Masten Bennett & Associates v Nillumbik SC [2010] VCAT 900

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Robert Marshall, Green Wedge Protection Group and Friends of Nillumbik are joined as parties to this proceeding.
2. The decision of the Responsible Authority is affirmed.
3. In permit application 703/2008/14A, no permit is granted.

Mr J Gobbo, QC and Mr P O'Farrell, Barrister by direct brief

• Mr L Kern, Ecologist of Practical Ecology.
• Mr H Turnbull, Traffic Engineer of Traffix Group.
• Mr A Burrows, Civil Engineer of JCA Land Consultants.
• Mr G Lewis, Arborist of Stem Arboriculture.
• Ms S Jordon, Town Planner of Urbis.
• Mr J Nicholson, Bushfire Consultant Community Safety Services.

Mr K Franke appeared for Green Wedge Protection Group

Mr M Stacco, Fire Safety Officer of CFA Yarra Area Headquarters

The site is 132 hectares in area and currently contains a single detached house, associated shedding and fencing related to its previous use as a farming property used for grazing.

The topography of the land is steeply undulating and partly vegetated. However, it is predominantly cleared pasture with pockets of indigenous and exotic vegetation. The land is bisected in an east-west direction by the Yow Yow Creek and a tributary of Diamond Creek.

The site is located on the north side of Buttermans Track and is bounded by Tarra Place along part of the west boundary and Wild Dog Creek Road along part of the north boundary.

To subdivide the land into 16 lots and use of each lot as a dwelling with the removal of associated vegetation to facilitate the construction of roads on the site.

Each lot is a minimum of 8 hectares and contains a building envelope within which a dwelling, effluent disposal and other domestic structures will be constructed. Each envelope is approximately 1 acre (4,050m2).

Section 79 Planning and Environment Act 1987

Environmental Significance Overlay Schedule 1 (ESO1)

cl 35.06-3 To subdivide land in RCZ3 (the minimum lot size is 8ha)

cl 35.06-2 To use land for the purpose of a dwelling in RCZ3

cl 42.01 To subdivide land and to remove, prune or lop vegetation in ESO1

1. This is an application to review the failure by Nillumbik Shire Council ('the council') to make a decision on a planning application within the prescribed time. The planning application seeks approval to subdivide a rural (former farming) property at 385 Buttermans Track St Andrews into 16 lots with building envelopes, and to use each lot for the purpose of a dwelling.
2. The council received the planning application in December 2008. It referred the application to internal council departments and external authorities. The Department of Sustainability and Environment advised it had insufficient information to be able to comment, but none of the remaining external authorities objected to the proposal. The council received 26 objections during the public notification period that raised similar issues to those expressed in this hearing about the merits of the proposal. The council then determined that it would have refused the application[1] because:
   • The proposal is inconsistent with clauses 21.03, 21.05, 22.02 and 22.13 of the Local Planning Policy Framework that discourages rural residential land use in areas removed from urban settlement, services and infrastructure; and encourages large lots in single ownership to improve conservation and agricultural management.
   • The proposal is inconsistent with State and local planning policies that actively discourage dwellings remote from urban settlement.
   • The proposal has not adequately responded to ESO1, particularly the potential impact of the subdivision layout on the environmentally valuable portions of the land and adjoining land, including Yow Yow Creek and native vegetation.
   • The proposal has not adequately responded to WMO and cl. 22.13 and presents an unacceptable risk to persons and property.
   • The proposal will increase traffic generation along the existing roads without considering appropriate road treatments and improvements.
3. This Tribunal hearing took place over three days between 26 and 28 October, on the afternoon of 12 November and on 20 November 2009. On the last day of the hearing (20 November), Melbourne Water attended the hearing requesting leave for time to consider the proposal[2], which was given. Accordingly, the time for all submissions and information for which leave was given[3] was completed on 18 December 2009, although clarification as to who had authority to respond on behalf of the permit applicant was eventually clarified late January 2010. We have considered this material together with the submissions, evidence, tendered documents and the accompanied inspection during the hearing in making our decision.

1. Despite the level of opposition to this proposal, most of the parties, including the council, the Green Wedge Protection Group and a number of other objectors did not suggest that this former farming land should not be subdivided. Instead, in the main, submissions focussed upon the intensity of the subdivision, but there were differing views as to how many lots may be appropriate.
2. While some of the objectors submitted that the land should not be further subdivided, in principle, we are unable to come to this conclusion. The land is large, much larger than the minimum lot size allowed under the zone provisions. For reasons that will become apparent later, we accept that this land is subject to physical and environmental conditions that constrain its potential to be subdivided with the majority of lots at or close to the minimum lot size. However, we are not able to conclude that this land should not be subdivided at all.
3. The condition of Buttermans Track and the nature of the surrounding road network were put forward by some submitters as a basis for concluding that this land should not be subdivided.
4. We acknowledge that the road infrastructure that is in place is commensurate with that often found in rural residential environments. Roads are constructed to a rural standard and in a location like this, are often narrow in parts and have a winding alignment. However, we also need to acknowledge that the proposed subdivision would not result in a substantial increase in traffic. The level of traffic is low and not enough to support the view that the road cannot accommodate it.
5. We accept that the road infrastructure presents some difficulties, and based on Mr Turnbull's evidence, there is a need to improve signage, review speed limits and perhaps undertake works in some locations. However, we are of the view that these matters should be examined and remedial action taken as appropriate irrespective of whether this proposal goes ahead or not. We simply conclude that the extent and type of traffic generated by the eventual use of the lots would not in itself be a reason to reject this proposal.
6. There is a great degree of complexity associated with deciding how this site should be subdivided. Various experts were called to give evidence on particular aspects of the proposal, which sometimes revealed conflicts, as the aspirations for some aspects of the site create implications for other aspects. Having regard to the submissions and evidence received during the hearing, we have identified the following issues to be considered in the reasons for our decision:
   • What do the planning policies say about how this land should be developed and used;
   • Whether the subdivision and use of the land for rural residential purposes accords with the purpose of the Rural Conservation Zone;
   • Whether the environmental values of the land have been appropriately considered;
   • Whether the vegetation removal is acceptable;
   • Whether the design and siting of the building envelopes are appropriate; and
   • Whether the wildfire risk is acceptable.

