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[2003] VCAT 351
appellant. The review application was allowed and Council's refusal was set aside. The Tribunal directed that Planning Permit P200-0703 issue for the 36-lot subdivision, subject to the stated conditions,...
The Tribunal overturned the Council's refusal and ordered a permit for a 36-lot subdivision. It considered the residential zoning and provision of services important, and found that traffic, tree protection and nearby farming concerns could be dealt with through conditions. It reduced the proposed open space contribution from 5% to 2.5% because the Council's strategy did not sufficiently connect the contribution to a firm program or cost analysis. The judgment does not discuss later cases or subsequent treatment of its reasoning.
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Nilsson Noel & Holmes (Surveyors) Pty Ltd applied under section 77 of the Planning and Environment Act 1987 for review of the Shire of Macedon Ranges' refusal to grant a permit for subdivision at 1793 Trentham Road, Kyneton ([1]). The proposal before the Tribunal was for a 36-lot subdivision of the southern part of land at the corner of Trentham Road and Kyneton-Springhill Road, with lots of at least 4,000 square metres and reticulated water and sewerage ([3], [5], [11]).
1 cited instrument linked from this judgment.
The land was about 31 hectares in total, with the proposed subdivision affecting approximately 15 hectares. It had three road frontages, and the surrounding area was principally grazing land. A dairy farm operated south of the site, across Kyneton-Springhill Road. The land also contained existing manna gums, including a significant group in its south-western to central area, as well as rocky outcrops and native grass ([3]-[4]).
The relevant part of the site was in the Low Density Residential Zone, while its northern balance and surrounding properties were in the Rural Zone. The site was also affected by an Environmental Significance Overlay, Schedule 4 ([6]). The review concerned Council's refusal on grounds including environmental protection, effects on agricultural productivity, compliance with the Kyneton Township Policy, traffic safety, amenity and proper and orderly planning ([13]).
At the hearing, the applicant called traffic and planning experts. Objectors appeared in person and called a nearby farmer to describe his dairy operation. Council was represented by its planning and development services manager ([15]). The Tribunal allowed the review, set aside Council's decision and directed that the permit issue subject to conditions. The order included requirements for road and infrastructure works, tree protection, landscaping, water and sewerage arrangements, a Section 173 agreement, and a 2.5% open space contribution.
The Tribunal's reasoning began with the zoning, not simply the surrounding land use. It acknowledged that the Low Density Residential Zone appeared anomalous because the surrounding land was Rural Zone. Council's evidence was that the zoning reflected a strategic decision: the former planning scheme had identified nearby land as Future Urban, and Low Density Residential was selected as a buffer between that future urban area and rural land. Council had subsequently retained the zoning after strategic reviews ([16]-[17]). The Tribunal accepted the zoning as the planning framework it had to apply. It considered 36 lots of at least 4,000 square metres to be low-density development and noted that reticulated services could be provided ([18]).
The policy context reinforced that conclusion. The Tribunal described Clause 22.12 as directing rural residential subdivision and development to areas close to towns, where utility services are available and substantial commitment to rural residential development has already occurred. The site was close to Kyneton and the application process had secured reticulated sewerage. The Tribunal therefore considered the objectives of Clause 22.12 satisfied ([20]). It also noted that referral authorities and relevant Council departments had resolved their concerns, subject to conditions, including connection to reticulated sewerage and changes to shared driveways ([19]).
The agricultural objection required the Tribunal to separate the applicable policy from the practical interface concern. It read Clause 21.07-3, the policy concerning protection and encouragement of agricultural productivity, as applying to rural zones. Because the review site was Low Density Residential, the Tribunal concluded that the clause did not apply to it ([21]). That did not lead the Tribunal to dismiss the farmer's evidence. It recognised the neighbouring dairy operation and the potential for conflicts involving early-morning activity, heavy vehicles, livestock, farm machinery, mud, smell and domestic animals ([22]-[23]).
The Tribunal's response was to address some interface effects through permit conditions rather than treat the nearby farm as a reason to refuse the subdivision. It required a Section 173 agreement to provide, among other matters, that domestic animals be supervised when away from the land. Other conditions addressed fencing, building envelopes, planting and the protection of vegetation ([23], order condition 3(c)). The reasons emphasised that residents near working farms may encounter ordinary farming activity and that residential expectations should not prevent rural operations. These observations explain the context for the conditions, but the decision does not turn them into a separately stated general rule for all rural-residential developments.
