Hamlet Diggers Pty Ltd v Melton CC [2023] VCAT 649 | Case summary | Zoe

VICVCAT

Hamlet Diggers Pty Ltd v Melton CC [2023] VCAT 649

[2023] VCAT 649

Victorian Civil and Administrative Tribunal|2023-06-13

At a glance

AI case summary

Result

appellant. Tribunal set aside the decision of the Responsible Authority and directed that amended planning permit PA/2017/5767/3 be issued, endorsing amended plans (Human Habitats Development Plans V17 and...

Key principles

An application to amend an existing planning permit under s79 of the Planning and Environment Act is confined to whether the proposed changes to the permit are acceptable; it...
Where lots are within 35 metres of an operating rail corridor, individual railway noise assessments and restrictions on titles can be required to ensure habitable room internal...
A rear interface of residential lots with a freight-containing rail corridor is not categorically precluded by the planning scheme; a rear lot interface can be acceptable where...
Post-construction acoustic verification was not required in this case, given the existing approval and the limited incremental increase in lots within 35m of the rail corridor;...

Issues before the court

Whether the Tribunal should grant the applicant's request to amend permit PA/2017/5767 to alter the Stage 3 lot layout (specifically to relocate the...

Plain English Summary

Hamlet Diggers applied to amend an existing subdivision permit so that Stage 3 would include lots directly abutting the Sunbury/Bendigo rail corridor instead of a loop road. Melton City Council opposed the change on urban design and amenity grounds; the rail authority did not object subject to conditions. The Tribunal's task was confined to whether the proposed changes were acceptable, not to re-open the original permit. Having considered planning policy, rail interface guidance and expert evidence (acoustic and urban design), the Tribunal found that internal noise could be managed by existing and adjusted permit conditions for lots within 35m of the rail corridor, and that visual/urban-design impacts could be mitigated by fencing and housing design guideline requirements. The Tribunal set aside the Responsible Authority's decision and issued an amended permit subject to revised plans and conditions, including restrictions on title, HDG amendments, fencing requirements and a Section 173 agreement for certain matters.

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Deep Dive

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What happened

Hamlet Diggers Pty Ltd applied to amend an existing planning permit (PA/2017/5767) for a staged residential subdivision at 44–50 & 64–74 Old Calder Highway, Diggers Rest. The amendment sought to alter the layout of Stage 3: relocating the loop road along the western boundary beside the Sunbury/Bendigo rail corridor so that the road became internal and about 20 new lots would directly abut the rail reservation (Reasons, "What is this proceeding about", paras 4–5). The Responsible Authority (Melton City Council) did not support the amendment on the basis that lots backing onto the rail corridor would produce a poor urban design outcome and reduced amenity for those lots. The Head, Transport for Victoria (the rail authority) did not object, subject to conditions.

The matter came before the Victorian Civil and Administrative Tribunal (VCAT) on an application under s79 of the Planning and Environment Act 1987 for review of the Responsible Authority's failure to grant the amendment within prescribed time (front matter; "Nature of proceeding"). The Tribunal heard expert evidence (acoustic and urban design) and submissions from the parties on 9 May 2023, and on 13 June 2023 the Member (Megan Carew) set aside the Council's decision and directed an amended permit (PA/2017/5767/3) be issued, endorsing amended plans (Human Habitats Development Plans V17 and Landscape Master Plan V04) and revised conditions (Order; Appendix A).

VCAT found the amendment produced a lesser urban-design outcome in some respects, but on balance the changes were acceptable when noise risks and urban-design impacts were addressed through conditions (Reasons, para 8; Urban Design Considerations).

Why the court decided this way

Scope of consideration: The Tribunal emphasised the legal scope for an application to amend an existing permit, it was confined to whether the proposed changes were acceptable, not a re-assessment of the validity or appropriateness of the original permit (Reasons, para 7). This frame constrained the inquiry to incremental impacts produced by the amendment rather than reopening the entire history of the approval.

Noise risk assessment: Key to the Tribunal's acceptance was the acoustic evidence and the existing permit framework for dealing with lots near rail. Clause 13.05-1S (Noise management) and Clause 15.01-3S (Subdivision design) require planning to manage noise impacts. The existing permit already contained Condition 39, which requires that any lot within 35m of the rail corridor include a restriction on title ensuring building construction achieves internal habitable room noise limits (55 dB LAmax for bedrooms and 60 dB LAmax for other living areas) and describe the attenuation measures necessary to achieve those standards. The Tribunal accepted the applicant's acoustic expert (Mr Peters) that the existing noise design criteria and measures (as found in prior assessments before the Tribunal in Cardon) remained appropriate and adequate to protect internal amenity for the additional (incremental) lots created by the proposed amendment (Railway Noise, Impact on habitable rooms, paras 2–3). While the rail authority sought post-construction verification, the Tribunal found that, given the existing approval and the addition of only four additional lots within the 35m setback beyond earlier plans, post-construction testing was not required in this case (Railway Noise, para 3).

