An irregularly shaped piece of land like a segment of a fan. A segment of the street frontage is to the south side of Bellbird Road at and to the west of its intersection with Fernshaw Place and with the other a segment of the frontage being to the south side of Fernshaw Place at and to the east of that intersection and with the total having an area of 3,448 square metres.

[2006] VCAT 16

A. This application for review is granted. A permit is granted for a second dwelling on the land and a subdivision of the land into two lots with removal of vegetation in accordance with the endorsed plans hereafter provided for and subject to the following conditions:

1

Prior to the submission of a Plan of Subdivision to the responsible authority for certification, an amended plan generally in accordance with this application but modified to show appropriate drainage easements to enable the lots to be properly drained must be submitted to the responsible authority for approval. When approved such plan will become part of the endorsed plan under this permit.

2

The subdivider must provide a reinforced concrete or segmental paving vehicle crossing to lot 2 with a vehicle crossing permit being obtained from the responsible authority prior to the commencement of the works.

3

Prior to the certification of the Plan of Subdivision hereby permitted, the plan must be referred to South East Water, United Energy and Telstra in accordance with Section 8 of the Subdivision Act 1988.

4

This permit will expire if the Mornington Peninsula Shire Council has not certified the Plan of Subdivision within 2 years of the date of issue of this permit. The responsible authority may allow, in writing, an extension of this permit upon an application being made before or within three months after the expiry date.

5

The subdivider must maintain all of the works detailed in condition 6 below, for a period of three months after practical completion of the works.

6

Prior to the issue of a Statement of Compliance, drainage must be constructed in accordance with plans and specifications approved by the responsible authority.

7

Prior to the issue of a Statement of Compliance, the subdivider must pay to the responsible authority, the fees as prescribed in Regulation 5 and 6 of the subdivision (Permit and Certification Fees) Regulations 2000 for plan checking and supervision of the works.

8

Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with United Energy for the extension, upgrading or re-arrangement of the electricity supply to the lots on the plan as required. (A payment to cover the cost of such work will be required.)

9

Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with South East Water Limited for the provision of water supply facilities and sewerage facilities. The subdivider must fulfil all requirements to the satisfaction of South East Water.

10

Prior to the issue of a Statement of Compliance, the subdivider must create a restriction on the certified plan, satisfactory to the responsible authority, that ensures that any dwelling constructed on lot 2 resulting from this subdivision is in general accordance with the development plan endorsed as part of Permit P05/0009.

11

Before development starts landscape plans must be submitted to and approved by the responsible authority. When approved these plans will be endorsed as evidence of their approval and they will thereby become part of the endorsed plans in relation to this permit. Such landscape plans are to be generally in accordance with the plan prepared by Zenith Concepts dated October/2005 and marked revision A and must include:

a.

the retention of trees 1 and 25;

b.

a survey of all existing vegetation and features;

c.

the areas set aside for landscaping;

d.

a schedule of all proposed trees, shrubs and ground cover, including the location and size at maturity of all plants and their botanical names which schedule must include a minimum of 30 trees; and

e.

more than 80% native species to the Mornington Peninsula.

12

The layout of the land, the size and type of the proposed building and works, including the materials of construction, shown on the endorsed plan must not be altered or modified without the consent of the responsible authority.

13

The materials and colour of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the responsible authority.

14

Native vegetation on the land as shown on the endorsed plan must not be felled, lopped, topped, ringbarked or otherwise destroyed or removed except as provided for on the endorsed plans unless with the consent of the responsible authority.

15

A tree preservation zone must be erected around all retained trees at the radial distance specified in the report of Arbor Co. Pty Ltd prepared by M. Reynolds and dated October 2005 (Arborist Report).

16

No construction activity is to occur within the tree preservation zone without approval or supervision by a qualified arborist. Any excavation within this zone must be undertaken by hand under the supervision of a qualified arborist. The arborist must approve of and undertake any and all root severance within the tree preservation zone.

