1 In application P11093/2021 the decision of the responsible authority is set aside.

2 In planning permit application PLN/2020/159 a permit is granted and directed to be issued for the land at Lot 1 PS 542433T - 1427 Rochford Road NEWHAM VIC 3442 in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

• Use and development of the land for a dwelling and an outbuilding.

Mr David Song, town planner of SongBowden Planning.

A single storey dwelling and associated outbuilding.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Clause 35.06-5: to construct a building or construct or carry out works;

Clause 41.01-2: to construct a building or construct or carry out works;

Clause 42.03-2 to construct a building or construct or carry out works; and

Clause 44.06-2: to construct a building or construct or carry out works.

Clauses 11, 12, 13, 14, 16, 21.03, 21.04, 21.05, 21.06, 21.07, 21.09, 21.13, 22.01, 35.06, 42.01, 42.02, 42.03, 44.06, 52.17, 53.02, 65 & 71.02.

This rectangular 2.4ha site is on the west side of Highland Lane. It is just over 200m to the north of the Hanging Rock Reserve. The northern half of the site has a moderate cover of native vegetation. Dwellings occupy all adjoining lots.

1 Alexandra Ellis seeks a permit to use and develop the site at 1427 Rochford Road, Newham for a dwelling. She relies on amended plans that address the objectors concerns and improve the bushfire management arrangements. This has been done by undergrounding the powerline and siting the dwelling away from the boundary.

2 Macedon Ranges Shire Council refused to grant a permit on an earlier set of plans. Its grounds relate to the site's conservation and landscape values and its bushfire constraints. This decision was contrary to its offers' recommendation, which was to support the earlier proposal.

3 Ms Gayfer and the relevant referral authorities support the amended plans.

4 In submissions, the Council focused on the site's strategic setting. It says that using and developing this site for a dwelling is not supported by the combination of the Zone's purpose, the Overlays' objectives and the policy that support these controls.

5 In oral reasons given at the hearing, I found that a permit should be issued. I gave my reasons at the time and provide this summary for the record.

6 The Council's case fails because it gives no weight to the site's physical context. This 2.4ha lot is surrounded by similarly sized lots that contain dwellings. This is the physical context of the Rural Conservation Zone in this location.

7 The purposes and decision guidelines of this Zone set a high bar for new development, but they do not prohibit it. Rather the Zone allows development that enhances a site's conservation values.

8 The Significant Landscape Overlay is similar. It allows development that responds appropriately to the Overlay's objectives.

9 The Environmental Significance Overlay does not prohibit new development. Rather, it seeks to ensure that water quality in the Shire's northern catchments is protected.

10 The policies of the Macedon Ranges Planning Scheme reflect these objectives and do not prohibit this development. These policies assist in the exercise of my discretion as to whether this proposal meets the Scheme's objectives. They are guidelines rather than rules.

11 I find that the proposal meets the Zone's purposes through the combination of the use of the land and the Land Management Plan that obliges the landowner to protect and enhance existing vegetation.

12 I find that this proposal does not offend the Planning Scheme's settlement policies. The existing pattern of development in this area is of houses on lots of between 2ha and 4ha. I consider that using this site for a dwelling is consistent with this existing development pattern.

13 I find that Strategy 1.8 of clause 21.04, which encourages dwellings in conjunction with agricultural uses, does not sensibly apply to this site. An agricultural use would be an anomaly in this area of small lots used for housing.

14 I also find that agricultural use of this site is less likely to protect its conservation or environmental values, as required by the Zone. An agricultural use may compete against the conservation and enhancement of native vegetation and may result in excessive nutrient loads in waterways.

15 The Planning Scheme's policies on significant landscapes are expressed in the objectives of the Significant Landscape Overlay. I find that the proposal does not offend these objectives. The appearance of this dwelling in the local landscape will not affect views from the Hanging Rock lookout. It will be one of many dwellings seen in foreground views, while the distant hills and ridgelines remain unaffected. I doubt that a viewer from this lookout would notice this dwelling if it was constructed.