1. The first purpose of all zones and overlay controls is to implement the State and Local Planning Policy Frameworks of the planning scheme. Before turning to the provisions of RCZ3, ESO1 and WMO, it is appropriate to provide a brief summary of and our understanding of the relevant State and local planning policies.

1. This site is located within one of Melbourne's Green Wedge areas. State planning policy[4] seeks to protect Green Wedge areas from inappropriate development by, amongst others, supporting development that provides for environmental, economic and social benefits and the consolidation of new residential development within existing settlements and locations where planned services are available and green wedge values can be protected.

1. The State and Local Planning Policy Frameworks talk about the importance of protecting the State's agricultural base from the unplanned loss of productive agricultural land. The council and the residents made reference to the historic use of this land for the purpose of grazing/farming and submitted the loss of this land is not in accordance with this aspect of the policy framework.
2. However, there is nothing in the Local Policy Planning Framework that particularly identifies this area as being highly productive agricultural land. As Mr Franke pointed out, the majority of the Shire is contained within a Green Wedge or Rural Conservation Zone, where agriculture along with residential land uses would require planning permission. Mr Marshall stated this site is attractive farmland but is not good farming land. The council did not argue that the site comprises good quality farming land. We were not presented with any evidence or documentation to the contrary.
3. While we accept that the land has some capacity to be used for agricultural purposes, ultimately we are satisfied that it is not highly productive land. Given its context where the zone purpose is not primarily geared toward agricultural use, and the rural residential nature of the surrounding land use pattern, we accept that the subdivision of the land would not be at odds with policy that seeks to protect highly productive farmland that is important to the state's agricultural base.

1. The MSS designates the area surrounding the township of St Andrews, including this site, as "environmental rural". There is no specific explanation as to what environmental rural means. Clause 21.04-4 talks about "environmental management" as well as "a nature and landscape conservation focus throughout the shire, enhancing the natural features of the rivers and mountains". It refers to a network of strategic habitat links north-south along the waterways (from Kinglake National Park to Yarra River) and east-west along roadsides and natural features. The local planning policies seek to protect and enhance high quality indigenous vegetated environments in urban and non-urban areas, and mentions bushland conservation through the Kinglake Ranges.
2. In regard to rural living and rural residential development, State planning policy[5] states land should only be zoned for these purposes where it is located close to existing towns and urban centres and can be supplied with electricity, water and good quality road access. The policy also states land should not be zoned for rural living or rural residential if it will encroach on high quality, productive agricultural land or adversely impact on waterways or other natural resources.
3. Mr Song described this site as remotely located because it is approximately 3 kilometres from St Andrews township with access to the township mainly via windy narrow roads. He also pointed out the township itself contains very few services or facilities[6] typical of other townships in the Shire. The residents agreed with this and stated that car usage is high as it is necessary for residents in this area to travel to access services and facilities.
4. It is clear that this part of St Andrews is an environmental rural area where residential land use is not generally permitted "as-of-right". Having said that, we acknowledge there are many existing houses in the area surrounding this site. These houses, on rural residential sized properties, largely define the character of the area within which the site is found. The subdivision of the land into rural lifestyle lots would not in itself be contrary to that character.
5. However, before deciding whether to grant a permit to allow this site to be subdivided and used for dwellings, we must consider whether rural residential land use will adversely impact on natural features, waterways, strategic habitat links and high quality indigenous vegetated environments - all characteristics and features that are sought to be protected through the planning policies of the planning scheme.

1. The purpose of the Rural Conservation Zone includes to conserve the specified values, and protect and enhance the natural environment including its landscape, faunal habitat and cultural values. Another purpose specifically encourages development and use of land that is consistent with sustainable land management and land capability practices and takes into account the conservation values and environmental sensitivity of the locality.
2. The Nillumbik Planning Scheme contains five schedules to the Rural Conservation Zone. The schedules nominate the conservation value and minimum subdivision area of the area to which they apply as follows:

To provide for rural residential development that is compatible with the environmental values of the land given the close proximity to the Plenty Gorge.

To provide for rural residential development that is compatible with the environmental values of the land given the close proximity to the Plenty Gorge and the potential environmental hazards in the area.

To ensure land use changes do not have an adverse impact on the landscape or strategic environmental values of the land.

To conserve and permanently maintain the existing rural character by encouraging the protection of the environmental and landscape values of the major environmental assets such as the Plenty Gorge, Kinglake National Park and the Yarra River.

To conserve and permanently maintain the existing rural character of the area by encouraging suitable agricultural pursuits, while conserving the environmental characteristics.