Traffic was another issue Council had relied on. The Tribunal considered Kyneton-Springhill Road and Harper Lane capable of accommodating traffic from the development. The main issue was the location and number of accesses. The revised proposal did not allow direct access from the lots to Trentham Road, and the applicant agreed to shared driveways for some lots. The applicant's traffic evidence proposed changes to the location of driveways to improve sightlines; the Tribunal accepted that recommendation and adjusted the conditions accordingly ([24]). The permit also required intersection works and specified access arrangements, including restrictions for lot 36 (order conditions 3(b)(i), 11).
On environmental concerns, the Tribunal noted that the proposal did not involve removal of the manna gums and that the applicant accepted conditions to protect them. It therefore considered retention and protection capable of being achieved through building envelopes and restrictions on vegetation removal and construction within identified tree drip lines ([19], [25]; order conditions 1(a)(iii), 3(c)(vii)). The Tribunal also concluded that the Kyneton Township Policy did not apply because the site was outside the boundary of the Kyneton Township Structure Plan ([26]).
The open space contribution was the principal quantified dispute addressed in the reasons. Council sought 5%, while the applicant opposed that amount. The parties accepted that a monetary contribution was more appropriate than reserving land within the subdivision ([27]). Council supplied its 1999 Open Space Strategy, which identified broad objectives for Kyneton, including use of the Campaspe River valley and Kyneton Botanic Gardens, trails and parkland improvements ([28]). The Tribunal considered that the strategy had no direct reference to the Planning Scheme, no firm implementation program and no analysis apportioning costs. It therefore found 5% unjustified on the material and set 2.5% as more appropriate ([29]).
This judgment is a site-specific VCAT review decision, not a judgment announcing a statutory amendment or a change to legislation. The reasons identify the Planning and Environment Act 1987 and the planning scheme provisions relevant to this application, but do not set out the text of those provisions in full. The analysis should therefore be understood as the Tribunal's application of the provisions it identified to this particular land and proposal.
Before the decision, Council had refused the permit. Its refusal grounds included environmental and landscape effects, agricultural productivity, the Kyneton Township Policy, traffic safety, amenity and orderly planning ([13]). After the Tribunal's decision, that refusal had been set aside and a permit was directed to issue, subject to detailed conditions ([30]-[31]).
The decision's treatment of the zoning is especially tied to the record before the Tribunal. The Tribunal accepted Council's explanation for retaining the Low Density Residential Zone after strategic reviews, despite the contrast with surrounding rural land ([16]-[18]). It did not hold that any Low Density Residential Zone next to rural land must be developed in the same way, or that surrounding agricultural objections are irrelevant in other applications.
Likewise, the open space finding rests on the material presented about the local strategy. The Tribunal did not state that a 2.5% contribution is a generally applicable rate. It concluded that 5% was not justified in this case because of the particular shortcomings it identified in the strategy and supporting material ([27]-[29]). The judgment supplies no later legislative history or subsequent case law, so it cannot establish whether the relevant provisions or practice changed after 2003.
At [18], the Tribunal described the proposed minimum 4,000-square-metre lots as low density and noted that the site could be connected to reticulated water and sewerage. In plain English, the Tribunal treated the proposal as broadly matching the development type contemplated by the zone, while also recognising that services would be available.
At [20], it said the site's proximity to Kyneton and the procurement of reticulated sewerage met the objectives of Clause 22.12. This means the Tribunal applied the policy's stated focus on development near towns with services to the facts of the proposal.
At [21], the Tribunal said its reading of Clause 21.07-3 was that the policy applied to rural zones, and therefore did not apply to the review site. This was a conclusion about the policy's reach in this planning scheme, not a finding that agricultural effects can never matter on land zoned for residential use.
At [23], the Tribunal recognised the practical tensions between new residents and working farms. It referred to early starts, farm traffic, livestock and domestic animals, and required supervision of domestic animals away from each lot. The plain-English point is that the Tribunal treated the interface as a planning issue that could be managed through conditions in this proposal.
At [29], the Tribunal stated: “The Tribunal does not find a full 5% justifiable. A 2.5% is more appropriate.” That conclusion followed its finding that the Council strategy lacked a direct planning-scheme link, a firm implementation program and a cost-apportionment analysis. It does not state that 2.5% is the correct rate in other cases.
At [30], the Tribunal summarised its reasons for accepting the subdivision: zoning, services, tree retention and protection, and resolution of access. It also recorded that utility authorities had no objection subject to conditions. The order translated that assessment into a permit with detailed requirements.
The decision is most relevant as an example where the planning scheme zones land for low-density residential development, even though surrounding land is rural and actively farmed. Here, Council had retained that zoning after strategic reviews, and the Tribunal treated the zoning as an important part of the decision ([16]-[18]). A different zoning history or policy framework could lead to a different assessment.