16 Regarding the Planning Scheme's policies on the environmental risk to the Eppalock Proclaimed Catchment, I rely on the advice of Goulburn Murray Water. It is the custodian and manager of water quality in this catchment, and it does not object to the grant of a permit.

17 Regarding the proposal's impact on the amenity of adjoining properties, I rely on Ms Gayfer's acceptance of the amended plans. I accept that the proposal will add another dwelling into the panorama of views from her land but find that this is to be reasonably expected.

18 Otherwise, the amended plans resolve the concerns of Ms Gayfer and other nearby residents. The distance between the existing and proposed dwellings is increased and the defendable space for bushfire management is now wholly within the site. This removes any obligation on the neighbours to manage this defendable space.

19 I am confident that the Applicant has responded appropriately to the technical constraints of land capability, siting of the dwelling, management of bushfire risk and future land management. A lot of work has occurred behind the scenes to deliver an outcome that satisfies these technical requirements.

20 The Council officer's support for an earlier iteration of this proposal influences my decision. The Council's officers comprehensively investigated the policies and technical requirements that apply to this proposal and found it was satisfactory. Their reasons reflect my judgement on the policy framework and conclude that the technical requirements of this proposal are satisfied.

21 The Applicant does not contest the draft conditions circulated by the Council except to update conditions to refer to the amended plans and associated reports.

22 I have made the changes sought by the Applicant.

23 Separately, I have included conditions requiring the Landscape Plan that accompanied the amended plans to be implemented and the landscaping maintained to the Council's satisfaction.

24 For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Lot 1 PS 542433T - 1427 Rochford Road

• Use and development of the land for a dwelling and an outbuilding.

1 Prior to the commencement of the approved development, copies of amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be generally in accordance with the plans prepared by Glow Design Group dated 13 October 2021 but modified to show:

(a) Details of the materials and colour finishes of water tanks utilising suitably muted and natural colour finishes to the satisfaction of the Responsible Authority.

(b) The driveway maintenance agreement required by MRSC Engineering Condition 10.

(c) Works on waterways consent from North Central Catchment Management Authority for the driveway alignment to cross designated waterways within the subject land.

2 The development and use allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason, unless with the prior written consent of the Responsible Authority.

3 Prior to the commencement of the approved development, the owners of the lot must enter into an agreement with the Responsible Authority in accordance with Section 173 of the Planning and Environment Act 1987. The agreement must provide for:

(a) All requirements and recommendations of the approved Land Management Plan endorsed as part of Planning Permit PLN/2020/159 must be implemented on an ongoing basis to the satisfaction of the Responsible Authority.

Application must be made to the Registrar of Titles to register the Section 173 Agreement on the title to the land under Section 181 of the same Act prior to the commencement of the development.

The owners must pay all costs (including Council's costs) associated with the preparation, execution, registration and (if later sought) cancellation of the Section 173 Agreement.

4 Prior to the occupation of the approved dwelling, the following buildings and works must be provided to the satisfaction of the Responsible Authority:

(a) The provision of all-weather vehicle access from Highland Lane to the approved dwelling in accordance with the endorsed plans and incorporating adequate firefighting vehicle access requirements.

(b) The provision of an adequate water supply (rainwater tanks or reticulated water supply) for potable domestic use and firefighting purposes.

(c) Connection to reticulated electricity supply or an alternative energy source.

5 Within one year of the occupation of the approved dwelling, the landscaping shown on the Landscape Concept Plan - boundary planting, prepared by Urban Design and Management Plan Ref: S21003_LCP (Rev B) dated 14 October 2021 must be planted to the satisfaction of the Responsible Authority.