Urban design and visual amenity: Council's urban-design objection focused on the prospect of a continuous back-fence interface visible from the rail corridor and surrounding areas. The Tribunal accepted that a rear interface is not ideal but noted it is not precluded by policy, particularly for corridors identified as carrying freight, where locating rear lot boundaries toward the corridor is an appropriate option (Urban Design Considerations, paras 1–2). Visual assessments and evidence regarding fencing, the position of the railway embankment and absence of shared use paths reduced the perceived visual harm. The Tribunal imposed conditions to secure permeable fencing at the southern boundary of a specific lot and required fencing treatment details as restrictions on title to ensure consistent treatment (Urban Design Considerations, para 1 provisos; Stage 3 conditions in Appendix A).

Conditions and staging: The Tribunal restructured and clarified permit conditions to ensure they properly reflected the conversion to a staged subdivision (What conditions are appropriate, para 2). The Tribunal also required modifications to the Housing Design Guidelines (HDG) to advise on the arrangement of secluded private open space (POS) for lots abutting the rail corridor and to include notation about solar access and the drainage easement.

Balance of considerations: Although accepting that the proposed layout was in some respects a poorer outcome than the endorsed plans, the Tribunal undertook an overall balancing exercise and concluded that the changes were acceptable given the proposed conditions and evidence demonstrating that internal noise and visual impacts could be appropriately managed (Reasons, para 8).

Before and after state of the law

Before: The original permit for the site (PA/2017/5767) had been issued following a VCAT decision (Cardon Developments Pty Ltd v Melton CC [2019] VCAT 942) and plans were endorsed in 2019. Permit conditions already provided mechanisms to manage rail noise through required acoustic assessments and title restrictions for lots within 35m of the rail corridor (see Condition 39 as reproduced in the judgment).

After: This decision reaffirms several points in the planning practice context:

The correct scope for an amendment application under s79 is to assess the acceptability of the proposed changes only, not to reopen the entire permit (Reasons, para 7).
Where lots are near rail, title restrictions requiring construction measures to achieve specified internal noise levels are an appropriate method to control internal amenity (Appendix A, Transport for Victoria Rail Interface Conditions; Railway Noise discussion).
The Tribunal will accept a rear lot interface to a rail corridor in circumstances where freight carriage is involved, provided appropriate design measures, fencing, HDG directions, and title restrictions are secured (Urban Design Considerations).

The decision thus confirms a practical pathway for resolving rail-interface subdivision layouts: rely on enforceable acoustic measures and permit conditions, and use HDG and title restrictions to manage external amenity and visual treatments.

Key passages with plain-English translation

"Consideration of such an application does not require an assessment of the appropriateness of the current permit. The question before me is whether changes proposed to the permit are acceptable." (Reasons, para 7).
- Plain English: When deciding an amendment request, the Tribunal only decides if the new changes are acceptable; it does not review whether the original permit was right.
Condition 39 wording (Transport for Victoria Rail Interface Conditions): "Buildings containing habitable room/s must be constructed in such a way to ensure that internal habitable room noise levels will not exceed 55 dB LAmax for bedrooms and 60 dB LAmax for other living areas."
- Plain English: If a lot is close to the railway, houses must be built so that noise inside bedrooms and living rooms does not exceed stated maximum levels.
"I agree with Council that the changes are a lesser outcome in some respects when compared to the existing endorsed plans. However, on balance the changes are an acceptable response." (Reasons, para 8).
- Plain English: The new design is worse in some ways than the old one, but overall it is good enough to be approved when the required conditions are applied.
"The VicTrack Rail Development Interface Guidelines ... indicate that a paling fence of minimum 1.8m high with railings to the reserve side is anticipated." (Urban Design Considerations).
- Plain English: VicTrack expects developers to build at least 1.8m high paling fences along rail boundaries, with rail-side railings.

What fact patterns trigger this precedent

This decision is primarily relevant where:

An applicant seeks to amend an existing planning permit for a staged subdivision such that lots would directly abut an operating rail corridor, especially where the rail corridor forms part of a Principal Freight Network.
The amendment is assessed under s79 and there is a prior permit/endorsement history, so the Tribunal’s review is constrained to the acceptability of the proposed changes rather than reopening the original permit.
Referral authorities (notably transport/rail authorities) provide conditional non-objection, directing that acoustic measures and fencing be required.
Expert acoustic and urban-design evidence is available demonstrating that internal amenity and visual outcomes can be managed by conditions and title restrictions.
A small incremental increase in the number of lots within specified noise setback distances is proposed compared with earlier approved plans.

The practical trigger is therefore a staged subdivision adjacent to rail where the proponent wishes to change the interface treatment from a separating road to rear abutting lots.

How later courts have treated it

As of the date of this decision, it applies within the Victorian planning tribunal system and will be persuasive in future VCAT matters involving permit amendments adjacent to rail corridors. The judgment explicitly relied on and followed Cardon Developments Pty Ltd v Melton CC [2019] VCAT 942 for prior treatment of similar rail-interface and noise-control conditions (What is this proceeding about, para 1; Railway Noise, para 1). Practitioners should watch for subsequent VCAT or court decisions that either distinguish these facts (for example, where a larger number of lots within the 35m setback are added) or adopt stricter approaches to post-construction verification or external amenity standards. For now, the decision exemplifies tribunal willingness to approve rear interfaces to freight-capable rail corridors when enforceable acoustic and design measures are imposed.

