Mr C Canavan QC, instructed by Z Darmos of Deacons. Mr Canavan called evidence from:

1 S Fitzpatrick sought approval to remove a Monterey Pine copse and other native vegetation and develop a 60 bed extension to the Perpetua in the Pine Nursing Home at 304 Springvale Road in Donvale.

2 Manningham City Council refused the permit application on the basis that:

•

It did not meet the State and Local planning policy.

•

The new building contained inadequate setbacks.

•

Inconsistent with the Low Density Residential Zone.

•

Inconsistent with a Significant Landscape Overlay.

•

Detrimental to the Springvale Road streetscape.

•

Lacking in opportunities for replanting on site.

3 S Fitzpatrick lodged an application for review[1] and subsequently prepared revised plans of the development which retained about 35% of the plantation copse and other native vegetation and modified the layout of the added care premises.

4 Anthony Mahon and other resident objectors supported the responsible authority's decision to refuse the application and argued that:

•

The buildings and works should not undermine or detract from the landscape character objectives of the Significant Landscape Overlay.

•

The proposal is fundamentally flawed.

•

The proposal is unsympathetic to the character of the neighbourhood.

•

Vegetation removal will undermine the rustic character and amenity of the surrounding area, and the enjoyment of views and vistas by local residents.

•

The proposal does not implement planning policy.

•

The ultimate question for the Tribunal does not relate to whether there is a need for aged care facilities in Manningham.

5 Mr Canavan, on behalf of S Fitzpatrick, argued that:

•

Manningham has an aging population and is facing a crisis in terms of providing suitable accommodation in the municipality for aged persons.

•

The subject land has the necessary attributes to support, without undue adverse impact of the kind proposed, a proper balance of the positive and negative aspects of this proposal reveals a substantial net community benefit.

•

The proposed use is appropriate for the zone.

•

Community need is relevant to the primary question that the Tribunal must resolve, namely whether the proposal provides acceptable planning outcomes having regard to all of the factors that are relevant to a net community benefit analysis.

•

The proposal is supported by the Planning Policy Framework of the Manningham Planning Scheme.

•

There are no traffic and parking impacts.

•

The trees which are worthy of retention will be retained and supplemented.

•

The landscape character of the site and surrounds would be preserved and enhanced.

•

The built form impacts are acceptable.

•

The level of internal amenity will be high.

6 It is proposed to develop a 60 bed extension to an existing 120 bed aged care facility and for the removal of native and exotic trees throughout the site. The trees listed for removal comprise about 65% of a crop of Monterey Pines and various existing native vegetation located on the eastern two-thirds of the site.

7 For most parts the building will appear as a single storey structure although there is some section cutting into the site which links to the nursing home to the north at 302 Springvale Road. The proposal will comprise library, computer room, multi-purpose room and several dining/siting room areas. These facilities will complement the existing facilities on 302 Springvale Road including chapel, auditorium, café, private dining area, kiosk and hairdresser/beautician's quarters.

8 The building will be set back at least 12.4 metres from the property boundary (or 8 metres) from a Public Acquisition Overlay which runs along the frontage of the site in Springvale Road. Setbacks from the southern and rear boundaries will be a minimum of 3.8 and 23.1 metres respectively.

9 Excavation works ranging up to 3 metres will be required at various parts of the site to appropriately address the sloping topography of the site. As such the building would be sunk in part especially along the southern and parts of the front and rear boundaries. Total site coverage (not including paving) is 45%.

10 Retaining walls will be provided to accommodate change in levels on the site and some of these have been incorporated into the landscape design to create terrace gardens at various levels.

11 Nineteen car parking spaces are provided for staff and visitors with this car park being located in the southeast corner of the site.

12 The landscaping plan shows retention of some indigenous and Australian native vegetation together about 26 Monterey Pines on the western side of the site. The landscaping will comprise indigenous themes throughout incorporated and features as dry creek beds, water features and gazebo.

