1

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 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 Peps Plans Pty Ltd 'proposed subdivision' Drawing No 6254 submitted with the application.

2

The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities and electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authorities' requirements and relevant legislation at the time.

3

The size layout and location of the lots and common property as shown on the endorsed subdivision plans must not be altered without the prior written consent of the responsible authority.

4

The plan of subdivision for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

5

The plans to be endorsed and which will then form part of the permit are the plans prepared by Peps Plans Pty Ltd Drawing No 6254 submitted with the application.

6

The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

7

The finished floor levels of the dwelling must be a minimum of 300mm above the applicable flood level for the property.

8

Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

a.

details of surface finishes of pathways and driveways;

b.

a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant;

c.

landscaping and planting within all open areas of the site;

d.

at least one canopy tree (minimum two metres tall when planted) in the front setback of dwelling 1.

9

Before the occupation of the development or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

10

The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority.

11

Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the responsible authority.

12

Before the occupation of the development starts, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

a.

Constructed

b.

Properly formed to such level that they can be used in accordance with the plans

c.

Surfaced with an all weather seal coat

d.

Drained

to the satisfaction of the responsible authority. Car spaces and driveways must be kept available for these purposes at all times.

13

Before Dwelling 2 is occupied, a free standing trellis (maximum 25 per cent openings) must be erected above the existing fence on the southern boundary on the site to an overall height of 2m above natural ground level, to restrict overlooking into the adjoining residential property to the satisfaction of the responsible authority. The trellis must be framed (and formed) and maintained to the satisfaction of the responsible authority.

14

The external materials of the building including the roof must be constructed of materials of muted colours to enhance the aesthetic amenity of the area. No materials having a highly reflective surface shall be used. For the purpose of this condition 'highly reflective' shall include unpainted aluminium, zinc or similar materials.

15

The drainage of the land including measures to restrict the discharge rate of stormwater from the land shall be to the satisfaction of the responsible authority. The drainage design must have regard to the Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO 1999).

16

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

a.

The development is not started within two years of the date of this permit.

b.

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

c.

The plan of subdivision is not certified within two years of the date of this permit.

d.

The registration of the subdivision is not completed within four years of the date of this permit.

The responsible authority may extend the time if a request is made in writing before the permit expires or within three months afterwards.

Mr M Sussmilch, Solicitor, Harrison, Dobson & Cottrill

Mr G Tierney, Goulburn Broken Catchment Management Authority

1 Mr & Mrs Jackson own the land at 7 Byrne Street, Benalla. A dwelling is located on the land. This dwelling was relocated onto the land pursuant to permit PH/02/00108, 24 May 2002 and has undergone considerable renovations. Mr & Mrs Jackson are seeking a review of the decision of the Responsible Authority refusing to allow them to place a second dwelling on the land and to subdivide the land into two lots. Mr & Mrs Jackson are proposing to place another relocated dwelling on the land.

2 The second dwelling is proposed to be placed behind the existing dwelling. The dwellings are to be located along the southern side of the land with access to the dwellings via a driveway along the northern boundary. A double carport is to be provided to the existing dwelling at the rear of the site whilst a single car space is to be provided to the front of the proposed dwelling with a second car space to be located next to the double carport.

3 The land is located within the Residential 1 zone under the Benalla Planning Scheme and is subject to the Land Subject to Inundation Overlay. With respect to the Overlay the floor level of any new building is required to be constructed 300mm above the designated flood level. The designated flood level for the site is said to be 170.2m AHD.

4 Residential properties varying from late 19th Century to inter-war with examples of development from the 1960s onwards are found in the area of the site. The land to the north of the site contains three small outbuildings and is used as part of a business conducted on the land.

5 Two issues were raised in relation to the proposal one from the Responsible Authority who was of the view that the proposal was inconsistent with the Council's Neighbourhood Character Study and one by the Catchment Management Authority whose view it was that the siting of a dwelling with a flood level of 170.2 AHD was inappropriate. The Tribunal has found it somewhat difficult to assess this application in terms of both of these issues given that the Responsible Authority in 2002 issued a permit for a dwelling on the land and the Responsible Authority and the Catchment Management Authority were comfortable with the height of the floor level being required at 300mm.

