Boundary adjustment and building envelope with restrictions on cut and fill. Easement of access.

• For the plan included in the permit application, substitute -

The plan prepared by Victor Ogilvie dated 17 October 2011 entitled '243 Myers Road Healesville 3777 Proposed Boundary Adjustment and Building Envelope'.

1. The decision of the Responsible Authority in relation to permit application no. YR-2010/1387 is affirmed. No permit is granted.

Mr Rowan Farmer, town planner, Yarra Ranges Shire Council

Ms Kelly Tocock, CFA VCAT Appeals Coordinator and Mr Andrew Ganey, CFA Fire Safety Officer

Application under section 79 of the Planning and Environment Act 1987

Clauses 11, 12, 13, 14, 15, 16, 21.04, 21.06, 21.07, 21.08, 21.09, 22.05, 44.06-8, 53 and 65

The subject land is about 3 km north of Healesville on the west side of Myers Road, Healesville, near the intersection with Trench Farm Road. It is irregular with a frontage of about 182 m, a depth of between about 95 m and 112 m, and an area of about 1.64 ha. The southern part of the subject land has a fall of about 14 m from the west (ie about 1 in 8) and the northern part has a fall of about 17 m (ie about 1 in 6). The subject land is in two lots. Both lots have a frontage to Myers Road. There is a timber single storey dwelling on the larger southern parcel. The larger lot has vegetation along its south, west and east (or Myers Road) boundary. Most of the southern half of the larger lot is a paddock. There is scattered vegetation around the dwelling. The smaller northern lot is vacant and has a dense cover of vegetation and is predominantly a steep gully. The Yarra Ranges National Park is about 500 m to the east. Land to the west is a 20 ha parcel, most of which is tall unmanaged forest that abuts the subject land. Land to the north is a 21 ha parcel on which there is a dwelling in a cleared area adjoining the subject land. Land to the south is a 0.8 ha parcel on which there is a dwelling and which has substantial vegetation abutting the subject land.

Green Wedge Protection Group Inc v Nillumbik SC [2006] VCAT 511

Wellesley v Hepburn SC [2011] VCAT 614

Cluff v Ballarat CC [2011] VCAT 2076

1. This proceeding is mainly about whether an additional, low-density residential lot should be established in an area of bushfire risk.
2. Mark & Sue Lester (the Applicants) own a parcel of land about 1.64 ha on Myers Road, about 3 km north of Healesville. They applied to the Yarra Ranges Shire Council for a permit under the Yarra Ranges Planning Scheme to subdivide the land into two lots of about 1.07 ha (lot 1) and 0.57 ha (lot 2). Lot 1 contains an existing timber dwelling. The proposed driveway to lot 2 is through lot 1 and the proposal includes the creation of a carriageway easement over the shared driveway. A 600 sq m building envelope is proposed for lot 2.
3. The Council refused to grant a permit. The Applicants have applied to the Tribunal to review the Council's decision. The Country Fire Authority is opposed to the grant of a permit.
4. The main issues for determination in this proceeding are:
   • Whether the subdivision is prohibited by the GWZ provisions.
   • Whether the proposal reduces bushfire risk to an acceptable level.
   • Whether the proposal would have a detrimental impact on landscape or environmental values.
5. After considering submissions and inspecting the subject land and surrounding land, I have decided to affirm the Council's decision. My reasons follow.

1. In GWZ5, the average subdivision lot size must be 40 ha and the minimum subdivision lot size must be 30 ha. The proposal does not comply with these requirements. The proposal seeks to use an exemption that allows a permit to be granted to

... create smaller lots if ... [t]he subdivision is the re-subdivision of existing lots, the number of lots is not increased, and the number of dwellings that the land could be used for does not increase. ...

