The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is directed to be granted for the subdivision of land into two lots at 216 Broad Gully Road, Diamond Creek generally in accordance with the endorsed plans and subject to the following conditions:

1. Before the plan of subdivision is certified under the subdivision act 1988, three copies of 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 will then form part of this permit. The plans must be generally in accordance with the plans submitted on the 28 May 2007 but modified to show:

1. The proposed 4m wide crossover reduced to a 3m width and located centrally between the 2 trees shown in the Road Reserve. 2. A note stated on the plan that the crossover must be constructed at or above existing grade without any excavation works taking place to the satisfaction of the Responsible Authority.

1. Verification of the location of the 4 Red Boxes identified on Lot 2 and the building envelope amended to ensure that it is setback a minimum of 5m from the centre of any tree trunk.

1. Amendments required by condition 4.
2. The layout of the proposed subdivision as shown on the endorsed plan, shall not be altered or modified without the prior written consent of the Responsible Authority.
3. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunications services to each lot shown on the endorsed plan of subdivision.
4. The following are requirements of the Country Fire Authority (CFA):

1. Before the development starts, amended plans to the satisfaction of CFA must be submitted and approved by CFA and 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. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   • Vegetation management areas around each Building Envelope. The vegetation management areas required are to be in accordance with the determined category of vegetation as per the Wildfire Management Overlay applicant's kit for the site.
   • Operable hydrants, above or below ground. Hydrants must be shown with a maximum distance between a hydrant and the rear of a building envelope (or in the absence of the building envelope, the rear of a lot) of 120m and hydrants must be no more than 200m apart.

1. Operable hydrants, above or below ground must be provided.

1. The maximum distance between a hydrant and the rear of a building envelope (or in the absence of the building envelope, the rear of a lot) must be 120m and hydrants must be no than 200m apart.

1. Hydrants must be identified as specified in 'Identification of Street Hydrants for Firefighting purposes' available under 'Publications' on the Country Fire Authority web site (www.cfa.vic.gov.au).
2. A further referral is required at the "development stage" for the construction of any accommodation building in accordance with clause 44.06 of the Victorian Planning Provisions .

1. Prior to the Certification of the subdivision the owner must prepare and enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 for Lot 2. The Agreement is to be registered on the title for Lot 2 of the subdivision. The permit holder must pay all costs associated with the Agreement including the Responsible Authority's legal costs in reviewing the Agreement. The Agreement shall require that:

1. All buildings and works must be contained within the building envelope for the lot as defined on the plans endorsed under this permit, unless with the prior written consent of the Responsible Authority. 2. Vehicle access to each lot must be via the access point and driveway as defined on the plans endorsed under this permit, unless with the prior written consent of the Responsible Authority.

1. No native vegetation located outside the building envelope for each lot must be removed, destroyed or lopped unless with the prior written consent of the Responsible Authority. * Prior to the commencement of any buildings and works, tree protection measures shall be undertaken and continued to be implemented during the duration of the construction of the second dwelling to the satisfaction of the Responsible authority. Tree Protection Fencing (TPF) must be erected to form an appropriate Tree Protection Zone (TPZ) on the boundaries of the affected building envelope to the satisfaction of the Responsible Authority

1. Any new dwelling for the lot, must be provided with a storm water holding tank of 4,500 litres minimum capacity to collect roof water. The overflow from the tank shall be directed to absorption trenches terminating in one cubic metre (1m3) absorption pit. The length of the absorption trenches must be calculated in relation to the volume capacity of the storage tank.

Water in the tanks shall be used for toilet flushing, property irrigation and vehicle washing.

1. Prior to the issue of a Statement of Compliance for the subdivision:

1. The owner will pay Council, in full and to the satisfaction of the Responsible Authority a development contribution of $14,389, as required under Clause 45.06 - Schedule 2 of the Nillumbik Planning Scheme. 2. The owner will pay Council in full and to the satisfaction of the Responsible Authority, a public open space contribution to the value of 5 percent of the site value of the subject land, as required by S173 Agreement AE609107G registered on the Title to the land and the Schedule to Clause 52.01 of the Nillumbik Planning Scheme.

