(a) The subdivision layout altered to provide that the boundary between lots 1 and 2 be in accordance with sheet 2 of the Plan of Subdivision PS 504879Q version 04 submitted to Council on 13 August 2002.

(b) the plan show the new sewer line through the subject land serving 21A Campbell Street and provide a sewerage easement 1 metre wide in accordance with the 2 sheets prepared by Alexander Graham Pty Ltd submitted to the Tribunal with ERM's letter of 14 March 2003.

2. Prior to the issue of a Statement of Compliance, the owner of the land at 21 Campbell Road, Balwyn must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority. The agreement will relate to the lot 1 only and such agreement shall require that:

(a) No building on Lot 1 shall be erected outside the building envelope shown on the plan endorsed,

(b) No building within the envelope of Lot 1 shall be more than one storey except for that area nominated as first floor,

(c) No building within the envelope nominated as first floor will be more than two storeys.

A memorandum of the Agreement is to be entered on title for lot 1 and the cost of the preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.

3. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with that authority's requirements and relevant legislation at the time.

4. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

5. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

6. This permit will expire if one of the following circumstances applies:

(a) The subdivision is not started within two (2) years of the date of this permit.

(b) The subdivision is not completed within four (4) years of the date of starting.

The Responsible Authority may extend the periods referred to is a request is made in writing before the permit expires or within three (3) months afterwards.

Mr Andrew Cook of Environmental Resources Australia

1. This is an application by PNO Nominees Pty Ltd under Section 79 of the Planning and Environment Act 1987 against the failure of Boroondara City Council to grant a permit within the prescribed time for the subdivision of the subject land into two allotments.

2. On 12 September 2002 the Council advised the Tribunal that had the application for review not been lodged, Council's delegate would have determined to support the application in accordance with the conditions and delegates report forwarded to the Tribunal which required a building envelope.

3. A statement of grounds was lodged by the Respondent, Carol Paterson, the owner of the adjoining property 21A Campbell Road, Dibden. Her objections were:

"1. Party wall easement. The demolition of the home on the subject land required reinstatement of the party wall easement. This has not been carried out in accordance with the engineers report provided.

2. 21 and 21A Campbell Road benefit from a joint sewer. I am objecting to protect my dominant right over the joint sewer running through the subject land, and

3. A registered easement on the plan of subdivision is required allowing access to the sewer line at all times in case of blockage damage and/or replacement in time."

4. The hearing took place on 17 January 2003. Mr Jones on behalf of the Respondent advised that she did not wish to proceed with the party wall matter and that the only issue was the question of the sewerage easement.

5. Submissions were made on behalf of Council, by Mr Cook of ERM for the Applicant and by Mr Jones on behalf of the Respondent and Mr Warren Ellis, Architect, gave evidence on behalf of the Respondent, his report having been previously forwarded to the parties and the Tribunal.

6. At the conclusion of the hearing an Order was made that the Applicant will file with the Tribunal and serve on the Council and the Respondents the following documents and information:

(a) A revised draft copy of the survey plans showing:

s The surveyed position of the sewer line constructed by the Applicant along the northern boundary of the property to service the Respondent's house, and

s The location of an appropriate 1.2 metre easement for sewerage and drainage to accommodate the sewerage line.

(b) A written statement of the requirements that should be satisfied as a matter of proper building and sewerage practice and as may be required by any applicable standard, code or law for the construction of a dwelling in accordance with the proposed building envelope shown on the proposed plan of sub-division over that sewerage line."

7. Leave was given to the Applicant to make submissions or provide evidence in response to Mr Lewis' evidence, and the Respondent was given leave to make submissions on the additional material to be filed. The time limit was fourteen days. The matter was adjourned to an Administrative Mention on 17 March 2003.

8. On 7 February, Mr Cooke provided the information required by the Tribunal and also:

* A fax and copies of the relevant technical solution sheets from the Plumbing Industry Commission which outlines the conditions under which a building can be constructed over a combined drain/sewer, and

* A letter and plans prepared by Ross Greer Consultants Pty Ltd and Probe Plumbing Design Pty Ltd which showed the proposed slab and footing details where the building is proposed to be built over the sewer line.