1. Schedules 1 and 2 specifically provide for rural residential opportunities while Schedules 4 and 5 seeks to maintain the existing rural character. Schedule 5 also encourages suitable agricultural pursuits.
2. The site is however found in the area covered by Schedule 3. Unlike other areas, there is no specific mention of any land use for the area covered by Schedule 3. Rather, the objective of the schedule seeks to ensure land use changes do not have an adverse impact on the landscape or strategic environmental values of the land.
3. We disagree with Ms Jordan that Schedule 3 encourages or identifies this site as being suitable for rural residential land use. The key aspect of Schedule 3 is for a new land use to not have an adverse impact on the landscape or strategic environmental values of the land. In our view, this ties back into the nature and conservation focus of the local planning policies and the RCZ purpose of protecting and enhancing the natural environment, particularly its landscape, faunal habitat and cultural values.
4. Ms Jordan stated the RCZ is the primary zone used within this Shire, and particularly Schedule 3. This coincides with Mr Franke's submission that 55% of the municipality is zoned Rural Conservation and 20% is zoned Green Wedge.
5. The fact that much of the Shire may be within the RCZ3 does not change our finding that provisions that apply to this part of the zone do not specifically encourage or expect such land to be suitable for rural residential land use. Instead, we are of the view that the provisions of the RCZ3 raise the question as to whether residential land use will promote, manage and encourage the recognised values of the area. As such the appropriateness of the subdivision of the land, including its eventual use and development must be assessed against this outcome.

1. Ms Jordon submitted the rural lifestyle is highly valued by the community of Nillumbik. This sentiment was also clearly expressed by the residents who participated in the hearing. Ms Jordan stated the issue in this case is how to balance the rural lifestyle aspiration while also protecting the identified environmental values of the area. She suggested the environmental values of a site need to be assessed individually to determine the appropriate land management and conservation strategies necessary, and then to allow development in accordance with those strategies. We agree with this approach.

1. Ms Jordan's starting point for such an assessment appears to have been to consider the minimum lot size specified in each RCZ schedule. She tabled a plan of the surrounding area[7] suggesting the average lot size within the area surrounding this site is 8 hectares or less. Based on this, Ms Jordan expressed the opinion the proposal achieves the minimum lot size of 8 hectares and is consistent with the existing pattern of lot sizes in the surrounding area. However, Ms Jordan conceded that achieving an 8 hectare minimum size does not necessarily produce an acceptable outcome having regard to the relevant planning policies, the purpose of the zone or the purpose of the schedule to RCZ. For example, Ms Jordan agreed it is necessary to look at the landscape and strategic environmental values to determine whether an existing lot would be suitable for use for a dwelling (rural residential land use).
2. The fact is a dwelling is a permit required use in this zone; it is not "as-of-right". It ought not to be taken that the use of land for residential purposes is a given. It is relevant to note that in this application, we are not simply being asked to consider whether the land should be subdivided. We are also being asked to allow the land to be used and developed in a way that will convert the land to rural lifestyle use. As such, we are required to assess whether the subdivision at the intensity proposed, together with the eventual residential use of each lot works toward the achievement of the landscape and environmental outcomes that are sought under the schedule for this area.

1. We are not persuaded the layout of this proposed subdivision has taken its lead from the environmental values of the site. Rather, the proposed layout appears to have taken its lead from the minimum lot size contained in RCZ3.
2. Many of the lot boundaries do not follow any existing fence lines, existing stands of vegetation or existing topographical features such as creeks, hills or tributaries. Rather, the lot sizes appear to have driven by the alignment of boundaries to achieve as close to the minimum requirement of 8 hectares as possible[8].
3. In addition to the existing features of the site itself, Ms Jordan agreed it is important to have regard to existing rural activities that are occurring within the surrounding area when determining appropriate lot sizes and whether the use of land as a dwelling is appropriate in RCZ3. In this regard we note the MSS at cl. 21.03-2 acknowledges the potential for possible conflicts between land uses and, in the case of this site, we find this necessitates considering the vineyard on the adjoining property to the east.
4. This proposal seeks to locate seven lots and building envelopes in proximity to the boundary with the vineyard. In response to our questions, Ms Jordon acknowledged that two potential impacts associated with this interface are the noise of machinery and the use of chemical/fertiliser sprays. She stated the potential for conflict has been reduced because the building envelopes are setback from the common boundary; and future residents will be aware of what they are buying into and need to accept that.
5. We are not persuaded by her evidence. Firstly, the potential for conflict between genuine farming activities and the expectations of persons who seek to use land for rural lifestyle purposes are well known[9]. It is important to consider the relationship between adjacent land uses. It is desirable that the potential for conflict be minimised, if not avoided. The subject of how the site interfaces with the adjacent vineyard was not a matter that was directly canvassed in Ms Jordan's report nor was how the placement of many lots and houses in relatively close proximity to the vineyard represents a considered approach to the interface issue. We remain concerned that the proposal has not addressed this issue in an appropriate way.
6. We are also of the view it is the role of planning, in part, to determine whether land uses should be located in proximity to each other rather than leaving it to a "buyer beware" situation only. This is particularly the case here as a dwelling is a section 2 permit required use, and its appropriateness needs to be considered in the context of its surrounds.
7. We are of the opinion it is inherent in the discretion to be exercised in determining whether to grant a permit that the potential for conflict should be considered in determining the appropriate number, layout and configuration of lots and the location of building envelopes in proximity to a well established existing agricultural activity such as a vineyard.
8. Mr Gobbo questioned whether it is important that this subdivision be designed to protect itself from the vineyard given there are already houses proximate to the vineyard along Buttermans Track. By way of example, he pointed to Mr Marshall's property, which is adjacent to the northeast section of the vineyard. Mr Gobbo submitted the issue is the degree of impact. It was his submission that the presence of the vineyard ought to rank as a low impact.
9. In our view, it is an impact that does need to be considered, and we remain unpersuaded that it has been adequately considered given the proximity of a number of building envelopes to the common boundary with the vineyard. There is a direct interface with this site and Rising Vineyard clearly forms part of the context of the surrounds of the subject site.