17

Within tree protection zones construction methods are not to involve trenching or strip footings but pier and beam footings or screw footings are to be used with pier, suspended beam and joist-floor construction in accordance with the following to minimise impact on retained trees:

a.

potential pier holes must be explored by a qualified arborist using non-root destructive technology to a depth of 600mm prior to firm determination of stump holes to ensure no significant roots are severed;

b.

a minimum safe concentration of supporting stumps must be used to support the bearers within 6 metres of the trunk;

c.

the construction must be cantilevered near to the tree to further increase distances between trunk and nearest soil disturbance for pier installation;

d.

all components of the bearer and joist sub-floor must be elevated above ground level by a minimum of at least 100 millimetres or greater allowing a clearance for suspended services;

e.

where possible piers must not be placed directly opposite buttress roots;

f.

minimum diameter piers and pads must be used;

g.

excavation for stump holes must be of minimum diameter and vertically bored to reduce root trauma and bucket excavators must not be used for excavating stump holes; and

h.

metal screw piers are preferred over the use of concrete or wooden stumps as they can be screwed into the ground without excavation, generally have a small diameter, and normally helix around major tree roots without great disruption; and

18

Before the initial occupation of the development approved by this permit, landscaping works as shown on the endorsed plans must be completed and then maintained in a healthy condition, to the satisfaction of the responsible authority. Any dead or diseased trees or shrubs must be replaced as soon as possible. The area set aside for landscaping must be used for no other purpose.

19

If an approved or permitted development is not commenced on the land within two years of the removal of the vegetation, the site must be completely revegetated in accordance with the endorsed landscape plan to the satisfaction of the responsible authority and maintained to the satisfaction of the responsible authority.

20

A driveway must be provided to the land and surfaced to the satisfaction of the responsible authority. It must be completed prior to the initial occupation of the building.

21

All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the responsible authority.

22

This permit will expire if one of the following applies:

•

the development is not started within two years of the date of this permit; and

•

the development is not completed within four years of the date of this permit.

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

_________________

RUSSELL BYARD

SENIOR MEMBER

Mr. Geoffrey Nicol, consultant town planner, appeared for the responsible authority. He presented written and oral submissions.

Mr. Richard Umbers, consultant town planner, appeared for the applicant Mr. McGibbony. He presented written and oral submissions and called Mr. Mark Reynolds, arborist of Arbor Co Pty Ltd as an expert witness. Mr. Reynolds gave oral evidence having adopted a written report.

Mr. Michael Phillips appeared for Andrew Scott, an objector. He presented written and oral submissions.

Mr. Peter Wallace, appeared in person and made oral submissions.

Mr. Geoffrey Wilkins, objector, appeared in person and spoke to a written outline of submissions.

Ryan Kneebone, objector, appeared in person and made oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

A two lot subdivision with two dwellings and vegetation removal.

Residential 1 Zone and subject to a Design and Development Overlay (Schedule 4) and a Vegetation Protection Overlay (Schedule 1) under the Mornington Peninsula Planning Scheme.

This is a failure review under s.79 PE Act. Ordinarily this would mean that there are no grounds of refusal. However, the application for review is lodged with the Tribunal, and the fee was paid, on 29 July 2005. On that same day the responsible authority issued a Notice of Refusal to Grant a Permit on the following four grounds:

1. The development does not meet the objectives of design and development overlay - schedule 4 as it does not have proper regard for established development patterns and local area character in terms of site responsiveness, siting and density.

2. The development does not meet the objectives of the vegetation protection overlay 1 as it will result in the removal of substantial vegetation from the site that would have a detrimental impact.

3. The proposed development does not satisfy the neighbourhood character objectives of clause 55 as it fails to respond to the existing low density neighbourhood character and features of the site and surrounding area.

4. The proposal will adversely impact upon the neighbourhood character and amenity of the area due to of loss of vegetation and as it does not meet the reasonable expectations of residents and the community.

