A permit is granted and directed to be issued by the Responsible Authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 36 Sandy Creek Road, Riddells Creek which allows a 2-lot subdivision generally in accordance with Plan No. PS 541827B Ref 12488 Version 3 (3 sheets). The Tribunal directs that the permit must contain the following conditions:

1 Tree planting of suitable species must be carried out to improve drainage to the satisfaction of the Responsible Authority.

2 All external material, colours and finishes of the dwelling hereby permitted must be of a muted, non-reflective nature, colour-matched to their backgrounds, to minimise impacts upon the landscape.

3 The site shall be so ordered and maintained as to not prejudicially affect the amenity of the locality by reason of appearance.

4 Where external lighting is provided it must be fitted with suitable baffles and located so as to prevent the emission of direct light onto adjoining properties or roadways to the satisfaction of the Responsible Authority.

5 A minimum of two rows of trees and/or shrubs must be planted to screen any future development from the road and adjoining properties. The plantings, which must be indigenous to the locality, must be installed within 3 months of the completion of the building and maintained thereafter to the satisfaction of the Responsible Authority.

6 The following shall be undertaken to the satisfaction of Council's Major Projects Unit:

(i)

The applicant/owner shall restrict sediment discharge from any construction site within the property in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995).

(ii)

A sealed vehicle crossing must be constructed for the proposed lot in accordance with the Macedon Ranges Shire council standards prior to issue of Statement of Compliance. Crossings are to be a minimum of 10.0 metres from any power pole, sign or service pit and an absolute minimum of 3.0m from any street tree approval must be obtained from MRSC for the location of the driveway.

(iii)

The existing driveway to the proposed Lot 1 is to be upgraded to a sealed construction in accordance with the Macedon Ranges Shire Council Standards prior to the issue of the statement of compliance.

(iv)

All existing services must be relocated to a position that does not cross any newly created property boundaries.

(v)

The existing property shall be adequately drained to the satisfaction of the Macedon Ranges Shire Council, to a legal point of discharge to be nominated by the Council.

(vi)

Any property constructed within the building envelope shall be adequately drained to the satisfaction of the Macedon Ranges Shire Council, to a legal point of discharge to be nominated by Council.

7 The following shall be undertaken to the satisfaction of Council's Health Unit:

(i)

Any future dwelling/s on Lot 2 shall be fitted with a package wastewater treatment plant or appropriate septic tank system which is equivalent 20:30 standard irrigation methods to a design approved by Council's Environment Officer and shall be operated, maintained and replaced where necessary to the satisfaction of Council's Health Officer. A separate permit must be obtained from Council's Environmental Health Department prior to its installation.

8 The following shall be undertaken to the satisfaction of Western Water:

(i)

Payment of monetary contribution towards the area's water supply headworks and trunk main system for water supply for the development such amount being determined by Western Water at the time of payment.

(ii)

Any existing water service which crosses any of the proposed allotment boundaries within the proposed development must be disconnected and relocated at the developer's expense, to be wholly within one allotment only and to the satisfaction of Western Water.

(iii)

The operator under this permit shall be obliged to enter into an Agreement with Western Water relating to the design and construction of any sewerage or water works required. The form of such Agreement shall be to the satisfaction of Western Water. A copy of the format of the Agreement will be provided on request.

The owner/applicant shall make a written request to Western Water for the terms and conditions of the agreement.

(iv)

The plan of subdivision and any subsequent amendments lodged for certification is to be referred to Western Water pursuant to Section 8(1) of the Subdivision Act 1988.

9 The permit shall expire if a plan of subdivision is not certified for the subdivision hereby approved within two years of the date of this permit. The Responsible Authority may extend these time limits if a request is made in writing before the permit expires or within three months afterwards.