1. As we explained earlier, it is our view that this land can be subdivided in some way. The issue therefore is in what way the land can be subdivided. This would include the number of lots and their configuration. We have already explained that we consider the proposed subdivision appears to be largely based upon achieving the minimum lot size of RCZ3 rather than considering the context of the site and the environmental values of the land.
2. One matter that requires consideration in this regard is Environmental Significance Overlay Schedule 1. It affects parts of the northern and north-eastern areas of the site, and has the following statement of environmental significance:

Much of the shire is heavily vegetated and supports a diverse range of native fauna and flora. Some of the species are listed under the Flora and Fauna Guarantee Act. There are specific sites occurring on both private and public land that have been identified as being of particular importance within the sites of Faunal and Habitat Significance in North East Melbourne (Beardsell 1997). Identification, protection and enhancement of the environmentally significant sites and strengthening of connecting habitat links will assist in the maintenance of biodiversity within the shire and surrounding areas.

1. Mr Kern described this site as predominantly cleared paddocks with remnant native vegetation. This vegetation exists along the Yow Yow Creek that forms part of the northern boundary and splits the northeast section of the site, and within the northeast section of the site (north of Yow Yow Creek). He described the vegetation on the site and Yow Yow Creek as an important habitat corridor recognised as part of a site of ecological significance in the NEROC Report. He also acknowledged some regeneration is occurring on the site despite ongoing grazing, including some Burgan and some Eucalypts.
2. The Yow Yow Creek corridor has high habitat significance. Mr Kern described it as being highly significant to the region. In doing so he identified several flora and fauna in the immediate region that are likely to be found on this site. Mr Kern explained this site plays a critical role in the movement of fauna along the Yow Yow Creek and as part of the wider regionally strategic habitat link to Diamond Creek headwaters and upper reaches.
3. Five different Ecological Vegetation Classes (EVCs) were identified on the site, including Valley Grassy Forest and Creekline Herbrich Woodland that are vulnerable in the Highlands-Southern Falls bioregion. Mr Kern identified twelve habitat hectare zones across the site, three of which have very high conservation significance and the remaining zones being of high conservation significance.
4. Mr Kern disagreed with Mr Baker-Gabb's submission that two EVCs are "nationally threatened". Mr Kern explained that a "vulnerable" designation by DSE under the Framework for Native Vegetation still means that 10-30% of the EVC remains in the bioregion. As such, Mr Kern expressed the view that this does not make these EVCs nationally significant or threatened, rather they remain "just vulnerable".
5. Mr Song submitted the proposal has not sufficiently responded to the environmental values of the site and suggested this failure is illustrated by the fact that seven of the sixteen lots are adjacent to Yow Yow Creek. Mr Kern did not agree and emphasised the importance and necessity for the land adjacent to Yow Yow Creek to be appropriately managed.
6. Mr Kern expressed the view it is easier to divide up his designated conservation zones into various land ownerships because it will then be easier to get the necessary conservation work done because the load is shared amongst a number of landowners rather than the responsibility and economic burden resting with one.
7. Mr Kern stated that there are two types of lots are proposed - bush blocks (lots 13-16) and rural grazing lots (lots 1, 2, 4, 5, 6 & 7). Mr Kern suggested the developer should be responsible for doing the initial fencing and weed killing, with future owners then being required to do the ongoing maintenance. Mr Kern explained the implementation of a Land Management Plan for each of the lots and the requirement for a section 173 Agreement to enforce the Land Management Plan will result in 40% of the site being protected and regenerated with indigenous vegetation. This includes along Yow Yow Creek and the entirety of the northeast section of the site, except for the designated building envelopes and roadway.
8. In our view the outcome envisaged by Mr Kern represents a significant change to the existing landscape of heavily grazed paddocks. Given the environmental values of this site and the surrounding area, this outcome is consistent with planning policy.
9. However, this outcome is also contrary to planning policy and controls relating to wildfire risk, which is a conflict and a matter that we will deal with later in these reasons.

1. Whilst we acknowledge the beneficial outcome of regeneration of vegetation on this section of the site and Mr Kern's experience with dividing the ongoing obligations between land owners, we are not persuaded the creation of four lots is appropriate. Mr Kern acknowledged that fewer houses in the northeast section of the site might help to protect the conservation values, but stated the proposed clustering of the building envelopes means the impact may not be dissimilar to the impact of say two building envelopes or four building envelopes. We disagree.
2. As this section of the site is a desirable area for regeneration, is adjacent to Rising Vineyard and on sloping land, we are of the opinion the number of lots within this section should be less than that proposed.

