1. Having considered all of the submissions and having inspected the subject site and the surrounding area, I believe that the following issues need to be addressed:
   • Is there policy support for medium density development on this site?
   • Is this development appropriate in the context of the 'character' of the area?
   • Vegetation retention.
2. I will address each of these in turn.

1. There is no real question that there is some degree of policy support for medium density development on this site. Neither Council nor the objectors fundamentally questioned that proposition - it was more the density that is proposed rather than any redevelopment per se.
2. At the State level that policy support is to be found at Clause 14.01 (Planning for Urban Settlement) and especially Clause 16.02 (Medium Density Housing) which encourages the development of well designed medium density housing which:
   • respects the neighbourhood character;
   • improves housing choice;
   • makes better use of existing infrastructure;
   • improves energy efficiency of housing.
3. At the local level, Council advised me that Wallan is identified as a growing commuter town and the prospect of increased housing development within Wallan generally accords with the policies of the Mitchell Planning Scheme. Clause 21.04 of the scheme notes that Wallan is earmarked for "development within the urban growth boundary". Clause 21.05 outlines Township Strategies and Structure Plans and the policies for Wallan ".....encourage infill development to assist in established residential communities".
4. I think that this level of support is fairly general and I note that very little is provided in the Mitchell Planning Scheme by way of specific strategic direction for the town. In contrast to many other town structure plans in other planning schemes, there is (for instance) no specific areas in Wallan earmarked for accelerated medium density growth, nor is there even a generic strategy which promotes medium density within a specified distance of the town centre.
5. I have considered in detail the Mitchell MSS (at Clause 21) and it seems that the best that it can offer by way of support is found at Clause 21.05-3 (settlement) which includes very general strategies such as:

Encourage infill development to assist in establishing a formal centre to the town.

Encourage infill development within established residential communities.

Support residential development that provides a variety of lot sizes.

1. It is acknowledged that Clause 21.05-3 also nominates Wallan (among others) as a focus for growth and isolates Wallan as the one town in the Shire that does not have a sufficient supply of residentially zoned land prompting the MSS to identify two areas to be rezoned so as to deliver another 500 to 700 lots. Regrettably, like most of the Mitchell Municipal Strategic Statement, this information is now very dated and appears to have been based on data from the 1996 census.
2. During the course of the hearing it emerged that Council has a more contemporary analysis of the town. Evidently, for some time, Council has been reviewing the town and has prepared a Draft Wallan Structure Plan (September 2007). That plan suggests that the town is to double in population over the next ten years or so and, according to Mr Fadgyas, "..... quaint rural Wallan won't stay as quaint rural Wallan ..." as it will be a rural city with land that is close to the town centre being attractive for medium density housing.
3. I note that this draft Structure Plan is also fairly general with policy directions including:

A diversity in housing styles is needed to accommodate the likely increase in smaller household numbers and the aging population.

A variety of dwelling types and lot sizes, with a more planned approach to clustering medium density housing. (Tribunal emphasis)

1. On my reading of the draft Structure Plan, very little direction is then given as to where this '...more planned approach to clustering medium density housing' might be delivered. Interestingly, the strategy also notes that:

Wallan is no longer characterised only by its stable rural service centre and lifestyle population, but also by a new wave of first home buyers and families seeking affordable proximity to outer Melbourne. (Tribunal emphasis)

1. I acknowledge that Council conceded that the site had potential for medium density housing noting;

The proposal is located within an established residential area where the dwellings are predominantly single storey, located on large rural residential blocks of 0.4ha and close to the centre of the Wallan Township. The applicant proposes to construct 19 detached dwellings and to convert the original dwelling into two attached dwellings. Whilst the proposed development is of a higher density than the surrounding area, it is noted that the site is well located for medium density housing, given it is in close proximity (approximately 600m) to the centre of Wallan.