Still-open questions

Post-construction verification: The Head, Transport for Victoria sought post-construction noise verification checks. The Tribunal declined to require them here given the limited incremental change and existing approvals. A key open question is under what factual thresholds the Tribunal will regard post-construction testing as necessary. Factors may include the scale of change, differences in predicted noise levels, or evidentiary uncertainties in pre-construction modelling.
External/amenity noise standards for private open space: The decision accepts that no specific external POS noise standard exists and treats external noise as qualitatively different (intermittent rail pass-bys versus constant road hum). Future cases may confront situations where private open space amenity is demonstrably compromised and may require more quantified external noise criteria.
Visual/urban-design mitigation where shared user paths exist: This case emphasised limited visibility and the absence of shared paths. If a shared path or active frontage were present or proposed adjacent to the rail corridor, the Tribunal's acceptability assessment could shift, and a rear lot interface might be less favourably viewed.
Cumulative planning precedent: This decision sits alongside Cardon and other rail-interface matters; how Tribunal practice develops into binding precedent across diverse precincts, and whether planning authorities will begin to require more uniform post-construction verification conditions, remains to be seen.
The proper instrument for rail requirements (restriction on title v Section 173 agreement): The applicant offered a Section 173 agreement to secure rail requirements but the Tribunal retained the restriction on title as appropriate. The circumstances where an agreement is required rather than a title restriction may be clarified by later decisions or negotiated authority practice.

Practitioners preparing permit amendment applications that affect rail interfaces should ensure robust acoustic evidence, proposed enforceable conditions (title restrictions, HDG requirements), and clear staging-related conditions to address these open areas and to anticipate potential authority requests for verification or long-term maintenance arrangements.

Judgment (63 paragraphs)

[1]

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

[2]

Multi-lot residential subdivision and removal of native vegetation to allow the subdivision to be conducted in Stages in accordance with the endorsed plans.

[3]

Before the plan of subdivision is certified under the Subdivision Act 1988, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with subdivision masterplan Drawing No. 31896UDAD Ref 31896000 Dated 15 February 2018, prepared by Bosco Johnson Pty Ltd but modified to show:

[4]

(a) Any adjustment necessary to accord with the signed Deed of Agreement between Jack of Trade Pty Ltd and Hua Lin Consortium Pty Ltd as emailed to Melton City Council and the Victorian Civil and Administrative Tribunal on 24 April 2019. > > (b) Deletion of Lot 62 and extension of the drainage reserve to the western boundary of Lot 61 as recommended in the Stormwater Management Report prepared by DPM Consulting Group dated 26 April 2018. The drainage reserve provided with a freeboard of 600mm to the satisfaction of the Responsible Authority. > > (c) A right turn deceleration lane on Old Calder Highway in accordance with the Functional Layout Plan (Drawing No. G22963-01) prepared by Traffix Group dated 28 March 2018. > > (d) A 3.03 metre wide concrete path within the Punjel Drive Reserve to the satisfaction of the Responsible Authority. > > (e) The modified-t (splitter island) within the internal road network changed to a raised intersection to the satisfaction of the Responsible Authority. > > (f) The provision of an 8 metre wide vehicle crossover between the proposed internal subdivision road and Houdini's Café (52-62 Old Calder Highway Diggers Rest) to the satisfaction of the Responsible Authority.

[5]

1A Before the plan of subdivision for Stage 3 is certified under the Subdivision Act 1988, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by Human Habitats dated Development Plans V17 and Landscape Master Plan V04 March 2023 but modified to show:

[6]

(g) The provision of visually permeable fencing to the southern boundary of Lot 324 adjacent to the drainage reserve.

(h) The provision of a pedestrian pathway through the drainage reserve to the Old Calder Highway.

[7]

The layout of the subdivision as shown on the endorsed plan must not be altered or modified (whether or not in order to comply with any statute, statutory rule or Local Law, or for any other reason) without the prior written consent of the Responsible Authority.

[8]

Before the plan of subdivision is certified under the Subdivision Act 1988 for the first stage of the subdivision, the owner must enter into an agreement with Council made pursuant to Section 173 of the Planning and Environment Act 1987 to provide for the following:

[9]

(a) Prior to the issuing of a Statement of Compliance for the Plan of Subdivision: > > 1. Implementation of required noise attenuation measures set out in condition 49 of this permit and associated works adjacent to the Calder Freeway must be completed at no cost to and to the satisfaction of the Roads Corporation or the Responsible Authority: > 2. Provision for a payment to the Roads Corporation for 10 years maintenance costs of any noise attenuation measures required to be maintained by the Roads Corporation. > > (b) Housing Design Guidelines for all lots on the plan of subdivision in accordance with Council's Housing Diversity Strategy and the Compact Suburban 1 Housing Character Area statement under Council's Housing Character Assessment Guidelines. The guidelines must also include details of housing typologies will also need to address fencing treatments for all corner lots in the subdivision. > > (c) For all lots between 300 m2 and 500 m2: > > 1. Building envelopes in accordance with Standard C8 and any other relevant standard under Clause 56 of the Melton Planning Scheme. > 2. Incorporate plans and a written statement to address each of the relevant objectives and performance measures of clause 54 of the Melton Planning Scheme to the satisfaction of the Responsible Authority. > 3. Require the construction of all dwellings and associated development be contained within the nominated building envelope for each of the lots hereby approved except with the prior written consent of the Responsible Authority.