1. In response to Council's cross-examination, Mr Kern stated the amalgamation of lots 4 and 5 would be a better outcome for the management and protection of vegetation on the site. He acknowledged the building envelope on lot 4 is located close to a dense fuel load and it should be moved upslope and further away from the regrowth, i.e. further to the east. Given this, we are not persuaded about the appropriateness of the land comprising lots 4 and 5 being configured as separate lots.

1. Mr Marshall strongly advocated for the creation of a reserve on the site for a habitat link that would connect the existing reserve along Yow Yow Creek to the west of the site with this site, Rising Vineyard and his land. This would provide for a habitat link connecting into the Kinglake National Park (located just to the northeast of this site).
2. Mr Song explained the council does not want to take responsibility for any public open space created on the site and would prefer a permit condition for a 2.5% monetary contribution for public open space instead.
3. On the last day of the hearing, Mr Powley appeared for Melbourne Water as it is effectively the land owner of Yow Yow Creek and the Diamond Creek Tributary that cross this site. He stated that Melbourne Water objected to the proposal because it wanted a 30 metre reserve on either side of each waterway. Melbourne Water subsequently advised it did not object to the proposal if the plan of subdivision was amended to include a minimum 40 metre easement over each waterway in favour of Melbourne Water Corporation for 'Waterway Management Purposes'; and either:
   • The Conservation Covenant with Trust for Nature Association detailed in Practical Ecology's Conservation Report (April 2009) placed on title; or
   • A 20 metre reserve from the top of bank on each side of Yow Yow Creek and Diamond Creek Tributary.
4. We are not aware of the report referred to above[10]. We note section 7.2 of the Final Report (January 2009) identifies the desire for security of an "offset site" and suggests this is normally achieved through a section 173 Agreement under the Planning and Environment Act 1987 or a conservation covenant under the Victoria Conservation Trust Act 1972. This report goes on at section 8 to suggest a section 173 agreement be required, and Mr Kern's evidence report does the same. We have nothing before us to suggest there will be a conservation covenant and, in any event, we are not persuaded at this time that this approach is appropriate.
5. The provision of a 20 metre reserve either side of the waterways would affect the size of a number of proposed lots[11]. It is necessary to maintain a minimum 8ha lot size. It is inevitable that a number of the lots will be affected if a reserve is created in terms of a reduction in size. If this occurs, many lots would fall below the minimum lot size. Approval cannot be given for these. Modifications to the subdivision layout, including a reduction in the number of lots and the revisiting of building envelope locations would be necessary.
6. Melbourne Water also seeks planning conditions requiring no development or earthwork involving cut or fill within 40 metres of the waterway banks with its further approval, new or culvert crossings over the watercourses requiring further approval and "any further development within these lots referred to Melbourne Water for further comments".
7. These conditions raise further questions in our minds about the appropriateness of this subdivision layout. For example, we had evidence that the proposed road at the east end of the subdivision would need to cross both waterways. We now have concerns as to whether the proposed alignment of this road would proceed given these conditions. However, as we have decided to refuse this application for other reasons, we find these are matters that will need to be addressed as part of any subsequent planning application.

1. Practical Ecology's Final Report (January 2009)[12] summarises the conservation values of this site as including:
   • The habitat and fauna of the site overall is 'Regionally Significant'.
   • The site is of Locally High Significance to the Nillumbik Shire Council and the catchment.
   • The site is part of a 'high significance' habitat link playing a critical role in the movement of fauna along the Yow Yow Creek and the wider 'Regionally Strategic Habitat Link' to Diamond Creek headwaters and upper reaches (Beardsell 1997).
2. We are not satisfied the layout of the lots has satisfactorily dealt with the ecological significance of the site or the protection of the waterways. There are 4 lots[13] in the northeast section of the site, which Mr Kern stated has high conservation significance. There are five lots[14] and the eastern road that are immediately adjacent to or cross over the waterways. There are a further 4 lots[15] adjacent to the southern side of Yow Yow Creek. We appreciate Mr Kern's point about sharing the responsibility for management of the site, but in our opinion the creation of 16 lots on this site does not respond to the environmental values of the site. Too many lots with an inappropriate configuration are proposed.

1. Mr Lewis reviewed the proposed subdivision and road layout to ascertain the extent of vegetation removal that may be required. In regard to the proposed eastern road, he has suggested the relocation of the access point to Buttermans Track which will result in the loss of only one small sapling. This appears to us to be an appropriate design outcome.
2. In regard to the central or westernmost road, Mr Burrows explained there will be fill required at the intersection with Buttermans Track. Mr Lewis explained this will necessitate the removal of some trees generally located in the road reserve between Buttermans Track and the site's boundary. Mr Lewis also gave evidence a few trees will need to be removed to create the entrance to the court bowl of the central road. We accept the proposed vegetation removal necessary to create the roads onto the site is relatively minor with no major trees to be removed and therefore appropriate.