13 It is expected that 20 additional staff are to be employed over three shifts.

14 The subject site is located on the western side of Springvale Road about 350 metres north of Mitcham Road in Donvale. The land slopes from south down to north and about one-third of the site is covered with a copse of Monterey pines together with other native and exotic species in the remaining two-thirds of the site. Many of the remnant native and exotic plants on the eastern side of the site are in fair to ordinary condition. Access to the site is provided via a single crossover and gravel driveway.

15 Land to the north comprises an existing 120 bed aged care facility known as "Perpetua in the Pines".

16 Land opposite in Springvale Road and Pescara Place and to the immediate south comprise detached houses set amongst well landscaped gardens, often with tennis courts, in a relatively low density neighbourhood.

17 Land to the east comprises a large two storey aged care facility known as Pine Tree Retirement Village which faces Mitcham Road. Land further to the north of this property in Shirvington Place are recently developed two storey dwellings in a recent subdivision.

18 Springvale Road is a main arterial road which connects with Mitcham Road and the Eastern Freeway to the south and Reynolds Road to the north. However this part of Springvale Road has single vehicle lanes in each direction. Bus stops are located on either side of Springvale Road immediately in front of the site.

19 The subject site and properties to the north, south and east are zoned Low Density Residential Zone under the Manningham Planning Scheme. The purpose of this zone is:

•

To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.

•

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

20 The subject site is located within a Significant Landscape Overlay - Schedule 1. The purposes of the SLO are:

•

To identify significant landscapes

•

To conserve and enhance the character of significant landscapes

21 Springvale Road is a Road Zone -Category 1 and part of the property, and properties opposite, have 4.4 metre wide Road Acquisition Overlay (PAO4).

22 A permit is required under clause 32.03-1 for accommodation use (residential building). A permit is also required for buildings and works under clauses 32.03-4 and 42.03-2.

23 A permit is required under clause 45.01-4 to carry out works within the PAO4 and also to remove any vegetation. Similarly permission is required for construction or alteration to the access to a Road Zone- Category 1 under clause 52.29 of the Planning Scheme.

24 A permit is required to remove, destroy or lop any vegetation specified in the schedule to the Overlay and to remove native vegetation under clause 52.17 although there are a number of exemptions.

25 Decision guidelines in the SLO require the responsible authority to consider:

•

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies

•

The statement of the nature and key elements of the landscapes and the landscape character objective contained in a schedule to this overlay

•

The conservation and enhancement of the landscape values of the area

•

The impact of the proposed buildings and works on the landscape due to height, bulk colour, general appearance or the need to remove vegetation

•

The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area

•

The impact of buildings and works on significant views

26 The Statement of Nature and Key Elements of Landscape in Schedule 1 provides:

These areas have significant visual, landscape and environmental attributes. They are diverse in terms of topography, site layout, vegetation cover, road treatment and built form. The topography of these areas ranges from an undulating land form to steep slopes, prominent ridgelines and deep gullies. Some areas have a distinctive 'rustic feel'. Key elements of the landscape include the natural character, indigenous and exotic vegetation retention, panoramic views and watercourses that contribute to the 'sense of place', desirability and landscape significance of these areas.

Significant landscape areas are often attractive, low density residential areas that form an attractive backdrop against surrounding urban form. Generally, visual impacts of housing in these areas are softened by vegetation cover, and fences are unobtrusive. This assists in maintaining the environmental and landscape charm of these areas. These areas offer an alternative lifestyle choice for people who are seeking to live in a more spacious and attractive environmental setting. Although development in these areas has generally been designed to be integrated with surrounding environmental and landscape features, some development has been unsympathetic to these features, the result being vegetation loss, extensive earthworks and subdivision layouts that do not follow natural contours. The special landscape and environmental characteristics of significant landscape areas need to be properly managed to ensure that the distinctive features of these areas are protected and enhanced.

27 There are State and Local planning policies of relevance which are referred to in the submissions and expert evidence[2].

28 At the commencement of the hearing Mr Canavan sought leave to substitute the plan by De Nova Group Pty Ltd dated October 2006 Version C. There was no objection to this request and we duly substituted the plans pursuant to Section 64 of Schedule 1 of the VCAT Act.

