With respect to permit application no. PLP 2003/726, the Responsible Authority's decision to refuse the grant of a permit is set aside. A permit is granted for the subdivision of land and removal of native vegetation at Lot C, LP 222390L, Parish of Buninyong, Mount Helen Avenue, Mount Helen. The permit must contain the following conditions:

1. Before the subdivision is certified under the Subdivision Act 1988 and site vegetation removed amended plans to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a)

The realignment of the natural gully which traverses the eastern portion of the site;

(b) The extension of the public open space reserve to the western boundary of the land at a width of about 20m and generally in the location of the adjoining lots shown with an area of 1459 m² and 1106 m² respectively and incorporating the significant trees shown on the THA "Preliminary Landscape Plan";

(c) Designation of a building envelope not exceeding 500sqm on all lots containing the significant large remnant trees identified on the concept plans lodged with the application;

(d) The designation of the central 3.7ha as a proposed public open space reserve to vest in the Council.

(e) Fire access tracks connecting the following roads, with lockable steel gates or bollards at each end (but with ease of access by pedestrians/cyclists):

•

Sobey Street and Sewell Court;

•

Sobey Street and Chatham Avenue;

•

Riley Court and Logan Court, and

•

Logan Court and Brodie Court.

When approved, the plan will be endorsed and will then form part of the permit.

2. The formal plan of subdivision lodged for certification must be in accordance with the endorsed plan and must not be modified except to comply with statutory requirements or with the written consent of the Responsible Authority.

3. The plan of subdivision submitted for certification must include a creation of restriction on a separate sheet showing the building envelopes referred to in Condition 1 (c) in accordance with the approved plan. The wording of the restriction shall be as follows:

Land to be Burdened: lots (insert lot numbers based on endorsed subdivision plan) on this plan.

Land to Benefit: All lots on this plan

Creation of Restriction

Upon registration of this plan, the following restriction is created.

Description of Restriction

"No buildings or works and construction of paved areas including driveways or service installation shall be undertaken outside the building envelopes shown hatched".

Definitions

"Building" - any structure except a fence.

Section 173 Agreement

4. Prior to certification of the Plan of Subdivision the owner shall enter into an Agreement with the Responsible Authority pursuant to the provisions of Section 173 of the Planning & Environment Act 1987 in which it shall be covenanted that:

(i)

Any front and rear fences on lots abutting Crown Allotments 51E and 51J parish of Buninyong must be constructed of the type approved under this Planning Permit.

(ii) No vegetation may be removed without the submission to the responsible authority of a 'Vegetation Management Site Plan' prepared and certified to the satisfaction of the Responsible Authority (having regard to the 'Native Vegetation Management Framework) by a suitably qualified ecological specialist which identifies vegetation to be removed and planted on site (species of new plantings and significance and health of existing vegetation), remnant site vegetation management and protection. When approved the plan shall be endorsed by the responsible authority. Not more than 500 square metres of vegetation may be removed within each lot without the need for a further planning permit for vegetation removal. All vegetation management recommendations shall be complied with during site works in accordance with the endorsed plan.

(iii) There shall be no further subdivision of any lot other than a subdivision which consolidates lots;

(iv) No more than one dwelling be constructed on each lot;

(v) A rainwater tank shall be provided on each lot to the satisfaction of the Responsible Authority.

(vi) No cats or dogs may be kept on any lot.

(vii) The owner must arrange for the preparation of the Section 173 Agreement at is/her cost and subject to the approval of the Responsible Authority.

5. The offsets for vegetation removal generally according to the principles of Net Gain in the Native Vegetation Management Framework must be detailed and determined and provided for to the satisfaction of the Responsible Authority following consultation with the Department of Sustainability & Environment including secure arrangements for the measures to be carried out.

Site fencing

6. A 'Koala Fencing plan' is to be prepared to the satisfaction of the responsible authority and submitted to the responsible authority for approval prior to the issue of a Statement of Compliance and any fencing works. The plan must detail 'koala friendly fencing design options for any front and rear fences for all lots which abut CA5IE and CA5IJ Parish of Buninyong. When endorsed the Plan shall be endorsed as forming part of this permit.

7. Prior to the issue of a Statement of Compliance, any shared boundaries with Crown Land must be fenced to the satisfaction of the responsible authority and the Department of Sustainability and Environment (consistent with the endorsed 'Koala Fencing plan') at the owner's expense. Such fencing must be at least 1.8m high and must not include any gates.

Vehicle crossing plan:

8. All vehicular crossings must be located to minimise site disturbance and vegetation impact and in accordance with a 'Vehicle Crossing Location Plan' prepared to the satisfaction of the responsible authority and submitted to the responsible authority for approval prior to the issue of a Statement of Compliance and any works. The plan must be prepared with reference to the endorsed Environmental Management Plan. The works shall include the construction of a concrete layback and apron.

Fire access track work

9. Prior to the issue of a Statement of Compliance under the Subdivision Act 1988 all fire track works including bollard/gates shall be constructed to the satisfaction of the responsible authority.

10. Prior to the removal of any native vegetation from the site and prior to the issue of a Statement of Compliance for the first stage of subdivision, a detailed Environmental Management Plan for Lot C on LP222390L must be prepared by a suitably qualified ecological specialist and submitted to and approved by the Responsible Authority, following consultation with the Department of Sustainability and Environment. When approved the plan will be endorsed and will then form part of the permit.

The Environmental Management Plan for Lot C on LP222390L must include the following details:

(i) 'Public Open Space Reserve' development and management including:

(a) Works within the reserve to achieve net gain objectives including:

A species list for each EVC, including basic site preference details for each species;

The need to source local seed stock and options available for sourcing of local seed;

Details of areas for revegetation or natural regeneration, including the approximate ultimate planting densities for each species or group of species (consistent with the relevant EVC species and characteristics);

The need for revegetation works to be carried out by a suitably qualified ecological specialist;

The environmental restoration of gullies and any other areas likely to be impacted on during and post subdivision development (eg. areas close to the reserve boundaries);

Fencing and/or bollards to control human and vehicle movements.

(b) Location and details of other site works, including foot/cycle paths, signage, emergency access and site management facilities.

(c) Plans for the realignment and rehabilitation of the natural gully traversing the eastern portion of the site, to a somewhat natural condition with environmental flows maintained.

(ii) Site management during subdivision works including:

(a) Identification of vegetation to be retained within road reserves, including the large old trees identified on the endorsed plans as being retained;

(b) Requirements for the installation of temporary fencing (eg: para-webbing) to protect vegetation to be retained throughout the subdivision;

(c) Requirements for the installation of temporary erosion and sediment control works;

(d) Location of materials stockpiles, vehicle parking and storage areas and management of those areas to protect environmental values, and

(iii) Services installation and management including options for common trenching and boring under significant vegetation.