9. They asked the Tribunal to note that the sewer line as constructed has been inspected and approved by the Commission.

10. On 13 March 2002 the Respondent's Solicitors forwarded a report from BSS Design Group responding to the matters raised by the Applicant.

11. On 14 March 2003 Mr Cook wrote to the Tribunal making further submissions and commenting on the BSS Design Group Report.

12. The parties have agreed that the matter be determined without a further hearing.

13. Mr Cook's submission to the Tribunal described the subject site as follows:

"The subject site is located on the west side of Campbell Road approximately midway between the Whitehorse Road and Mont Albert Road in Balwyn.

The site is located at the crest of a hill along Campbell Road. The site itself is relatively flat with only a gentle fall from front to rear of around 600mm.

The site is generally rectangular in shape with a frontage to Campbell Road of 27.86 metres, a depth 42.5 metres and a total site area of approximately 1,255m2.

The certificate of title for the property shows a party wall easement along part of the northern boundary. Other than this there are no restrictions or easements.

The site is occupied by a recently completed two storey dwelling in the southern portion of the site while the northern portion of the site is vacant except for an in ground swimming pool which is under construction adjacent to part of the northern boundary.

Building approvals have been issued for both the two storey dwelling and in ground swimming pool. No planning approvals were required.

The two storey dwelling is setback approximately 9 metres from the street, abuts part of the south boundary and is setback 14 metres from the north boundary.

The site as previously occupied by an older style dwelling which was demolished in accordance with a building approval during 2002."

14. Council referred to a title hiatus at the rear of the title probably resulting from historic survey inaccuracies, but no building is proposed to be constructed there and it is fenced into 21 Campbell Road.

15. The recently completed two storey building on a southern portion of the site (the area of the proposed Lot 2) is of a contemporary detached design approved in accordance with the building regulations including four ground and first floor habitable room windows in the north elevation and a double garage abutting the south boundary. Council noted that no vegetation existed on the site.

16. Mr Cook's submission described the surrounding area as follows:

"The site is located in an established residential precinct to the north of Mont Albert Road and east of Burke Road in Balwyn.

Campbell Road is exclusively a residential street except for a school/church and linear park located at its northern end. In this street there are a range of one and two storey dwellings and some unit development.

There is a mix of architectural styles in the street with a reasonable proportion of older style housing and some modern residential infill development. Large trees line both sides of the street.

Adjoining the site to the north is a two storey residential dwelling (21A Campbell Road) which is setback 8.8 metres from the street with a high front fence and between 0 and 1,6 metres from the common boundary.

This property shares a party wall with the subject site along part of the common boundary. It also shares a joint sewer line with the subject site which runs through part of the vacant land (proposed lot 1) before connecting to the street.

Adjoining the site to the south is a two storey residential dwelling (19 Campbell Road) which is setback 9 metres from the street with a lot height front fence and between 2.1 and 3.8 metres from the common boundary.

Adjoining the site to the west/rear is a large two storey dwelling which fronts Deepdene Road and private tennis court.

The site is located relatively close to public transport primarily the tram line in Burke Road to the west and Whitehorse Road to the north. There is also a local shopping strip located along Whitehorse Road to the north east.

The area is also well serviced by schools and public open space including the Outer Circle Linear Park at the northern end of Campbell Road."

17. The proposal is to subdivide the land into two lots as follows:

* Lot 1 having an area of 674m2 with a frontage width of 14 metres;

* Lot 2 having an area of 581m2 with a frontage width of 13.86 metres and a depth of 42.53 metres.

18. The proposed lot 1 is located in the northern portion of the site. It is currently vacant land which has a swimming pool under construction adjacent to part of the northern boundary.

19. The proposed lot 2 is located in the southern portion of the site and is occupied by a recently completed two storey dwelling.

20. The plan of subdivision shows only the existing party wall easement which is located along part of the northern boundary affecting lot 1. There are no other sewerage, drainage or carriageway easements with 21A Campbell Road.

21. In response to a Council request for further information a building envelope plan was prepared for lot 1 showing:

* Ground floor to abut both north and south boundaries;

* Ground floor envelope of 345m2 and first floor envelope of 174m2;

* Large private open space area to the north and west;

* Driveway access to a double garage along the southern boundary;

* Provision of 199sqm secluded open space in the northern setback and west (77sqm);

22. Clause 32.01-2 requires a planning permit to subdivide land and a subdivision must meet the requirements of Clause 56 (ResCode).

