1. The decision of the Responsible Authority is affirmed[1]. No permit is to issue.

Mr John Cicero of Best Hooper lawyers. Mr Cicero called expert koala habitat management evidence from Mr Nathan Garvey, together with flora and fauna expert evidence from Mr John Miller, both of Biosis Research consultants.

Mr Andrew Sherman of Russell Kennedy lawyers. Mr Kennedy called expert environmental evidence from Mr Andrew McMahon of Ecology Australia consultants.

The following persons appeared in person - Brendan Sainsbury, Joan McKaskill, Judy Lowne, George Fong and Dennis Foley.

14 lot subdivision and removal of native vegetation.

Application for Review of the Responsible Authority's failure to make a decision in the statutory period, pursuant to Section 79 of the Planning and Environment Act 1987.

Central and eastern section of site - Low Density Residential Zone.

Whole site - Vegetation Protection Overlay Schedule 1.

Western half of site - Wildfire Management Overlay.

The western edge and northern central area of site - Environmental Significance Overlay Schedule 5 (Koala and Koala Habitat Protection).

Subdivision of the land - both forms of residential zoning, the WMO and ESO5.

Removing, destroying or lopping native vegetation - the ESO5, Clause 52.17 and VPO1.

The key State planning policies are found at Clauses 11, 14, 15.07, 15.09, 18.09 and 19.03.

The more relevant MSS/local policy provisions are Clauses 21.06-4 dealing with flora and fauna issues and objectives, 21.08-4 providing a policy setting for new development in the Canadian Valley region and Clause 22.04 which deals with "Koala and koala habitat protection".

Also see Clauses 52.17, 56 and 64.03, the Canadian Valley Outline Development Plan and the Ballarat City Council Comprehensive Koala Plan of Management.

The subject land is located on the southern side of Greenhill Road, is irregular in shape, and is about 4 hectares in size. The western edge and central northern area of the site features substantial vegetation cover. The balance of the land is largely cleared.

The Tribunal carried out an accompanied site inspection soon after the hearing. I then drove around the surrounding area on my own.

1. This proposal involves a 14 lot subdivision and associated vegetation removal in relation to the land at 194 Greenhill Road, Mt Helen. Mt Helen is an outer suburb on the southern fringe of Ballarat. This is a large site by residential standards at just over 4 hectares, in an established residential fringe area.
2. The planning framework affecting the site is complicated by there being two primary zones at work - the western third or so of the site is zoned Residential 1, whereas the balance is zoned Low Density Residential ("LDR") zone. There are three overlay controls affecting some or all of the site, notably an Environmental Significance Overlay Schedule 5 ("ESO5") affecting the vegetated sections of the site which seeks to protect koalas and koala habitat.
3. Council does not support the proposal and a number of objections were lodged by neighbours. The Applicant has appealed to the Tribunal against Council's failure to make a decision in the statutory period. The hearing of this matter came before me on 15 and 16 June 2010 and I carried out an accompanied inspection of the site afterwards. I also drove around the surrounding area including the Timbertop Estate on my own.
4. The two key issues arising in this proceeding are whether the proposed lot layout, the extent of vegetation removal and the degree of intensity of anticipated future development is acceptable:
   • With respect to the new Lots 1-8 in the western section of the land which is zoned Residential 1 but constrained by all three overlay controls.
   • In relation to the new Lots 9-14 in the central and eastern section of the site which is largely cleared, is essentially affected by only one overlay control, and which is zoned LDR.
5. With respect to the central and eastern section of the subject land which is largely cleared and where the planning framework is more straightforward, I consider the proposed lots 9-14 and associated more modest vegetation removal (with some fine tuning) to be an acceptable planning outcome. However I find that the proposed subdivision of the more challenging/sensitive western section of the land into Lots 1-8 is excessive and fatally flawed. Hence I have refused the proposal, so as to allow the Applicant the opportunity to fundamentally re-evaluate (in consultation with Council and having regard to these Reasons) the appropriate utilisation of this western area.

1. In relation to the proposed lot layout, reflecting the split in the residential zoning, the proposed LDR lots 9-14 in the eastern two-thirds of the site are all just over 4000 square metres in size. The proposed lot sizes for the western area zoned Residential 1 are:
   • Lot 1 - 1851 sq. m.;
   • Lot 2 - 1001 sq. m.;
   • Lot 3 - 1423 sq. m.;
   • Lot 4 - 284 sq. m.;
   • Lot 5 - 1760 sq. m.;
   • Lot 6 - 2171 sq. m.;
   • Lot 7 - 1156 sq. m.;
   • Lot 8 - 1003 sq. m.

with all lots including a building envelope apart from Lot 1 which already is improved by a dwelling.