The Plan shall address both on site management and the potential impacts and management solutions off-site (i.e. waterway protection). The plan will need to incorporate an assessment of the impacts on the waterway from increased stormwater volume and velocity, water quality control and litter management and must ensure that environmental flows along the gullies are maintained. The design shall comply with the Best Practice Environmental Management Guidelines for Urban Stormwater (CSIRO) as adopted in the Council's Municipal Stormwater Management Plan.

Landscape Plans for all landscape works within the public open space reserve and road reserves must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The Landscape Plans must provide detailed planting, construction and specification details for all of the proposed landscaping works on the reserves and roads including:

(a) all existing vegetation to be retained, protected and/or removed;

(b) proposed topography and earthworks;

(c) drainage infrastructure within public reserves;

(d) landscaping and planting within all public open spaces and roads

(e) street tree plantings;

(f) landscaping of traffic management devices (eg roundabouts, centre medians, entry treatments etc);

(g) a planting schedule of all proposed trees, shrubs, grasses and ground covers, including botanical names, common names, supply sizes, and plant numbers;

(h) landscape features (including playground, paths and park furniture and signage);

(i) all finished surfaces (eg lawns, paving, mulched garden beds etc), and

(j) perimeter fencing to all private boundaries adjoining pubic reserves (except road reserves).

11. Prior to the issue of a Statement of Compliance for the final stage of subdivision, a suitable site or sites must be identified for off-site net gain native vegetation offsets, equating to a total of 3.48 habitat hectares of Heathy Dry Forest and 0.62 habitat hectares of Grassy Dry Forest, to the satisfaction of the Responsible Authority, following consultation with the Department of Sustainability and Environment.

12. Prior to the issue of a Statement of Compliance for the final stage of subdivision, a separate detailed Environmental Management Plan for Net Gain Offsets must be prepared for each site, by a suitably qualified ecological specialist and submitted to and approved by the Responsible Authority, following consultation with the Department of Sustainability and Environment. When approved the plans will be endorsed and will then form part of the permit. Each Environmental Management Plan for Net Gain Offsets must include a site description, copy of title and details of the works required to achieve net gain objectives (as appropriate):

A schedule of works;

Monitoring and maintenance regime;

Pest plant and animal control methods;

A species list for each EVC, including basic site preference details for each species;

The need to source local seed stock and options available for sourcing of local seed;

Details of areas for revegetation or natural regeneration, including the approximate ultimate planting densities for each species or group of species (consistent with the relevant EVC` species and characteristics);

The need for revegetation works to be carried out by a suitably qualified ecological specialist;

Any erosion and sediment control;

Any fencing and/or bollards to control human, vehicle or grazing animal movements;

Measures to be implemented to improve the security of any offset works on freehold land, such as the registration on title of a Trust For Nature Covenant or a Section 173 Agreement (incorporating a site management plan), or (subject to agreement) transfer of the land to the Responsible Authority or the Crown.

13. Prior to the commencement of any native vegetation clearing or construction works, all temporary fencing and sediment control works specified in the Environmental Management Plan for Lot C on LP222390L under "site management during subdivision works" must be completed to the satisfaction of the Responsible Authority.

14. Prior to the issue of a Statement of Compliance, all works specified in the endorsed Environmental Management Plan for Lot C on LP222390L, as relevant to the particular stage of subdivision, must be completed to the satisfaction of the Responsible Authority. Prior to the issue of a Statement of Compliance for the final stage of subdivision, all works specified in the endorsed Environmental Management Plan must be completed to the satisfaction of the Responsible Authority.

15. Prior to the issue of a Statement of Compliance for the final stage of subdivision, all works specified in the endorsed Environmental Management Plan for Net Gain Offsets, including measures to be implemented to improve the security of any offset works on freehold land, such as the registration on title of a Trust For Nature Covenant or a Section 173 Agreement (incorporating a site management plan, or (subject to agreement) transfer of the land to the Responsible Authority or the Crown, must be completed to the satisfaction of the Responsible Authority.

16. All easements deemed necessary to protect existing or future drainage lines within the proposed development site and properties between the development site and the nominated point of discharge shall be created to the satisfaction of the Responsible Authority.

17. A Preliminary Site Investigation report in accordance with Section 3 of AS4482.1-1997, prepared by an appropriately qualified professional, shall be submitted to the Responsible Authority prior to the issue of the Statement of Compliance.

18. Should the Preliminary Site Investigation report indicate that contaminating activities took place on the site or that contaminants are present, a Detailed Site Investigation in accordance with Section 4 of AS4482.1-1997 shall be undertaken. The Detailed Site Investigation report shall include any recommended remediation works and examine the identified mining activity remnants.

19. If the report is accepted by the Responsible Authority, the remediation works shall be completed by the applicant to the satisfaction of the Responsible Authority prior to the issue of the Statement of Compliance.

20. If there are concerns about the nature and extent of the contamination found in the Preliminary and Detailed Site Investigation reports, the Responsible Authority reserves the right to require a statutory environmental audit to be undertaken. In this case either:

(a) A certificate of environmental audit shall be issued for the land in accordance with Part IXD of the Environment Protection Act 1970 prior to the issue of the Statement of Compliance; OR

(b) An environmental auditor appointed under the Environmental Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the intended use prior to the issue of the Statement of Compliance.

21. Pursuant to Section 17(2)(b) of the Subdivision Act 1988 and Clause 8 of the Subdivision (Permit and Certification Fees) Regulations 1989, the prescribed fee for supervision of work shall be up to 2.5 per cent of the cost of constructing those works, which are subject to supervision. Such a fee shall be paid to the Responsible Authority prior to the issue of a Statement of Compliance.

22. Pursuant to Section 43(2)(a)(iv) of the Subdivision Act 1988 and Clause 9 of the Subdivision (Permit and Certification Fees) Regulations 1989, the prescribed maximum fee for checking engineering plans shall be 0.75 percent of the estimated cost of constructing the works proposed on the engineering plan. Such a fee shall be paid to the Responsible Authority prior to the issue of a Statement of Compliance.

23. A street lighting proposal for the proposed development shall be prepared by a suitably qualified and experienced person generally in accordance the appropriate sections of AS1158, having regard to the classification of the road, and submitted to the Responsible Authority for approval.

24. Once approved all works detailed on the plans shall be installed to the satisfaction of the Responsible Authority prior to the issue of a Statement of Compliance.

25. Three sets of civil plans, designs, computations and specifications shall be submitted to the Responsible Authority for approval prior to works commencing on the site. All works shall be completed in accordance with the approved plans, design, computations and specification to the satisfaction of the Responsible Authority.

26. At the completion of the works one set of 'as constructed' civil plans shall be submitted to the Responsible Authority.

The works to be completed include:

- placement and compaction of road pavement

- construction of barrier kerb and channel both sides

- placement of asphalt wearing course

- underground drainage

- any road management works including 'slow down points'

27. A turn around area suitable for CFA / service vehicles shall be provided at each dead end road.

Central Highland Region Water Authority (ref: 5232)

28. Any plan lodged for certification will be referred to the Central Highlands Region Water Authority pursuant to Section 8(1)(a) of the Subdivision Act 1988.

