Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted for the land at 9 Dalton Street, Gisborne.

Mr Mark Naughton, Solicitor of Minter Ellison Lawyers. He called Mr Andrew Clarke Town Planner of Matrix Planning Australia Pty Ltd, Mr Brett Lane Ecologist of Brett Lane & Associates, Mr Ben Harris Arborist of R & T Tree Service Pty Ltd, Mr Andrew O'Brien Traffic Engineer of Andrew O'Brien & Associates Pty Ltd, Mr John Nicholson Consultant in Risk Management and Fire and Emergency Management of Community Safety Services Pty Ltd, and Mr John Hawkins Civil Engineer of Breese Pitt Dixon Pty Ltd

1 This is an application under Section 79 of the Planning and Environment Act 1987 for review of the Macedon Ranges Shire Council's failure to grant a permit within the prescribed time in Permit Application No P203-0218 for the removal of native vegetation and the subdivision of land at 9 Dalton Street Gisborne into 80 lots (since amended to 66 lots).

2 At the commencement of the hearing Mr Naughton confirmed the request to substitute plans. Revised plans were circulated to all parties on 14th October 2003 in accordance with Clause 11 of the VCAT Practice Note Planning List (No 1). No objection was made to the request, so pursuant to Section 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, we amended the application.

3 The site has an area of 13.835 hectares and is located on the fringe of subdivided and developed residential land in the south west area of Gisborne Township. The land is undulating with some sharp rises and is dissected by two main creek lines running in a generally north - south direction. The site is and has been used for grazing purposes and is a mixture of grassed areas interspersed with clumps of native vegetation. The character of the land is more 'bush' than cleared farmland, particularly when viewed from outside the land.

4 The site is zoned Residential 1, as is land to the north, east and south. Land to the west is zoned Rural (Schedule 3) and is developed for the Gisborne Golf Course. Clause 32.01-2 requires a permit for subdivision and Clause 56 must be considered. Vegetation removal requires a permit pursuant to Clause 52.17. Other relevant Planning Scheme provisions include Clauses 14, 15.09, 15.10, 15.12, 16.01, 18.09, 19.01, 21 02, 21.03, 21.05, 21.06, 21.07, 22.01, 22.02, 22.06 and 65.02.

5 The proposal involves subdivision of the land into 66 lots - varying in size from 1,000m2 to 3,940m2 and with an average size of 1,529m2.

6 Mr Rintoul outlined the subject land and surrounding land, the proposal, relevant statutory planning controls, strategic planning controls, Amendment C8, decision guidelines, consideration of the permit application by Council (including notification, referrals and decision of Council) and discussion of the planning merits of the proposal including character of the land, neighbourhood character, drainage, role of policy, vegetation removal and building envelopes, and expectations of residents.

7 Mr Leverton, Mr Deveson, Mr Wills, Mrs Flentje and Mr Buskes made submissions opposing the proposed subdivision of the land into 66 lots. While they all accepted that some subdivision and development would occur on the land, they sought a development of a much lower density of around 1 lot per 4000 square metres. A subdivision containing lots of around this size would be generally consistent with the size and character of existing lots and development, would be consistent with the Essential Economics report which recommended a 4000 square metre lot size, would reduce traffic and drainage impacts, and would provide for better environmental outcomes in terms of retaining native vegetation and habitats.

8 Mr Naughton, together with Mr Clarke, Mr Lane, Mr Harris, Mr O'Brien, Mr Nicholson and Mr Hawkins, then made submissions and gave evidence in support of the subdivision proposal. They dealt with planning provisions, planning policy, native vegetation, flora and fauna habitats, drainage, traffic, road safety, fire risk and neighbourhood character.

9 The State and Local Planning Policy Frameworks together support the more effective and efficient use of infrastructure, consolidating new development within existing urban areas and ensuring new development is of a high standard in design terms. Policies require protection and conservation of biodiversity including retention of native vegetation and provision of habitats. Victoria's Native Vegetation Management - Framework for Action with its concept of 'Net Gain' must also be considered. Clause 65.02 also requires consideration of a number of matters when approving an application to subdivide land including, as appropriate:

* The existing use and possible future development of the land and nearby land.

* The availability of subdivided land in the locality, and the need for the creation of further lots.

* The effect of development on the use or development of other land which has a common means of drainage.

* The subdivision pattern having regard to physical characteristics of the land including existing vegetation.

* The area and dimensions of each lot in the subdivision.

* The layout of roads having regard to their function and relationship to existing roads.

