Victorian Civil and Administrative Tribunal|2003-10-02|Before: Native Nursery P

The applicant shall enter into an agreement with TXU for a supply for electricity to the lots. (A payment to cover the cost of such work will apply).

1. Prior to a Statement of Compliance being issued by the Responsible Authority, the owner shall provide to the satisfaction of Telstra all works for provision of Telecommunication Services to each lot created in the subdivision.

2. Where any extension or alterations to Telstra's network or plant are necessitated by the proposed subdivision, the cost of such works shall be met by the owner prior to the Statement of Compliance being issued.

3. The plan submitted for certification must show details of easements and/or RCM/RIM sites which may be required by Telstra.

(Note: Following an application to Telstra for provision of cable reticulation the owner will be advised of the details of easements and/or RCM/RIM sites which will be required by Telstra).

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

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

(a) the subdivision plan is not certified within two (2) years of the date of issue of this permit; and

(b) Statement of Compliance is not obtained within five (5) years of the certification of the plan;

or any extension of such periods the Responsible Authority may allow, in writing, upon application made before or within three months after such expiry.

14. This application is brought under Section 77 of the Planning and Environment Act 1987 to review a decision of the Responsible Authority to refuse to grant a permit for subdivision of land.

15. The subject land as described by Mr Merrigan is:

"The subject land has an area of 2.45 hectares, with approximately 100 metres frontage to the western side of Bayswater Road and 22 metres to Mason Court. The property is severed by Bungalook Creek. The creek is included in an Urban Floodway zone, and the tabled plan indicates this area and the extension to include the actual creek location within a proposed Drainage Reserve. The Reserve contains an area of approximately 1.22 hectares or almost 50% of the site area."

16. The proposal is for a seventeen (17) lot subdivision of land, the balance of approximately 50% being a proposed drainage reserve covering Bungalook Creek and its flood plain and vested in Melbourne Water. The proposal as detailed by Mr Merrigan stated:-

"The development proposal was based on the retention of all significant trees. The design provides for a Body Corporate development which allows the use of the existing driveway for access. The tabled Tree Protection Plan indicates the significant trees as determined by the Arborist, the trees to be removed from the common property, and an indicative lay-out prepared by a Landscape Architect. The design principles were discussed with a Council Planner prior to formal submission.

The intention of the design was to protect and enhance the natural environment to create a park like residential setting abutting the Bungalook Creek Reserve. The submission to Council indicated the intention of further landscaping of the common property.

As stated the Bungalook Creek reserve is to be vested in Melbourne Water. It contains almost 50% of the total site and is to be retained in its natural state. It abuts a majority of the lots, and acts as a sizeable passive open space area.

Whereas the average lot size is approximately 565m2, the overall density of the development is less than 7 lots to the hectare (1 lot per 1,440m2).

It is proposed that the land between Bayswater Road and the creek utilise the existing entrance for joint use by two proposed larger residential lots. It is intended to create a notice of restriction to limit development to a single dwelling on each lot. It is accepted that the existing access and landscaping should limit any more intensive usage. It appears that some trees may need to be removed and some filling placed prior to the erection of detached houses. The Significant Landscape Overlay will ensure that these matters can be addressed prior to building construction.

The balance of the land is to be subdivided into 15 lots, two of which contain existing homes. It is proposed that access to these lots be from Mason Court. It is unfortunate that the additional traffic in Mason Court may cause some inconvenience to existing residents, but in terms of safety and practicability there is unfortunate that the additional traffic in Mason Court may cause some inconvenience to existing residents, but in terms of safety and practicability there is no other option. Both Vic Roads and Council Engineers have raised no objection to the access proposed.

The lot sizes and shapes provide for a range of residential options for a diversity of future housing types. The existing open depression between lots 3 & 10 will be filled. The lots have been designed to minimise tree removal, but it appears that trees may be required to be removed from lots 3 & 8, and pine trees from lots 14 and 15.

It is proposed to undertake a body corporate subdivision with the access to the lots being via common property. The common property area will also provide for on-site parking and further landscaping.