1. The first two of the limbs of this provision are met. The Council submitted that third limb is not met because the smaller existing lot could not be used for a dwelling because it is largely a heavily vegetated steep gully and no reasonable dwelling site is available.
2. No permit has been granted to use or develop the smaller lot for a dwelling. The Applicants concede that a permit, if sought, would be unlikely to be granted.
3. I agree with the view expressed by the Tribunal in Green Wedge Protection Group Inc v Nillumbik SC,[1] that the provision refers to legal possibility of use for a dwelling and does not refer to whether a permit would necessarily be granted, if sought, for use for a dwelling. Therefore, the proposal is not prohibited and must be assessed on its merits.

1. The BMO commenced to affect the subject land on 18 November 2011, after the Council made its decision. On that date, new State policy for bushfire was also introduced. When the Council made its decision the land was affected by a Wildfire Management Overlay (WMO). The BMO transitional provisions apply the WMO to this permit application.[2] New State policy and the former WMO therefore apply to the permit application.
2. The permit application includes a Wildfire Management Statement (WMS) and a Wildfire Development Plan (WDP). Although the proposal does not include construction of a dwelling, the plans were prepared as if the building envelope was a dwelling. These plans have been subject to ongoing (including very recent) discussion and refinement with the CFA and it was not entirely clear what versions of these plans had been assessed.
3. Lot 2 is generally to the southeast of lot 1. The envelope is about 5 m from the boundary of lot 1 and about 15 m from the existing dwelling (including its outbuildings) on lot 1. As a result, the envelope is about 50 m from what the CFA categorises as forest on adjoining land to the west and south. The WMS recommended vegetation management distances of 60 m to the north, south and west of the envelope and 30 m to the east.
4. The WDP provides for managing vegetation within 49 m of the envelope (and at least 50 m from a future dwelling in the envelope) to specified standards for grass height, leaf litter depth, elevated fuel coverage, dry shrub location and overhanging trees to achieve a BAL 40. This will require some clearing or thinning of vegetation, especially the western and southern zones.
5. The defendable space for a dwelling within the envelope on lot 1 therefore almost entirely relies on space within lot 2 for the critical north and west zones.
6. The CFA therefore concluded that the application would meet WMO requirements subject to vegetation management arrangements. In particular, it would require the entering and registration of a s 173 agreement that relevantly required the owner of lot 1 to manage the vegetation in the defendable space for a dwelling on lot 2.
7. Nevertheless, this is a case in which the CFA is troubled by application of the WMO principles. It submitted it 'would not actively encourage development of this kind in the area due to the location and landscape related issues ... .' Its final position was that it had doubts the proposal satisfactorily met State policy objectives and would therefore prefer that no permit be granted.
8. Application of the former WMO is not the end of the matter. As stated earlier, although the BMO transitional provision applies the former WMO, it does not apply the former State policy. The revised State policy, introduced on 18 November 2011, must be the policy that is applied. I must balance any conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.[3] I must also take into account the land's physical context.
9. I will not set out current State policy here. Suffice to state that its objective is '[t]o assist to strengthen community resilience to bushfire'. The 'overarching strategy' is to '[p]rioritise the protection of human life over other policy considerations in planning and decision-making in areas at risk of bushfire'. The 'Development control strategies' include:

• The risk to human life, property and community infrastructure from bushfire can be reduced to an acceptable level.
• Bushfire protection measures, including the siting, design and construction of buildings, vegetation management, water supply and access and egress can be readily implemented and managed within the property.
• The risk to existing residents, property and community infrastructure from bushfire is not increased.