1. Mr Kern explained he, a land surveyor, a road engineer and the client had extensive involvement in the location and design of the proposed building envelopes. He also explained that the design of these envelopes considered issues of ecology, fire risk and council's preference to avoid placing buildings on ridge tops.
2. Mr Song explained the council is concerned that the land is steep and undulating; the access roads are long; and the number of lots appears to be based on a numerical achievement of 8 hectares. He submitted consideration should have included determining the appropriate shape and configuration of the layout of the lots. As such, the council is concerned about the bushfire safety of future residents and the environmental land management outcome. Some of the particular matters of concern highlighted by Mr Song included:
   • The building envelope on lot 13 being on a ridgeline and visible;
   • The building envelope on lot 4 being effectively on a ridgeline and close to Yow Yow Creek Reserve;
   • The building envelopes on lots 14, 15 and 16 being visible from Wild Dog Creek Road; and
   • The building envelopes on lots 6 and 7 being on elevated land.
3. We undertook an inspection of the site with the parties during the hearing, and noted that there were many circumstances where the building envelopes were located close to the ridge tops and/or were located on steeply sloping land. It appeared to us that the building envelope on lot 2, for example, is on a very steep slope of approximately 25 metres.
4. We find an extract from cl 21.03-2 of the MSS aptly summarises the issues that arise in this subdivision:

The location and design of buildings is very important in influencing the landscape of rural areas. The preservation of landscapes is best achieved by restricting the numbers and presence of buildings in rural areas. Endeavours by private land-owners to take advantage of views (usually by building in prominent locations) are often at odds with landscape qualities. The rural landscape in the Shire is highly valued and should take precedence over opportunistic individual house sites.

1. Contrary to the outcome sought by policy, we find that some of the building envelopes are in prominent locations. Mr Kern's designation of some blocks as rural grazing blocks increases the potential exposure of these building envelopes as they are not required to regenerate in the same way as the lots in the northeast section of the site. We are of the opinion the preservation, or indeed the enhancement of this landscape through regeneration, is best achieved by restricting the number and presence of buildings. We are not satisfied this subdivision layout has achieved that outcome. Again, we consider that this problem arises because too many lots are sought to be created.

1. This site was partially burned in the February 2009 bushfires and much of the surrounding land to the north, northeast and northwest, was also burnt and some houses destroyed. Mr Kerr (an adjoining property owner to the north) stated the Yow Yow Creek gully remained on fire for seven days; the area has been burnt twice in recent times; and 70-75 people lost their lives within 10 kilometres of his property in the February 2009 bushfire. Mr Kerr's submission echoed similar submissions and sentiments expressed by the other residents at the hearing. As such, the issue of wildfire risk was a strong concern of the council and the residents with a high level of emotion attached to it.
2. The residents stated this subdivision introduces too many lots and too many new people into an area that has a high bushfire risk. They highlighted some of their personal experiences from the February 2009 bushfire of difficult visibility, risk to life, losing homes and dangers associated with leaving the area in bushfire conditions. However, at the same time, the council and most of the residents accepted that there could be some subdivision of the land and, as a consequence, an increase in the number of people living in the area.
3. The objective of the State planning policy on protection from wildfire is:

To assist the minimisation of risk to life, property, the natural environment and community infrastructure from wildfire.