It may also be relevant where a proposal is near a town, can be serviced with reticulated sewerage and water, and falls within a local policy encouraging rural residential development near towns and existing services. The Tribunal relied on those features in concluding that the objectives of Clause 22.12 were met ([20]).
The decision also illustrates a fact pattern in which the main traffic concern is access design rather than the overall capacity of nearby roads. The Tribunal considered the road network capable of accommodating traffic but addressed the location of access points, shared driveways, sightlines and intersection works through conditions ([24]; order conditions 3(b), 11).
The open space reasoning is relevant where a requested contribution is challenged and the supporting Council strategy is broad or lacks a clear implementation and cost basis. The Tribunal's conclusion depended on the particular strategy and evidence before it; the decision does not establish a universal contribution percentage ([27]-[29]).
Finally, the reasons may assist in identifying questions where residential lots adjoin working farms: what farming activities occur, what conflicts are reasonably anticipated, and whether conditions can manage specific effects. The decision did not treat the neighbouring farm as irrelevant. It acknowledged the evidence and imposed at least one targeted condition concerning domestic animals ([22]-[23]).
The judgment text provided contains no later decisions discussing or applying Nilsson Noel & Holmes Pty Ltd v Macedon Ranges SC [2003] VCAT 351. It therefore does not establish whether later courts or tribunals followed, distinguished, limited or otherwise treated this decision.
Nor does the supplied material provide a case history or subsequent legislative changes. Any account of later treatment would require sources beyond this judgment. On the present material, the reliable description is limited to the reasoning and outcome in the 2003 VCAT proceeding.
The reasons do not reproduce the full text of each planning scheme provision or explain how the provisions were amended over time. The judgment therefore leaves open how the relevant policies were later worded, whether their scope changed, and how the same clauses might apply to a different site or proposal.
The decision also does not give a general test for deciding when a subdivision is sufficiently close to a town, or when there has been a sufficiently substantial commitment to rural residential development, for Clause 22.12 purposes. It records the Tribunal's conclusion on the Kyneton facts ([20]).
On the rural-residential interface, the Tribunal identifies possible conflicts and imposes conditions, but the reasons do not assess every possible mitigation measure or specify a general threshold for when farm impacts would justify refusal. The effect of particular conditions would depend on the farming activities and site circumstances.
For open space contributions, the Tribunal explains why 5% was not justified by the material before it, but does not prescribe what documentation would always be sufficient to support a contribution or establish a generally applicable percentage ([27]-[29]). The open questions include what connection to a planning scheme, implementation program and cost apportionment may be required in another case. Those matters cannot be resolved from this judgment alone.
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The Application for review is allowed and the decision of the Council set aside. It is ordered that Planning Permit P200-0703 be issued.
This permit allows for the subdivision of land into 36 lots and associated works at Crown Allotment 123 and 124, Parish of Lauriston, northwest corner of Trentham and Kyneton/Springhill Road, Kyneton, generally in accordance with the endorsed plans and subject to the following conditions:
1. Prior to the certification of the plan of subdivision for any lot in the subdivision the following shall be submitted to and be approved by the Responsible Authority:
(a) Three copies of an amended subdivision layout which shows:
(i) The proposed subdivision layout and internal roads to be in accordance with drawing plans 0434TP, including the amendments dated 5 September 2002 showing lots 5, 6, 9, 10, 27 and 28 rotated and driveway locations defined.
(ii) Minimum 5 metres wide plantation reserves along the Trentham Road, Kyneton-Springhill Road and Harper's Lane frontages of the land.
(iii) Building envelope for each lot, having regard to the protection of trees marked on plan;
(iv) The relocation of the driveways for lots 31, 33 and 34 in accordance with the evidence of Mr. R. Fairlie and his plan tabled at the hearing on 24 January, 2003.
(b) Three copies of a landscape plan to scale and with dimensions prepared by a suitably qualified person detailing:
* One tree per lot equivalent to every 15 metres of frontage.
* Species selection in general accordance with the surrounding area to the satisfaction of the Responsible Authority.
* The maintenance thereof for a period of two years after the completion of these works.
2. Prior to the issue of a Statement of Compliance, the landscaping as approved under Condition 1(b) shall be undertaken and completed and thereafter maintained to the satisfaction of the Responsible Authority.
3. The following shall be undertaken to the requirements and satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance for any lot within the subdivision:
a) A payment of 2.5% of the value of the land intended to be used for residential, commercial or industrial purposes to Council in lieu of open space. Such payment shall be based on a valuation of the land undertaken by Council within 30 days of the issue of a Statement of Compliance.