1 The developer applies for a two lot subdivision and the creation of a building envelope over 36 Sandy Creek Road, Riddells Creek. The proposed plan of subdivision PS 541827B shows Lot 1 with an area of 1.559 hectares, and Lot 2 with an area of 1.368 hectares. A Disperse effluent envelope is provided in lot 2.

2 This review involves two separate proceedings under the Planning and Environment Act 1987 (PEA) including a Section 79 review against the failure of the Macedon Ranges Shire Council to make a decision on the merits within the time prescribed.

3 Council advised that if permission could be granted, it would have granted it subject to conditions which were acceptable to the developer. Hence the division of the Order into an Order and Consent order.

4 The only contest was the power of the Responsible Authority to grant permission for the proposal:

i

pursuant to cl. 43.04-1 Development Plan Overlay and

ii

pursuant to cl. 1.0 of Schedule 12 to the Development Plan Overlay.

5 As these are questions of law, they have been decided by the legal member, Ms Tonia Komesaroff.

6 The second review under s.149A PEA sought a determination whether:

a. The application is generally in accordance with the development plan.

b. The application is consistent with the development plan.

c. Council has power pursuant to clause 43.04-3 of the Macedon Ranges Planning Scheme to amend the development plan to its satisfaction

7 The subject site is located on the northern side of Sandy Creek Road, north-west of Gisborne-Kilmore Road, Riddells Creek. It has an area of approximately 2.9 hectares and is relatively flat and irregular in shape. There is some native vegetation on the land, primarily along the Sandy Creek. The eastern boundary of the land follows Sandy Creek. The southern part of the land is relatively open and unfenced. The land has a slight fall form the northern to the southern end of the site.

8 The land currently accommodates a detached single storey dwelling towards the northern end of the land and an adjacent shed.

9 Riddells Creek is approximately 45 minutes from Melbourne and is accessed via the Calder Highway. The development of Riddells Creek is influenced by the high level of commuting to Melbourne and its proximity to Sunbury.

10 The land is zoned Low Density Residential clause 32.03 of the Macedon Ranges planning scheme.

11 The land is subject to a Development Plan Overlay Schedule 12, clause 43.04 of the planning scheme. Schedule 12 of the DPO relates to Sandy Creek Road, Riddells Creek and establishes conditions and requirements for permits. The DPO was gazetted on 8 June 2000.

12 The land is also subject to a Design and Development Plan Overlay Schedule 7, clause 43.02 of the planning scheme.

13 A number of state and local planning policies were highlighted for our consideration[1]. The Municipal Strategic Statement (MSS) at clause 21.02 identifies Riddells Creek as an area that has experienced population growth. The MSS identifies that rural living will be encouraged and supports rural living development in Riddells Creek.

14 Clause 22.05 Riddells Creek Township is a planning policy that applies to the use and development of land within the Riddells Creek township and environs. It is policy that future residential expansion and consolidation and town development is to occur at locations that are consistent with Policy Reference Documents and the proposals within the town centre are to be consistent with the general strategic directions set out in the Riddells Creek Town Centre Structure Plan 1991 and the Riddells Creek Township Structure Plan.

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the Responsible Authority.

•

Be generally in accordance with the development plan.

•

Include any conditions or requirements specified in a schedule to this overlay.

16 Pursuant to cl. 1.0 to Schedule 12 to the DPO,

Any application to subdivide land must be consistent with the approved Sandy Creek Road, Riddells Creek Development Plan included in this schedule.

The development plan must consist of plans or other documents and may, with the agreement of the Responsible Authority, be prepared and implemented in stages.

•

The land to which the plan applies.

•

The proposed use and development of each part of the land.

•

Any other requirements specified for the plan in a schedule to this overlay.

The development plan may be amended to the satisfaction of the Responsible Authority.

18 Is the proposed subdivision 'generally in accordance with' the Sandy Creek Road, Riddells Creek Development Plan (Plan)? Council submits that if the answer is 'no', a permit for the proposed subdivision cannot be granted since the grant of a permit would be contrary to the first dot point of Clause 43.04-1.