23. Clause 32.01-3 requires a planning permit to construct one dwelling on a lot of less than 500m2 in the City of Boroondara. As both proposed lots are greater than 500m2 this permit requirement is not applicable.

24. Relevant decision guidelines are contained at Clause 65 of the Planning Scheme.

25. The most relevant sections of Clause 56 in the context of this application include:

* Clause 56.01 - Site and Context Description and Design Response;

26. Relevant clauses of the State Planning Policy Framework include:-

27. The clauses of the MSS which are of most relevance to this application include:

* Clause 22.07 of the Local Planning Policy Framework contains Council's Neighbourhood Character Policy. The relevant objective of this policy is:

To encourage design solutions which enhance and respond positively and creatively to the existing neighbourhood character of residential areas in the City.

28. The 'City of Boroondara Residential Urban Character Study 1996' is a reference document to this policy.

29. The subject site is located in Character Area No. 56 in Council's Residential Urban Character Study. This area is roughly bounded by Whitehorse, Burke, Mont Albert and Bransbury Roads.

30. The character statement for this area is as follows:

This area includes a number of original estates creating diversity in period, style and size of development. Access to trams on Whitehorse Road and Burke Road give some residents in this neighbourhood good access to public transport.

The trees in private property often provide a dense canopy. The Outer Circle linear park provides access to open space and a wildlife corridor.

31. In this area there are no features which are identified as being 'very important' or 'important'. Other relevant features which are identified as being 'quite important' include:

* Subdivision pattern - distorted grid which partially fitted contours and some street hierarchy;

* Lot size and frontage - mixed pattern with dominant lot size of greater than 750m2 and dominant frontages of greater than 17 metres;

* Housing type - single family homes and some limited multi-dwelling developments;

* Front gardens - large and visible with exotic plantings;

* Building style - many different styles with 1920's -1940's period dominant, brick/masonry materials and terracotta roofs;

* Building scale - one and two storey detached and duplex dwellings of average to large size;

* Vegetation - dense canopy trees with other vegetation variable.

32. Council has developed a Residential Land Subdivision Policy passed by Council on 9 November 1998 which it has relied on in its assessment of this subdivision application.

(a) A proposed condition on the permit by the Council that the setback of the south wall of the building envelope on lot 1 should be a minimum of 1200mm from the south boundary. As the proposed building envelope for lot 2 adjoins the boundary for a short distance, this would create a 1.2 metre gap between the two buildings.

(b) The requirement of the City that no building on lot 1 shall be erected outside the proposed building envelope, no building within lot 1 shall be more than one storey except for the area nominated as first floor and no building within the envelope nominated as first floor will be more than two storeys.

(c) The dispute with the Respondent who claims that no building should be erected over the sewerage line on the subject site serving 21A Campbell Road.

34. Council's position was that it would not have decided to issue the permit without requiring a building envelope and the gap between the existing building on lot 2 and the proposed building envelope on lot 1, for the reasons that:

(a) it would reflect the subdivision pattern of the street and that together with 21A Campbell Street

(b) there would be 3 buildings with no gaps between them which would not be in keeping with the detached character of the street.

35. Council considered that an uninterrupted frontage over 3 lots (about 60 metres) would create an impression of excessive bulk and be incongruous with the prevailing neighbourhood character. And also Council's Urban Design Advice indicated that there should be restrictions on site front setback side setbacks and public private interface.

36. There is no dispute that each of the proposed lots is well in excess of 500m2 in area and that the planning scheme only requires a planning permit to construct or extend one building on lots over 500m2 or less, and that as a result the construction of one dwelling on each of these lots is "as of right". Mr Cooke submitted that Clause 56.06-4 suggests that building envelopes be submitted with subdivision applications which create lots of between 300m2 and 500m2.

37. Council has relied on its Residential Land Subdivision Policy and the Residential Urban Character Study as well as the provisions of Clause 22.07 relating to neighbourhood character as the justification for the building envelope in this case.