6 The landscape areas must be maintained to the satisfaction of the responsible authority and once landscaped must not be used for any other purpose. Maintenance must include the removal of weeds and the replacement of any dead plants in accordance with the Landscape Concept Plan - boundary planting, prepared by Urban Design and Management Plan Ref: S21003_LCP (Rev B) dated 14 October 2021.

7 The nature and colour of building materials employed in the construction of the buildings and works hereby permitted shall be harmonious with the environment, to the satisfaction of the Responsible Authority. The materials to be used in the construction of the buildings and works hereby permitted shall be of non-reflective type, to the satisfaction of the Responsible Authority.

8 The amenity of the locality must not be adversely affected by the activity on the site, the appearance of any buildings, works or materials, emissions from the premises or in any other way, to the satisfaction of the Responsible Authority. All external lighting for the approved dwelling and any ancillary buildings and works must be designed, baffled and located so as to prevent adverse effect on adjoining land, to the satisfaction of the Responsible Authority.

9 The outbuilding hereby permitted shall not be used as a dwelling, as defined by the Macedon Ranges Planning Scheme, to the satisfaction of the Responsible Authority.

10 Prior to development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), a native vegetation protection fence must be erected around all native vegetation to be retained within 15 metres of the works area. The temporary vegetation fencing must be erected to the satisfaction of the Responsible Authority. This fence must be erected at:

(a) A radius of 12 times the diameter of the tree trunk at a height of 1.4 metres to a maximum of 15 metres but no less than 2 metres from the base of the trunk of the tree; and

(b) Around the patch(es) of native vegetation at a minimum distance of 2 metres from retained native vegetation.

(c) The tree protective fencing must be constructed of star pickets and paraweb or similar, to the satisfaction of the responsible authority. The protection fence must remain in place until all works are completed and must be erected around areas to be retained to protect surrounding vegetation. The tree protection fencing must form a visual and physical barrier and include signage clearly marked "Vegetation Protection Zone - No Entry" on all sides. Any trees, vegetation or waterways near the development site and/or construction areas must be included in the tree protection zone.

11 Before the development commences an owner's agreement with the owner of 25 Highland Lane for the common driveway maintenance must be submitted to and approved by the responsible authority.

12 Prior to the commencement of works, an "Asset Protection Permit" must be obtained from Council for any of the following circumstances:

(a) Entering a building site by means of a motor vehicle having a gross weight exceeding two tonnes.

(b) Occupying a road for works.

(c) Connecting any Council land to a stormwater drain.

(d) Opening, altering or repairing a Council road.

(e) Opening, altering or repairing a Council drain.

(f) Accessing a building site from a point other than a crossover.

(g) Construct/repair/widen/remove any crossover.

13 Storm water runoff from the dwelling must be dissipated as normal un-concentrated overland flow clear of property boundaries and buildings in adjacent properties.

14 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into drains or watercourses. Soil erosion control measures must be employed throughout the works in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) to the satisfaction of the Responsible Authority.

15 Prior to the commencement of use, potable water supply with a storage capacity of at least 10,000 litres must be provided to the dwelling for fire- fighting purposes to the satisfaction of the Responsible Authority.

16 Prior to the commencement of use, the driveway to the dwelling must be constructed to meet the following requirements to the satisfaction of the Responsible Authority:

(a) The driveway, including any waterway crossing, must be constructed to a standard so that it is accessible in all weather conditions and be capable of accommodating a vehicle of 15 tonnes for the trafficable road width.

(b) The driveway must have a minimum trafficable width of 3.5m, be clear of encroachments 4 metres vertically and have no obstructions within 0.5m either side of the formed width of the driveway.

(c) Curves must have a minimum inner radius of 10 metres.

(d) The average grade must be no more than 1 in 7 with a maximum of no more than 1 in 5 for no more than 50 metres.

(e) Dips must have no more than a 1 in 8 entry and exit angle.