Amended plans were circulated to the other parties on behalf of the applicant under cover of a letter of the 24 October 2004 (which should probably read 24 October 2005 in that it was received at the Tribunal on 25 October 2005). These amended plans relocated the proposed boundary between the two proposed lots so as to make them more equal in area. They also depicted a single, rather than double storey dwelling to be constructed on lot 2. There is an existing house and tennis court to be retained on lot 1.

1 This case concerns a very substantial residential allotment with an area of 3,448 square metres. It is located in a Residential 1 zone. As to that, I note that it is not in a low density residential zone, although there are zones of that sort in the municipality.

2 The site must therefore be regarded as residential land in an urban setting, although the site itself, and nearby ones, are very substantial in area. Some such lots have been subdivided, but even then the new lots are substantial in area. To the east, across Canadian Bay Road, lot areas are somewhat smaller.

3 There is remnant vegetation spread, to varying degrees, over the general area. In some places substantial vegetation exists on large allotments. However, in other places urban residential use and development dominates, even on large allotments.

4 From the air some vegetated areas, including this review site, appear to have significant vegetation on them. However, I exaggerated when I described it as "remnant" vegetation. Some of it is, and that is generally in decline. Other vegetation, perhaps not readily distinguishable from the air, is introduced exotic species, and a significant infestation of environmental weeds, particularly sweet pittosporum. That is true of this review site and more generally through the area.

5 There is an existing two storey house on the allotment. The land is shaped somewhat like the segment of a fan. In giving the following directions I am assuming that the land runs north to south, although that is not its true bearing.

6 The rear boundary is 19.14 metres long and is located on the southern side of the land. The side boundaries are 101.35 metres on the eastern side and 109.84 metres on the western side. They diverge as they run in a generally northerly direction towards the road frontages. At its greatest width the land is about 42 metres wide. That is near the northern end. The northern end is, however, not a straight boundary, but forms something of a shallow arrow head pointing to the north.

7 I have said that the land has road frontages. The western segment of the arrow head fronts the southern side of Bellbird Road. Bellbird Road at this point curves to the north having followed an easterly course from its "T" intersection some distance to the west where it intersects with Canadian Bay Road.

8 Also at the northern end of the review site, and on the convex of the curve, Bellbird Road has a "T" intersection where Fernshaw Place, running from the east, also twists to the north to join Bellbird Road. The result is that the land has a frontage of approximately 25 metres (a little less in fact) to the south side of Bellbird Road, and another road frontage of approximately 25 metres (in fact a little more) to the south side of Fernshaw Place. That second frontage forms the right hand side of the arrowhead. The topography and vegetation is such that each of these street frontages is substantially screened from the other, and the existing road crossing and driveway would not be visible from the proposed new one and vice versa.

9 There is a substantial two storey dwelling on the land. It is well set back from the road frontage. Access to it is over the existing crossing and driveway on to the Bellbird Road frontage. The significant setback forms a large front garden area well covered in vegetation.

10 The proposal is to retain the existing house and to subdivide the land into two allotments. The second allotment would be of the "battleaxe" variety and would be constituted by the rear portion of the current allotment, being the area behind the house with access to it being via a new driveway along the "handle" of the battleaxe to be situated along the eastern boundary of the land. This "handle" area would be wide enough to provide for the planting or retention of trees and a curving driveway which would run between the existing house and the existing eastern boundary along the eastern edge of the land to a crossing to Fernside Avenue "around the corner" from the current driveway and crossing in Bellbird Road.

11 As I have said, the existing house is well set back, and is located near the centre of the allotment. This means that the new battleaxe lot contemplates a house on the rear portion. The original plans provided for the new house to be double storey. However, the land falls from the south to the north, and the new proposal considered at the hearing is for a single storey dwelling.

12 Lot 1, being the front one on which the existing house stands, would have an area of 1924 square metres. The rear battleaxe lot is now proposed to have an area of 1524 square metres.