[10]

An application must be made to the Registrar of Titles to register the Section 173 agreement under the Planning and Environment Act 1987 on the title to the land under Section 181 of the Act. The landowner under this permit must pay the reasonable costs of the preparation, execution and registration of the Section 173 agreement.

[11]

The agreement must also require that the future maintenance and repair of all fences (excluding the removal of graffiti) abutting open space or tree reserves be the responsibility of the owner of each lot abutting the reserve (except where damage to the fence is caused by the Council or its representatives whilst undertaking maintenance works to the reserve).

[12]

3A Before the plan of subdivision is certified under the Subdivision Act 1988 for the Stage 3 of the subdivision, the owner must enter into an agreement with Council made pursuant to Section 173 of the Planning and Environment Act 1987 to provide for the following:

[13]

a) each lot which is less than 400m2 capable of development for a dwelling or residential building must provide at least 25% Garden Area in accordance with Clause 32.08-3 of the Melton Planning Scheme.

[14]

[15]

Before the certification of the plan of subdivision for the first stage of subdivision starts, a landscape master plan for the whole of the subdivision prepared by a person suitably qualified or experienced in landscape design to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

[16]

(a) A survey (including location, size and botanical name) of all existing vegetation on the land. > > (b) Vegetation that is approved to be retained, removed and/or lopped. > > (c) The general layout and schedule of street tree and reserve plantings. > > (d) The proposed location of structures and street furniture items. > > (e) The proposed location of walking paths and any other pavement areas, including a walking path through the drainage reserve where practicable. > > (f) The style and location of fencing including tree, walkway and reserve fencing.

[17]

All species selected must be to the satisfaction of the Responsible Authority.

[18]

4A Before the certification of the plan of subdivision for Stage 3 of the subdivision, an updated landscape master plan for the whole of the subdivision prepared by a person suitably qualified or experienced in landscape design to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the landscape master plan prepared by Human Habitats V4 dated March 2023 and must show:

[19]

(g) A survey (including location, size and botanical name) of all existing vegetation on the land.

(h) Vegetation that is approved to be retained, removed and/or lopped.

(i) The general layout and schedule of street tree and reserve plantings.

(j) The proposed location of structures and street furniture items.

(k) The proposed location of walking paths and any other pavement areas, including a walking path through the drainage reserve where practicable.

(l) The style and location of fencing including tree, walkway and reserve fencing.

[20]

All species selected must be to the satisfaction of the Responsible Authority.

[21]

Before the issue of a Statement of Compliance for any stage of the subdivision, or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the approved plans must be carried out and completed to the satisfaction of the Responsible Authority.
The landscaping shown on the approved landscape plans must be maintained to the satisfaction of the Responsible Authority for a period of two years from the issue of a Certificate of Practical Completion of landscaping. Any dead, diseased or damaged plants are to be replaced during the period of maintenance and must not be deferred until the completion of the maintenance period.
No later than 21 days after issue of certificate of practical completion for landscaping the following must be submitted to the satisfaction of the Responsible Authority.

[22]

(a) A complete set of 'as constructed plans' (which will be the landscape plan amended if necessary to show any changes that may have occurred during construction); > > (b) An 'as constructed landscape plan', in digital file format to the satisfaction of the responsible authority.

[23]

Prior to the issue of a Statement of Compliance for the first stage, the applicant or owner must pay to the Responsible Authority a cash payment equivalent to 5% of the site value of all the land in the subdivision in lieu of the provision of land for Public Open Space prior to the first stage of the subdivision. The value of land set aside for public open space on the plan of subdivision/and public open space provided in earlier stages of the estate may be deducted from the amount to be paid.
Prior to the issue of statement of compliance for Stage 1 of the subdivision, the road interface with Old Calder Freeway must be designed and constructed to the satisfaction of Responsible Authority.
All Filling works shall be undertaken in accordance with Australian Standard AS 3798 and to the satisfaction of Responsible Authority. All works shall be done under "Level 1 inspection and testing" conditions, as per Australian Standard AS3798.

[24]

Prior to the issue of a Statement of Compliance for the subdivision, compaction tests must be undertaken, and test results must be submitted to the satisfaction of the Responsible Authority.

[25]

Prior to the issue of statement of compliance for Stage 1 of the subdivision, a secondary emergency vehicle access must be designed and constructed to the satisfaction of Responsible Authority.
Prior to the issue of statement of compliance for Stage 1 of the subdivision, a concrete footpath must be provided connecting the development site and existing footpath network to the satisfaction of Responsible Authority.
Prior to a plan of subdivision being certified, a functional layout plan for the subdivision or stage of the subdivision must be submitted to and approved by the Responsible Authority. The plan must incorporate the following:

[26]

(a) A traffic management strategy and traffic engineering report identifying street classification, design traffic volumes, intersection treatments and any associated SIDRA electronic files, and traffic management devices to be incorporated into the development. > > (b) A right turn deceleration lane on Old Calder Highway in accordance with the Functional Layout Plan (Drawing No. G22963-01) prepared by Traffix Group dated 28 March 2018. > > (c) A drainage management strategy detailing catchments both internal and external to the development, 1% AEP flow paths and flow volumes for the entire development. This strategy must include on-site stormwater quality improvement, and any stormwater and rainwater harvesting measures. > > (d) A Services Infrastructure report identifying how the development will be serviced by all utility services including but not limited to water reticulation (potable and recycled), electrical , sewer, gas, telecommunications and gas. > > (e) A mobility plan detailing pedestrian access, bike and hike paths, public transport routes within the development and all interconnections to adjacent existing and future developments. > > (f) Identification by survey of all trees or groups of trees existing on the site, including dead trees and those that overhang the site from adjoining land. > > (g) Details of tree protection zones (TPZs) for all trees to be retained. > > (h) All proposed works, and services (except pedestrian paths) must be clear of all TPZs. > > (i) Identification of all trees to be removed from the site.