29 We were provided with locality plans, planning scheme maps and documentation, photographs of the site and neighbourhood, correspondence from persons supporting the proposal, various VCAT decisions concerning aged care, other supporting documents including Manningham Monterey Pine and Cypress Tree Assessment Report August 2003, booklets on native planting in the City of Manningham, written submissions and expert witness reports.

30 Following the conclusion of the review hearing we undertook an inspection of the subject site, adjoining properties and the neighbourhood in general.

31 We consider the removal of a substantial proportion of the Monterey Pine plantation copse from the rear western third of the site will have a detrimental impact on the valued landscape character of this Significant Landscape Overlay.

32 Essentially the applicant wished to remove about 56 Monterey Pine trees which are in a copse at the rear of the site. The trees are about 60-65 years old and are, collectively in a fairly good condition. These trees were planted as a plantation and their remaining life expectancy is in the order of 20 to 40 years. These trees form part of a larger canopy landscaped area which is covered by a large Significant Landscape Overlay.

33 The locality, including the front two-thirds of the site also has substantial native vegetation cover so the overall effect is one of a verdant landscape character with buildings, generally speaking, being subservient to this overall landscape character.

34 The purposes and decision guidelines in the Significant Landscape Overlay area are directed at maintaining the environmental and landscape charm of this area. We acknowledge the site is on the western edge of the Significant Landscape Overlay area and coincidentally the Low Density Residential area, but nonetheless it contributes to a significant landscape character in the neighbourhood. Whilst we acknowledge the applicant's gesture of retaining 26 or about 35% of the Monterey Pines on the western side of the site, however we consider the loss of about 65% of this landscape feature from the site is too drastic in the context of this neighbourhood and it will result in the substantial loss of a valuable landscape element that contributes to the Statement of Significance.

35 During the hearing there was substantial debate about whether part or all of the copse should be removed. In this regard the Council and Mr Kenyon suggested that if the Tribunal contemplated removal of this amount of the copse then the entire copse should be removed and the area replanted. Whilst that is an outcome sought for replacement vegetation in policy documents, we consider that this approach should be viewed as a last resort, such as say when the trees are in a poor senescent state. However in this case the trees are in reasonable condition and they can, under normal circumstances, survive for at least 20, if not 40 years.

36 We acknowledge that in time these trees will decline, particularly after 20 years and we do not see any major obstacle to some culling of the trees, particularly at the fringes where the trees are more likely to become a hazard due to external environmental impacts. But we see that the process of removal, and possibly replacement, is a long term program of the kind anticipated in the Council's recent publication of the Manningham Pine and Cypress Tree assessment.

37 However having regard to the issues in this application and the extent of development desired for this aged care building we cannot think of measures which would ameliorate the loss of landscape character in the short term. It is just too much too soon.

38 We acknowledge that aged care accommodation or a nursing home is an appropriate use within a Low Density Residential Zone. The responsible authority granted approval for the original nursing home to the north and a substantial extension to it. Provided that all siting, amenity , car parking, access and landscape issues are adequately addressed, we see no fundamental reason why the existing large facility cannot expand.

39 Mr Canavan argued that community need is relevant to the primary question that the Tribunal must resolve, namely whether the proposal provides an acceptable planning outcome having regard to all of the factors that are relevant to a net community benefit analysis.

40 Mr Kane, on the other hand, disagreed and referred to Verraty Pty Ltd v Melton SC [2005] VCAT 283. He also argued that the ultimate question is whether the proposal will generate an acceptable planning outcome. We consider this matter can be distinguished from the Verraty decision because that proposal referred to need as not necessarily being a defining issue in determining the merits of a non residential use in a residential area.

41 However paragraph 22 in Verraty provides a pointer to our view about need in this matter:

Need is more likely be a critical consideration if the use was of demonstrated critical importance to a neighbourhood and there may be some clear adverse impacts of the proposal, but such may be outweighed because there was no other opportunities to provide that facility in the neighbourhood that it is intended to serve.

42 In this matter we draw some caution to the general notion that the proposal is needed without properly analysing or demonstrating what the actual need or the level of need is. We acknowledge that, like many community and infrastructure facilities within the City of Manningham, there is an overriding responsibility to the community to provide aged care accommodation. Mr Bastone referred to the draft document Aging Well in Manningham which tells us there will be a need for an additional 1000 places over the next 25 years. This seems to be a reflection of a general aging in the community and we believe should be read in context with other council initiatives and investigation, such as the MSS.