29. Reticulated sewerage facilities must be provided to each lot by the owner of the land (or applicant, in anticipation of becoming the owner) to the satisfaction of the Central Highlands Region Water Authority. This will require the construction of works and the payment of major works contributions by the applicant.

30. A reticulated water supply must be provided to each lot by the owner of the land (or applicant, in anticipation of becoming the owner) to the satisfaction of the Central Highlands Region Water Authority. This will involve the construction of works including the upgrade of some reticulation mains and also the payment of major works contributions, by the applicant.

31. The owner will provide easements to the satisfaction of the Central Highlands Region Water Authority, which will include easements for pipelines or ancillary purposes in favour of the Central Highlands Region Water Authority, over all existing and proposed sewerage facilities within the proposal.

32. The owner will provide easements to the satisfaction of Central Highlands Region Water Authority for pipelines or ancillary purposes through adjoining land, as it is considered by the Authority that such easements are required for the economical and efficient servicing of sewerage facilities to the subdivision.

33. If the land is developed in stages, the above conditions will apply to any subsequent stage of the subdivision.

Country Fire Authority (ref: 69009-683559-684504 )

Access

34. Fire vehicle access points must be provided at all dead ends which abuts public open space, they are to be lockable with '003' locks or another lock approved by CFA.

35. Access tracks are to be provided within the public open space, with the road construction being able to sustain 15tonnes, there is to be 4-metre height & 4-metre width clearance around each access road.

36. 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 height clearance above all roads within the subdivision.

Water Supply

37. There must be a hydrant within 120 metres from the outer edge of the building envelope.

38. Fire hydrants must be identified in accordance with the Fire Service Guideline - Identification of Street Hydrants for Fire Fighting Purposes

Protective Features

39. Areas of Public Open Space must be managed in a minimum fuel condition during the Fire Danger Period.

Powercor Australia Ltd (ref: B31270 )

40. The plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to Powercor Australia Ltd (Powercor) in accordance with Section 8 of that Act.

41. The applicant shall enter into negotiations with Powercor prior to the lodging of a Plan of Subdivision for certification. An agreement may be required with Powercor for the supply of electricity to each lot and for the extension, augmentation or re-arrangement of any existing electricity supply system as required by Powercor, subject to Powercor being able to provide a supply of electricity. (A payment to cover the cost of such work will be required). In the event that a supply cannot be provided the applicant shall provide a written undertaking to Powercor that prospective purchasers will be so informed.

42. The applicant shall re-arrange, to the satisfaction of Powercor, any existing private electric lines that cross boundaries of the proposed lots to supply existing installations. Such lines shall be constructed with underground cables.

43. The applicant shall provide easements or set aside reserves satisfactory to Powercor, where easements or reserves have not been otherwise provided, for all existing and new Powercor electric lines and substations on the land required to service the lots and adjoining land, save for lines and substations located, or to be located, on public roads set out on the plan. These easements and reserves shall be "in favour of Powercor Australia Ltd".

44. The applicant shall provide to Powercor Australia Ltd., a copy of the version of the plan of subdivision submitted for certification, which shows any amendments which have been required.

Telstra (ref: PID9886).

45. The applicant must enter into an agreement with Telstra or other licensed telecommunications carrier for the satisfactory provision of telephone cable reticulation to extend (1) one metre into each allotment created.

46. The plan of subdivision submitted for certification must be referred to Telstra or other licensed telecommunications carrier, whichever is appropriate, in accordance with Section 8 of the Subdivision Act 1988.

47. Set aside on the plan of subdivision, reserve/s satisfactory to Telstra, for Telecommunications substation/s if required.

TXU Networks (Gas) (ref: S-03-3539 )

48. Easements in favour of TXU Networks (Gas) must be created on the plan to the satisfaction of TXU Networks (Gas).

49. The plan of subdivision submitted for certification must be referred to TXU Networks (Gas) in accordance with Section 8 of the Subdivision Act 1988.

Public Open Space Contribution

50. Prior to the issue of a Statement of Compliance for the final stage of subdivision, the owner shall pay to the Responsible Authority the sum of $30,000.00 in full satisfaction of its public open space contribution.

The Responsible Authority is directed to issue a permit in accordance with this order.

Ms T Heber, Solicitor, Maddocks. Mr Drysdale also appeared in person.

These parties did not make submissions at the hearing.

1

This was an application under Section 77 of the Planning and Environment Act 1987 [the Act] against the Ballarat City Council's decision to refuse the grant of a permit with respect to permit application no. PLP 2003/726. The permit application seeks permission to subdivide land known as Lot C, LP 222390L, Parish of Buninyong, Mount Helen Avenue, Mount Helen, into 87 lots. The grounds of refusal are:

The subdivision will detrimentally impact on the landscape character and biodiversity of the area.

The subdivision fails to satisfy the purpose of the Vegetation Protection Overlay and the statement and nature of significance of vegetation to be protected and the vegetation objectives to be achieved of Schedule 1 of the Overlay.

The subdivision fails to comprehensively assess the environmental effects of the use and development of the subdivision required under Clause 65 of the Ballarat Planning Scheme.

The subdivision will prejudice the proper and orderly planning of the area given the Outline Development Plan to be prepared for the Mt Helen area.

2

This hearing took place over 2 separate stanzas, the first comprising 3 days at the Ballarat Town Hall during which the submissions and evidence were presented; the second, a short hearing on the 24 September 2004 at VCAT [Melbourne] with respect to revised habitat score calculations and permit conditions.

3

At Ballarat, Mr Cicero, Ms Heber, Ms Stupak, Mr Drysdale and Ms Zibell tabled and spoke to written submissions whilst the persons representing the other objectors made oral submissions. I was also presented with an array of other material to assist my consideration of the proposal. This included various plans, maps and photographs; extracts from the planning scheme as it stands today as well as in the past; various internal Council documents as well as an assortment of other documents. Mr Lowe also presented a slideshow.

4

A number of witnesses with expertise on the ecology were called to give expert evidence. Ms Stupak called Mr Andrew McMahon of Ecology Australia Pty Ltd. Mr Cicero called Mr John Miller of Biosis Research and Mr Paul Kelly of ERM. These witnesses were made available to be cross-examined by the opposing parties.

5

The submissions, evidence and material submitted at the hearing have been considered and documents have been retained on the tribunal's file.

6

I inspected the subject site and surrounding area in the company of the persons representing the various parties. My inspection included walking through the site and viewing it from various external points including from Mr Drysdale's property.

7

During the course of giving his evidence, Mr Miller conceded that the habitat score and hectare figures set out in the table at page 17 of his report were incorrect and required revision. I gave directions for the table to be corrected and for the applicant to forward it to the relevant officer's at the Department of Sustainability and Environment [DSE] to ascertain whether they had any comment to make and for any such comment to be provided to the tribunal.