* The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots.

* The provision of and location of reserves for public open space and other community facilities.

* The design and siting of buildings having regard to safety and the risk of spread of fire.

* The provision and location of common property.

* The availability and provision of utility services, including water, sewerage, drainage, electricity and gas.

* Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas.

10 In relation to the Local Planning Policy Framework, Gisborne is identified as the major population centre within the municipality. Census documents tendered at the hearing demonstrate a significant growth rate, although not as significant as initially suggested by Mr Naughton. Key Issues and Trends (Clause 21.03) comments that there are limits to growth in Gisborne and that such growth needs to be limited to protect environmental, landscape and lifestyle qualities... . Strategic Directions are listed in 21.07 and include concentrating future urban development in the Shire's major urban centres and encouraging all future residential growth within existing township boundaries where there is adequate infrastructure to cater for such development. Other policies require protection of landscape qualities, vegetation and habitats. Clause 22.02-2 includes specific policies for Gisborne Township. This includes objectives to provide wider housing choice, urban consolidation and infill of vacant serviced residentially zoned land. The review site is within the identified township boundary on the Gisborne Structure Plan.

11 The policy frameworks were referred to by Council, the permit applicant and a number of the respondent objectors. In general terms we are of the opinion that the policy frameworks strongly encourage the subdivision and development of residentially zoned land located within the township boundary and able to be provided with all infrastructure services. On that basis we support the subdivision of the review site.

12 However policy frameworks and Clause 56 strongly recognise that any subdivision must also be site responsive in terms of its physical characteristics and its context. It is this failure to respond appropriately to the specific site characteristics that is a critical issue.

13 Parties also referred us to Amendment C8 that proposes to modify Clause 22.02-2 (local policy for Gisborne) and change various zonings and overlays that do not affect the review site. We were advised that the amendment lapsed in July 2003 but that the Minister for Planning has appointed an Advisory Committee to advise her whether any of the changes included in Amendment C8 are in the strategic interests of the Shire and hence whether any or all of the proposals contained in Amendment C8 ought be approved by her. We do not consider this Amendment has reached the stage of a seriously entertained proposal and do not further consider it. We have received correspondence since the hearing from both the permit applicant and Mr Leverton in relation C8 and have disregarded both for the reasons set out above.

14 The proposal to subdivide this relatively large parcel of vacant land, located on the fringe of a developed residential area, within close proximity to the Gisborne Secondary School, Gisborne Golf Course and able to be provided with all services, is consistent with policies relating to more effective and efficient use of infrastructure. However, despite the Residential 1 zoning, the review site has some unique physical characteristics which requires it to be subdivided at a lower density than would be the case in other areas zoned Residential 1 closer to the centre of town, and even at a lower density compared to those areas to the south and east of the secondary college referred to us by Mr Naughton and which are subdivided into lots of around 2,000 square metres in area. We inspected these areas (Highbury Estate, Glenton Court and other nearby streets) and noted the different site characteristics existing in these areas - much of it appears to be once cleared grazing land, with uniform slopes and little indigenous vegetation.

15 In relation to neighbourhood character, we are of the opinion that the proposal does not fully respond to the character of the neighbourhood. Establishing the character of the neighbourhood involves more than assessing existing building heights and setbacks and requires consideration of more intangible factors created by the juxtaposition of building heights, front and side setbacks, landscape character and styles, lot sizes and dimensions, size and style of rear yards and the public realm including road and footpath design. We agree with residents that despite the Residential 1 zoning of land along Dalton Street, the character of the street (particularly at its western end) has a low density residential character with houses set on large lots with well landscaped side and rear gardens. Daly Street properties are even larger, although these only have a rear boundary interface with the review site. We consider that the proposed subdivision is at odds with this character and will appear as a relatively intensive development sitting outside and beyond existing lower density housing on the fringe of Gisborne Township. In our view this does not represent a development that is respectful of neighbourhood character.

16 The proposal to create 66 lots, with areas generally of between 1,000 and 4,000 square metres (average around 1,530 square metres), does not in our view represent a site responsive design. At the hearing considerable time was spent discussing the relative merits of the 1993 Budge report (Gisborne Township Residential Review) which advocated a density consistent with the existing lots, the 1999 Essential Economics, Connell Wagner and i.d. consulting Review which advocated a 4,00m2 lot size for this area, the existing Structure Plan and the proposed Structure Plan (C8). Council has clearly thought long and hard about future development in Gisborne but very little of this strategic planning activity has actually found its way into the Planning Scheme. We are required to base our decision on what is in the Planning Scheme at this time, and to a large extent these documents provide little guidance as to what is the desirable form of subdivision of the review site. It fundamentally comes back to an assessment of what is a site responsive design. If we thought lots of 500 square metres represented a site responsive design then we would say so and refuse the current proposal and recommend a new application be lodged on that basis. Similarly if we considered 1,530 square metre lots were site responsive we would say so, and based on the size of lots on the substituted plans, would recommend approval.