1. A quite recent innovation[2] to the Ballarat Planning Scheme is the Environment Significance Overlay Schedule 5 - Koala And Koala Habitat Protection ("ESO5") and the related Clause 22.04 of the Planning Scheme. This Clause references the Ballarat City Council Comprehensive Koala Plan of Management ("BCC Koala Plan") and provides a number of koala habitat protection objectives including "To protect koala habitat areas from any development that would compromise the quality or integrity of existing koala habitat". In relation to the BCC Koala Plan, its objective is "To provide for the long term survival of koala populations within the City of Ballarat through the implementation of actions aimed at safeguarding the koala within its natural range within the City"
2. By way of context, koalas are not listed as a threatened species under the Victorian Flora and Fauna Guarantee Act 1988. However I understand that koalas are listed as "threatened" in NSW and Queensland. In 1998 a National Koala Conservation Strategy was developed and then updated in 2009. The Victorian Koala Management Strategy was created in 2004.
3. I understand that presently Ballarat is the first and only Victorian municipality featuring a koala protection overlay like this ESO5, and that this is the first Tribunal decision dealing with this type of overlay.

Merits of proposed lot layout and associated vegetation removal - Lots 9 to 14

1. Clause 56.03-5 of the Planning Scheme sets out the following neighbourhood character Objective - "To design subdivisions that respond to neighbourhood character". The accompanying Standard reads as follows:

• Respect the existing neighbourhood character or achieve a preferred neighbourhood character consistent with any relevant neighbourhood character objective, policy or statement set out in this scheme.
• Respond to and integrate with the surrounding urban environment.
• Protect significant vegetation and site features.

1. Lots 9-14 are those lots in the central and eastern sections of the site which are zoned LDR. All of these lots are just over 4000m2 in size, apart from Lot 13 which is marginally bigger at 4723m2. Lots 13 and 14 face on to and would have direct vehicle access off Greenhill Road, whereas the other lots would be accessible off the new internal road.
2. Lots 9, 10, 11, 12 and 14 all propose a single 800m2 building envelope. Unusually, the new Lot 13 shows two potential building envelopes - one of 700 m2 in a more central location and the other 800m2 in size in the south-eastern corner of the lot. By the end of the hearing Mr Cicero indicated that his client would not object if the Tribunal took the view that the building envelope in the SE corner of Lot 13 was in a superior location, being more removed from the scrubby part of Lot 13 (which I have). Hence the other building envelope is superfluous.
3. With two minor design modification provisos, I am satisfied that the proposed lot layout and any associated vegetation removal for the new Lots 9-15 are reasonable, meet the objectives of the relevant planning controls and policies, and constitute a good planning outcome. That part of the land occupied by Lots 9-14 is largely cleared and there would be minimal vegetation removal. Indeed, in response to one of my questions, Mr Sherman sensibly conceded that Council accepted that the proposed layout of Lots 9-14 in itself has no fatal aspects.
4. I consider the "neighbourhood character" merits of Lots 9-14 to be straightforward, with some particular positive features of this part of the proposal being:
   • generously sized new lots compared to other nearby existing lots;
   • building envelopes that are well set back from the new internal road;
   • the replanting strip along the southern and eastern boundaries, which should soften external views of the anticipated new built form;
   • a reasonable separation in most cases between the new building envelopes; and
   • a reasonable transition to the two large lots owned by Mr Fong and Mr Foley to the east.
5. The first proviso is that I consider the building envelopes for Lots 13 and 14 to be too close together, bearing in mind my finding above that the Lot 13 central building envelope should be deleted. The Lot 14 building envelope should move further east, to achieve a greater buffer distance.
6. The second proviso is that I consider that the building envelope for Lot 9 should be set back 8 metres from the northern boundary of that lot (not 6 metres as shown currently).