8

After the parties completed their submissions, the usual discussion on permit conditions took place. During this discussion, it was apparent that the draft conditions provided by the Council required considerable revision. The applicant was given directions to revise the draft conditions and for these to be circulated to the parties for comment.

9

In light of the above, the parties agreed that the hearing should be reconvened in Melbourne at a later date to allow the referral of revised figures to DSE and for the conditions to be revised. On the 24 September 2004, I considered submissions with respect to the outstanding matters concerning Mr Miller's revised calculations and the revised conditions which had been prepared and circulated by the applicant in accordance with my directions.

10

The subject site comprises an irregular, quasi wedge-shaped lot that has an overall area of about 15.92 hectares. The site is vacant and covered with remnant bushland.

11

Mr Miller described the vegetation on the site as follows:

The proposed development area is almost completely vegetated and supports mainly heathy dry forest consisting of coppice regrowth stringy-bark trees over a predominantly native heathy understorey with a smaller area of grassy dry forest with a grassy understorey at the southern end.

12

There are 3 Ecological Vegetation Classes [EVC's] on the site; Heathy Dry Forrest; Grassy Dry Forrest and Valley Grassy Forrest.

13

The terrain is undulating, generally sloping from the north down to the south with two gullies running roughly in a north-south direction converging at the site's southern end.

14

Road access is available at both the northern and southern ends via existing residential streets [Mount Helen Avenue, Sobey Street and Chatham Avenue] that currently terminate as road 'stubs' at the site's boundaries. The site, which is privately owned, is unfenced and it is apparent that is has been accessed for walking, trail bike riding and some dumping of rubbish.

15

I understand that infrastructure services in the form of reticulated electricity, sewer and water are available to the site.

16

The site is located between conventional "suburban" sized lots to the north, east and south, with larger land holdings to the west comprising a 'rural lifestyle' bush lot and land that has been used as a pine plantation.

17

The site's northern and eastern boundaries in particular have a direct abuttal with the side and/or rear boundaries of about 40-50 conventional suburban sized residential properties generally occupied by detached dwellings fronting onto Darriwell Avenue, Mount Helen Avenue, Sobey Street, Rathkeale Street and Chatham Avenue. The age and design of the dwellings varies as does the level of vegetation cover on individual properties.

18

Contextually the site is located about 8 kilometres south of Ballarat's CBD, about 3 kilometres north of the Buninyong township and just to the east of the University of Ballarat.

19

The proposal involves the subdivision of the site into 87 residential lots ranging in size from 712 square metres to just under 1877 square metres.

20

It is proposed that some lots would have defined building envelope areas [as shown on the subdivision plan]. Further, it is intended that permission to remove vegetation be restricted [by way of a Section 173 agreement] to not more than 500 square metres on each lot with further permission required if more vegetation is to be removed. Accordingly, it is estimated that, potentially, about 4.35 hectares of the site would be cleared if all vegetation within the 500 square metre development area on each lot were removed.

21

It is estimated that about 3.3 hectares of vegetation would also need to be removed for infrastructure. As such, it is estimated that up to 7.68 hectares of the site could be cleared on native vegetation.

22

The lots are to be generally located around the perimeter of the site and allow for the creation of a central open space reserve. The central open space has an area of about 3.7 hectares and is to be preserved as a bushland reserve. It is intended that the integrity of this bushland area be maintained during the construction phase and then enhanced through measures such as weed eradication and revegetation. It is also intended that this central open space area be designated as a reserve to be vested in the Council.

23

The road layout involves extending existing streets that currently end as road 'stubs' into the site. The road design essentially encircles the central bushland reserve. This allows for a significant number of lots [about 55] to have a direct outlook onto the centrally located bushland reserve.

24

Under the Ballarat Planning Scheme, the subject site is located within the Residential 1 Zone, the provisions for which are found at Clause 32.01. The purpose of the zone is:

To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

25

Pursuant to Clause 32.01-2 of the planning scheme, a permit is required for the subdivision of land. This clause also states that a subdivision must meet the requirements of Clause 56 of the scheme. Relevant decision guidelines require consideration to be given to the planning scheme's policy frameworks and the objectives and standards at Clause 56. Applications for subdivision are required to be referred to a number of servicing authorities as set out at Clause 66.01 under Section 55 of the Planning and Environment Act 1987.No permission is required under the zone control to remove vegetation or to construct one dwelling on a lot.

26

The site is also covered by the Vegetation Protection Overlay [VPO] with the provisions in Schedule 1 being applicable. The purpose of the Vegetation Protection Overlay, as set out at Clause 42.02, is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To ensure that development minimises loss of vegetation.

To recognise vegetation protection areas as locations of special significance, natural beauty, interest and importance.

To maintain and enhance habitat and habitat corridors for indigenous fauna.

To encourage the regeneration of native vegetation.

27

A schedule under this overlay must contain a statement of the nature and significance of the vegetation to be protected and the vegetation objective to be achieved. Under Clause 42.02-2, a permit is required to remove, destroy or lop any vegetation specified in the schedule. The decision guidelines are at Clause 42.02-3.

28

The "Statement of nature and significance of vegetation to be protected" in Schedule 1 to the overlay is as follows:

All native vegetation is significant in this area and is to be protected for the following reasons:

•

The high level of vegetation cover makes a valuable contribution to the character of the area;

•

The vegetation has high habitat value;

•

The vegetation is valuable in the management of the land including the prevention of erosion and salinity.

29

The "Vegetation protection objective to be achieved" is:

Protection of vegetation within areas which are characterised by extensive tree cover.

Protection of vegetation which has land management value and ensuring that where existing vegetation is removed replacement planting takes place where required to address existing or prevent future land management problems.

30

The schedule goes on to state that for the purposes of Clause 42.02-2, the vegetation specified [i.e. for which a permit is required for removal] is any native vegetation with a height over 1 metre. As such, much of the vegetation to be removed requires a permit under this overlay, however, it is relevant to note that this would not apply to low level understorey vegetation with a height of 1 metre or less. Relevant decision guidelines are set out at Clause 5.0 of the schedule. Amongst other things, these require that consideration be given to the scenic and habitat value of the vegetation to be removed as well as the degree to which the vegetation contributes to addressing or preventing land management problems.

31

Provisions relating to native vegetation are at clause 52.17. The purpose of the control is:

To protect and conserve native vegetation to reduce the impact of land and water degradation and provide habitat for plants and animals.

32

Under this control, a permit is required to remove native vegetation, if amongst other things the lot in question is greater than 4000 square metres. The decision guidelines require consideration to be given to, amongst other things:

• The goal of Net Gain expressed in Victoria's Native Vegetation Management - a Framework for Action [Department of Natural Resources and Environment 2002] and relevant operational guidelines.

• The conservation and enhancement of the area.