17 Our site inspection enabled us to walk over the site and compare the layout with the on ground site characteristics. We noted the two main drainage lines, the high points, clumps of vegetation and other features. The basic road layout is logical and generally follows the drainage lines so that, as explained to us at the hearing by Mr Hawkins, underground drains can be placed under roads to cater for 1 in 10 year storm flows. Greater flows are then designed to flow along the internal road system. This is a common approach in subdivisions and we find the layout supports this outcome. In the same way the reticulated sewerage system can also follow the same road layout with sewers generally located at the lower points following the roads.

18 Our major concern with the size of the proposed lots is that they are mostly too small to allow retention of the significant vegetation and enable houses, outbuildings and the like to be constructed. We do not fully accept the evidence of Mr Harris about the number of trees that can be kept. Theoretically we agree that all of the trees identified by him as being retained can be retained, but we consider it highly likely that many of these trees will be removed once householders move in because of reasons of safety or convenience or wanting to build structures including pools, gazebos, sheds and the like. We note there is no Vegetation Protection Overlay and that once the lots are created there is no control over the removal of trees and nor is there control if trees are within a certain distance of a dwelling. It was suggested by the permit applicant that the subdivision plan could include building envelopes to protect identified trees, or even a Section 173 Agreement to have the same effect. We consider this a clumsy approach and one that does not reflect the practical reality of these trees being on lots that are too small to allow for both their retention and the construction of houses and various appurtenances. Our inspection also revealed some quite steep land towards the eastern boundary that would make development difficult with the layout and size of lots proposed.

19 Those residents living to the north with access from Daly Street were greatly concerned about the adverse impacts of drainage on their properties. As previously noted, the site contains two major drainage lines that drain the site (and the catchment extending generally to the Gisborne-Melton Road) in a south-north direction. These drainage lines cross the northern boundary - one flows directly into the Flentje property at Lot 1 and the other into the Ferruga property at Lot 2. These two drainage lines then join towards the front of these two properties and the combined drainage line then continues north/northwest across Daly Street. A relatively minor drainage line (in effect an overflow from the Golf Course dam) crosses the extreme north western corner of the review site and feeds into a dam on the Flentje property. Mr Hawkins advised us that it is proposed to construct a drain to divert this water flow around the edge of the review site and hence maintain the connection to the Flentje dam. We are satisfied with this proposal and note that it then removes a potential impediment to development in the extreme north western corner of the review site.

20 Mrs Flentje expressed major concerns about proposals for drainage of the site and whether it would cause major changes to flows through her property. Given that drainage water flows towards and through her property this is a quite understandable concern but we are satisfied that the system has been designed to properly cater for expected flow scenarios. We note her concerns about maintaining flows from the Golf Course and are satisfied with the evidence of Mr Hawkins that this can be achieved with further refinement to the diversion pipe around the edge of the review site.

21 Of particular concern to residents living in Dalton Street was the impact on their street of the additional traffic generated by the 66-lot subdivision. Mr O'Brien was called to give evidence about traffic and related issues. Neither Council nor residents called expert traffic evidence. Mr O'Brien provided evidence in relation to the existing road system including traffic volumes and traffic movements on the Gisborne-Melton Road. Dalton Street is in effect a cul-de-sac serving 7 houses with a further 6 houses in Charles Court. Assuming that each of these dwellings produce the broadly recognised traffic generation rate of 10 vehicles per day (vpd) then the eastern end of Dalton Street carries around 130 vehicles per day (although Mr O'Brien gave a figure of 100vpd). The proposed subdivision of 66 lots all accessed via Dalton Street would create an additional 660 vpd, which on our reckoning gives a total of around 790 vehicles per day. This is well within the built capacity of Dalton Street and is acceptable.