1. This objective is to be implemented, in part, by considering fire hazards "to avoid intensifying the risk through inappropriately located or designed uses or developments". Planning permission is required under the WMO to subdivide land and to construct a building associated with accommodation (e.g. a dwelling). In this case, planning permission is being sought to subdivide the land. The WMO specifies the following objectives for subdivision:
   • Protective Features - To ensure that the level of protection from fire in terms of the level of fire risk and potential loss of life is reduced by the design, siting and layout of the subdivision.
   • Access - To ensure that both public and private access is designed to provide safe access for emergency and other vehicles at all times.
   • Water - To ensure adequate quantities of water are available to landholders or emergency services to enable life and property to be defended from fire.
   • Public Open Space - To provide a fuel managed buffer between a potential or existing fire hazard and subdivision.
   • Vegetation - To ensure that the subdivision is designed to recognise the effect of vegetation on the level of fire intensity.
2. The residents expressed concern that the CFA had considered this proposal in isolation of its context, particularly the dense bushland that surrounds parts of its northern, western and southern edges, and its close proximity to the Kinglake National Park (which is separated from part of the site's northern boundary by an unmade road). Mr Stacco, who appeared on behalf of the CFA, agreed that in coming to its position not to oppose the grant of a permit, the CFA considered the size of the lots, the size of the building envelopes as well as the existing conditions of the site, which is predominantly pasture with little significant levels of vegetation. He conceded the broader context of the site's location was not considered.
3. The risk to life and property is a matter that we need to consider. The consideration of risk is not limited to wildfire in the planning scheme; there are other circumstances where a similar consideration applies, such as in a floodplain[16]. There is a Floodplain Management State planning policy objective "to assist in the protection of life, property and community infrastructure from flood hazard". It is not uncommon for Responsible Authorities and the Tribunal to be faced with referrals from floodplain managers objecting to a subdivision or development proposal on the basis of the risk to life from a 1 in 100 year flood event[17]. In this regard Mr Johnson referred to a recent Tribunal decision[18] where consideration was given to the risk of flooding from sea level rise associated with climate change, and stated risk to life should therefore be analysed in this case and the precautionary principle applied. He submitted the knowledge that extreme weather conditions and climate change can exacerbate the fire risk; combined with the knowledge that this site is in a known bushfire prone area mean this site is not suitable for subdivision for residential purposes because of the wildfire risk.
4. The position that a permit should not be granted for any form of subdivision because of the potential for risk associated with wildfire is an extreme one to take. We accept that the site is in an area where there is risk, however, what we are required to do under the provisions of the WMO, is to assess the risk and to make a judgment call as to whether it is acceptable. The WMO requires that the matter be referred to the CFA and its views considered. Further, it is relevant that under the WMO, the proposal is not prohibited. There is discretion to be exercised as to whether a permit should be granted.
5. The question then arises as to whether the level of wildfire risk is acceptable on the facts and circumstances of this case. The CFA approach to assessing the risk has focussed upon the site itself and the detail of the proposal. Mr Stacco stated the role of the CFA is to create defendable homes under the WMO, and that it is largely unnecessary, therefore, to look beyond the site itself. Similarly, it is not the number of lots proposed but rather the size of the lots that is of concern to the CFA. The distance from Buttermans Track to each of the lots is not of concern to the CFA, as it does not encourage residents to leave their property at the last minute.
6. The policy of stay and defend or leave early remains important to the CFA. Ultimately, it is up to the individual lot owner to determine whether to stay and defend their house or to leave early. Given this, the external roads providing access to the site are not, in the CFA's view, a necessary consideration.
7. We find it somewhat surprising that the wildfire risk is assessed on the basis of the site and the details of the proposal without looking at a site's context. Nevertheless, we do note the objectives to be achieved for subdivision in the WMO relate to the detail of the site and the proposal rather than its surrounds. These objectives form the basis of considering whether the level of risk is acceptable for this proposal.
8. Mr Stacco stated the development of this site with dwellings is essentially a two-step process from the CFA's perspective. The subdivision of the land is the first step, and then a subsequent application for the detailed design of a dwelling on each lot will be the second step. He explained the CFA will therefore be assessing, again, the detail of the development of each lot in order to create "defendable homes"[19].
9. In regard to the building envelopes, Mr Song expressed concern about:
   • The northwest slope in lots 4, 5 and 6;
   • The northwest facing ridgeline in lot 7;
   • The northwest ridgeline in lot 13;
   • The northwest facing slope to lot 14;
   • The northwest facing slope to lot 11 (albeit he acknowledged it does plateau );
   • The long winding access to lots 4, 13, 14, 15 and 16, and in particular the 700 metre length to the court bowl for lots 13 to 16;
   • The south end of the access road to lots 13 to 16 having a slope of 20 percent (ie a steep slope); and
   • The northern common property between the court bowl for lots 13 to 16 and Wild Dog Creek Road having a slope of 27.85 percent for a length of approximately 30 metres.
10. In regard to the last dot point, Mr Gobbo provided written advice from Mr Stacco of the CFA early in the hearing[20] explaining the CFA does not require this access/connection to Wild Dog Creek Road. The council and the residents did not pursue its necessity. It is a matter that we do not need to make a finding about; although we think it should be revisited if a new proposal is put forward.
11. Because the proposed lot sizes are in excess of 8 hectares and the size of the building envelopes are around 1 hectare, Mr Stacco stated the CFA is satisfied that the WMO objectives can be met. In regard to constructing either on a northwest slope, close to a northwest slope or facing a northwest slope, Mr Stacco stated the opportunity exists to create defendable homes on each of the lots because of their size. Mr Stacco did note the building envelope for lot 2 is about 30 metres from the vegetation on the opposite side of Tarra Place. He suggested that it would be preferable for a dwelling to be 40 to 50 metres from the vegetation, hence it may be appropriate to modify the building envelope.
12. Whilst each lot may be capable of being developed with a house that meets the WMO objectives, we are not satisfied the proposed subdivision meets the WMO objectives relating to protective features or vegetation. Mr Nicholson, who gave expert fire engineering evidence for the applicant, also supported the proposed subdivision subject to two conditions:
    1. The existing vegetation cover or density on the subject land not be changed to increase the quantity of shrub-type vegetation on the subject land and that tree plantings not exceed "open woodland" according to Specht as expressed in Classification of Vegetation in AS 3959-2009 Construction of buildings in bushfire-prone areas.
    2. To keep the BAL[21] [below] "flame zone" any buildings erected on the subject land shall be at least 40 metres distance from any forest or patches of scrub in drainage lines or significant patches of scrub elsewhere on or abutting the subject land.
13. It is clear from Mr Nicholson's expert evidence report that he anticipated the existing paddock character of the site would be retained, hence it would be predominantly grassland. It appears to us Mr Stacco held a similar view. This, however, is not the case, particularly in regard to the northeast section of the site. Mr Kern advised his long term land management would encourage the regeneration of indigenous vegetation over 40% of the site, including over all but the building envelopes of the lots in the northeast section of the site.
14. Mr Nicholson advised he would not want to see the total reforestation in the long term future of this site. He stated there needs to be a balanced approach and a compromise between bushfire safety and the conservation values of this site and this area. He does not support this land or a portion of this land being returned to forest through regeneration of indigenous vegetation because it would alter the level of fire attack. Such an outcome would mean he would take a different view in regard to the merits of this proposed subdivision. He explained the key concern in regards to the forest is the understorey and a woodland environment would be acceptable but not a forest with understorey vegetation. Mr Kern acknowledged that there may need to be some slashing beyond the boundaries of the building envelopes to address this. Mr Gobbo acknowledged the regrowth would need management and he suggested the land management plan could reflect this.
15. In our view, there is a clear conflict between the environmental values of this land, the benefits of regeneration and the risk to life and property created by the increased possibility of wildfire through the regeneration of indigenous vegetation[22], particularly over the northeast segment of the site.
16. We are not persuaded that the combination of these factors have been adequately considered and balanced. The suggestion that the regrowth can be managed through the land management plans for each of the lots has, we consider, a high expectation of the abilities of the individual landowners to be able to effectively manage their land. There is no doubt in our minds that effective land management in this proposal is a necessity in order to minimise the risk of wildfire to life and property. In our view, this necessity again brings into question whether the level of risk is appropriate and we are not satisfied that it is because of the high level of management required.
17. Mr Kerr suggested larger lots helped save lives and inappropriate subdivisions can cost people their lives. Mr Marshall stated planning is about the long term, not the short term and therefore the question should be what is an appropriate form of subdivision on this land?
18. We acknowledge the Wildfire Management local planning policy strongly discourages subdivision that would result in additional development that would intensify wildfire risk to people and property, but we agree with Mr Marshall that in this case the question should be what is an appropriate form of subdivision on this land? The local policy is of some assistance as it states:
    • Encourage safe siting and design of buildings in locations where the impact on the environment is minimal.
    • Encourage siting and design at the base of slopes or on gentle south or south-east facing slopes.
    • Strongly discourage the siting of buildings on north or north-west facing slopes, particularly steeper slopes and the ridges above these slopes.
19. We think these factors together with the site's context and the environmental values that need to be protected should guide the layout and density of the subdivision of this land. We consider the expectation that the minimum lot size allowed under the zone provisions is achievable is not realistic in this case given the environmental and contextual constraints of this site.