[27]

Road works and drainage works must be provided, in accordance with construction plans and specifications as approved by the Responsible Authority, prior to the issue of Statement of Compliance. Before any roads / drainage works associated with the subdivision start, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.

[28]

The construction plans will not be approved until the functional layout plan(s) has been approved by the Responsible Authority and landscape plans submitted, the plan of subdivision has been certified and the locations of other authorities' services have been provided to the satisfaction of the Responsible Authority.

[29]

The construction plans must be drawn to scale with dimensions and one copy must be provided in the initial submission and subsequent resubmissions. For the final submission, a set of A1 sized plans, two A3 sized plans and a digital set of plans in pdf and AutoCAD format shall be provided. The construction plans must include:

[30]

(a) All necessary computations and supporting documentation, including a Form 13 for any structure, traffic data, road safety audit and geotechnical investigation report.

(b) All details of works consistent with the approved functional layout plan, submitted landscape plan and certified plan of subdivision.

(c) Design for full construction of streets and underground drainage, including measures to control / capture pollutants and silt.

(d) Provision for all services and conduits (underground), including alignments and offsets, on a separate services layout plan.

(e) All road reserve and pavement widths to be in accordance with the current Clause 56 of the Melton Planning Scheme, relevant Precinct Structure Plan or to the satisfaction of the Responsible Authority.

(f) All intersection treatments to comply with all turning movements of Council's waste collection vehicles. Turning templates will need to be submitted for verification.

(g) Where an intersection, bend or junction is part of a designated bus route or one proposed in the Precinct Structure Plan, the design shall allow for the movement of a Design Ultra Low Floor Bus (12.5m) [Austroads Design Vehicles and Turning Path Templates, 1995 (AP34-95/HB 72-1995)].

(h) Verge widths around all bends, intersections and in court heads to be a minimum of that provided at the mid-block.

(i) Priority treatments shall be provided at intersections of Access Streets, Access Places and Access Lanes unless specified by the Responsible Authority. The priority treatment at intersections shall comprise of an open invert channel across the entrance to the minor street and a low profile splitter island, line-markings and raised reflective pavement markers (RRPMs) on the minor street.

(j) Low profile splitter islands, line-markings and raised reflective pavement markers (RRPM's) on all 90-degree bends on through roads.

(k) Vehicle crossings shall be provided to each lot in accordance with Council's Residential Standards.

(l) Provision of concrete footpaths in all streets and reserves. All footpaths shall be a minimum 1.5 metres in width and be in accordance with Council Standards.

(m) Shared hike and bike paths as required within streets and reserves. All shared paths and hike & bike paths to be a minimum 2.5m in width and be in accordance with Council Standards.

[31]

(ee) The drainage system of the proposed development shall be designed to ensure that flows downstream of the site are restricted to pre-development levels unless increased flows are approved by the Responsible Authority.

(ff) Underground drainage shall be provided, and any other drainage works necessary for the transmission of drainage as required to the outfall.

(gg) All drainage works shall be designed to meet the following current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (1999):

80% retention of the typical annual load of total suspended solids

45% retention of the typical annual load of total phosphorus; and

45% retention of the typical annual load of total nitrogen.

(hh) Provision of underground drains of sufficient capacity to serve all lots being created to a legal point of discharge and the provision of an inlet on each such lot.

(ii) All lots within the proposed development abutting or adjoining a watercourse or water body shall have a minimum 600mm freeboard above the 1 in 100 year flood levels of the water course or water body.

(jj) Roads and allotments are to be designed such that the allotments are protected with a minimum 150mm freeboard against the 1 in 100 year flood levels.

(kk) Melbourne Water approval shall be required for the connection of drainage discharge from this development into the current outfall.

[32]

Prior to the issuance of the Statement of Compliance or at a time specified by the Responsible Authority the following must be submitted to the satisfaction of the Responsible Authority:

[33]

(a) A complete set of 'as constructed plans' of site works, in hard copy and digital file format AutoCAD. The digital files must have a naming convention to enable identification of Council assets listed. > > (b) Asset information in digital format to include data as per "D-Spec" and "R-Spec".

[34]

Prior to the commencement of onsite works, a Construction Management Plan must be prepared and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of this permit. The Construction Management Plan must include, but not limited to the following:

[35]

(a) Proposed working hours; > > (b) Haulage routes to the site; > > (c) Methods of dust suppression; > > (d) Sediment control and gross pollutant management; > > (e) Procedures to ensure that no significant adverse environmental impacts occur as a result of the development; > > (f) Earthworks (Consistent with Construction Techniques for Sediment Pollution Control (EPA, 1991); > > (g) Showing where stockpiling, machinery wash down, lay down, storage and personnel rest areas occur; > > (h) Vehicle exclusion areas; and > > (i) Weed management measures to be undertaken during and post construction.