(b) All civil engineering works associated with the development shall be carried out in accordance with Council's policy titled "Developer's Requirements for Infrastructure Construction within the Macedon Ranges Shire", including but not limited to the following works external to the site:
(i) The construction of a right turn lane at the intersection of Trentham Road and Kyneton-Springhill Road.
(c) The owner/applicant shall enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 which provides for:
(i) That only a single or double storey dwelling may be constructed on each lot within the designated building envelope for that lot as approved in accordance with condition 1(a)(iii) pf this permit.
(ii) That only a single outbuilding with a maximum height (to top of roof) of 4 metres may be constructed on each lot, unless with the written consent of the Responsible Authority.
(iii) All external cladding and trim (including the roof) of any buildings constructed on the land shall be of a non-reflective nature. Cladding materials shall be coloured or painted in muted shades of green, brown or other colours with the written consent of the Responsible Authority and shall be maintained to the satisfaction of the Responsible Authority.
(iv) That a minimum of two rows of trees and/or shrubs indigenous to the locality shall be planted along the boundaries of each lot within 3 months of the construction of any buildings on each lot. The plantings must be maintained thereafter to the satisfaction of the Responsible Authority.
(v) That only dog proof fencing of post and wire type may be constructed on the lots, unless with the written consent of the Responsible Authority.
(vi) Shared driveways shall be provided to lots 7 & 8, 29 & 30, and 35 & 36.
(vii) That no native vegetation shall be removed from the land without the prior written consent of the Responsible Authority; and that no building shall be constructed within the drip line of trees identified on Plan 0434 Rev 04.
(viii) Domestic animals shall be supervised when away from the land.
The owner/applicant shall pay all reasonable costs associated with the preparation, registration and enforcement of the agreement.
4. The following shall be undertaken to the requirements and satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance for each stage of the subdivision:
(a) All civil engineering works associated with the relevant stage of the subdivision shall be carried out in accordance with Council's policy titled "Developer's Requirements for Infrastructure Construction within the Macedon Ranges".
(b) The landscape works for the relevant stage shall be undertaken in accordance with the plan endorsed under Condition 1(b) of this permit.
5. The site shall be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance.
6. The following shall be undertaken to the requirements of Goulburn Murray Water and satisfaction of the Responsible Authority:
(a) Design, construction and operation must follow the principles outlined in "Best Practice Environmental Management Guidelines for Urban StormWater" (Victorian Stormwater Committee, 1999). A stormwater management plan must be prepared and implemented to the satisfaction of the Responsible Authrotiy and Goulburn-Murray Water. The plan may include driveways constructed of porous material, swales alongside tracks/driveways, cut-off drains, flow dissipaters and water sensitive landscaping as appropriate.
(b) Construction must follow sediment control principles outlined in Construction Techniques for Sediment Pollution (EPA 1991). Specifically, the applicant must ensure:
* Grading, excavation and construction must not proceed during periods of heavy rainfall.
* Sediment trap must be designed, installed and maintained to maximise the volume of sediment trapped from the site during development and construction.
* Disturbed areas must be stabilised and revegetated following the completion of works.
7. The following must be undertaken to the requirements of Powercor and satisfaction of the Responsible Authority:
(a) The plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to Powercor Australia Ltd in accordance with Section 8 of that Act.
(i) Enter into agreement for the extension, upgrade or re-arrangement of the electricity supply to the lots on the plan of subdivision as required by Powercor Australia Ltd. (A payment to cover the costs of such work will be required and easements internal and external to the subdivision and provision of sites for substations may also be required).
(ii) Where buildings or other installations exist on the land to the subdivided and are connected to the electricity supply, they shall be brought into compliance with the Supply and Installation Rules issued by the Victorian Electricity Supply Industry.
8. The following shall be undertaken to the requirements of Coliban Water and satisfaction of the Responsible Authority.
(a) The applicant or owner is required to reach agreement with Coliban Water for the provision of reticulated water and sewerage services to each of the lots within the subdivision and comply with any requirements arising from any effect of the proposed development on Coliban Water assets.
9. The following must be undertaken to the requirements of Telstra and the satisfaction of the Responsible Authority:
(a) That the applicant enter into an agreement with Telstra or other licensed telecommunications carrier for the satisfactory provision of telephone cable reticulation one (1) metre into each allotment created.
(b) That the plan of subdivision submitted for certi faction be referred to Telstra or other licensed communication carrier, whichever is appropriate, in accordance with Section 8 of the Subdivision Act ´988.
(c) Set aside on the plan of subdivision, reserve/s satisfactory to Telstra for communication substation/s if required.