Merits of proposed lot layout and associated vegetation removal - Lots 1 to 8

1. I turn now to the critical issue on which this appeal has turned, being whether the proposed lot layout and associated vegetation removal for Lots 1-8 in the western section of the site would be a reasonable planning outcome.
2. There is no doubt that this western area is a very challenging piece of land to develop. It features substantial native vegetation and is affected by three overlay controls. Given that it is the western and central northern areas that features the main remnant vegetation, in some ways it is incongruous that the more complicated western section of the site is zoned Residential 1, whereas the largely cleared and more straightforward balance area further east is zoned LDR.
3. The stand out issue with the proposed layout of Lots 1-8 is whether this would constitute an acceptable neighbourhood character outcome. I note that the relevant Delegate Report dated 27 January 2010 included the Delegate Planner adopting the view at page 15 of the Report that new lots on the subject land bigger than 1000 square metres would be an acceptable neighbourhood character result.
4. However I consider that this aspect of the Delegate Report carries little weight, as the Report at page 9 mistakenly refers to the lot size range in the Timbertop Estate as being "From 700 to 1400m2". As per my comments below, the correct range is more like 1500-3000m2. Query what the Delegate Planner's position on this issue would have been had that person known the correct position.
5. It is important to understand the pattern of changing lots sizes, starting further west of the subject land, and then moving east across to the appeal site.
6. If one starts off reviewing the residential streets to the immediate west of the Timbertop Estate, these are more conventional sized residential lots. There is a sprinkling of lots in the 1000-1500 square metre size range, but the large majority are under 1000 square metres. My inspection confirmed that these properties further west have a more suburban feel to them eg grassy rather than scrubby front yards, more prominent dwellings occupying a higher percentage of the lot, less street tree presence etc.
7. Moving east into the Timbertop Estate, I made a point of driving around the Estate to guage its character. From this drive and the submissions made to me during the hearing on this issue, what emerges is that:
   • lots in the southern end of the Estate are smaller at 1600-1900m2;
   • in relation to the central and northern area of the Estate, the smallest lot is 1581m2. More typically there are a mix of sizes, with lots both under and over 2000m2 and one or two more at the 3000m2 mark;
   • houses typically have generous front setbacks;
   • the estate has an attractive scrubby feel to it, in terms of the native street trees and some degree of remnant trees in front yards. Hence dwellings in the estate have a degree of "built form in a bush setting" appearance.
8. If one kept moving east to those Timbertop Estate lots located on the common side boundary with the subject land, the situation is as follows.
   • the plan of subdivision I was provided at the hearing indicates that there are two Timbertop Estate lots accessed of Winlea Court which sit alongside the southern and central sections of the western boundary of the appeal site. The southern neighbouring lot is Lot 18 on LP 222325X with an area of 2108m2. The central neighbouring lot is Lot 19 on the same lot plan with an area of 3150m2;
   • the other more informal lot plans presented to me by the objectors at the hearing indicates that the neighbouring property at the northern end of the western boundary is over 4000m2 in size.
9. In summary, a clear neighbourhood character pattern emerges, of lots becoming larger and more scrubby, with houses set further back from the front boundary, as one moves west to east as I have described above. The issue then becomes how the proposed layout for Lot 1-8 responds to same.
10. Lot 1 contains the existing dwelling and would be 1851m2 in size. The two smallest lots would be Lot 2 and Lot 8 which are 1001 and 1003m2 respectively. The balance lots vary from 1166m2 up to 2171m2. Lots 2-8 would all have a building envelope of 350m2. For lots 2, 3 and 4 this envelope would be a conventional rectangle shape. For Lots 5-9 the envelope would be an irregular shape, in reflection of the constraints of the lot.
11. With Lots 2, 3 and 5 the building envelope would be set back from the front boundary by four metres. The front setback for Lot 4 in this regard would vary from 4 to 5 metres. The building envelopes for Lots 6-8 are set further back again from the front boundary due to their position on the elbow of the road.
12. We know that Lots 1-8 would sit alongside the new Lots 9-14 further east which all have an area just over 4000 m2. The two neighbouring properties further east again owned by Mr Foley and Mr Fong appear to be more like 10,000 in size, with the house in each of these neighbouring properties set a long way from the front boundary.
13. Turning to the Tribunal's findings on this issue, I consider that the western section of the subject land is effectively a transition area, in the context of this neighbourhood character pattern of larger and more scrubby lots as one moves from west to east. In my view this requires a tempered and respectful approach in terms of the appropriate number and size of new lots that are realistically achievable in this western area, noting that the three neighbouring lots to the west all have an area between 2000m2 and over 4000m2.
14. I find that the proposed creation of 8 new lots in this western area with sizes ranging down to 1001 square metres is unacceptably excessive and fatally out of step with the "west to east" neighbourhood character pattern described above. I also have major concerns that the proposed 4-5 metre front setback for some of the proposed Lots 1-8 building envelopes is inadequate and would leave little room for new front landscaping. This in turn creates a likely scenario of the new dwellings being inappropriately prominent when viewed from the new internal road, for a fringe leafy suburb like St Helens. The decision to propose 8 new lots in this western area with rather cramped building envelopes appears to be driven more by the client's desire to maximise the yield of this area, rather than a genuine appraisal of what an appropriate design response would be.
15. Where near the end of the hearing Mr Cicero indicated that the Applicant would accept (if the Tribunal was so minded) a reduction from 8 to 7 lots - I regard this a tinkering around the edges of the problem.
16. While it is now an issue for another day how this western area should be re-appraised, in my view a fundamental shift in thinking is required in reflection of the major constraints involved. My initial impression is that a debate about the possibility of 3-4 new lots on more generous sizes lots in this western area (with building envelopes set well back from the front boundary) would be a better place to at least resume this discussion.