[36]

In addition, the construction management plan must ensure:

[37]

All machinery brought on site to be weed and pathogen free
All machinery wash down, lay down and personnel rest areas to be clearly fenced and located in disturbed areas
Contractors working on the site to be inducted into an environmental management program for construction work
Best practice erosion and sediment control techniques to be used to protect any native flora and fauna.

[38]

Construction works must not be undertaken outside the development boundaries unless consent is given by the adjoining land owner and/or an easement is located over the works in favour of the service authority. A copy of the consent letter from the adjoining land owner must be provided to the Responsible Authority before any works commence on that land. Also any ensuing requirement for a creation of an easement must be undertaken and completed to the satisfaction of the Responsible Authority before any works commence on that land.
Unless there is written consent from the Responsible Authority, all existing infrastructure and assets affected by the development must be reinstated at no cost to and to the satisfaction of the Responsible Authority. Omission of existing infrastructure or assets on a plan cannot be taken as consent from the Responsible Authority.
Any proposed vehicle crossings must have clearance from other services, public light poles, street sign poles, other street furniture, trees and any traffic management devices.
All vehicle pathways contained within the allotment, other than stated in this permit, must remain the property of the landowners and must not be taken over by Council for future maintenance.
All roads must be designed to allow all vehicles to drive in a forward direction.
Prior to the commencement of any works, the permit holder must advise all persons undertaking the vegetation removal and works on site of all relevant conditions of this permit.
Salvage and translocation of threatened flora and fauna species and ecological communities must be undertaken in the carrying out of development to the satisfaction of the Secretary of the Department of Environment, Land, Water and Planning. The applicant must consult with DELWP to determine if any salvage and translocation is required for the parcel.
Prior to the commencement of any works in a stage of subdivision of land an Eastern Grey Kangaroo Management Plan must be submitted for approval to the Department of Environment, Land, Water and Planning. The plan must include:
- Strategies (e.g. staging) to avoid land locking Eastern Grey Kangaroos, or where this is not practicable, management solutions and action to respond to their containment in an area with no reasonable likelihood of their continued safe existence;

[39]

All to the satisfaction of the Department of Environment, Land, Water and Planning and the Responsible Authority.

[40]

A maximum of 48 hours prior to felling any tree which may be removed, the tree must be examined by a suitably qualified zoologist for the presence of fauna in hollows or external nests. If native fauna species are located, they must be salvaged and translocated to the closest suitable vegetation.
Before works start, an Environmental Management Plan (EMP) must be prepared and implemented to the satisfaction of the Responsible Authority. The EMP must include:
- Protocols for management of weeds before, during and post works, including (not limited to):
  - All vehicles, earth-moving equipment and other machinery must be cleaned of soil and plant material before entering and leaving the site to prevent the spread of weeds and pathogens;
  - Location of a designated washdown area to achieve the above;
  - All declared noxious weeds must be controlled; and
  - Any weed infestations resulting from soil disturbance and/or the importation of sand, gravel and other material must be controlled.
- Any construction stockpiles and machinery must be placed away from watercourses/drainage lines to the satisfaction of the Responsible Authority.
- Measures must be taken to ensure that no polluted water and/or sediment laden runoff is to be discharged directly or indirectly into stormwater drains or watercourses during the works (including the removal of native vegetation).
- All earthworks must be undertaken in a manner that will minimise soil erosion and adhere to Construction Techniques for Sediment Pollution Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995) or updated versions.
- Water run-off must be designed to ensure that native vegetation to be protected on adjacent sites and watercourses are not compromised.
- Mitigation measures for the above.
- Any non-compliance identified by the Responsible Authority must be rectified immediately at no cost to Council.
No environmental weeds are to be planted (refer to Melton City Council's Sustainable Gardening in the Shire of Melton Handbook (2005) and the Department of Sustainability and Environments Advisory list of Environmental Weeds of the Inland Plains bioregions of Victoria (DSE 2009).

[41]

Transport for Victoria Rail Interface Conditions

[42]

No drainage, effluent, waste, soil or other materials must enter or be directed to railway land or stored or deposited on railway land.
Entry into railway land is at the discretion of the Rail Operator and Transport for Victoria and is subject to any conditions imposed.
Any plan of subdivision submitted for certification under the Subdivision Act 1988 which includes land within 35m of the rail corridor must include a restriction on each lot within 35m of the rail corridor to the following effect:

[43]

(a) Buildings containing habitable room/s must be constructed in such a way to ensure that internal habitable room noise levels will not exceed 55 dB LAmax for bedrooms and 60 dB LAmax for other living areas. > > (b) Describe any design, attenuation or construction measures necessary to achieve the above internal noise standards. > > (c) For lots that have an abuttal to the rail corridor details of the design of fencing along the boundary.

[44]

All to the satisfaction of the responsible authority.

[45]

Identify the form of fencing to be provided to the rail corridor.