• The preservation of and impact on the natural environment or landscape values.

• The role of native vegetation in..... "Conserving fauna and flora"

• The role of the native vegetation in preventing land degradation......

33

Other relevant decision guidelines are at Clause 65. The decision guidelines at Clause 65.01 require consideration to be given to a range of matters including the planning scheme's policies, the purpose of the zone and overlay that apply, orderly planning, amenity, the extent and character of native vegetation and the likelihood of its destruction as well as whether it can be protected, planted or allowed to regenerate.

34

Clause 65.02 sets out specific decision guidelines relating to subdivision. Matters to be considered include the suitability of the land for subdivision; the existing use and possible future use of the land and nearby land; the subdivision pattern having regard to the physical characteristics of the land including existing vegetation; the density of the proposed development; the provision and location of reserves for public open space and whether native vegetation can be protected.

35

The application is not required to be referred to DSE under Section 55 of the Planning and Environment Act 1987 as the amount of native vegetation to be removed does not exceed 10 hectares.

36

There is a raft of planning policies that are in some way applicable to the consideration of the proposal and these were set out in some detail by Ms Stupak in her submission[1]. I do not propose to recite the detail of all of these policies in this document, suffice to say that I have considered them. However, given the nature of the issues in dispute, it seems to me that the policies that require particular attention are Clauses 14 [Settlement]; 15.09 [Conservation of native flora and fauna]; 21.11 [Residential development] and 21.18 [Strategic Framework Plan]. I will refer to the policies as appropriate.

37

The background to this matter is lengthy and was set out in some detail by Ms Stupak[2]. However, by way of summary, it seems that consultation between the Council, applicant and surrounding community commenced around June 2003 and included the formation of a working group. It seems that whilst this group was formed, a number of the persons appearing at the hearing were dissatisfied with the process and, ultimately, no consensus was reached as to how the site should be redeveloped.

38

The permit application was lodged with the Council on the 25 September 2003. Subsequent to this, further information was requested by the Council and notice of the application was given. In response to notice of the application, the Council received 70 objections and a petition containing about 900 signatures. Ms Stupak did not go to the trouble of summarising the objections; however, I note that the matters raised were set out at pages 11 to 15 of the officer's report to the Council[3].

39

The permit application was also referred to a number of external servicing authorities [CHRMA, CFA, Powercor, Telstra and TXU]. These authorities offered no objection to the proposal subject to conditions [as set out in their respective letters to the Council] being imposed on any permit granted. The Council also considered the views of the Corangamite CMA whilst no response was received from Aboriginal Affairs Victoria.

40

The proposal was also forwarded to DSE. DSE initially recommended changes to the subdivision layout, particularly to maintain the gullies and an area of Valley Grassy Forrest within the central open space reserve. DSE went on to comment on the Flora and Fauna assessment carried out by Biosis Research Pty Ltd [dated September 2003] and advised that there would be no objection to the proposal subject to the inclusion of conditions on any permit issued. In a follow up letter to the Council [dated 13 February 2004], DSE advised that subject to some minor arithmetic errors being corrected, it accepted the habitat-hectare calculations and road alignments as shown on the plans submitted with the application.

41

The Council's planning officer subsequently prepared a report recommending that the Council approve the permit application subject to conditions. The Council rejected the recommendation and decided to refuse the application on the grounds listed earlier in these reasons. The application for review was subsequently filed with the tribunal citing the following grounds:

1. The subdivision will not detrimentally impact upon the landscape character or biodiversity of the area;

2. The proposed subdivision is not contrary to any of the purposes of the Vegetation Protection Overlay and specifically of Schedule 1 of that Overlay;

3. The proposed subdivision has comprehensively assessed the environmental effects of the proposed development having regard to the relevant provisions of the Ballarat Planning Scheme.

4. It is inappropriate and, indeed, contrary to well established principles for the responsible Authority to rely upon a proposed Outline Development Plan which, on no view, could be considered to be a seriously entertained planning proposal.

42

During the hearing, Ms Stupak and the objectors raised many issues of concern relating to the impact that the proposal would have on the site's contribution to the biodiversity and scenic values of the area. I do not propose to recite all of the submissions and evidence presented; rather, I will set out my findings with respect to the proposal having regard to what was presented and the various matters to be considered under the planning scheme and legislation.

43

On reviewing these submissions, it seems to me that the primary concerns raised on behalf of the Council and the objectors generally fall within 3 areas, namely:

•

consequential loss of flora and habitat for native fauna associated with the removal of vegetation;

•

the "net gain" analysis presented on behalf of the applicant was flawed by not being consistent with the principles set out in "Victoria's Native Vegetation Management - A Framework for Action" [NVF]; underestimating the off-sets required and lack of demonstration as to how the required offsets are to be provided, and

•

loss of vegetation and the eventual development of the lots created by the subdivision would detract from the scenic and landscape qualities of the area.

44

A further matter raised was whether the proposed subdivision meets the requirements of Clause 56 of the scheme. I propose to discuss this matter later in these reasons after having set out my views with respect to the other primary issues first.

45

In considering the merits of the proposal, I think a useful starting point is to discuss the relevance of the zoning of the site. The zoning of land and what this implies is generally not in issue in the vast majority of appeal hearings. There may be a dispute about the detail or form of the outcome proposed, however, it is rare to encounter submissions that consistently raise dissatisfaction with the zoning as a basis for the rejection of a proposal.

46

In this case, many of the objectors made submissions to the effect that the Residential 1 zoning of the site is simply wrong and inappropriate having regard to the site's biodiversity values, scenic qualities and physical attributes. For example, Mr D'Ombrain described the zoning as "archaic and inappropriate" having regard to the current state of knowledge with respect to endangered EVC's and the resultant depletion of suitable habitat for fauna. Mr Drysdale and Mr Lowe were also concerned about the visual impact associated with the loss of trees together with the construction of new roads and houses fearing that the outcome would be similar to other subdivisions. Ms Zibell attacked the appropriateness of the zoning on the basis that some of site's physical features, [native vegetation, steepness of the terrain, possibility of it being subject to toxic runoff from mining activities] render it unsuitable for intensive residential development.

47

In relation to these submissions, I would make the following observations.

48

First, in proceedings like this it is not the tribunal's role to review the zoning. Put simply, the tribunal has no power to review or change the zoning that applies. A change to the zoning is, in effect, a change to the planning laws that apply. This can only be done by way of an amendment to the planning scheme that must be approved by the Minister for Planning and be laid before the Parliament for scrutiny. I cannot change the zoning.

49

Second, the legal position that I am required to take with respect to the zoning is quite clear. I must make my decision based on the planning scheme as it stands at time I make my decision and not on how some may prefer it to be. The obligation of the tribunal is to consider the law, which includes the planning scheme, as in force at the time at which the decision is made. This approach accords with the ruling of the Full Court in Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259.