(d) That the applicant pay to Telstra, the reasonable cost of any works necessary, as a result of the subdivision, top remove, or alter the position of any existing facility on the subdivision or an any adjacent land of Government Road, pursuant to Section 91(1) and (2) of the Australian Communications Corporations Act 1989.
10. The following shall be undertaken to the requirements of Country Fire Authority and satisfaction of the Responsible Authority:
(i) There must be no obstructions within one metre of the edge of the formed width of roads at any time, and there must be four metres clearance above all roads to allow fire vehicle access.
(ii) Conditions to be developed from VicCode 1 as appropriate suggest roads and parking to comply with the Victorian Code for Residential Development (E4, E6, E9).
(i) There must be a hydrant within 120 metres from the outer edge of the building envelope.
(ii) Fire hydrant must be clearly identified in accordance with the Fire Services Guidelines - Identification of Street Hydrants for Fire Fighting Purposes.
(i) Areas of Public Open Space must be managed in a minimum fuel conditions during the fire danger period.
11. The following shall be undertaken to the requirements of VicRoads and satisfaction of the Responsible Authority:
(a) A type "B" intersection treatment must be provided on the declared road at the intersection of the Kyneton-Trentham Road and the Kyneton-Springhill Road in accordance with AUSTROADS publication "Guide to Traffic Engineering Practice Part 5 - Intersections at Grade". The intersection must incorporate two 3.5 metres widened sealed lanes and a 3.0 metre wide left turn lane as shown on Fig. 5.21 in the above publication. Construction of these works must be completed to the satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance.
(b) Specifications of work to be undertaken in the declared road reserve and a program of works shall be submitted to and approved by the Responsible Authority prior to any works commencing. All works must be undertaken in accordance with VicRoads Standard Specification.
(c) Vehicular access to lot 36 must be via the Kyneton-Springhill Road at a location approved in writing by the Responsible Authority. Direct vehicular access from lot 36 to Kyneton-Trentham Road will not be permitted.
(d) The Plan of Subdivision must include a 10 metre by 10 metre splay at the intersection of Kyneton-Trentham Road and the Kyneton-Springhill Road which is shown vested in Council.
(e) All work must be carried out at no cost to VicRoads.
12. This permit shall expire if the subdivision is not commenced within 2 years of the date of the permit. For the purpose of this condition, certification of the plan of subdivision shall be regarded as the commencement of the subdivision.
It is recommended that, at an early date, the applicant commences negotiations with Powercor Australia Ltd for supply of electricity in order that supply arrangement to worked out in detail so prescribed information can be issued without delay (the release to the municipality enabling a Statement pf Compliance with the conditions to be issued.
Arrangements for supply will be subject to obtaining the agreement of other Authorities and landowners affected by the routes of electric line required to supply the lots, and planning permits for any tree clearing.
Prospective purchasers of the lots in the subdivision should contact Powercor Australia Ltd to determine the availability of a supply of electricity. Financial contributions may be required.
There is cabling located inside the boundary of the referred to property. It is important that the correct procedures and care are taken regarding the cabling. For all cable locations and information please contact Melbourne One call centre on 1100.
_______________________________
For the Applicant for Review: Mr. Chris Wren, direct brief, appeared on behalf of the review applicant. He called Messrs. R. Fairlie and D. Hanson to give expert evidence and opinion on traffic engineering and planning respectively.
For Respondent Objectors: Messrs. A. Korinfsky and F. Vearing appeared in person. Mr. Vearing called Mr. R. Bloomfield to give evidence on his farming operation.
For the Responsible Authority: Ms. Coral Young, Manager, Planning and Development Services, Shire of Macedon Ranges.
1. This is an application pursuant to Section 77 of the Planning and Environment Act 1987 to review the Shire of Macedon Ranges' refusal to grant a permit (No. P200-0703) to subdivide land at 1793 Trentham Road, Kyneton, into 36 lots.
2. Mr. Vearing sought leave to call Mr. Bloomfield to give evidence on farming. Mr. Wren advised that no statement of evidence has been circulated and he would object to Mr. Bloomfield being called as an expert witness. The Tribunal, however, agreed to Mr. Bloomfield to give evidence on the operation of his farm which is located south of the subject site.
3. The review site is located at the corner of Trentham Road and Kyneton-Springhill Road, Kyneton. It has three road frontages: Trentham Road which provides direct access into Kyneton Township, the east-west Kyneton-Springhill Road, and Harpers Lane which is unsealed. It is approximately 2.5 kilometres south of the Kyneton Town Centre. The land is approximately 31 hectares, with the subdivision affecting 15 hectares. It generally falls from the east and west towards the centre. This topography results in the southern part of the land draining to the south and the northern half draining to the north-west. The subdivision is for the southern half of the land.