[46]

Prior to the issue of a Statement of Compliance for any stage abutting the railway reserve, or other time agreed in writing with the Head, Transport for Victoria; the permit holder, at their full cost, must install appropriate fencing along the boundary abutting the railway reserve to the satisfaction of the Head, Transport for Victoria and VicTrack.

[47]

The plan of subdivision submitted for certification must be referred to AusNet Gas Services in accordance with Section 8 of the Subdivision Act 1988.

[48]

Prior to the issue of a Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
Prior to the issue of a Statement of Compliance, council approved engineering plans of the subdivision (in electronic format) are to be submitted to Melbourne Water for our records. These plans must show road and drainage details and any overland flow paths for the 100 year ARI storm event. A Certified Survey Plan (CSP) may be required following our comments on the engineering drawings.
Stormwater quality treatment is required to meet best practice for all water leaving the development. Prior to the issue of a Statement of Compliance for the subdivision as constructed MUSIC models and detailed designs for stormwater quality works and written confirmation of acceptance of these works by Council need to be provided in order to demonstrate this condition has been met.
Any road or access way intended to act as a stormwater overland flow path must be designed and constructed to comply with the floodway safety criteria either as outlined in Melbourne Water's Land Development Manual, or where appropriate to Council's requirements and standards.
The subdivision is to make provision for overland flows from the upstream catchment utilising roads and/or reserves.
Pollution and sediment laden runoff shall not be discharged directly or indirectly into Melbourne Water's drains or waterways.
Prior to the issue of a Statement of Compliance for the subdivision, a separate application direct to Melbourne Water must be made for any new, temporary or modified storm water connection to Melbourne Water's drains or watercourses.

[49]

Prior to the submission of the plan of subdivision to the Responsible Authority for certification under the Subdivision Act 1988, the following must be submitted to the Roads Corporation for approval:

[50]

(a) An acoustic report by a suitably qualified engineer, which, without limiting its generality, describes the manner in which noise attenuation measures required to comply with a noise level of 63 dB (A) L10 (18 hour) or less, as measured 1 metre out from the façade of any dwelling located within the subdivision for a period of at least 10 years. > > (b) The acoustic report should also describe by means of architectural drawings and engineering specifications how a design life of 40 years will be achieved. > > (c) Proposed noise wall alignment and cross section plans including footing and breaks as necessary.

[51]

(a) Provide payment of new customer contributions for each lot created by the subdivision/development, such amount being determined by Greater Western Water at the time of payment. > > (b) Reach agreement with Western Water for the provision and funding of potable water supply and sewerage services necessary to service the subdivision/development. > > (c) Provide reticulated water mains and associated construction works to front each allotment within the subdivision/development, at the developer's expense, in accordance with standards of construction adopted by and to the satisfaction of Western Water. > > (d) Provide reticulated sewerage and associated construction works to front each allotment within the subdivision/development, at the developer's expense, in accordance with standards of construction adopted by and to the satisfaction of Western Water. > > (e) Any existing water service which crosses any of the proposed allotment boundaries within the proposed development must be disconnected and relocated at the developer's expense, to be wholly within one allotment only and to the satisfaction of Greater Western Water; > > (f) Reach an agreement with Greater Western Water regarding the construction of any Shared Assets (potable water mains that are greater than 150mm diameter and gravity sewerage mains that are greater than 225mm diameter), required to service the subdivision/development. > > (g) Provide easements in favour of City West Water Corporation over all existing and proposed sewer mains located within private property. Easement widths and sewer offsets must comply with the current version of the Gravity Sewerage Code of Australia - Melbourne Retail Water Agencies. > > (h) Prior to Certification of the Plan of Subdivision Developer Design Guidelines must be submitted to Council for approval and endorsement. Any requirement for a rain water tank at an individual lot level must be included and mandated within the endorsed Developer Design Guidelines. Alternatively, Prior to Certification of the Plan of Subdivision a Restriction must be created on the Plan requiring all dwellings to incorporate dual plumbing for connection to a rainwater tank with a minimum 3,000L capacity, for use in toilet flushing and garden watering. > > (i) The operator under this permit must enter into an Agreement with Greater Western Water relating to the design and construction of any sewerage or water works required. The form of such Agreement shall be to the satisfaction of Greater Western Water. The owner/applicant shall make a written request to Greater Western Water for the terms and conditions of the agreement. > > (j) All contractors engaged on construction of Subdivision Infrastructure obtain a Water Carters Permit from Greater Western Water and comply with that permit at all times. The permit will include a requirement for the Water Carter Permit holder to: > > * Own a metered hydrant approved by Greater Western Water; > * Meter and pay for all water taken; > * Display a Greater Western Water Permit Number Sticker on the tanker; > * Only take water from nominated hydrants or standpipes; > * Only use water for the purpose approved in the Water Carters Permit; > * Avoid wastage of water on site; and > * Comply with any water restrictions imposed by Greater Western Water at the time water is used.

[52]

For the purpose of this condition, Subdivision Infrastructure includes new and alterations to existing roads, drains, water mains, sewer mains, power supply, telephone, gas and any other service infrastructure required by this permit and dust suppression during construction of the same.