6 In relation to neighbourhood character the Responsible Authority expressed concern that the proposed dwelling as with the already permitted dwelling on the land would be an already established dwelling that is to be relocated from another site onto this site. It is understood that this issue was raised as a matter of concern by a number of residents during the public consultation process undertaken in relation to the Neighbourhood Character Study.

7 The Tribunal was referred to the Neighbourhood Character Study which includes the land in Precinct Six. This study is yet to be incorporated into the Planning Scheme but the Council is understood to have adopted the recommendations of the Study. The study acknowledges the wide range of housing styles within the area and highlights that the preferred future character for the area is to encourage the retention of the older dwellings, ensure that any new development is appropriately setback from front and side boundaries and do not dominate the existing built form.

8 The Responsible Authority was critical of the existing dwelling and suggested the development was not appropriate within the neighbourhood character. This seems an unusual criticism when the existing dwelling was recently approved by the Responsible Authority. This dwelling is setback 7m from the front boundary with the adjoining property to the south setback 8.5m. The majority of dwellings in the area appear to be generally setback between 6 to 7.5m. Criticism was also made of this existing dwelling as its main entry is to the side rather than directly in front. I am unable to see how this criticism relates to the neighbourhood character; there are a number of dwellings in close proximity that have similar entries at the side of the dwelling.

9 The issue appears to be in relation to the dwellings being relocated. The existing dwelling is said to be a relocated dwelling. It is a modest weatherboard dwelling that has been externally painted and renovations have been undertaken internally. The dwelling whilst having a slightly elevated floor level due to the requirements of the Overlay sits comfortably on the site and does not look out of character as suggested by the Responsible Authority. Nor does the existing dwelling look as it was termed as a 'housing commission' dwelling. I presume this reference is to the particular style and era of dwelling that has often been used for low cost housing. This style however merely reflects the style of the era in which it was developed and does not in any way indicated that is not of good quality. The style would be described as 1960s and it is noted that the Neighbourhood Character Study refers to the examples of development from the 1960s. It is however not so much this dwelling that is in issue as it already exists.

10 The proposed new dwelling is to be located behind the existing dwelling. This dwelling is to be a single storey weatherboard as is the existing dwelling. This second dwelling will only be visible from the street when one is standing directly in front of the property and looking down the driveway along the northern boundary. In terms therefore of the streetscape there will be little if any impact from this second dwelling. I am unable to conclude that this second dwelling is inconsistent with the Neighbourhood Character.

11 The second dwelling is setback 7m from the rear boundary as well as 1 and 1.3m off the side boundaries. There will be no impact on the surrounding properties as a result of the location of this second dwelling on the land. Each dwelling is provided with two car spaces which satisfies the requirements of the planning scheme. There are also extensive areas surrounding both dwellings that will allow for reasonable landscaping. It is considered that there should be some additional planting of at least one canopy tree in the front setback of the existing dwelling.

12 This application was only referred to the Catchment Management Authority following the lodging of the application for review. It is understood it was not previously referred to the Authority as the Authority and the Responsible Authority have an agreement in relation to the floor level of dwellings within the Land Subject to Inundation Overlay being 300mm above the flood level.

13 The existing dwelling on the land was approved on the basis that the floor level is 300mm above the flood level and I am unable to see why this proposed second dwelling on the land should not also be approved on that basis.

14 The Catchment Management Authority indicated that it was of the view the area currently within the Land Subject to Inundation Overlay should more appropriately be within an area designated as Floodway. This view is supported by recent mapping undertaken by the Authority and information that suggest the land within this area varies from 169.0 to 169.1m AHD. It was the Authorities view that although the floor level of the second dwelling could be raised, subdivision should not be allowed.

15 Currently the land is located within the Land Subject to Inundation Overlay which is the Overlay the Tribunal is required to consider. Whilst it is acknowledged that the Authority has better information and mapping than when the Overlay was imposed and it may be that a different overlay is more appropriate for this area nothing is yet proposed or clearly set out in any documentation.

16 It is acknowledged that this area is susceptible to flooding and flood damage and the potential risks associated with flooding can occur. However the land is located in what would be described as an inner residential area of Benalla; there are already one or more dwellings on every lot.

17 Given the approval of the existing dwelling with a floor level required at 300mm above the flood level it is considered that this requirement should also attach to the proposed dwelling.

18 For the above reasons the application for review is allowed. A permit is granted for the construction of a second dwelling on the land and the subdivision of the land into two lots subject to conditions.