4. The land has been farmed in the past. A lineal area from the south-west corner to the centre contains existing significant manna gums with rocky outcrops and some native grass. The land is surrounded by farm land principally for grazing. South of the review site on the south side of Kyneton-Springhill Road is an operating dairy farm. There are some low density residential subdivision approved/developed closer to the township, one at the corner of Trentham Road/railway line, and another in Harpers Lane.
5. The proposal has undergone a number of amendments in response to concerns raised by Council. The proposal before the Tribunal is one which subdivides the land into 36 allotments with the provision of reticulated water and sewerage. Each lot has a minimum size of 4000 square metres. The layout includes:
* an internal north-south road to provide frontages to 20 lots within the land.
6. The review site is in two zones. The part subject of application for subdivision is in the Low Density Residential Zone. The balance (northern portion) of the land is in the Rural Zone, so are the surrounding properties. The site is also affected by the Environmental Significance Overlay (Schedule 4). A permit is required to subdivide land under this overlay.
7. The purpose of the Low Density Residential Zone is to provide for low density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater. Decision guidelines, apart from those contained in Clause 65, are:
* The State Planning Policy framework and the Local Planning Policy framework, including the Municipal Statement and local planning policies.
* The protection and enhancement of the natural environment and character of the area including the retention of vegetation and faunal habitat and the need to plant vegetation along waterways, gullies, ridgelines and property boundaries.
* The availability and provision of utility services, including sewerage, water, drainage, electricity, gas and telecommunications.
* In the absence of reticulated sewerage, the capability of land to treat and retain waste water.
8. The purpose of the Environment Significance Overlay is:
* Identify areas where the development of land may be affected by environmental constraints.
* Ensure that development is compatible with identified environmental values.
Schedule 4 of this overlay is about the importance of the proclaimed Lake Eppalock as part of the Campaspe River catchment.
9. Clause 65 provides decision guidelines for determining applications.
Clause 15.01 Environment - Protection of catchment, waterways and ground water
Clause 15.09 Conservation of native flora and fauna
Clause 16.01 Residential development for single dwellings
Clause 18.01 Declared highways, railways and tramways
Clause 21.06 Municipal Strategic Statement Vision and Strategic Framework
Clause 21.07-1 Management of Urban Growth and Development
Clause 21.07-2 Protection of the Environment and Landscape
Clause 22.12 Subdivision and Buildings in Non-Urban Areas
11. The application was lodged on 9 October 2000 to subdivide land into 37 lots. As required by the Planning Scheme, the application was referred to the relevant referral authorities. Due to the requests for further information from these authorities, the application has taken some time before it is ready to be considered by Council. One of the breakthrough was the agreement to provide reticulated water and sewerage, and that no lot would have vehicular access from Trentham Road. Following several revisions to the proposal, the subdivision is now for 36 lots and there is no objection from all the referral authorities and Council's internal departments.
12. The application was advertised and seven objections were received. Two contained multiple signatures. 7 letters of support were also received.
13. Council at its meeting of 25 September 2002 decided not to accept officer recommendation to approve the application subject to conditions, and resolved to refuse the application on the following grounds:
"1. The proposal does not comply with Clause 21.07-2 (Protection of the Environment and Landscape) with regard to:
(a) the preservation of the landscape and natural environment;
(b) respecting the environmental and conservation significance of the ara;
(c) the maintenance, enhancement and protection of the biodiversity and habitat significance of native vegetation.
2. The proposal is inconsistent with Clause 21.07-3 (Protection for and Encouragement of Agricultural Productivity) in regard to the protection of agricultural productivity of surrounding land.
3. The proposal does not comply with Clause 22.02-4 (Kyneton Township Policy) as it does not provide for the strategic expansion and consolidation of existing residential areas.
4. The proposal provides for unsatisfactory vehicular access and will result in a reduction in safety for road users along Kyneton-Springhill Road.
5. The proposal will have a detrimental effect on the amenity of the locality.
6. The proposal is contrary to proper and orderly planning.
7. The proposal is not consistent with surrounding development patterns."
14. The review applicant lodged an application to review the refusal on 3 October 2002.
15. At the review hearing, parties made written and oral submissions. Mr. Wren called Messrs. R. Fairlie and D. Hansen to give evidence on traffic engineering and planning. Mr. Vearing called Mr. R. Bloomfield to give evidence on his operation of the dairy and farming operation on land south of the review site. Additional documents in photographs, extracts of the Kyneton Township Plan, and other plans were tabled. As discussed at the hearing, Ms. Young forwarded a copy of Council's Open Space Strategy to the Tribunal. All these are kept on file.