It is submitted that this proposed form of development is respectful of the existing environment, and will not result in any unreasonable adverse effect on the residents of Mason Court.

The land is mainly zoned for residential purposes, and this proposal attempts to create a development which recognises existing policies and physical constraints."

17. The subject land and adjoining land is zoned Residential 1 under the Maroondah Planning Scheme and in part is covered by a Floodway Zone (U.F.). The land is also affected by a Significant Landscape Overlay No 2. A permit is required to subdivide land in the zone.

18. The grounds of refusal and reasons for this request are:

1. The proposed subdivision does not adequately respond to and comply with the policies for residential development and canopy tree protection and enhancement contained within the Local Planning Policy Framework of the Maroondah Planning Scheme.

2. The proposed lot sizes are not responsive to, or in keeping with, the character of the neighbourhood and will not satisfy the purpose and objectives of the Significant Landscape Overlay, Schedule 2.

1. The development has been designed to respond and comply with the Council policies for residential development and canopy tree protection.

2. The lot sizes are responsive to the local neighbourhood character, and are capable of satisfying both the purposes and objectives of the applicable Significant Landscape Overlay.

19. The Tribunal considered it necessary to inspect the land, the area and Mason Court following submissions. The inspection was carried out on Thursday afternoon 27 August 2003 following the hearing.

20. Mr Merrigan sought the substitution of a recently amended layout plan that had the approval of Melbourne Water. He also sought the inclusion of the removal of trees in the application description. There was no objection to either and the substitution/addition permitted in accordance with the provisions of Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. The substituted submissions layout plan is identified as Version 4 dated 26 August 2003.

21. The proposal is for the subdivision of land fronting Bayswater Road which had an additional lot fronting Mason Court attached and providing - vehicular access to the dwelling on that lot and one at the rear on the large lot.

22. The original access to the rear dwelling was from Bayswater Road, however two bridges crossing Bungalook Creek look suspect for use now.

23. The subdivision shows two lots with access direct to Bayswater Road and the other 15 having access over the single lot fronting Mason Court.

24. It is this access that is the concern of objectors and the Responsible Authority.

25. Melbourne Water as a referral authority were objecting until the finalisation of the substituted plan that protects the creek and vests approximately 50% of the land as a drainage reserve under the control of that Authority.

26. The land is heavily treed in places and its topography makes subdivision of the land difficult. The proposal has overcome physical difficulties to produce a subdivision that respects the character of the area and shows the removal of minimal trees.

27. As stated above vehicular access to the 15 lots proposed off Mason Court was the main concern of residents in Mason Court. The subdivision would approximate the same number of cars and vehicular movements as exists in the court now.

28. Mr Mason and Mr Harry both stated that access from the court out to Bayswater Road at peak times was dangerous and difficult with waiting times up to minutes.

29. Vic Roads did not want access direct out to Bayswater Road and in addition, Mr Merrigan stated that access across the flood plain with two new bridges was not practical or realistic.

30. The Tribunal after viewing the area and walking over the land agrees with Vic Roads and is of the opinion that the access onto Mason Court is reasonable and far safer. Mason Court pavement width has the capacity to take the total movements from the existing court and the proposed 15 additional lots of which two already use the court for access.

31. Mr Harry was concerned at the location of the access road at the rear of his dwelling, however after the view and in view of the level of his dwelling, the Tribunal sees no amenity loss and the internal access roads appear well sited.

32. There are no reasons on planning grounds to refuse this subdivision proposal that has the support of all referral authorities and is the safest option available without creating undue amenity loss to the area.

33. The request is allowed and the Responsible Authority will be directed to issue a permit that includes the removal of trees that will be looked at by the Responsible Authority arborist.

34. Draft conditions were discussed at the conclusion of the hearing and those considered appropriate are included in the decision above.

Metropolitan Board of Works Act 1958

Kuranga Native Nursery Pty Ltd v Maroondah CC [2003] VCAT 1379 (2 October 2003)

Kuranga Native Nursery Pty Ltd v Maroondah CC [2003] VCAT 1379

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Kuranga Native Nursery Pty Ltd v Maroondah CC [2003] VCAT 1379 (2 October 2003)