38. The Residential Urban Character Study (1996), whilst not an incorporated document is a reference document, and is specifically referred to in Clause 22.07. The opening paragraph of Clause 22.07 specifically states that the policy applies to "land subdivision" as well as to multi-dwelling development and single dwelling development on lots of less than 500m2. The Residential Land Subdivision Policy relied on by Council was passed by Council on 9 November 1998 and Council has relied on it as a basis for the building envelope requirements. On page 5 the policy is expressed

"The policy will apply to new lots above 300 square metres and lots that are under the dominant size as specified in the neighbourhood character statements of the Residential Urban Character Study."

which Mr Cook acknowledges as being 750m2 or more. This policy on its face would apply to this case.

39. On page 5 it indicates Council will require applicants to submit (amongst other things) "a building envelope for residential development indicating building height, setbacks, private open space areas and driveway and car parking areas and any other matter considered 'very important,' 'important' or 'quite important' in the Residential Urban Character Study." However Mr Cook submitted that the Urban Character Study for this area indicates that the pattern of lots sizes and frontages in this area is mixed and does not identify this feature of the area as being "very important" or "important", only "quite important", and this reflects the diversity of lot sizes and frontages which are found in the area and in Campbell Road. Mr Cook also submitted that the lots on the subdivision are of a size that reflects the neighbourhood character and the provisions of Clause 56.06-4 of the current scheme would not appear to apply to require a building envelope.

40. The question therefore in these circumstances is that what policies and provisions in the planning scheme support the Council's requirement for a building envelope and that the envelope be set back a minimum of 12,000mm from the south boundary.

41. The current provisions of the planning scheme would not appear to support these conditions. Each lot is well in excess of 500m2 and no planning permit is required to construct or extend one dwelling on a lot of greater than 500m2. The construction of a dwelling on these lots is as of right and subject only to building approval.

42. Clause 56 of the planning scheme regulates residential subdivision. Clause 56.06 regulates lot size and orientation and its objective is to:

"to provide a range of lot sizes to suit a variety of dwellings and household types, with an area and dimensions that meet user requirements."

43. Clause 56.06-4 - Standard C21 indicates that a subdivision creating a lot of between 300 - 450m2 should contain a building envelope meeting certain requirements, but there is no suggestion in Clause 56 of any requirement for building envelope for a lot in excess of 450m2. I agree with Mr Cook's submission that where a single dwelling is built as of right some of the relevant objectives and standards of Clause 54 are to be considered by the building surveyor in assessing the building permit application.

44. The next question is what status should be given to the Residential Land Subdivision Policy. This policy is not an incorporated policy in the scheme and does not appear to be a reference document. There has been no material put to me in relation to the weight that can be placed on this policy in terms of the well known principals of Australian Aluminium Shop Fitters v City of Fitzroy and Lyndal and Black. The policy was also adopted in 1998 and has been superseded by the provisions of the VPP planning scheme. It would appear to me that in these circumstances very little weight can be placed on this document in assisting the Tribunal in the exercise of its discretion.

45. I also agree with Mr Cook's submission that the policy should not be regarded as a planning control in that it appears to require a building envelope for lots over 500m2. The planning scheme does not require a building envelope for such a lot, whatever weight can be given it, can only be used by the Responsible Authority or by the Tribunal in the exercise of discretion and should not be treated as a de facto planning control itself. Further I agree with Mr Cook's submission that given the characterisation of the property under the Residential Urban Character Study as "quite important" and given the diversity of lot sizes and frontages found in the area and in Campbell Street, the lots are of size that reflect the neighbourhood character and the provisions of Clause 56.06 applies to land subdivision.

46. The policy basis recognises the City's high quality residential environment and states that new development should provide creative and site responsive design solutions.

47. It recognises the residential urban character study to systematically quantify and define the characteristics of the various residential neighbourhoods in the City.

48. The policy refers to the neighbourhood character statements.

49. Clause 22.07-3 creates policy that (which applies to Clause 56):

* The relevant neighbourhood character statement be considered

* The creation of more than one lot respects the prevailing subdivision patterns of the street

* Newly created lots respect the prevailing frontage widths of the area, and

* The scale of new buildings or additions complements the prevailing building scale of the area.

50. The neighbourhood character statement relevant to this case has been referred to above.

51. The consideration of the application by the Council in relation to the proposed building envelope were that:

* It is not considered that this increase in density or causes significant change in the character of the area.