16. The zone of the land is Low Density Residential. A cursory look at the planning scheme map suggests that this zone is somewhat anomalous with its surrounding context, which are all in the Rural Zone. However, Ms. Young submitted that there is a strategic basis for this zoning. The former (old format) planning scheme showed the area between the subject land and Kyneton-Lauriston Road as Future Urban, an area to be made available for residential development for lots 2000 square metres or less. In the Victorian Planning provisions, there is no equivalent zone to Future Urban and Council chose the Low Density Residential Zone to provide a buffer between future urban area and the surrounding rural areas.
17. Despite subsequent strategic reviews (Residential and Industrial Strategy and Rural Land Review), Council has no plan to change the zoning of the land, and the zoning of the land remained Low Density Residential. Ms. Young concedes that the direction from the planning scheme and reference documents is that the proposal is in accordance with Council's adopted strategic direction.
18. Given the zoning of the land, I turn to the purpose of the zone. The purpose of this zone is to implement the State Planning Policy Framework and Local Planning Policy Framework, and to provide for low density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater. As far as the Tribunal can see, the proposed subdivision of minimum 4000 square metres is low density in accordance with the zone. It has the ability to provide reticulated water and sewerage. I will go to planning policies later.
19. As required by the planning scheme, the application was referred to the various referral authorities and those authorities responsible for drainage, catchment protection, sediment control (Coliban Water and the former Department of Natural Resources) and VicRoads. There has been resolution of issues relating to their respective areas and now have no objection to issue of permit subject to conditions. Council's internal departments, including Infrastructure, Parks and Recreation and Environmental Health now also have no objection subject to connection to reticulated sewerage and reduced vehicular access onto Kyneton-Springhill Road by sharing driveways. Its Environment Resource Officer requested protection of highly sensitive areas (a group of manna gums). The applicant agrees to retention of these trees and building envelope to give clearance to the drip lines of these trees. The Tribunal can see no reason to refuse the application.
20. Clause 22.12 is a local policy regarding subdivision and buildings in non-urban areas. This policy applies to land in the Rural Zone, Environmental Rural Zone, Rural Living Zone and Low Density Residential Zone. The basis of this policy is that the non-urban areas of the Macedon Ranges Shire have important environmental, agricultural and landscape values. Inappropriate subdivision, building, works or use of or on this land may compromise these values. The policy for subdivision is that rural residential subdivision and development is to be directed to areas close to towns, where utility services are available, and where substantial commitment has already been made to rural residential development. The essence is that it should be close to township with utility services. The review site is close to the Township of Kyneton and the application process has resulted in the procurement of reticulated sewerage services. The Tribunal is satisfied that the objectives of this clause are met.
21. One of the grounds of Council's refusal is that the proposed subdivision is inconsistent with Clause 21.07-3 (Protection for and Encouragement of Agricultural Productivity), and indeed the main concern of Messrs. Vearing and Bloomfield. The Tribunal's reading of this clause is that this policy applies to all rural zones (page 9 of 20 of Clause 21.07). It must, therefore, be interpreted that the review site, in the Low Density Residential Zone, is not subject to this policy.
22. Mr. Vearing submitted that the review site has been farmed for over 100 years. Its soil is volcanic and highly productive. As one parcel of land, it is viable. There are examples of smaller farm in the area which are viable, such as the cherry orchard (12 acres) in the vicinity, and land to the north of the review site being used successfully for grazing. To the south is a successful and busy dairy farm operated by Mr. Bloomfield. Mr. Bloomfield runs 100 dairy cows all year round, and calving in March, April and September. He has invested considerably in the upgrading of the farm and the purchase of equipment. The proposed subdivision is likely to impact on the operation of this farm in terms of rural/residential conflicts, interruption to traffic because of the multiple driveways, mud in winter, smell and other problems associated with a feedlot. There needs to be a buffer between the farm and a residential subdivision. A road (Kyneton-Springhill Road) is not enough.