43 Mr Canavan provided glowing references and testimonies of the existing 120 bed aged care facility which were not disputed. However, the tabling of correspondence from Moyra Kwan, ACAS Manager of the Peter James Centre, probably highlights that there may be different perceptions of need or levels of need for this facility. Her response in the second paragraph of that letter stated:

There are waiting lists for admission at facilities in our region and the residents of the area would benefit from the increased availability of Dementia Specific residential and respite care.

44 Ms Kwan's comments do not seem to have the same level of urgency as Mr Bastone's evidence that aged care accommodation in Manningham was "in crisis". Unless there is qualified evidence of an aged care crisis in Donvale or Manningham generally we believe the issue has been has been overstated by the applicant. There may be a shortfall of particular types of aged accommodation but this may also apply equally to other eastern municipalities, the region, or the State as a whole. We heard no evidence that planning permits for aged care accommodation have been denied, and an examination of the premises to the north and west of the site attest to community commitment to these facilities in the neighbourhood, whether that is in a Residential 1 or Low Density Housing zone.

45 Mr Canavan referred to Fifth Linstock Nominees Pty Ltd[3]. The decision provides a convenient comparison with this matter because it is also in a Low Density Residential Zone abutting a Road Zone Category 1 with a Significant Landscape Overlay. Senior Member Marsden and Member Bennett remarked:

11 This leads us to the proposition advanced by Mr Dwyer. In accordance with the framework plans set out in Clause 21 of the planning scheme, the review site is situated in a Low Density Area, not in an established urban area. Clause 21.12 contemplates that institutional uses will occur in established urban areas and not Low Density Areas. Mr Dwyer relied on these matters when contending that there was no local policy support for the proposal.

12 This contention is true, as far as it goes. Nonetheless, as the Tribunal pointed out in its interim decision, the matter is discretionary and wider planning principles, particularly the concept of net community benefit, need to be addressed. While the Tribunal accepts that Clause 21 is not silent on the question of institutional uses in Low Density Residential Areas, it speaks in whispers. This application must be assessed against a wider policy setting than that provided by Clauses 21.12 and 21.13.

13 It is very clear that any assessment of net community benefit involves weighing the positives against the negatives, or put another way, the winners against the losers. The positives in this matter are readily apparent. The development, if approved, will provide 109 much needed beds, the need for which everyone concedes.

14 Who then would be the losers? The Tribunal does not believe that any nearby resident will be detrimentally affected by the proposal, to the extent that their amenity, their visual outlook or their standard of living will be prejudiced. We agree with Mr Biacsi that the setbacks are now extremely generous. The fact that distant glimpses may be available through a heavily vegetated perimeter is simply not a sufficient ground for refusing to grant a permit. Issues such as overshadowing, loss of privacy and the like simply do not arise.

46 As we mentioned earlier on the basis of the site context and existence of the existing aged care facilities to the north at 302 Springvale Road, there is general support for the usage of land in this low density area. Similarly, we accept the Complete Aged Care Services[4] decision where such uses can be contemplated in an area such as this.

47 However, where we distinguish this decision from Fifth Linstock is in the assessment of the positives and negatives of the proposal. On the one hand the proposed used will provide additional aged care facilities which are needed in the general region although we are not sure about the extent of the facility in this particular neighbourhood. On the other hand, there will be a substantial diminution of the landscape and neighbourhood character.

48 In this case we are not examining the removal of a single windrow nor are we referring to the significance of an individual tree. Rather we are called on to examine a large copse of trees which the experts agree have at least 20 and possibly 40 years life expectancy. The trees have been specifically identified as part of the valued landscape character. The Council has specifically referenced to the landscape character to which these trees make a valued contribution and has taken steps to recognise this valued landscape in the Planning Scheme. So in terms of net community benefit we consider the negatives outweigh the positive of this particular proposal.