50

Third, I acknowledge that there is some scope for proposed changes to the planning scheme to be taken into account. In this regard I note that the Council has embarked on the process of preparing the Canadian Valley Outline Development Plan [ODP] which, according to Ms Stupak, would cover the areas of Mt Clear, Mt Helen and Mt Buninyong. I understand that the planning process was in the early stages of community consultation. Whilst the Council is in the process of preparing an ODP, it is clear that this is still at a very early stage and there was nothing definite presented to show that the zoning would be changed. In any event, even if the ODP process was more advanced, any change to the zoning could not be preferred over the current zoning unless such change is countenanced by an amendment to the planning scheme that is well advanced and can meet the test of being "seriously entertained". [see Lyndale and Black Pty Ltd and I O Black v MMBW (P82/1729 and P82/1730) [1983] 7 APAD.]

51

Fourth, I consider it relevant to note that the material presented by Mr Cicero comprehensively demonstrates that the site's current Residential 1 zoning was not put in place by accident or mistake; rather, it reflects a long standing strategic approach for the area within which it lies. For example:

•

in the Strategic Direction for Greater Ballarat [1984], the site was identified for residential use;

•

in the Ballarat Region Strategy Plan [1990], the site is located within an area for residential development, and

•

in the Ballarat Strategy Plan [1998], an incorporated document in the planning scheme, the site is within an area designated for residential use and a "Preferred Residential Growth Area". [underlining my emphasis].

52

In relation to Ms Zibell's concerns about the suitability of site for residential use and development having regard to its physical features, no compelling information was presented to back up these assertions. I accept that the existing vegetation, in terms of its habitat and scenic values as well as the topography are factors that require careful consideration, however, they do not render the site incapable of being redeveloped as proposed. Any concerns relating to the possibility of the site being contaminated can be dealt with in the usual way, that is, by permit condition requiring a site assessment to be made and rectification works to be undertaken.

53

From a technical viewpoint, it is apparent that the proposal has been the subject of considerable scrutiny by various Council departments, external servicing authorities and DSE. None of them have come to the conclusion that the constraints presented by the site make it incapable of being redeveloped. Further, whilst Ms Stupak challenged the appropriateness of the level of development proposed, ultimately, it was not the Council's position that the site's topography, location or other factors render it incapable of being redeveloped.

54

The simple fact of the matter is that the site is zoned Residential 1. The site has been zoned for residential use and development for some time and this is underpinned by various strategies including the 1998 Ballarat Strategy Plan.

55

Further, when one looks at the subdivision layout for the residential area within which the subject site lies, it is difficult not to conclude that the site was always intended to be part of it. Mount Helen Avenue [at 2 points], Chatham Avenue and Sobey Street all run into the subject site in a fashion that is remarkably consistent with the "Helen Views Estate" plan attached as Attachment 1 in Appendix D to Mr Cicero's submission. In plan view, the site appears like the missing piece in the jig saw.

56

It seems very clear that the subject site has been earmarked as an area to be developed and used for urban purposes for some time and this is reflected by its inclusion within the Residential 1 zone.

57

I have gone to some lengths to discuss the zoning of the site not simply because it was such a contentious matter at the hearing; rather, the purpose of the zone is one of the matters that must be taken into account when considering the merits of the proposal. In my view, it is one of the more important matters to be taken into account in this case as it reflects the strategic intent and outcome envisaged by the planning scheme as it presently stands. I think that the objectors appreciated the significance of the zoning as a matter to be considered in this case given the efforts they made to attack it.

58

The Residential 1 zone is an urban zone. Urban development is contemplated. It is the zone that is most typically applied to residential areas. Whilst the purpose of the zone includes providing for dwellings at a range of densities, in my view, the densities that are contemplated are at relatively intense levels. The outcome that is envisaged by the Residential 1 zone can be observed locally to the north, east and south of the subject site.

59

This outcome can be contrasted to the Low Density Residential Zone [LDRZ] and Rural Living Zone [RLZ], both of which contemplate development at low density. In the case of the LDRZ, the purpose specifically provides for "low density" residential development, whilst the RLZ contemplates "residential use in a rural environment".

60

Further, it is relevant to take into account that there is a link between the planning scheme's strategies and the zoning that applies. If one looks at the residential development objectives in the MSS [see clause 21.11], these clearly call for the consolidation of existing urban areas to maximise the use of existing resources and infrastructure; to provide for a wide range of high quality attractive residential lifestyles; to ensure that residential development proceeds in accordance with ODP's and that no additional land be rezoned for residential purposes when the existing supply exceeds 15 years. Strategies to achieve these objectives include promoting residential development in areas with good access to major areas of commercial activity, other residential development and leisure and recreation activity. Clause 21.11-5 makes it clear that the application of the Residential 1 zone is one of the ways or "tools" by which the scheme's strategies are to be implemented.

61

This is not to say that the site's zoning and the residential policies, objectives and strategies that underpin its application are the only relevant considerations in this case. Other policies and provisions must also be considered.

62

In this case State policy for "Conservation of native flora and fauna", as set out at Clause 15.09, is another important consideration. The objective of this policy is:

To assist the protection and conservation of biodiversity, including native vegetation retention and provision of habitats for native plants and animals and control of pest plants and animals.

Planning and responsible authorities should have regard to Victoria's Native Vegetation Management - A Framework for Action (Department of Natural Resources and Environment 2002). If native vegetation is proposed to be removed as part of a land use or development proposal, planning and responsible authorities should achieve a Net Gain outcome, as defined in the Framework. This is achieved firstly, as a priority, by avoiding adverse impacts, particularly native vegetation clearance; secondly, if impacts cannot be avoided, by minimising impacts through appropriate consideration in planning processes and expert input into project design or management; and thirdly, by identifying appropriate offset actions. The criteria for determining the appropriate response and offsets are contained within the Framework.

64

The site is also covered by the VPO. The purpose of the VPO as well as the statement of nature and significance and objectives set out in the schedule need to be considered.

65

I think it would be fair to say that the thrust of the policy at Clause 15.09 and the VPO provisions is essentially directed toward the protection of native vegetation, particularly that which is of high habitat value. The statement of nature and significance in Schedule 1 to the VPO makes it clear that the vegetation covered by this overlay is significant and important because, amongst other things, it makes a valuable contribution to the character of the area and has high habitat value.

66

I think that the contribution that the vegetation makes to the "character" of the area is evident, namely, a highly vegetated backdrop to the urban development that has occurred to the north, east and south.

67

In terms of the site's ecological value, Mr Miller's evidence was that the site has "regional significance" for biodiversity in terms of its contribution to the Central Victorian Highland's Bioregion. It is important to note that this grading of significance is a view arrived at by Mr Miller and is not defined by legislative authority.[4] He summarised the reasons for significance as follows:

• Presence of Heathy Dry Forrest, Grassy Dry Forrest and a small area of Valley Grassy Forrest which together cover the study area;

• Presence of 50 flora species of regional significance;

• Relatively large size of the remnant [vegetation] in the local context; and,

• Presence of the state significant Koala. The study area has been identified as 2A Koala habitat in a survey of Koala habitat in the City of Ballarat by the Australian Koala foundation.[5]

68

It seems relatively clear that the site provides good quality Koala habitat [Class 2A]. There was evidence of Koala being on the site. This was demonstrated by Mr Schlagloth's ability to draw my attention to Koala droppings that he found during my site inspection.