23. The Tribunal understands the concern of nearby farmers of a residential subdivision. It is aware that new residents may not appreciate the needs of farms, and have unrealistic expectations of `country living'. Living next to a working farm does not mean peace and quiet all the time, especially in the early morning and during milking times next to a diary farm. There is a different traffic pattern: heavy truck movements transporting stock, milk tankers, movement of stock and farm machinery. They may not be aware of the impact of domestic animals on livestock. It is very much an issue with in-coming residents, that they must accept that their residential amenity is subject to the interface condition with working farms. However, their potential unrealistic expectation should not get in the way of the operation or productivity of these rural pursuits. They cannot expect farming to be confined to grazing which has an idyllic appearance. Farming may involve cropping or orcharding which may require spraying, or intensive cultivation in glass houses under total climatic control. The Tribunal made enquiries with Ms. Young as to whether Council has any literature available to bring these issues to the awareness of purchasers of lots. To minimise the adverse impact of residential use in close proximity to the grazing, dairying and calving activities in the vicinity, the Tribunal finds it appropriate to impose a condition requiring supervision of domestic animals outside one's property as one of the covenants of a Sec. 173 agreement.
24. The Tribunal considers that the road network of Kyneton-Springhill Road and Harper Lane capable of accommodating the traffic generated by the 36 lot subdivision. The traffic issue of the proposed subdivision is essentially the vehicular access of the lots. Further, following negotiation with VicRoads, there will be no direct access onto Trentham Road. All access is from Kyneton-Springhill Road and Harper Lane, with an internal road providing access to the lots not having a direct frontage to those two roads. To reduce the number of access points onto Kyneton-Springhill Road, there is agreement that some lots would have common driveway. Further, Mr. Fairlie suggested improvement by re-allocating the common driveways to improve sightlines. This revision would result in less shared driveways but improved sightlines. The Tribunal accepts his recommendation and would adjust the permit conditions accordingly.
25. One of Council's grounds of refusal was that the proposed subdivision does not comply with Clause 21.07-2, Protection of the Environment and Landscape. There are scattered and a group of manna gums located in the review site. There is no proposal to remove them. The review applicant accepts a permit condition regarding retaining and protecting these trees.
26. Council was also concerned that the proposed subdivision is not consistent with Clause 22.02-4 (Kyneton Township Policy). The Tribunal's reading of this policy clearly indicates that the review site is outside the boundary of the Kyneton Township Structure Plan for which this policy applies. This policy is therefore not relevant.
27. The one remain issue to be dealt with is open space contribution. The Tribunal agrees with the parties that a monetary contribution is more appropriate than setting aside land in the subdivision as public open space. It is the percentage of this contribution which is contested. Council's draft conditions requested the maximum 5% which is opposed to by Mr. Wren. Ms. Young submitted that open space development is required for Kyneton and there are proposals to upgrade recreational facilities in Kyneton, such as the Kyneton Pool. Mr. Wren on the other hand argued that Council had no strategy and no schedule guiding open space contribution.
28. Ms. Young undertook to provide the Tribunal with a copy of Council's Open Space Strategy. The Tribunal received a copy "Macedon Ranges Open Space Strategy volumes 1 and 2 and dated September 1999". According to this strategy, in and around the Kyneton Township, Council proposes to maximise on the Campaspe River valley and the Kyneton Botanic Gardens, and the enhancement of the parkland by a trail and improvement works. Other management works include weeding and maintenance of the parkland setting. In response to this strategy, Mr. Wren submitted that this strategy is a broad blueprint with no specific plan for contributions from subdivision and no reference in the planning scheme being made to contributions. There is no open space program on or adjacent to the subject site.
29. As commented at the hearing, there is no direct reference between this Open Space Strategy and the Macedon Ranges Planning Scheme. There is no firm program for the implementation of the improvement works nominated in the study, and no analysis of apportionment of cost. Under these circumstances, the Tribunal does not find a full 5% justifiable. A 2.5% is more appropriate.
30. The proposed subdivision into 36 lots is acceptable. Reasons include the zoning of the land, the ability to provide the services including reticulated sewerage, the retention and protection of significant trees, and the resolution of access. The permit applicant has negotiated with the utility provision authorities which now have no objection subject to permit conditions. Whilst the zoning of the site appears to be at odds with its surrounding land use, that is being Low Density Residential surrounded by Rural Zone and operating farms, the Tribunal accepts that Council has undertaken strategic reviews of the area and retained the Low Density Residential Zone. It directs the issue of a permit subject to the conditions required by the various utility authorities, the draft conditions proposed by Council except those relating to open space contribution, modifications to the locations of shared and not-shared driveways, and retention and protection of the trees identified in the plans.
31. Accordingly, the application for review is allowed and a permit to issue subject to the conditions as directed in this order.
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Nilsson Noel & Holmes Pty Ltd
Macedon Ranges SC [2003] VCAT 351
The review application was allowed and Council's refusal was set aside. The Tribunal directed that Planning Permit P200-0703 issue for the 36-lot subdivision, subject to the stated conditions, including a 2.5% open space contribution.