* The building envelope indicate the likely provision of a double garage on the dwelling on Lot 1 with a set back that enables a visitor car space to be provided in the driveway.

* It is not considered that the additional dwelling will severely impact parking availability in the street.

* It is considered that the frontage set back is satisfactory and consistent with the set backs of adjacent properties in accordance with Clause 56.

* It is considered that the set backs and scale of the dwelling for Lot 1 will be consistent with the neighbourhood character.

* It is consistent with the proposed frontage set back allows sufficient space for planting to be consistent with neighbourhood character.

52. The existing building does not require planning approval and was constructed in accordance with the neighbourhood character.

53. Council's submissions were that it would not have issued the permit without a building envelope.

54. It is noted in Mr Cook's submission that the building envelope plan was submitted with his client's consent although his client now objects to the imposition of any building envelope at all.

55. My decision in the circumstances of this case is that the requirements of the planning scheme do justify a building envelope where issues of neighbourhood character and site context require the same even though the lot is in excess of 450m2. In this case I considered that the building envelope submitted by the Applicant is satisfactory except that I do not consider that there needs to be any setback from the southern boundary.

56. Accordingly my approval will require the building envelope with this modification.

57. The Respondent's objection to the subdivision derived from the fact that the house at 21 Campbell Street, was serviced by a sewerage line running through the proposed Lot 1.

58. On advice, the Respondent has formed the view that she was not prepared to create a new sewerage line on her own land by drilling under her house due to fears for the foundations.

59. As indicated above the Applicant had constructed a new sewerage line over Lot 1 and for most of its distance running 2.4 metres to 2.6 metres inside the boundary of Lot 1 with three inspection outlets shown. The Applicant has submitted material showing:

* The location of the existing new sewerage line and the inspection outlets.

* A proposed sewerage easement one metre wide over that line.

* Drawings for the sewerage line and for slab and footing plans if a building were to be constructed over it and

* Documentation from the Plumbing Industry Commission showing the conditions which could apply if a building were to be constructed over a sewerage line, and

* Compliance certificates for the new sewerage line.

60. The Applicant did not contest that the plan of subdivision should show an appropriate easement over a new sewerage line nor did the Applicant contest that the construction of a new building over the new sewerage line should comply with the plans and specifications supplied or the requirements of the Commission.

61. The fax dated 28 January 2003 from the Commission stated as follows:

"Plumbing Regulations have always permitted drains to be laid under a building. Traditionally as most drains were of stoneware pipe materials the drains were encased in concrete. Also as most drain clearing techniques involved excavation the preference was for a drain to be external to a building.

The current Regulations, AS/NZS 3500 National Plumbing and Drainage Code continues to permit drains under buildings. Nationally thousands of buildings of concrete raft slab construction are built annually over sewer drains.

Drain materials, drain laying techniques and drain clearing equipment have all changed for the better where hopefully, results in a trouble free drain under a building for the life of the building. In Victoria, under Part 12A of the Building Act, Plumbers have to provide a specially numbered Compliance Certificate for any below ground sanitary drainage work. The plumber is certifying that the installation complies with AS/NZS 3500 and that "approved" materials have been used. The certificate if for Consumer Protection and covers a 6 years guarantee on their work.

In cases where a building is constructed over a combined drain or an encroaching drain from another property, the Plumbing Industry Commission will through the Part 12A of the Building Act process a modification or variation to the Regulations and attach certain conditions of installation such as:

* The property sewer must be in approved material. (Old stoneware pipes must be replaced).

* Inspection openings to surface (Inspection Shaft) are provided at both the entry to and the exit from the building.

* No connections are permitted to the drain where under the building.

Also attached for your information are copies of 2 Technical Solution Sheets, which relate to building over property sewers."

62. A further letter dated 29 November 2002 from the Commission indicated that it had given its approval to the building of a new residence of the new sewer line subject to the conditions set out in that letter which were as follows:

"The report from BSS Design Group presented on behalf of the Respondent by Mr did not in substance address except in generalised terms the issue of building over the new sewer line.

63. I am satisfied from the material produced by the Applicant that it is appropriate for the subdivision to proceed on the basis that the sewerage easement is created and that a Section 173 Agreement be entered into allowing construction over the building line provided the plans and specifications provided are complied with and the conditions of the Commission are also complied with.