22 Mr O'Brien then gave evidence about whether the increased traffic on Dalton Street was acceptable having regard to pavement construction and function. He noted that under ResCode, Dalton Street would be classified as an access street with maximum daily traffic volumes of 2,000 vehicle movements. The 66-lot subdivision would increase traffic movements to 790 vehicles per day - well within its capacity. In relation to impacts on the Gisborne-Melton Road, both the residents and Mr O'Brien showed videos of the situation outside and within close proximity to the Secondary College. These showed that traffic movements are more congested at school drop off and collection times, but at no time were traffic conditions intolerable. Indeed, after viewing the videos we are satisfied that existing traffic levels are quite modest and that the additional traffic from subdivision of the review site will not create an unacceptable outcome. We also note that the proposal includes construction of a through lane opposite Dalton Street to avoid blocking of traffic during the afternoon peak period and although this will bring the road edge close to trees on the eastern side of the Gisborne -Melton Road, we are satisfied that this can be achieved without loss of significant vegetation.

23 Submissions were made in relation to the desirability of creating a second access to the review site by constructing a road within the Willowbank Road reserve, which abuts the south eastern corner of the review site. No road or track has been constructed within this road reserve and it is largely vegetated with mature native vegetation. It intersects the Gisborne-Melton Road on a curve with obscured sight lines caused both by the alignment of the road and the large trees flanking the edge of the road. Willowbank Road continues as a sealed road east of the Gisborne-Melton Road and Mr O'Brien gave evidence that a roundabout would need to be constructed at this intersection if the western leg of Willowbank Road were constructed to provide access to the review site. Mr O'Brien gave evidence that numerous trees would need to be removed to provide clear sight lines and it was his view it would have an unnecessary adverse impact on the natural environment, and the traffic - related benefits to be gained would be minimal. Based on our site inspection, we agree with him and consider that the loss of vegetation within the Willowbank Road reserve and along the Gisborne -Melton Road cannot be justified given that a satisfactory access to the site already exists from Dalton Street.

24 Mr O'Brien also gave evidence in relation to road widths within the proposed subdivision and indicated that he has recommended carriageway widths of 5.0m-5.5m and that these would satisfy ResCode requirements for Access Streets. In relation to the relatively narrow 10 metres wide road reserve in the north west corner along the Golf Course boundary, he noted that this has been designed as an Access Place and should be provided with street pavements of 3.5 m and 5.0m - again in accordance with ResCode requirements. He also suggested that a footpath could be provided along the existing section of Dalton Street if considered desirable but was not convinced that such a path is necessary.

25 We accept the evidence of Mr O'Brien that Dalton Street is capable of accepting the additional traffic generated as a result of a subdivision of this land and that the width of streets within the development are sufficient to cater for the projected traffic volumes. We do not accept residents concerns about traffic in Dalton Street or in the Gisborne-Melton Road, although we recognise that Dalton Street residents will experience a significant increase in traffic volumes over what exist at present in what is in effect, a small cul-de-sac or court.

26 We have previously commented about our concerns as to the practicality of long term retention of what Mr Harris has acknowledged are significant trees. These trees do provide habitat for birds and other fauna, including the occasional koala as recorded by residents. Subdivision in itself will not destroy the habitat for birds and garden planting will almost certainly improve habitat. Smaller mammals and koala will find it more difficult to move around once the land is developed but we note this is a residentially zoned area and it is unreasonable to expect that the land not be developed at all because of impact on vegetation or habitat. What is required is a development that recognises and balances such attributes.

27 We note that there is a proposal to offset vegetation lost by planting at the nearby U L Daly reserve located to the north east closer to the centre of town. This accords with the principles of Victoria's Native Vegetation Management - Framework for Action and we accept this concept in principle while recognising that the actual mechanism to achieve this will need further discussion with Council staff.

28 We received evidence from Mr Nicholson about the risk of wildfire and accept his evidence in this regard. Subdivision and development of this land will improve the level of fire management and reduce the risk compared to an area of 'unsupervised bush' where householders are not present to clear debris, etc.

29 In making our assessment of the proposal we have weighed up the various competing policies concerning subdivision and have had particular regard to the specific provisions of existing local policies relating to Gisborne Township. We have also assessed the proposal against the objectives and standards of Clause 56 and have found that the proposal to subdivide the review site into 66 lots is not consistent with state and local planning policies and that it is unacceptable in terms of the neighbourhood character and integration with existing development in this south west area of Gisborne.

30 In relation to the specific concerns raised by residents about traffic movement, drainage, loss of habitat and fire risk, we are not persuaded that these will be unacceptable or that they justify rejection of the proposal. We have instead rejected it because it fails to properly consider the specific site characteristics and is therefore not a site responsive design.

31 For the above reasons, the Application for Review is disallowed and we will order that no permit issue.