1. The vehicular crossing from the roadway to the land must be constructed to the requirements of the Nillumbik Shire Council. The Responsible Authority must approve the location, design and construction of the crossing. All vehicle crossing works are to be carried out with Council supervision under a road opening permit.

Further to the above the crossover must be laid at existing grade or above existing grade with no excavation occurring (scraping of surface acceptable) and all works must occur under the supervision and satisfaction of a Council approved Arborist along with a Council Infrastructure Officer. Prior to any works occurring the crossover must be pegged out, and inspected and be to the satisfaction of a Council Statutory Planning Officer.

1. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
2. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
3. The subdivision hereby permitted shall not cause any nuisance or loss of amenity in any adjacent or nearby land by reason of the discharge of drainage to the satisfaction of the Responsible Authority.
4. This permit will expire if either of the following circumstances applies:
   1. The plan of subdivision is not certified within two (2) years of the issue date of this permit; or
   2. The subdivision is not completed within five (5) years of the date of certification of the plan of subdivision.

The Responsible Authority may extend the permit if a request is made in writing prior to the expiry of the permit or within three (3) months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1. This was an application for review of the failure of the Nillumbik Shire Council to make a determination in this matter within the prescribed time. The permit applicant seeks to subdivide land known as 216 Broad Gully Road, Diamond Creek, located on the east side of Broad Gully Road, into two lots.
2. At the commencement of the hearing the Responsible Authority advised the Tribunal that had it been able to make a decision it would have refused the application on the following grounds:
   1. The proposal is not considered a practical or good planning outcome in that it creates an inappropriate subdivision particular in regard to the future maintenance of the land.
   2. The proposed subdivision would not produce acceptable outcomes in terms of the decision guidelines of clause 65 of the Nillumbik Planning Scheme particular in regards to:
      • The orderly planning of the area;
      • The subdivision pattern having regard to the physical characteristics of the land including existing vegetation;
      • The area and dimensions of the proposed development.

3. The review site is located on the east side of Broad Gully Road opposite Diamond Views Drive. The site is a rectangular in shape with a frontage of approximately 80 metres to Broad Gully Road, a depth of 50 metres and a total area of 4,000 square metres. An existing dwelling is located on the site approximately 24 metres from the southern boundary and setback 5 metres from the Broad Gully Road frontage. On the northern half of the site is dense remnant vegetation. The area east of the existing dwelling is also characterised by remnant vegetation while the area south of the existing dwelling is predominantly clear of vegetation.

1. The proposal is essentially to subdivide the land in two lots. However, the subdivision is proposed to take place in the form of U shape with the existing dwelling and the area around the existing dwelling forming one lot and the second lot is the balance of the land including an area behind the existing dwelling. That land to the east of the existing dwelling connects the northern and southern parts of lot 2 via a 12 metre wide parcel of land. Thus the subdivision is in a U shape, with lot 1 forming the internal part of the U, and lot 2 forming the external part of the U. Lot 1 is proposed to have an area of 601 square metres with a width of 16 metres and a depth of approximately 38 metres while lot 2 is an irregularly shaped lot that has a total area of about 3,398 square metres.
2. It is proposed to have a building envelope on lot 2 located in the southern part of the site where the vegetation is cleared. The building envelope will have a length of 15 metres and a width of 10 metres.