[53]

Notwithstanding the above, a Water Carters Permit is not required if the permit holder and contractors engaged by the permit holder can demonstrate to the satisfaction of Greater Western Water that water is not required from Greater Western Water's town water supply systems to construct Subdivision Infrastructure as defined above.
Construction activities must be managed so that the amenity of the area is not detrimentally affected, through the:

[54]

(a) Transport of materials, goods or commodities to or from the land. > > (b) Inappropriate storage of any works or construction materials. > > (c) Hours of construction activity. > > (d) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste and storm water runoff, waste products, grit or oil. > > (e) Presence of vermin.

[55]

Any plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to Jemena Electricity Networks (Vic) Ltd in accordance with Section 8 of that Act.
The applicant shall:

[56]

(a) Enter into an agreement for the extension, upgrading or re-arrangement of the electricity supply to lots on the plan of subdivision as required by Jemena Electricity Networks (Vic) Ltd. (A payment to cover the cost of such work will be required and easements internal and external to the subdivision and provision of sites for substations may also be required). > > (b) Where buildings or other installations exist on the land to be subdivided and are connected to the electricity supply, they shall be brought into compliance with the Supply and Installation Rules issued by the Local Government Electricity Supply Association (Vic) and Distribution Authorities to the extent determined by Jemena Electricity Networks (Vic) Ltd.

[57]

Before the plan of subdivision for Stage 3 is certified under the Subdivision Act 1988, an amended version of the Housing Design Guidelines must be submitted to and approved by the Responsible Authority. When approved, the Housing Design Guidelines will be endorsed and will then form part of the permit. The Housing Design Guidelines must be generally in accordance with the Prospect Rise Housing Design Guidelines dated September 2020 (endorsed by Council on 9 September 2020) but modified as follows:

[58]

(a) The Housing Design Guidelines must be updated to reflect the plans detailed in Condition 1A of this permit including consequential changes to the text of the document where necessary. > > (b) The acoustic standards detailed at page 13 relating to the Calder Freeway interface must be updated to reflect the requirements of Condition 49 of this permit. > > (c) The provision of design guidelines for the location of secluded private open space on lots that have an abuttal to the railway corridor to minimise noise impacts considering the location of any easements and solar access requirements.

[59]

(a) The plan of subdivision for the first stage is not certified within 2 years of the date of this permit; or > > (b) The plan of subdivision for any subsequent stage of the subdivision is not certified within 2 years of the date of the certification of the previous stage of the subdivision. > > (c) The registration of any stage of the subdivision is not completed within 5 years of the date of certification of the plans of subdivision.

[60]

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

[61]

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[62]

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing 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.

[63]

[4] Consent order in proceeding P1318/2022 granted permit PA2021/7777/1 for the development of fourteen dwellings.

Parties

Applicant/Plaintiff:

Hamlet Diggers Pty Ltd

Respondent/Defendant:

Melton CC [2023] VCAT 649

Legislation Cited (2)

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Cases Cited (2)

Hamlet Diggers Pty Ltd v Melton CC [2023] VCAT 649 (13 June 2023)

Permit PA/2017/5767 for subdivision of the land issued on 24 June 2019 following a decision of the Tribunal in Cardon Developments Pty Ltd v Melton CC [2019] VCAT 942 (Cardon). Plans were originally endorsed on 16 September 2019. The permit has been extended and remains valid[3].
The permit has been amended several times, including by secondary consent. The latest version of the permit is PA/2017/5767/2 and the current endorsed plans are those dated 7 September 2021.
Construction is advanced on Stage 1 comprising 24 lots (plan certified 27 April 2022). Stage 2 is commencing construction and comprises an additional 26 lots (plan not yet certified). There is a separate 'Superlot A' for which recent approval has been granted for multi dwellings.[4]
This proceeding relates to a request for a further amendment to the permit, primarily to alter the layout of Stage 3. The key change is to relocate the loop road currently approved along the western interface with the railway line. This road will become internal to the subdivision and the change will create 20 lots with a direct rear interface to this infrastructure asset. The differences between the current endorsed plans and the proposal are illustrated in Figure 1. The application also includes changes to the current permit conditions as set out in the Track Changes Version of the permit circulated by HWL Ebsworth Lawyers on 23 March 2023. The applicant submits that the changes are an acceptable response to the railway corridor and the strategic and physical context of the land.
Council does not support the proposed amendments. Council submits that the rear interface to the railway corridor will present a poor urban design outcome and will create a poor level of amenity for these abutting lots.
The Head, Transport for Victoria who is responsible for the railway line did not object to the proposed changes to the lot layout subject to conditions.
This is an application to amend an existing planning permit. Consideration of such an application does not require an assessment of the appropriateness of the current permit. The question before me is whether changes proposed to the permit are acceptable. Having considered the Melton Planning Scheme, the submissions of the parties and the evidence before me, I have determined to set aside the decision of the Responsible Authority and grant an amended permit. My reasons are set out below.
In making my findings, I note that I agree with Council that the changes are a lesser outcome in some respects when compared to the existing endorsed plans. However, on balance the changes are an acceptable response.

AI Analysis

Outcomeappellant

Disposition:

Tribunal set aside the decision of the Responsible Authority and directed that amended planning permit PA/2017/5767/3 be issued, endorsing amended plans (Human Habitats Development Plans V17 and Landscape Plan V04, March 2023) and imposing revised conditions (Appendix A). The Tribunal also ordered the applicant may apply for reimbursement of fees with specified filing deadlines.