1. The Council and most of the residents were generally not opposed to some form of subdivision of this site but all stated that what is proposed here is essentially too much. The Council suggested the starting point may be in the order of 13 lots based on a previous decision of the Council in 1997 to support a 13 lot subdivision of this land. The Green Wedge Protection Group, however, considered 5 to 7 lots was necessary in order to be able to meet all of the planning policy considerations in the planning scheme. Mr Marshall provided a plan for 7 lots and stated this is "about right" having regard to the environmental and ecological values of the land.
2. Mr Franke requested that we indicate whether we felt that there was scope for an alternate proposal if we decided to refuse this proposal. However, the detail of the ecological values of this site combined with the topography, the waterways, and the necessity to appropriately locate building envelopes having regard to the land management needs and wildfire risk has led us to conclude that we are unable to provide any definitive answer as to how many lots this site can actually accommodate. In our reasons, we have mentioned specific lots that have particular issues. If there are any lots that we have not specifically commented on (such as lot 3), we do not wish the applicant to take this to mean that there is no necessity to change this lot. In our opinion, a fundamental rethink of the entirety of the subdivision, including all lot boundaries and all building envelopes should occur.
3. Such a rethink should involve, amongst other things:
   • Consideration of the environmental values of the site, particularly the north east segment and along the waterways and the need to properly balance the benefit of regeneration of vegetation against the wildfire risk;
   • The land management mechanism along the waterways and the strategic benefit of habitat links connecting to existing reserves and Kinglake Park;
   • Minimising the potential for conflict between future residents and neighbouring rural activities, and
   • The configuration of lots with building envelope areas which avoid buildings being located on or near ridge tops and on slopes that are most susceptible to wildfire risk.

[1] The Council advised of its grounds of refusal but could not issue a refusal because this application for review had been lodged.

[2] Refer to our order dated 25 November 2009 for further explanation about this. Essentially Melbourne Water is both a referral authority to the subdivision proposal and the land owner of the watercourses traversing the site, but had not been formally notified of the application in either capacity.

[3] Melbourne Water's position/advice, responses to Melbourne Water's position/advice, updated draft conditions from the permit applicant and responses to the draft conditions.

[6] For example, there is a general store and a pub

[8] The proposed lots sizes are 8.011, 8.973, 8.016, 8.000, 8.032, 8.002, 8.016, 8.000, 8.007, 8.022 (part with total 8.214), 8.002 (part with total 10.016), 8.002, 8.078, 8.017, 8.054 and 8.027.

[9] For example See Parkworth and Keska Management [2002] VCAT1594 at paragraph 9.

[10] The Practical Ecology reports before us are "Flora and Fauna Assessment, Habitat-hectare and Net Gain Analysis of the Proposed Buttermans Track Subdivision, St Andrews, Victoria. Final Report" (December 2008); "Flora and Fauna Assessment, Habitat-hectare and Net Gain Analysis of the Proposed Buttermans Track Subdivision, St Andrews, Victoria. Final Report" (January 2009) and "Expert Witness Evidence. Lincoln Kern, Ecologist and Managing Director" (10 October 2009).

[11] Depending upon where the bank of each waterway is, it may affect lots 4, 6, 7, 10, 11, and 12

[16] We find this interesting as the floodplain risk is based upon a 1/100 year event and it is possible that risk of a wildfire event could be greater than 1 in 100 years. Similarly, it is also possible that the loss of life from wildfire events may be higher than flooding events.

[17] That forms the basis of the Land Subject to Inundation Overlay (LSIO)

[18] Gippsland Coastal Board v South Gippsland SC & Ors (No 2) (includes Summary) (Red Dot) [2008] VCAT 1545

[19] Mr Stacco explained the objective of the WMO is not to guarantee house survivability but to create a defendable home.

[22] The EVCs contained in the Appendices of Practical Ecology's Final Report (January 2009) have tree canopy cover of between 20 and 40% and coverage of understorey trees, medium and small shrubs of between 20 and 50%.