1. The review site is zoned Residential 1. A planning permit is required to subdivide the land pursuant to Clause 32.01-2. The subdivision must be assessed against the provisions of clause 56 of the Nillumbik Planning Scheme.
2. The review site is also affected by a number of overlays including:
   • Development Plan Overlay Schedule 2 (DDO2)
   • Development Contributions Plan Overlay Schedule 2 (DCPO2)
   • A Wildfire Management Overlay (WMO)
   • Environmental Significance Overlay Schedule 1 (ESO1)
3. The Development Plan Overlay requires that a planning permit cannot be issued for subdivision unless a Development Plan has been approved and any proposed subdivision is generally in accordance with this plan. The Diamond Creek Area B development plan was approved by the Responsible Authority in 2003. The development plan identified high quality remnant roadside vegetation for the site, north of the high power transmission line and identifies the majority of the site having a high biological value with the slopes greater than 20%.
4. The development plan goes on to state that the remnant grassy dry forest along Broad Gully Road particularly the section between Herberts Lane and Collard Drive and the further area in the north west part of Area B is considered of high biological value. The review site is located within this part of the Area B.
5. The Responsible Authority confirmed that the subdivision plan was generally in accordance with the development plan and therefore a permit can be issued if appropriate.
6. Essentially the conflict in this proposal was whether the arrangement of the two lot subdivision in a 'U shape' arrangement detrimentally effects the proper and orderly future planning of the area.
7. The council submitted that the arrangement resulted in an unorthodox subdivision and importantly provided little linkage from the proposed dwelling site on lot 2, located to the south of the existing dwelling, to the main vegetated area of that lot located to the north of the existing dwelling.
8. As a consequence it was submitted that such an arrangement would result in the densely vegetated remnant dry grassy forest area not being properly maintained because of its disassociation with the dwelling site.
9. The council submitted that the proposal effectively fragmented that land parcel from the dwelling site.
10. What is clear in this proposal and agreed by both parties is that there will be further subdivision, in the future, of the northern part of the land which is the most heavily vegetated potion of the site.
11. Mr Maino in his detailed submissions submitted the proposed subdivision was not unusual and it responded in a positive manner to the existing occupancy of the dwelling. He submitted adequate provision was made, for both the connectivity required in the short term for lot 2 and the capacity, when required, for the narrow section of land located to the rear of lot 1 to be allocated equally to any new lot subdivision created to the north.
12. As mentioned previously the council conceded that the subdivision was consistent with the development plan overlay thus the Tribunal's focus is whether the form of subdivision is appropriate in this area.
13. The council did not suggest that lot 1 was either inappropriate in size, area, access or position. Nor did it suggest that the building envelope for lot 2 was inappropriately located or that it would result in unnecessary removal of vegetation.
14. These factors all point to the fact that in terms of the land's primary zone being a Residential 1 zone, the subdivision and its form is really quite unremarkable.
15. The key influence in terms of the subdivision arrangement is that the large area of significant vegetation to the north is effectively linked to lot 2 to the south by a 12 metre wide link located at the rear of lot 1.
16. Mr Maino submitted that he did not have the capacity to maintain the large area of remnant vegetation on that land. He submitted any future owner of lot 2 would more than likely to be in a better position to maintain that remnant vegetation given there clear understanding of what was being purchased.
17. The planning scheme provisions in the ESO2 seek to enhance and protect significant vegetation. I find no inconsistency with that objective and what is proposed in this application. The width of the rear link at 12 metres is, in my view, not small and will facilitate easy access from the dwelling site of lot 2 to the large vegetated area. Mr Maino claimed that a path through that vegetated area link was already established.
18. As Mr Maino claimed the opportunity for future subdivision of the land to the north is highly likely given the zoning of the land. However, that determination would be made at some later date depending on the satisfactory location of any building envelope and the amount of vegetation required to be removed.

19. While Mr Szymanski submitted quite forcefully that this form of subdivision was unusual, I do not find this arrangement that unusual enough to require its refusal. I also do not believe the Responsible Authority can sustain any of its grounds for refusal indicated at the commencement of the hearing.
20. As a consequence I propose to set aside the Responsible Authority's decision and direct the grant of a permit subject to conditions. At the conclusion of the hearing discussions took place in respect of these conditions and my order reflects the outcome of those discussions.