note that dwellings 2 to 6 are setback 3.6 to 4.6 metres and dwellings 10 and 12 are setback 1.2 metres from her property. I find that the setback of dwellings 10 and 12 is appropriate and will not unreasonably impact upon the amenity of Ms Davis' property as the dwellings are single storey. There is a new a 1.7 metre high timber paling boundary fence proposed along this common boundary, which will prevent any views between the two properties. The Council requested a condition be included on the permit requiring 1.8 metre high boundary fencing, however I am of the opinion the proposed 1.7 metre height is satisfactory.

101 The visitor car parking provided complies with standard B16 in clause 55. Two visitor spaces are provided at the rear of the development and two are provided in the middle, adjacent to dwelling 21. I asked Mr O'Brien about the appropriateness of the visitor spaces outside dwelling 21, as they are located on a bend and are hidden behind a corner. He stated that they may have sightline issues.

102 Mr O'Brien expressed a preference for these visitor spaces to be deleted and kerbside parking utilised instead, given the proposed width of the access road. Mr Peake advised that the initial proposal contained kerbside parking but was changed to formal visitor spaces at the request of the Council.

103 I find the two visitor spaces outside dwelling 21 to be unacceptable as they are hidden behind a corner and proposed landscaping and will have sightline difficulties. In addition to which, they are located outside the front door and living room window of dwelling 21 and will, in my opinion, detrimentally affect the amenity of this dwelling. Therefore, these two visitor spaces should be removed and relocated as kerbside parking spaces within the front 70 metres of the proposed access road that has a width of 5.4 metres.

104 The Council questioned the location of the rear visitor parking spaces and Mr Peake suggested that they can be swapped with some of the resident parking spaces. I have no concern with the location of the visitor parking spaces at the rear of the development.

105 Mr Umbers advised that the garbage collection will occur on the site and each dwelling will put out its own bin, other than the courtyard of dwellings (7 to 15) which will be provided with a bin collection area. I find that the proposed bin collection area for dwellings 7 to 15 to be poorly located immediately adjacent to the living areas of dwelling 7 and will require that it be relocated elsewhere on the site.

106 The Council expressed concern about the shadow cast onto private open space areas of dwellings 16 to 21 by the fence along the property boundary. I note that these private open space areas have a north westerly orientation and have a depth of between 3.0 and 4.3 metres. All of the dwellings are single storey and I am satisfied that the private open space areas will be useable with a reasonable level of amenity based on the sunlight they will receive.

107 I am not satisfied with the streetscape appearance of dwellings 16 to 21 as the single garages are set forward of the front façade of each dwelling, thereby dominating the streetscape. I find that the layout of these dwellings needs to be altered so that the garages are sited approximately 1.0 metre behind the front façade of each dwelling. The result of this alteration will be the front rooms of each dwelling being the dominant element in the streetscape. I accept that this alteration may result in modifications to the areas of private open space, but I am of the opinion that 40 square metres should still be able to be provided for each dwelling.

108 I also note that a pedestrian footpath along the southern side of the proposed access road does not extend past dwellings 16 to 20. Instead the pedestrian pathway runs between dwellings 6, 8 and 9 into the communal courtyard open space area. Given I have required the bin collection area to be relocated, I am of the opinion that the pedestrian footpath should continue around dwelling 7 and adjacent to dwelling 15. This modification could include the removal of the pedestrian footpath between dwellings 8 and 9 if the permit applicant wishes.

109 I queried the overshadowing of the private open space area for dwelling 9 and Mr Peake provided a shadow diagram illustrating that the area will receive adequate sunlight throughout the day, which is satisfactory.

110 The rear 40 metres of the review site is intended to be available as a recreation space in the short term. This design solution is satisfactory subject to the removal of the comments on the site and ground floor plan relating to the alignment of the road and the drainage reserve for reasons I have already outlined.

111 Melbourne Water nominated floor levels for some of the proposed dwellings based on the anticipated flood level of the waterway corridor. These levels would necessitate the raising of the floor levels of dwellings 12 and 13. However, I have already commented that there is uncertainty regarding the design and extent of the waterway. Melbourne Water's letter comments additional survey information has already changed the recommended floor levels and they may change again with remodelling of waterway. Therefore, I do not consider it appropriate to include these modifications in the permit conditions.

For the above reasons, the decision of the responsible authority to refuse to grant a permit is set aside. It is ordered that a permit be granted subject to conditions.