17 Due to the site constraints and soil profile, as identified in the Land Capability Assessment (LCA) by Edwards Environmental, report Version 1.0 dated September 2021, all wastewater from the dwelling must be treated to a secondary standard of at least 20mg/L BOD and 30mg/L suspended solids and disposed of via pressure compensating subsurface irrigation.

18 The design, construction, sizing and siting of the treatment system and effluent irrigation lines must be in accordance with the requirements and recommendations of the LCA.

19 The wastewater disposal area must be located at least 100 metres from any potable waterways and 60 metres from any dams/nonpotable waterways - these set-backs may be reduced by 50% if the effluent is treated to a secondary standard and a service contract is in place. Furthermore, the disposal area must be located 40 metres from any drainage lines and 20 metres from any bores.

20 The wastewater disposal area is to be free of stock, horses, buildings, driveways and service trenching (fencing around the disposal area is recommended).

21 An 'Application to install a septic tank' must be submitted to Council's Environmental Health Department to ensure the proposed wastewater treatment and disposal system is installed as per the LCA and the EPA Code of Practice - Onsite Wastewater Management 891.4 (2016).

Country Fire Authority and Bushfire Management Overlay Mandatory Conditions

22 The Bushfire Management Plan (Drawing No: S21003_BMP (Rev: B) dated 14 October 2021) must be endorsed to form part of the permit and must not be altered unless otherwise agreed in writing by the CFA and the Responsible Authority.

23 The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.

24 All construction and ongoing activities must be in accordance with sediment control principles outlined in 'Construction Techniques for Sediment Pollution Control' (EPA, 1991).

25 All wastewater from the dwelling must be treated to a standard of at least 20mg/L BOD and 30mg/L suspended solids using a package treatment plant or equivalent. The system must have a certificate of conformity issued by the Conformity Assessment Body (or equivalent approval) and be installed, operated and maintained in accordance with the relevant Australian Standard and EPA Code of Practice.

26 All wastewater must be applied to land via pressure-compensating sub-surface irrigation installed along the contour.

27 The wastewater disposal area should be generally located in accordance with the site plan prepared by Glow Design Group (TP 0.20, Rev 1) and must meet the following setbacks; 50m from the dam to the north of the dwelling, 50m from the spring/wetland to the west of the dwelling and 40m to the drainage line to the east.

28 The wastewater management system must be appropriately designed to manage the potential volume of wastewater generated under full occupancy (based on a minimum 4 bedrooms), including an appropriately sized disposal area based on a full water balance specific to the proposal and subject land in accordance with the requirements of the current EPA Code of Practice - Onsite Wastewater Management.

29 The wastewater disposal area must be kept free of stock, buildings, driveways and service trenching and must be planted with appropriate vegetation to maximise its performance. Stormwater must be diverted away.

30 No buildings are to be located within 30m of any waterways or dams on waterways.

31 The applicant shall ensure that existing and proposed buildings and electrical installations on the subject land are compliant with the Victorian Service and Installation Rules (VSIR).

Note: Where electrical works are required to achieve VSIR compliance, a registered electrical contractor must be engaged to undertake such works.

32 Any buildings must comply with the clearances required by the Electricity Safety (Installations) Regulations.

33 Any construction work must comply with Energy Safe Victoria's "No Go Zone" rules.

Note: To apply for a permit to work go to our website: https://customer.portal.powercor.com.au/mysupply/CIAWQuickCalculator and apply online through the No Go Zone Assessment.

Note: It is recommended that applications for electricity supply to each lot be submitted at the earliest opportunity so that the precise requirements of the Distributor can then be determined and accommodated. Applications for electricity supply shall be submitted via the Distributor's web portal, "mySupply" which can be accessed via the following link:

https://customer.portal.powercor.com.au/mysupply/CIAWQuickCalculator

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

(a) The development is not commenced within two years of the date of this permit.

(b) The development is not completed within four years of the date of this permit.

(c) The use is not commenced within two years of the completion of the development.

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

[1] The submissions and evidence of the parties, any supporting exhibits and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.