13 The application is for subdivision, and also for the second house together with permission for incidental clearing of native vegetation. The proposed layout of the house on lot 2 nevertheless retains 745 square metres as open space around a dwelling of 242.35 square metres, a garage of 42.84 square metres, a deck of 19 square metres, a pergola of 27 square metres and a veranda of 14.8 square metres. This gives a total site coverage of 537.98 square metres or 35.3%.

14 The responsible authority decided to refuse this application on the four grounds set out above and to which I will refer again later. However, Mr. Nicol, consultant town planner who appeared for the responsible authority, said that the fundamental weakness of the proposal is that the new dwelling is too close to the existing dwelling.

15 I think it is probably true that the existing house, with its ancillary swimming pool, was probably located in its present position without consideration, at that time, to the possibility of a subdivision and a second house being located on the rear of the land. If that was in contemplation, it is likely that the existing house, if the swimming pool was contemplated at that time, might have been located a little further forward on the allotment. The proposed new house is not really particularly close to the existing one, although it is not far from the swimming pool.

16 The proposed new house will also be in relatively close proximity, on its nearest approaches, to some of its boundaries, but not unreasonably so.

17 In the course of the hearing many aspects of the case were referred to and argued about. Some of these concern quite minor matters that can either be accommodated by the imposition of permit conditions, or are insufficiently important to warrant refusal or further significant modification of the proposal. I do not propose here to deal with every detail, but to consider the principle issues involved in a determination of this case.

18 I do observe that, in the cases presented, and particularly that of the responsible authority, I was taken to many statements of planning policy and the purposes and guidelines in relation to the applicable zoning and overlay provisions. Helpfully, Mr. Nicol pointed out those matters of this sort that he considered to be of particular relevance. I do notice however that such propositions are frequently referred to in a tone that implies that the proposal is contrary to them, and that they weigh against the case in favour of granting the permissions sought. This apparent implication is frequently not justified by an examination of the proposal against such propositions. I found myself repeatedly ticking the margin beside these propositions as they were dealt with.

Grounds of Refusal - Local Character and Development Patterns

19 I will now consider the grounds of refusal advanced by the responsible authority. The first referred to the objectives of the Design and Development Overlay and Schedule 4 thereof alleging that the proposal "does not have proper regard for established development patterns and local area character in terms of site responsiveness, siting and density".

20 It is true that this local area contains many large residential allotments of a similar scale to this review site, although some have been subdivided and some have been substantially cleared for the purpose of new development.

21 This allotment is so large, and indeed is marginally larger than many of its neighbours, that it can be divided in two whilst still being very large by many ordinary residential standards. This is true, in my view, to the extent that the proposed subdivision and further development of the second house can take place without perceptible detriment to the established development patters and the local area character in terms of siting and density or in other respects. Of course, putting two houses on the site rather than one increases the density, but it will still be a "slack fill". So far as the public realm is concerned, and this principally means Bellbird Road and Fernshaw Place, the change will not be noticeable. The existing house is more visible from Bellbird Road than the proposed new one will be from either thoroughfare. It will screen the proposed new house which, although on rising ground, will only be of single storey construction.

22 The alteration to Fernshaw Place, to accommodate a new crossing and driveway, will be minor, and through a gap in vegetation so that the trees and bushes on the front of the property will remain intact.

23 The new development will necessarily be more noticeable from adjoining properties, such as the adjoining house to the east, which fronts Fernshaw Place. However, although that consideration is not without significance, it is less pressing than the effect on the area generally and the perception of the area generally to be obtained from the public realm. In any event, I think the effect in amenity terms, including visibility and overlooking is quite acceptable.

24 I note that the neighbour on that side has expressed concern of overlooking, but this is only from a single storey proposed development and is not such, in my opinion, as to warrant refusal or further significant modification.

25 This point of low density neighbourhood character, and neighbourhood character generally, is repeated throughout the four grounds of the responsible authority, but as I have said, I regard the proposal as acceptable from this point of view.