69

Mr McMahon and Mr Miller also provided their assessment of whether the site was likely to be frequented by a range of other species [eg. Brush-tailed phascogale, Spotted Quail-thrush; Barking and Powerful Owls and Grey Goshawk]. Whilst there was some disagreement between the experts as to the degree of likelihood that these species would occur, I think for the purpose of analysing this proposal, it is better to take the more conservative approach; that is, that there is a moderate likelihood of these species occurring.

70

It was common ground that the site is neither limiting nor important to species protected under the Commonwealth Environment Protection and Biodiversity Act 1999.

71

In terms of floristic communities, the 3 EVC's found on the site contribute to its significance. It was common ground that the Bioregional Conservation status of these EVC's is:

•

Heathy Dry Forrest - Least concern

•

Grassy Dry Forrest - Depleted

•

Valley Grassy Forrest - Vulnerable

72

Without question, the proposed development would bring about a change to the site's current ecological value and lower the contribution that it makes to biodiversity values. Mr Miller identified the possible environmental impacts as being the removal of areas of each EVC; reductions in the population size of some flora species and habitat area, weed invasion and reduced viability for some flora and fauna species.[6]

73

There are 2 main factors that would contribute to this. The first is obvious enough; namely, the construction of roads, infrastructure and dwellings requiring the removal of vegetation. The second, human activity, is perhaps less obvious. However, once more people frequent the site, it is inevitable that its natural values would be degraded and be less attractive to fauna.

74

Having said that, it does not necessarily follow that the site would remain as an intact area of remnant vegetation that would continue to make the same contribution to the biodiversity values of the area if it is simply left alone.

75

In his evidence, Mr Miller concluded that whilst the ecological values of the site are reasonably intact, nonetheless, the low level of on-site management has led to the development of a number of threats to this condition being maintained. These include:

• Off road use of trail bikes, four wheel drive vehicles and horses that has led to erosion, spread of weeds and the creation of a network of trails through the study area;

• Surrounding properties that have encroached into the study area through the dumping of rubbish and placement of items including cubby houses beyond their back fences;

• Construction of Mount Helen Avenue to the north which appears to have disturbed the section of gully immediately below the end of the road and, as a result, this section supports predominantly weedy understorey including blackberry and gorse.

• Construction of the subdivision to the south has disturbed an area to the south of the study area.[7]

76

One of the more critical factors to consider in this case is that the subject site is not isolated from urban use, development and human activity. A substantial amount of the site's boundaries are in common with conventional residential properties. This in itself has consequences for the site's environmental qualities.

77

For example, Mr Schlagloth submitted that the proposed subdivision would introduce known Koala predators, domestic dogs, into the area thus threatening the viability of the site as attractive habitat. This may be so, however, this ignores the fact that dogs may be kept as domestic pets on any of the surrounding residential properties directly adjacent to or near the subject site. The threat already exists.

78

I also note Mr McMahon's evidence that:

Predation and sub-lethal disturbance of fauna by domestic pets [dogs, cats] and humans will be a significant impediment to the long-term maintenance of the site's biodiversity.[8]

79

The site is not "shut off" or inaccessible; rather, surrounding residential streets provide good access for both people and vehicles. This is a legacy of the street network that has been approved by the Council. There is no fencing to impede such access. There is evidence that people have accessed the site. Human access to the site involving activities such as trail bike riding and walking create tracks that, if left unmanaged, can give rise to erosion. There is evidence of weeds on the site and, not unexpectedly, these are mostly located around the periphery near adjoining properties. Mr Miller's evidence was that there are instances where rubbish has been dumped on the site. I would not be surprised if vegetation has been taken for firewood nor is it inconceivable that nearby residents would take dogs for a walk through the site. All of this activity detracts from the site's ecological values.

80

Further, it is relevant to consider that much of the subject site's boundaries are in common with land that has been highly modified by way of urban development and the former pine plantation to the west.

81

In my view, even if the site is left alone, it is inevitable that that in light of the intimacy that now exists with adjoining urban development and associated human activity, its condition and ecological value will decline unless some form of direct intervention/management occurs.

82

In saying this, I am not seeking to downgrade the site's current value. Rather, I think that what needs to be considered is the reality that the site's context is highly modified and it is already affected by proximity to urban development and human activity. The consequential impacts have not been beneficial. I agree with Mr Miller's conclusion that "Unless the site is actively managed and inappropriate activities excluded the site is likely to further degrade." Mr Kelly agreed with this view. I do not think that it would happen overnight or quickly, however, I am doubtful that its medium to long term viability would not continue to be degraded without intervention.

83

Ms Zibell suggested that a more appropriate outcome would be for a land swap to occur. This could involve the subject site being given over to a government authority such as the Council in exchange for cleared land that could then be developed. This would be a good start, however, it would then also be necessary for other measures to be taken. These could include managing existing problems such as weeds and re-instating areas where soil has been disturbed as well as putting in place measures to prevent inappropriate access [eg: trail bikes] and activities [eg: dumping of rubbish, walking dogs]. Despite this suggestion being put forward by objectors, there was no indication that the Council or some other authority would be willing to enter into such an arrangement. Indeed, on hearing Ms Stupak, it seemed to me that the Council was even reluctant to take on the responsibility of managing the central bushland reserve to be created as part of this proposal.

84

It is necessary to acknowledge that the proposal has been designed with a view to maintaining some of the site's value particularly by way of the provision of the central bushland reserve to protect the gullies and much of the small area of the vulnerable Valley Grassy Forrest; the measures to be taken to protect it during construction and to improve its condition; restricting the amount of vegetation that may be cleared on each lot and the applicant's agreement to provide a ground level link through to the bushland area to the west by deleting one lot and to have Koala 'friendly' fencing.

85

The provision of about 24 per cent of the site as a centrally located bushland reserve is not typical of "suburban" subdivision on Residential 1 zoned land; rather, it reflects a considered approach to maintaining and rehabilitating a particularly sensitive part of the site. The applicant has agreed to accept conditions requiring the preparation of Environment Management Plans which would cover a range of matters including pest and weed control, revegetation and maintaining the integrity of the gullies. Restrictions are to be placed on vegetation removal on residential lots.

86

The creation of the ground level link was specifically put forward in response to Mr McMahon's criticism that the proposal would result in the fragmentation of the "patch" given that a suitable link with the balance of the bushland to the west was not to be provided. Mr Cicero suggested that a 10 metre wide area would be sufficient and that it would be desirable for this to be located where a number of the significant larger trees exist. I generally agree with this, however, I consider that the area should be wider than 10 metres, say 20 metres, and incorporate the significant tree on the adjoining lot [1106 square metres]. This figure is arbitrary, however, in my view, it provides a better link to the bushland to the west. This can be dealt with by conditions.