19 Does the permit sought by the Applicant satisfy the requirements specified in Clause 1.0 of Schedule 12 to the Development Plan Overlay (DPO)? Specifically, is the proposed subdivision 'consistent with the approved Sandy Creek Riddells Creek Development Plan included in this schedule?'

20 Council submits that if the answer is 'no', a permit for the proposed subdivision cannot be granted since the grant of a permit would be contrary to the second dot point of Clause 43.04-1.

21 If 'no' to either question, can the Plan be amended to the satisfaction of Council? Given my answer to the first two questions below, I do not decide whether the development plan can be amended by council unilaterally (as opposed to by way of planning scheme amendment and Ministerial gazettal), although my answer would likely be in the negative.

22 The parties provided the following Macquarie dictionary definitions on 'consistent':

1. agreeing or accordant; compatible; not self-opposed or self-contradictory.

2. constantly adhering to the same principles, course etc.

23 Horsfall SM in Canet v Brimbank CC[2] said at paragraph 44:

"..... the following principles must be applied to determine whether a development is generally in accordance with a permit or plans.

(a)

General accordance is a question of fact to be judged on the facts and circumstances of each case, and

(b)

The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".

24 I have also been considered the principles in Melbourne CC v Becton[3], Napolitano v Casey CC[4], Wood v Nillumbik CC[5], and Priority Properties PL v Frankston CC[6].

25 During the hearing, a great deal of time was spent analysing not only what the Sandy Creek development plan details but also what has occurred on the ground.

26 The first thing that must be said is that the Plan itself expresses no lot sizes. It is necessary to go to the Plans of Subdivision to elicit the detail, although we acknowledge that the plans of subdivision are not the development plan itself.

27 The second thing that must be said is that the Plan does not reflect the subdivision pattern on the ground that has occurred in what appear to be 'super lots' Lot C LP 221815K and Lot 3 LP88644. The exercise was akin to piecing together a jigsaw puzzle.

28 The history of the development of the Sandy Creek Road subdivision is detailed as follows.

Lot sizes range from a starting point of 1.415 ha to 3.83 ha. On closer inspection of the Plan of Subdivision, we note the following subdivision pattern (it is noted that we have only referred to lots where the data was available):

•

lots 1-5 are approximately 1.9 ha;

•

lots 9-16 range from 1.504 ha to 2.204 ha;

•

lots 20 to 26 range from 1.55 ha to 3.08 ha;

•

lots 46 to 63 range from 1.415 to 1.729 ha;

•

lots 64 to 73 range from 1.422 ha to 2.107 ha.

P96-0533 issued 12 December 1996 for Subdivision of Super Lot C, LP 221815K

P99-0900 issued 29 March 2000 for Super Lot 3 LP88644, Lot 6 PS 402886 (2.101ha) and Lot 1 LP221815K (1.062ha)[8]

Lot 6 PS 402886 - 2.09 ha

Lot 3 LP 88644 - 2ha, 2.2ha and 3.6ha.

This included an adjustment where Lot 1 was slightly enlarged with Lot 6 slightly diminished.

PS 437980Y Statement of Compliance dated 22 July 2002[9]. These resulted from the Planning Permit P99-0900 issued 29 March 2000

On 26 August 2002 VCAT refused 2-lot subdivision in P1180/2002 of Lots:

Council issued Planning Permit P203-0507 on 6 December 2004 for what was previously Lot A on PS 437980Y @ 2.09 ha. This Lot fronts Raws Lane.

29 The existing site is 2.926 ha in area and is proposed to be subdivided into two lots of 1.368 ha and 1.559 ha. Is this proposed subdivision both generally in accordance with and consistent with the Sandy Creek Road Riddells Creek Development Plan? The critical gazettal date of the Plan is 8 June 2000.