26 The fourth ground claims that there would be an adverse impact on neighbourhood character and amenity due to loss of vegetation that does not meet reasonable expectations of residents and the community. I will deal with loss of vegetation in a moment. Expectations of residents and the community, whilst they might be considered, are not determining factors in assessments of this sort. It is difficult to be sure what such subjective expectations are, and they may often be found to be unreasonable in any event. I am not necessarily saying that here, because it is, as I say, hard to know what the expectations are, much less their reasonableness. The decision must be made on the planning merits in terms of an objective assessment and based on the relevant planning policies and purposes.

27 The other significant issue raised in the grounds of the responsible authority, and mentioned several times, is the question of removal of vegetation with suggestions that the existing vegetation is significant and that its removal will have a detrimental impact.

28 This appears to be based on a somewhat simplistic assessment of the situation. In this connection I was impressed with, and rely upon the expert evidence given by Mr. Reynolds, the arborist called on behalf of the applicant. In saying this I also note that I bring a critical rather than a gullible mind to bear on evidence of this sort. I do not mean that I pre-judge the evidence of any witness, but I am mindful of the possibility that a witness might, consciously or unconsciously, emphasise aspects that tend to favour the case of the party who is called the witness, and to make light of considerations that might present problems to that point of view. Nevertheless, in this case, I was impressed with the evidence of this witness.

29 On the basis of it I perceive that the responsible authority and its advisers have adopted a somewhat simplistic approach on the question of removing native vegetation in the area. The approach seems to be, as expressed at the hearing, that these are large allotments carrying significant remnant vegetation. Firstly they are large allotments, but many of them do not carry significant vegetation at all, and those that do often carry vegetation that is not remnant in the sense of being part of the original vegetation of the area, and not significant.

30 The evidence of Mr. Reynolds, which I accept, indicates that this site and this area has been significantly degraded over the years in terms of its vegetation. I note that Mr. Reynolds resides in the area. He points out that the introduction of houses often has this affect where the new householders are not prepared to spend the time, money and effort involved in retaining remnant native vegetation in a healthy state, or at all. There tends to be only a response to problems as they arise, perhaps with lopping of a tree here and there by "tree loppers" who, in the words of Mr. Reynolds, lack expertise and generally do more harm than good. In his view, the retention of a favourable bushland environment in a residential area like this requires a good deal more than the retention of lots of a significant size.

31 Apart from the deterioration due to neglect and inappropriate lopping and the like, there is the penetration of exotic species, and in particular weed species like the sweet pittosporum. That variety has a substantial presence on the rear of this site and through the area generally. This has a significantly detrimental affect on the remnant indigenous species. It takes up space, nutrient and water so that the desired remnant in fact deteriorates significantly. This deterioration is evident on this site and more generally, and can be seen in the form of branches and boughs, and the pattern of foliage.

32 Mr. Reynolds' assessment is that, of 29 tree specimens that he examined as being relevant to this proposal only one was significant and another was moderately significant. All the other 27 were, in his opinion, insignificant and/or in such poor condition as to warrant their immediate removal, whether or not this proposal is to proceed. As to the significant and moderately significant specimens, he proposes their retention.

33 He disagreed with the proposition put to him that there is insufficient space for significant new planting. On the contrary, that is exactly what he advocates, with strategic planting and maintenance of appropriate species for the area. By this means the deterioration that has been evidence, in his view, over several decades, can be reversed, at any event in relation to this property. As such, of course, it makes its contribution to the whole area. As years go by, there will be at least the opportunity for a far better result than if the current neglect goes on, even if current trees are retained. As to the 27, their value is insufficient, in his view, to warrant their retention now, and will become minimal over the next 10 to 15 years if nothing of the sort he proposes is to be done.

34 On this basis I accept that this proposal presents an opportunity for a significant favourable impact, not a detrimental one, with the introduction of substantial appropriate vegetation. The nett effect is improvement rather than deterioration. All in all I do not consider the grounds of refusal, insofar as they are based on loss of vegetation, to be substantiated.