1. My assessment of the locational attributes of the site is at odds with this description. By contrast, when I inspected the site I was struck by its relative 'remoteness' from the centre of Wallan and from any commercial and community facilities. I agree with the objectors that any activity associated with this development would require a car journey and I do not regard that as one of the typical supporting ingredients of medium density housing. Proximity to public transport, or an easy walk to shops and facilities is usually the hallmark of a denser development. This site has none of those features. It is on top of a hill with a long walk down to shops, which are across the Northern Highway. There is no real walking track or footpath to speak of and of an evening, I noticed how dark and uninviting any pedestrian activity would be. I cannot imagine anyone doing their shopping on foot and I doubt whether many would even bother to walk to the community facilities on Windham Street. Public transport is even more remote. Every movement to and from this site is likely to be car based which, as I have noted, is not one of the normal characteristics of medium density housing.
2. I am also mindful of the likely end users of the twenty one units. The design architects emphasised that the mix of one, two and three bedroom dwellings was very much influenced by their preliminary advice from (unnamed) local real estate agents. No evidence was called in support of the need or demand for this housing mix and I am unsure as to whether that advice was about the general residential market in Wallan or the specific potential for the development of this site. I must express some surprise that there would be a demand for small dwellings on the fringe of Wallan especially given that the draft Structure Plan is anticipating "...a new wave of first home buyers and families" who are not normally attracted to one and two bedroom units. Typically one and two bedroom dwellings are closest to activity centres where access to shops, community facilities and public transport are easiest. This ease of access is in marked contrast to this location which, as I have noted, will require a car trip for almost anything.
3. In my view, while there is general support for infill development within the residential areas of Wallan, I think that the existing planning scheme and the draft structure plan are silent on promoting peripheral sites such as this for significant increases in density.

1. In accepting that the site had potential for some level of medium density development, Council was most concerned with the impact of it on the character (and to a lesser extent the amenity) of the area.
2. As noted, I have inspected this area on two occasions and I must say that a strong "rural" feel emerged on these inspections. Council sought to define what that character was made up of and noted that some of its elements included:
   • Variation in allotment size ranging from large single dwelling allotments to the north and south east with significantly smaller allotments to the west which have a noticeably different character.
   • Dwellings on William Street are well setback from the frontage and are set in a generous landscaped environment.
   • A lack of footpaths along William Street.
   • A variety in dwelling styles and types.
   • Mature vegetation which is readily identifiable from the public realm and private gardens.
   • Heavily landscaped nature strip with gravel pathways that limit views from the road reserve.
   • Modest single storey dwellings on the larger allotments.
   • Some vacant allotments in the surrounding area.
   • Examples of medium density development located towards the town centre to the south-west.
   • A separation between dwellings that provides a sense of spaciousness.
3. Some of the objectors made similar observations including Mrs O'Neill who spoke of the "...two lane country road" appearance of William Street which she felt defined the character of the area. In addition to these observations, I was struck by the "spaciousness" and "openness" of the area and unlike other parts of Wallan it seems to me that this is likely to remain a strong characteristic, at least in part, given that the north side of William Street is zoned and developed for spacious low density residential development.
4. Into that settlement pattern it is proposed to insert what, in a relative sense, is a very significant change. Twenty-one dwellings will take the place of one. Almost all vegetation will be removed. Modest private open space areas as low as 40m² are proposed. Side setbacks will be as low as 1 metre with storage areas repeatedly located on the side boundary. Inevitably, timber paling fencing will replace the present strand and wire. Car ports, car spaces and a central driveway will dominate the appearance from within the site and in the streetscape. While none of this is fatal, and some of these elements could be expected in any redevelopment, on this site and in this part of town, I think that the impact will be quite striking.
5. In that context, I note the specific deficiencies with the proposal as identified by Council including:
   • The proposed development will provide for 21 dwellings with limited setbacks and separation that are in contrast to its neighbours. The design response creates a visually dominant built form to the rear and sides of the property that fails to reflect the open 'green space' and spacious character of the area.
   • There is little opportunity to blend in the development with the neighbourhood and maintain the existing landscape characteristics of the area due to the limited setbacks and separation between the proposed dwellings which is uncharacteristic of the area.
   • The length of the driveway and the lack of opportunity to soften this element provides a poor design outcome that will contrast with the adjoining properties which are characterised by generous setbacks and landscaping.
   • While open space areas are provided for each dwelling, the inclusion of typical residential facilities such as storage, clotheslines and paved areas reduces the capacity for these areas to contain meaningful private open space and landscaping.
6. I note that Member Fong also had concerns with the issue of character impact when she was considering a very similar proposal nearby at No. 3 Daraweit Gum Road (Bendele Property Group Pty Ltd v Mitchell Shire Council & Brian Weir - P2197/2007). Daraweit Gum Road is the extension of Williams Street west of the Northern Highway. When faced with the redevelopment of a site of about 7000m² for 24 dwellings she noted:

[32] From its inspection of the site and area, the Tribunal recognises the changing character of the area as demonstrated by the recent subdivision in the area that provides urban sized lots with suburban dimensions and the medium density development immediately to the east. The area is undergoing a change in neighbourhood character from rural or semi-rural to a suburban character.

[33] It agrees with the parties that the current rural and semi-rural character is not sustainable, given the policy for urban growth for Wallan. The question is whether the proposed built form is an appropriate response to the emerging character of the area. In here, the Tribunal notes that there is no neighbourhood character study for the township underway or in the Scheme.

[34] The Tribunal finds that the proposed building masses to be intensive for the area and not one of a suburban character. The proposed continuous built form, with several of the rows of buildings in two storey scale with limited side setback (for example 1 metre from the western boundary), are characteristics of an inner urban area or appropriate if abutting or near an activity centre.

1. I had a look at this site on my inspection and noted that it was within an even more developed area than the subject site with conventional residential development around it rather than the low density nature which characterises the subject site and the area (especially to the north and east).
2. While I accept that the site can be redeveloped in accordance with its zoning, I am not prepared to indicate how many dwellings could be accommodated on the site. I think that any redevelopment must be more site responsive and respectful of the context within which it is situated. To be more respectful I think that the built form needs to be more subservient and deferential to the vegetation; I think that there needs to be a much greater degree of 'spaciousness' about the design especially by way of increased setbacks; and I think that it needs to be less car dominated in its presentation to the street and within the site. In that sense, I also agree with Ms Fong's conclusion that:

[43] Whilst the Tribunal agrees with the parties that increasing the housing stock at the review site is consistent with the housing policy and structure plan for Wallan, it does not agree with the proposed built form and extent of building mass as an appropriate design response to the existing and emerging neighbourhood character of the area.

1. In that context, I find support for Council's ground of refusal based on 'overdevelopment'. This term is relative, as what might be an overdevelopment of one site in the Residential 1 zone might be just right for another; or it might even be an underdevelopment of yet another site. The context of the site is always a critical ingredient in assessment and that is where a 'character' consideration is relevant. While I accept that the normal overdevelopment standards as they apply to site coverage, car parking and open space may be satisfied, that quantitative assessment must have a qualitative context. Given the context of the site and the area, I conclude that the proposal has 'squeezed' too much from the land and as a result has detrimentally impacted on the character of the area.

1. I have already noted the importance of vegetation to the character of this area. I also acknowledge that there are no 'vegetation' type overlays that apply to the land. However, I am mindful of the explicit landscaping requirement introduced into ResCode (at Clause 55.03-8) which has the objectives:
   • To encourage development that respects the landscape character of the neighbourhood.
   • To encourage development that maintains and enhances habitat for plants and animals in locations of habitat importance.
   • To provide appropriate landscaping.
   • To encourage the retention of mature vegetation on the site.

• Development should provide for the retention or planting of trees, where these are part of the character of the neighbourhood.
• Development should provide for the replacement of any significant trees that have been removed in the 12 months prior to the application being made.