49 In evidence Mr Wyatt referred to the schizophrenic planning scheme provision apparently in response to the councils desire to preserve trees which are declared weed species. We do not have difficulty with the council's approach because the Council, through the Significant Landscape Overlay is trying to conserve a valued landscape character, rather than any one particular tree. The Council acknowledges through documents like the Manningham Pine and Cypress Tree Assessment that the trees will eventually decline, need maintenance and ultimately will have to be replaced but that does not mean they are to be removed immediately and deny the community a valued landscape feature for the next 20 to 40 years.

50 We consider the building setbacks from the front and the southern boundaries are inadequate. We note the building setbacks from the front are generally in the order of 7.5 to 8 metres to the closest part of the realigned boundary after the road widening works take place. This compares with setbacks in excess of 10 metres on the aged care building to the north.

51 We acknowledge the applicant's argument that the front setbacks on that building are different due to the provision of car parking in the front of the site but nonetheless, we feel this building is too close to the future boundary of the site having regard to the general placement of buildings along this section of Springvale Road. We acknowledge that it is only a single storey building when viewed from Springvale Road, but it has setbacks which are more commensurate with buildings in a Residential 1 Zone rather than a Low Density Residential Zone.

52 We consider the front setbacks should be far more generous and in the order of at least 10 metres to the closest point of the building (not just walls of siting rooms).

53 Similarly, we consider the setbacks from the southern boundary, which range from about 3.3 metres to about 4.5 metres, are relatively small given the context of existing buildings and landscape cover in this Low Density Residential Zone. The Decision guidelines in the schedule to the Significant Landscape Overlay also call for an assessment of the building in the landscape context and determination of whether the landscape character objectives are met.

54 Whilst there is substantial vegetation on the property to the south, we consider there will be limited opportunity for much canopy vegetation in the narrower setback areas and we are reluctant to see a repeat of the vegetation treatment along the southern perimeter of this existing aged care facility. This is not to say it is unpleasant, but rather it seems to provide little in the way of relationship with canopy landscaped elements that are found in this neighbourhood.

55 We noted on our inspection from residential properties in Shirvington Place that the existing nursing development seems to have driven a wedge in both built and landscape form between the areas to the south and north of it. There was some comment in the hearing that residents in a Residential 1 area are borrowing the amenity derived from the Low Density Residential and Significant Landscape Overlay area. Whilst this is true to a certain degree, the view of the roof form of Perpetua in the Pines from some dwellings abutting the site reveals a stark contrast to the extensive canopy vegetation character to the north and south of it whereby the nursing home appears purely as a sea of roofing. This wedge feature is not as apparent when viewed from within the Vegetation Protection Overlay area along Springvale Road. Whilst it is not a determining factor in this case, the observation nonetheless is quite striking.

56 Having regard to our concerns about the lack of setbacks from Springvale Road and the southern boundary together with the concern about the loss of the copse of Monterey Pines, we consider that the proposed development cannot be supported in the form presented. We note Mr Marsden and Mr Bennett provided the applicant in that case with an opportunity to redesign the development, but we consider, in this case, having regard to the potential loss of an extensive copse it would be difficult to modify this proposal without substantial changes to the layout of the development.

57 For the above mentioned reasons the responsible authority's decision is affirmed. We consider the proposal will have a demonstrable impact on the valued landscape character of the Significant Landscape Overlay area and the character of the Low Density Residential neighbourhood. Whilst we accept the site is suited for aged accommodation there are significant concerns about loss to the landscape character and built form issues to warrant refusal of the proposal. Even if it could be demonstrated that there is a need for the proposal we do not consider that need out weighs the significant planning loss if a large section of the landscape feature is removed.

[1] Pursuant to Section 77 of the Planning and Environment Act 1987

[2] Clauses 11, 12, 14.01, 15.09, 18.06, 19.03, 21.01, 21.03, 21.04, 21.05, 21.08, 21.13, 22.01, 22.09 and 65

[3] Fifth Linstock Nominees Pty Ltd v Manningham CC [2006[ VCAT 1667

[4] Complete Aged Care Services Pty Ltd v Boroondara C.C , Ng & Ors [2003] VCAT 1934