1. I have not been required to discuss in any detail the role of the three relevant overlay controls, given my findings above on neighbourhood character problems with the proposed Lots 1-8.
2. However common sense tells us that if less lots are proposed in this western area, this will have significant flow on advantages for the purposes of these three overlays. For example, if there are less building envelopes proposed:
   • less native vegetation will need to be cleared;
   • it should be possible to position the new dwellings further away from the existing vegetation, thereby easing the tension between the environmental benefits of retaining existing native vegetation vis-à-vis the need to manage bushfire risks in this western section of the site affected by the WMO;
   • there will be less physical impact on the koala habitat areas in question and less human activity to reconcile with the on-going presence of the koalas.
3. In the interests of providing some informal feedback on some other issues discussed during the hearing, I can also indicate the following.
4. First, I in-principle support any future permit for the subdivision of the site including an "environmental audit" permit condition, given the amount of building waste/equipment on the site including some 44 gallon drums with an unknown content. However in the interests of proportionality, I consider that the extent of the soil testing should be limited to targeting those particular parts of the site where such equipment/waste/drums currently exist.
5. Second, I share the concerns raised by Council and some neighbours regarding the intention to run a service easement through the back yard area of some of the western lots. In the usual way, I would expect that utility services should be provided via the new internal road reserve area unless a strong argument is provided to the contrary (no such strong argument was evident at the hearing).
6. Thirdly, there is a significant problem with the fact that the primary zoning boundary splits the existing dwelling and the proposed new Lots 1 and 2. That is, this is a practical problem with where the existing house is located, plus there is a legal problem that any proposed new lot that would overlap with two different zones breaches the requirements of Clause 63.04 of the Planning Scheme. I consider the new Lot 2 to be too small anyway, for the reasons set out above.
7. If in any future subdivision scenario the new internal road was to stay in its current position and a new front lot was contemplated along the lines of a merger of Lots 1 and 2 as currently proposed, then the following approach may be worth considering. For the purposes of dealing with the requirements of Clause 63.04, this new larger front lot area could be split into two lots which reflect the zoning boundary. There could then be a permit condition requiring that a Section 173 Agreement be entered into prior to any Statement of Compliance issuing. This Section 173 Agreement could require that these two lots split by the zoning boundary must be jointly held by the same owner for so long as there is a dwelling located on the combined lot area.
8. Fourth, I consider that much of Mr Garvey's evidence regarding the day to day management of koala habitat issues was credible and I consider his draft Koala Management Plan ( I gather the first of its type under this new ESO5) to have many worthy features.
9. Fifth, it is unfortunate that the ESO5 does not include any definition of the term "koala habitat", given the strong views expressed at the hearing whether or not the scope of this term goes any further than seeking to protect "native trees". To the extent that Mr Sherman argued that the scope of "koala habitat" for the purposes of the ESO5 goes beyond native trees to include exotic trees, shrubs and understorey, there seems some ambiguity whether the permit triggers imposed by the ESO5 and the relevant text from the BCC Koala Plan necessarily substantiate Mr Sherman's position. It would be preferable and helpful if ideally the ESO5 (or at least the supporting documents) could more specifically address this uncertainty.
10. Lastly, there are clearly tensions at work between Council's suggestion that sensitive vegetation on the site might be preserved in some form of public reserve, and Council's unwillingness to accept the on-going maintenance responsibilities if any of this vegetation was vested in Council as part of the statutory 5% public open space aspect of the proposed subdivision or otherwise. The option of sensitive vegetation being retained by an Owners Corporation seems worth investigation, but noting Mr Garvey's concern that without proper day to day management, this outcome might lead to koala habitat within this common area becoming a "dead space" and overgrown. It seems in the interests of all stakeholders that these challenging issues be worked through and possible solutions clarified.

[1] The Responsible Authority's failure to make a decision in the statutory period being the equivalent of a refusal.

[2] See Amendment C95 gazetted on 12 November 2009 which introduced the ESO5 in question.