30 If we go to the Plans of Subdivision to elicit the detail on the development plan, PS 3107056 details a range of lot sizes from 1.415 to 3.83 ha with a substantial number of lots less than 2ha and around 1.4 ha.

31 As for the subdivision of 'super lots' into smaller lots before gazettal of the Plan but not revealed on the face of the Plan, what we see is that they were generally subdivided into 2 ha lot sizes, unless a smaller lot was amalgamated with a larger lot to readjust their respective sizes.

32 What this illustrates is that notwithstanding the apparent 'super lot' size of some parcels of land on the face of the Development Plan, they do not remain their original size, but are subdivided into lot sizes consistent with the majority of other smaller lots in the Development Plan.

33 There is one post-gazettal exception, and that is council subdivision on 6 December 2004 of what was a 2.09 ha sized Lot A on PS 437980Y fronting Raws Lane.

34 There is a history to this single post-gazettal exception. On 26 August 2002, Osborn, M of VCAT in P1180/2002 refused a 2-lot subdivision of two parcels of land totalling 3.445 ha, into lot sizes of 0.589 ha and 1.828 ha leaving an unidentified balance. She clearly found the 0.5 ha size unacceptable.

35 Council subsequently on 6 December 2004 permitted subdivision of what was a 2.09 ha sized Lot A on PS 437980Y fronting Raws Lane into one lot of 1.069ha leaving an unidentified balance of 1.02ha. These two lots are much smaller than the ones before us, but Mr Rantino tried to explain council's permission on the basis that it was a better outcome than the 0.5 ha refused by Osborn M.

36 Both the Responsible Authority and VCAT in 2002 and 2004 accepted there was power to subdivide lots on the Development Plan into these much smaller lot sizes, but Mr Rantino submitted that those exercises were unlawful being inconsistent with the development plan, therefore beyond council's power. Hence council's opposition in this case.

37 I do not rely on the 2004 council issued permit for 1.069ha leaving an unidentified balance of 1.02ha after gazettal of the DPO. It does appear to be at worst, suspicious, and at least, peculiar.

38 Whether or not council's acceptance of 1.069ha in 2004 is out of kilter with the development plan, the proposed lot sizes before me, at 1.368 ha and 1.559 ha respectively, reflects the range of subdivision lot sizes on the face of the plan that commenced with PS 3107056 where lot sizes range from a starting point of 1.415 ha to 3.83 ha.

39 It also reflects what has occurred on the ground with the continued subdivision of what appears on the face of the plan to be 'super lots'.

40 Applying the commonly understood meaning of 'generally in accordance' and 'consistent with' as well as the principles enunciated in case law, I find that the application is therefore both generally in accordance with the Development Plan ("DP") and is consistent with the approved Sandy Creek Road, Riddells Creek Development Plan ("DP") included in DPO12.

41 Unlike council's 2004 permission, I do not see a contradiction between the development plan and the proposal. The proposal follows the same principles applied in the development plan, where lots sizes ranged from 1.415 ha. The proposal could be massaged to 1.511 ha and 1.415 ha, instead of 1.368 ha and 1.559 ha respectively, but I see no need to do that, given that the two lots are still consistent with the Plan.

[1] Local Planning Policies at clauses 21.02, 21.03, and 21.07.

[2] [2003] VCAT 13 per Horsfall DP

[3] [2003] VCAT 1077 @ 104

[4] [2005] VCAT 1243 @ 36

[5] [2005] VCAT 1172 @ 23

[6] [2004] VCAT 1209 @ 8

[7] It is noted that the permit was issued prior to the gazettal of the Sandy Creek Development Plan at Schedule 12 of 43.04 being 8 June 2000.

[8] It is noted that the permits was issued prior to the gazettal of the Sandy Creek Development Plan at Schedule 12 of 43.04 being 8 June 2000

[9] It is noted that the permits was issued prior to the gazettal of the Sandy Creek Development Plan at Schedule 12 of 43.04 being 8 June 2000