1. The scheme provides that the subject land is subject to a high bushfire risk. This is confirmed by my inspection. Land in the vicinity the subject land, if not the subject land itself, was burnt on Black Saturday. My primary concern is that vegetation management may not be readily implemented and managed 'within the property'. The 'property', in the context of a proposed subdivision, must mean 'each of the lots created'. While it remains in the ownership of the Applicants, they remain better placed to manage the defendable space on both lots. However, I must anticipate that one or both of the lots will be transferred so that there are two different owners. When that occurs, the agreement must be enforced against the owner of lot 1 for the benefit of managing the risk for lot 2.
2. The Tribunal has, on two recent occasions, not supported arrangements where the bushfire measures had to be implemented and managed on nearby land in different private ownership.[4] I acknowledge there are some relevant differences in those cases.[5]
3. The relevant bushfire context includes:
   • unmanaged forest about 50 m to the west and south of the envelope,
   • although Myers Road is sealed, it is essentially the only practicable access from a fire in the vicinity of the subject land for a considerable distance,
   • the subject land is in a small valley, heavily-vegetated particularly in its northern part, and only about 5 km south of the Great Dividing Range, west of Mt Disappointment,
   • large areas of thickly vegetated public forest to the east (about 500 m) and north (about 2.5 km), and
   • thick roadside vegetation along Myers Road, adjoining the access to the envelope.
4. I am not satisfied that the relevant risks have been reduced to an acceptable level and that measures can be managed within the property, having regard to:
   • the development control strategies in the policy,
   • the bushfire context,
   • the defendable space uses most available ground to the south and west of the subject land to achieve a BAL 40, and
   • a proposed agreement that is likely to require the future lot 2 owner or the Council to enforce the agreement against the future lot 1 owner to manage the defendable space for the lot 2 dwelling.
5. The balancing of all relevant policies needs, in this case, to give primacy to protecting human life from bushfire risk over other planning considerations, as stated in State policy.
6. Consequently, a permit should not be granted on the grounds of bushfire risk.

1. The proposed lots are smaller than those in the immediate area on both sides of Myers Road. Most lots are between 3 ha and about 20 ha. This is below the current minimum subdivision lot size of 30 ha in GWZ5. Lot 2 is only 0.57 ha. The envelope for lot 2 is about 28 m from Myers Road. My inspection of land along Myers Road shows most dwellings are further setback than this distance and most are sympathetically located in the rural and well-vegetated setting. Most are well separated from nearby dwellings. The envelope specifies a maximum cut and fill of 1.2 m for a dwelling.
2. I am not satisfied that the landscape impact is reasonable because of the setback, because the amount of cut and fill is unlikely to be limited to 1.2 m,[6] and because of the proximity of the dwelling on lot 1. If a fresh application is made in the future, the issue of landscape impact needs more careful consideration.

1. The Council's grounds of refusal included failure to comply with State policy and the purpose of the GWZ5 in relation to loss of agricultural land and introducing a residential use at an urban scale. Having regard to may findings on the above issues, I do not need to consider this ground.

1. The Applicants have sited the envelope on proposed lot 2 so that the risk to life and property is less than if the envelope had been located on the existing smaller lot or closer to the western and southern boundary, as originally proposed. They have also, as conceded by the CFA, complied with the transitional requirements of the BMO.
2. However, the area needed to create a defendable space for the dwelling to be located on the envelope on lot 1 can only achieve a BAL 40 which, it is to remembered, will have increasing levels of ember attack and burning debris ignited by windborne embers together with increasing heat flux with the increased likelihood of exposure to flames. The defendable space requires management of vegetation on an adjoining lot likely to be in different ownership. I am not satisfied the risks have been adequately mitigated, in accordance with State policy.
3. The decision of the responsible authority will be affirmed and no permit will be granted.

[1] [2006] VCAT 511.

[4] Wellesley v Hepburn SC [2011] VCAT 614; Cluff v Ballarat CC [2011] VCAT 2076.

[5] The cases were decided before the BMO and current State policy was introduced on 18 November 2011. The cases involved defendable space on adjoining private land in different ownership that was not part of the permit application. The cases did involve, to some extent, overlays that restricted vegetation clearing in the defendable spaces.

[6] The original application shows the envelope towards the south and having a maximum cut of 2.5 m. The contours in the revised envelope location are not so different to those in the original envelope that it gives me confidence that the cut could be confined to 1.2 m.