1. Even though the 'rules' for native vegetation clearance changed after the decision of Council, it is still a fundamental part of the site analysis to identify and, if possible, protect existing vegetation.
2. It seems to me that the design philosophy has proceeded on the basis that the vegetation is not all that relevant and that if it were to get in the road of the development, then it should be removed.
3. On review by the Tribunal, I was assisted by an arboricultural report presented by Ms Proctor which I found instructive as to the process adopted in addressing the issue of vegetation removal. Ms Proctor analysed the original plan and noted:

As part of previous council submissions for this project, specific trees have been identified for removal or retention, based on an assessment undertaken by Mesh Architecture and presented in their "Native Vegetation Report" (20 March 2008). This assessment was not undertaken by a trained arborist, and therefore a number of issues effecting tree retention, especially relating to tree structure, were not identified. In addition to this, the health of some specimens appears to have declined since the original assessment was undertaken. This may be due to the current drought and recent extreme weather conditions.

1. She then analysed those trees that were proposed for retention but were now recommended for removal "...... in the context of the development". Three of these trees (Numbers 11, 12 & 15) are to be removed because "...this tree is too close to the proposed development to be retained". She then added that:

Two assessed trees, numbers 19 and 21, were recommended for retention during the proposed development. The proposed development does not allow for the retention of either of these specimens with tree 19 (a Manna Gum) being within dwelling 10, and tree 21 (a Sydney Red Gum) being within the central driveway. It is acknowledged that the central location of tree 21 makes retention impractical in a development of this nature.

Seven assessed trees were recommended for retention if practical during the proposed development. One of these trees, tree 12, has already been recommended for removal in the context of the proposed development.

1. Of the six remaining trees identified for retention, two of them (Nos. 32 & 37) were noted as "..the current proposal does not allow this tree to be retained as it falls within dwelling 21"; another tree (Nos. 30) "....... falls within dwelling 20"; another (No. 5) is not even on the land; while Tree No. 22 could be retained if some design modifications were made. This seems to leave only two trees (Nos. 22 and 23) that will be retained.
2. Two things are apparent to me from this analysis. The first is that it is evident that the design approach seems to be that if vegetation is to get in the way of the 'blank canvas' design then that vegetation must go. That seems to me to be at odds with the 'avoid, minimise, offset' principles of Clause 52.17. It also seems to be at odds with the landscaping objectives of Clause 55.03-08.
3. The second thing is that a retention rate of two trees on a site hosting thirty-seven such trees, many of which are described as "retain if practical" suggests that the on-site vegetation has been seen as an impediment or constraint to development rather than as an opportunity for the designer to work around. On my inspections, I noted that while some trees were clearly distressed, there are many trees on the site that could be retained and worked into a design.
4. While I appreciate that Clause 52.17 was modified through this process, I must have regard to it now. In addition, Clause 55.03-8 has always been a consideration especially given the vegetated characteristic of this area. I am surprised that such little attempt has been made to salvage what vegetation that is there and to design buildings around it.

1. I acknowledge that the proposal has responded to the strategic and statutory framework of the Mitchell Planning Scheme by developing land for medium density housing on land zoned Residential 1 and unencumbered by any overlays.
2. However, this is an application which requires an appreciation of 'context' for its ultimate assessment. While State and local policies may appear to support a denser development outcome in established residential areas, the facts of this site and, in my view, its relative isolation from the heart of town and its remoteness to the facilities that are normally associated with medium density housing, suggest to me that this proposal 'overdevelops' its site.
3. In the end I agree with Council's submission that:

Overall, it is Council's submission that the proposal seeks to develop the review site with an intensive multi unit development that is more akin to an well serviced middle ring suburb or those parts of Wallan are located further south east in proximity to the Town Centre.

As a result, the proposed development fails to respect the existing neighbourhood character due to the level of development and the layout of the proposed dwellings ......

1. I finally note that the draft Wallan Structure Plan acknowledges (at page 81) that Development Plans will be needed in parts of the town and I would urge Council to give serious consideration to a detailed review of large sites such as these on the periphery of the town. There have now been at least two applications to intensively develop these large narrow blocks for units and in both cases the Tribunal has rejected them. Options could include one of the new residential zones but some form of 'restructure' or 'development plan' for the lots appears to be needed.
2. It is directed that no planning permit be issued.