35 I note, by the way, that the effect on streetscape will be minimal, having regard to topography, vegetation and the existing house, I do not regard the grounds of refusal of the responsible authority as substantiated.

Reference of Possible Future Neighbourhood Character Study

36 A comment was made in the course of the responsible authority's case that a neighbourhood character study is being undertaken on behalf of the responsible authority by a company. That is apparently in its embryonic stages and cannot provide guidance in relation to the current case. One hopes that the company involve has or will engage suitably expertise that might take into account, amongst other things, the views expressed by Mr. Reynolds and adopted by me in this case.

37 The Strategic Planning Unit of the council has sought to discourage development of more than one dwelling on a lot until the review of overlay requirements is complete. This seems rather an amorphous proposition where the extent, type and progress of the review is not indicated and I am not provided with any understanding of when it will be complete or whether it will be adopted or appropriate when it is complete. This is an established residential area and this case must be assessed on the basis of the current controls and planning policies and purposes. It does not seem to me to be appropriate to adopt this suggestion of the council's strategic planning unit, which appears to amount to no more than casting a "dead hand" over future developments, whatever its planning merits might be, until some indefinite review is completed at some indefinite time in the future.

38 Although this area may be "urban" in actual type, it is a low density native bushland environment, even if a somewhat degraded one, and that will not be changed by the current proposal.

39 A comment that a "battleaxe" design of lot is "less than desirable" might be re-stated as "less than ideal" but nevertheless acceptable.

40 Reference was made to other cases where similar, or allegedly similar, subdivisions have been considered. In some cases they have been refused and some have been granted. A couple of other such cases were heard in the week in which this case was heard. I considered the arguments put forward with reference to the reasons given in relation to such cases. I note that circumstances vary, case to case. One for example, is on the Mt Eliza escarpment area, whereas the current one is not. Although reference to other cases can be helpful, they do not form binding precedents, and are only useful where the variation in circumstances is considered. Each must be decided on its own facts and circumstances. That is what I have done in this case. It might be anticipated that some such cases will succeed and others fail. An appropriate proposal should not be refused for fear that it might be argued to be a precedent for an inappropriate one in the future. The remedy, is to refuse the inappropriate one, because of its inappropriateness, when it is raised.

41 Mr. Phillips, on behalf of Mr. Scott, raised a number of matters that had been dealt with by the responsible authority, although he did so in his own words, and with his own emphasis. He does emphasise the danger of cumulative affects whereby an area might gradually be transformed, over time, by a lot of single instance decisions. This is always a matter to be borne in mind, but I do not think that any transformation of an undesirable sort would result from this proposal. It does not, in my view, change the situation from a neighbourhood character point of view or other relevant considerations.

42 I have noted Mr. Watkins' observations based on his experience of the area but he does not really raise anything beyond that raised by other opponents of the proposal that I have already dealt with. He was concerned about procedural matters in relation to the new plans, but I am satisfied that proper procedures have been followed and that there is no denial of a fair hearing to any of the parties as a result.

43 Mr. Kneebone emphasised questions in relation to the presence of wildlife such as birds, possums, kookaburras etc. Although this was a mention of that consideration, and although habitat can certainly be a relevant matter, there is no evidence really that this proposal would make a significant difference. Indeed, Mr. Reynolds' reforms would probably enhance the situation from this point of view, at least over time.

44 None of the matters raised by or on behalf of objectors cause me to reject this proposal, or require any further substantial modification of it.

45 In the circumstances, and for these reasons, I propose to grant this application for review and grant a permit containing the permissions sought.

46 The responsible authority provided a set of suggested conditions in case I should come to this conclusion. This draft was discussed in the course of the hearing. It is the basis of the conditions that I will impose. However there are some modifications in view of the matters raised in discussion in the course of the hearing and I also consider myself free to make alterations or adaptations as necessary, including to the English expression and setting out with a view to enhancing the clarity of the conditions.

_________________

RUSSELL BYARD

SENIOR MEMBER