Lithgow v Yarra Ranges SC [2008] VCAT 1971

1. The decision of the Responsible Authority is affirmed.
2. In permit application No. YR-2007/444 no permit is granted.

Mr Tim Radisich, Town Planner of Associated Town Planning Consultants. He called written and oral evidence from Mr Jeff Latter, Arboricultural Consultant of Treed Environs (Terrastylis Pty Ltd).

Mr David Song, Town Planner of Aspect Town Planners Pty Ltd.

No appearances but in writing gave conditional support for the proposal.

Re-subdivision of two existing lots and associated tree removal for access.

Section 77 Planning and Environment Act 1987.

Cl. 44.01-2 and 44.01-3 (subdivision and removal of vegetation in the EMO).

I inspected the site and locality some 5 weeks after the hearing in very wet conditions.

The site is located on the western side of Ida Grove, about 70 metres north of Hacketts Road, Olinda. The site comprises two lots having a combined area of 9, 745m2 with a frontage of 61 metres and a depth of 162 metres. Lot 35 which contains an existing dwelling, outbuildings and driveway from Ida Grove has an area of 4,834m2. Lot 34 has an area of 4911m2, is vegetated, contains a watercourse and forms part of an extensive bush garden associated with the dwelling on Lot 35.

Ida Grove is an unmade dead end gravel road that intersects with Hacketts Road to the south. The setting is very bushy and there is no clear distinction between the road reserve and private property. At the southern end dwellings and other buildings are for the most part well set back from the road, screened by vegetation and largely hidden from view. Further north buildings are far more prominent because they are closer to the road and with less vegetation providing screening from the road.

1. Old and inappropriate subdivisions are scattered across Victoria, and the Shire of Yarra Ranges and the Dandenong Ranges contain many such subdivisions. The 'worst' of these subdivisions contain small suburban sized lots in estates that have been laid out with little or no regard to topography, watercourses, native vegetation, susceptibility to flood and erosion, or to landscape character. Since the introduction of the first statutory planning controls in Victoria in the 1940's, many of these subdivisions which remained undeveloped at that time have reverted to public ownership, been restructured to create fewer but larger lots by the use of such tools as Restructure Overlays or had their development potential restricted by the use of tenement controls. Within the Shire of Yarra Ranges there are examples of all three approaches being used to prevent or limit development on these very small lots. In other cases the estates have been allowed to develop as originally laid out but often with substantial later infrastructure improvements such as water supply, sewerage, drainage and construction and sealing of roads.
2. A step up from these subdivisions containing very small lots are those that include lots which in many cases are physically capable of being developed but which in many cases have also been laid out with little or no regard to topography and the site context. The subdivision incorporating land along Hacketts Road, Roy Road and Ida Grove is one such example where the lots are generally larger but only cursory attention appears to have been paid to topography and physical features when the subdivision was designed. The fact that Ida Grove meanders slightly suggests that some regard has been had to topography but the regular lot pattern which takes no account, for example, of the watercourse running through Lot 34, suggests that site context had little bearing on lot configuration. At a minimum, any subdivision along Ida Grove today would either exclude the watercourse from within an individual lot or provide significant buffers to any potential development envelope.
3. But we are faced with dealing as best we can with these past decisions having regard to current planning controls and attitudes to development in areas such as Ida Grove. In the absence of any suggestion that Lot 34 be purchased as a stream reserve, it is necessary to assess whether a restructuring of lot boundaries and the construction of an additional dwelling results in an acceptable outcome based on applying relevant planning provisions to the particular site context.

1. At the hearing Mr Song presented a written submission dealing with the Planning Scheme provisions and Council's reasons for opposing the application. Council rejected the application on seven grounds - all related directly or indirectly to environmental issues including loss of vegetation, position of effluent and building envelopes, and impact on the watercourse.
2. Mr Radisich responded with a written submission and called arboricultural evidence from Mr Latter explaining why the re-subdivision and buildings and works were acceptable. He noted that the effluent disposal area has been relocated outside the Erosion Management Overlay and that the building envelope has been slightly repositioned to minimise vegetation loss.
3. Although I was inclined to grant a permit at the conclusion of the hearing, I indicated to parties that I firstly wanted to inspect the site and surroundings before making my decision. Having now undertaken my own site inspection, heard submissions from Messrs Song and Radisich, and considered the evidence of Mr Latter, the following summarises my attitude to this proposal.

1. The local policy framework set out in Clauses 22.03 and 22.11, the Regional Strategy Plan set out in the Schedule to Clause 53 and the purposes and decision guidelines included in Clause 35.05 (Green Wedge A Zone) all seek to discourage the location of dwellings outside urban and township areas unless they relate to the primary agricultural, environmental, tourism and other non urban purposes of the land. The whole thrust of the aims set out at the beginning of the Schedule to Clause 53 is to contain urban development, define boundaries and ensure protection of rural land and rural landscapes.
2. Although the new lot configuration and position of the access way - with modifications recommended by Mr Latter - has the potential to provide an improved environmental outcome compared to development based on the existing lot configuration, in reality it is most unlikely that a dwelling could ever be built on the existing Lot 34 because of what appear to be significant environmental constraints. It is hard to fathom why Lot 34 was ever created in the first place given the watercourse, difficult topography and other environmental characteristics of the land. The way in which Lots 34 and 35 have been developed as one residential property provides a very good balance between protecting the environmental characteristics on Lot 34 while still allowing the land to be used for residential purposes with a dwelling, outbuildings, effluent disposal area and garden located on Lot 35 so that they have minimal impact on the more environmentally sensitive areas of Lot 34.
3. I am not satisfied that planning policy supports two houses on this land and I consider that with introduction of Green Wedge Zones and the Urban Growth Boundary there is even stronger strategic policy support to protect green wedge land from more intensive development. The Green Wedge A 1 Zone provisions impose a 2 ha average lot size for new lots (minimum 1 ha and maximum of 3 ha within subdivision) and allows for the creation of smaller lots through re-subdivision provided the number of lots and the number of dwellings that could be used on the land does not increase. Tenement controls in Clause 53 limit the number of dwellings on lots within the one ownership but provides an exemption from such controls if lots are in the Green Wedge A 1 Zone and each exceeds 4000m2 in area. Decision guidelines at Clause 35.05-6 groups issues to be considered into general, rural, environmental, and design and siting. Of these, the ones listed under general, environmental and design and siting are the most pertinent to this application.
4. Clause 22.02 applies to the Green Wedge A Zone and the policy basis makes specific reference to the Mt Dandenong Ridge area and notes that:

Residential properties, particularly those located on larger lots, have well established and maintained gardens which, together with a "hills" and bushland environment, create a high level of residential amenity in this area. It is important to ensure that development on the Mt Dandenong Ridge does not compromise the special landscape and environmental values of this area.

1. Objectives include to retain the rural living areas primarily for low density single dwelling residential areas and to protect and enhance residential amenity, landscape and environmental qualities. Clause 22.02-4 reinforces these with three additional objectives and policy for subdivision.

The Significant Landscape and Erosion Management Overlays

1. The Significant Landscape Overlay and the Erosion Management Overlay provide further policy support for limiting proposals which will undermine the existing low density bushland character in this part of Ida Grove. Clause 53 includes a requirement that land must not be subdivided in the Green Wedge A Zone unless each lot comprises land which has at least 40% of its area that is not (as relevant):
   1. subject to slopes 20% or greater,
   2. included in the Erosion Management Overlay.
2. The new lot does not comply but the clause states that these requirements may be varied if the responsible authority is satisfied that the land can be reasonably and safely developed for appropriate uses. While I accept that Clause 53 specifically exempts individual lots of more than 4000m2 in area from the tenement provisions and provides an ability to create lots exceeding the 40% threshold set out above, that alone does not justify development on such lots as the specific site context or site characteristics may rule against allowing development.
3. Not unexpectedly, the greatest pressure for an intensification of development is likely to occur in areas which have been subdivided into relatively small lots, where many of the lots already contain dwellings, where the sites are hidden away from the main scenic routes and where it will be argued that a little intensification will in no way harm the integrity of the green wedge or the environmental and landscape character of the area. However, it is the incremental impact of individual changes which eventually undermines both the integrity of the green wedges and the underlying policy of tightly constraining development within much more intensively subdivided residential township or urban areas.
4. In the mid 1970's I worked for the then Shire of Lillydale and despite the existence since then of relatively strict planning controls aimed at limiting development on the hundreds and hundreds of existing small lots throughout the Dandenong Ranges, it is quite stunning to see the amount of development that has occurred in the area over the past 35 years. Eventually each one-off approval cumulatively forms part of an argument to allow yet one more welling or one more development - because other small lots in the area have houses on them, one more house on this site will not make one iota of difference in terms of achieving strategic planning objectives - the land is not used for agricultural purposes, the building and effluent disposal envelopes can be sited away from the watercourse and steeper land, and vegetation to be removed is not significant.

1. Mr Latter prepared a written evidence statement and attended the hearing to explain his views and answer questions about his findings. On page 2 he notes in summary that:

The proposed boundary realignment and subsequent development of the new lot 2 has potential to require removal of some protected vegetation including both indigenous and exotic.

1. He then goes on to explain what vegetation needs to be removed, notes that the main issues will be the construction method and the location and method of service installation, and makes the following suggested modifications to the proposal:
   1. Alter the new driveway for the existing dwelling to avoid removal of Tree 1.
   2. Slightly relocate the building envelope away from the bushland area nearest the watercourse
   3. Relocate the driveway to the new dwelling to a position between Trees 17 and 19.
   4. Underground services to be installed as far away as possible from larger trees (Tress 4, 5, 6 and 7) and boring of services should occur for at least 5 metres past Tree 8.
   5. The proposed effluent area contains a number of large and mature trees and effluent management should be by way of shallow irrigation not trenched absorption drains.
2. Lots 34 and 35 at present have a vegetated appearance and apart from a glimpse of a building down the long driveway, the two sites appear largely undeveloped with a mixture of exotic and native vegetation visible from Ida Grove. The proposal to remove trees to provide a new driveway to the existing dwelling, to remove trees to provide a building envelope and driveway for a new dwelling and to locate a new dwelling within 9 metres of the frontage will significantly alter the 'hills and bushland' environment in this section of Ida Grove. While the removal of individual trees and other vegetation may be supported in Arboricultural terms, I am not convinced that the much broader landscape, environment and character considerations set out in the Planning Scheme are satisfied by the re-subdivision of these two lots to provide the opportunity for another dwelling positioned close to Ida Grove. I consider that allowing a re-subdivision of these two sites to facilitate an additional dwelling would be a poor planning outcome and one that does not result in a net community benefit in the terms set out in Clause 11 of the Planning Scheme.

1. The imposition of the Green Wedge Zone and Urban Growth Boundary was designed to prevent the incremental extension of urban style development into the green wedges. Although this proposal is not for small residential lots, re-subdivision as proposed and the construction of an additional dwelling on this parcel of land would be, on my assessment, contrary to the central aim of the green wedge/urban growth boundary policy, would undermine the landscape and environmental character and attributes of the land, and in its own small way undermine and weaken policy aimed at limiting development in green wedges and protecting the diverse landscape elements and the unique character of the Mt Dandenong Ridge area.

1. Having regard to the above I will direct that no permit is to be issued.