87

Further, the applicant's representatives have acknowledged that under this proposal, there would be a need for offsets to be provided on other land if a net gain, as per the NVF, is to be achieved. The applicant is prepared to do this. Mr Cicero made it clear that conditions requiring offsets to be provided on other land would not be challenged by the applicant.

88

All of the above measures are specifically directed toward seeking to maintain and enhance the site's natural values. They are not typical of what happens on Residential 1 land; rather, it is clear that they are a direct response to the site's values, the NVF and VPO.

89

Is this enough to achieve a satisfactory outcome having regard to the NVF with respect to sustainability?

90

The NVF sets out a 3 step approach to applying net gain:

1. To avoid adverse impacts, particularly through vegetation clearance.

2. If impacts cannot be avoided, to minimise impacts through appropriate consideration in planning processes and expert input to project design and management.

3. Identify appropriate offset options. [9]

91

In considering the above, the first point to be made is that the entire site is covered by vegetation. It is not an overly large parcel of land in the overall scheme of things and it is difficult to see how vegetation clearance could be avoided unless no development was allowed.

92

In relation to the notion of minimising impacts, it would seem obvious that the less the amount of development, the less the impact. However, I think that this is an overly simplistic approach to take. Once development and associated human activity occurs on a relatively small parcel of land like this, there are going to be impacts on its biodiversity values. This would occur even if there were to be fewer lots or lots were to be made bigger.

93

A matter that I consider to be of some significance is that in going through the application process, the applicant's representatives, Council officers and DSE were involved in what appear to be quite detailed discussions and negotiations concerning the redevelopment of the site.

94

It seems to me that DSE has adopted a pragmatic approach in adopting its position not to object to the grant of a permit. It is apparent that DSE were aware of the site's values, particularly the existence of the gullies and the small area of the vulnerable Valley Grassy Forrest. DSE considered these factors and has concluded that it would not oppose the proposal subject to, amongst other things, offsets being provided off site as required under the net gain assessment. In doing so, it seems to me that DSE has accepted that this is one of those cases when it is appropriate to achieve net gain via on-site and off site actions. This is not an unreasonable approach to take given the zoning and context of the site and that the NVF specifically contemplates that there will be some situations when off site actions are appropriate. I think this is a factor that weighs substantially in favour of the proposal.

95

Two aspects of the applicant's approach to net gain were criticised. First, Mr McMahon expressed the view that Mr Miller's calculation of the habitat hectares lost were underestimated because only the loss of 500 square metres of vegetation per lot was included. Mr McMahon argued that given the size of the lots proposed, it was likely that all habitat value would be lost and, as such, the entire lot area should be included in the calculation of habitat hectares lost.

96

Second, Ms Heber submitted that it is inappropriate to support the proposal as the details of the required off site offsets have not been provided.

97

With respect to the above, I think there is some validity to Mr McMahon's criticisms. In general terms, I accept that it is inevitable that most of the habitat value on lots of suburban size would be lost. I say most rather than all because it is not proposed to totally denude lots of all vegetation. I would think that the retention of trees would have some habitat value, for say birdlife, albeit that it may be small.

98

One of the difficulties in cases like this has been the absence of the operational guidelines proposed as part of the NVF. As such, consultants undertaking net gain analyses have been dependant on DSE for advice and guidance. In this case, discussions took place and agreement was reached as to what would constitute a reasonable basis for assessing losses.

99

Unfortunately Mr McMahon was not a party to those discussions. It is all well and good to criticise the way in which Mr Miller calculated the losses, however, it seems unfair to do so when DSE had agreed to his methodology. In saying this, it is not my intention to be critical of Mr McMahon. I think the point he put forward was well made. I simply think that it would have been more helpful if the Council engaged his services whilst it was considering the application so that he could have been a party to those negotiations.

100

Given that the implementation of the NVF is still in its infancy, I consider it relevant to recognise that Mr Miller's calculations took into account consultation with DSE. This important given that there are no adopted operational guidelines and DSE is the lead agency responsible for administering the NVF. I consider it reasonable for Mr Miller to rely on this advice.

101

With respect to Ms Heber's criticism that the off site offsets have not been identified, I make 2 observations.

102

First, in Lorne Country Club Inc v Surf Coast SC [2004] VCAT 260, the tribunal agreed with the proposition that the specifics of any net gain options, particularly with respect to the identification of appropriate offsets, can be dealt with by way of a secondary consent or approval once the permit has been issued. This is the approach that is supported by the applicant in this case.

103

Second, I do not agree with Ms Heber's submission that this case can be distinguished from the Lorne case because DSE is not a party and there have been no discussions or proposals put forward to satisfy the requirement to provide offsets. It is clear that DSE has been involved in the application process and has provided advice on the NVF. Further, I note that in its letter to the Council dated 13 February 2004, DSE identified a number of options as to actions that could be undertaken by the applicant off site to achieve net gain. There was nothing presented to show that these options are not available or viable.

104

Whilst Mr Miller conceded that the calculations with respect to habitat hectares and offset areas set out in his report were not correct, these have been revised and DSE has advised that they are satisfactory. I have also been presented with a number of conditions drafted by DSE to deal with the vegetation management and net gain issues. Amongst other things, these conditions set out the requirements to be met with respect to the identification of appropriate off-site offsets, the preparation of an Environmental Management Plans and for the implementation of the required offsets. In overall terms, I am satisfied that the proposed actions to be taken on the subject site, the provision of further offsets on other land together with the regime of permit conditions suggested by DSE achieve an outcome that is consistent with the NVF.

105

Thus far I have dealt with the concerns raised about the impact on the site's ecological values and the net gain analysis. The third area of concern associated with vegetation removal relates to the visual impact. It is clear that the loss of vegetation would also have an impact on the appearance of the site and its character. It is not difficult to come to this conclusion given that the site is devoid of vegetation and covered in bushland.

106

Mr Drysdale and Mr Lowe attempted to demonstrate the visual impact by showing pictures of new nearby subdivisions where sites had been denuded of all vegetation. I do not, however, consider that the images they presented fairly represent what is being proposed in this case. In particular, there was a failure to properly acknowledge the creation of the central reserve; the protection of the bushland within it and the restrictions on vegetation removal proposed for individual lots. The appearance of the site would change with vegetation removal and development; however, the visual impact is one that represents a far more balanced and appropriate response to the zoning and VPO compared to that of the adjacent residential area.

107

I acknowledge that the proposal would bring about change. However, when consideration is given to:

• the site's Residential 1 zoning and the form and intensity that can reasonably be contemplated by it;

• the long standing strategies that underpin the application of this zoning;

• the site's size and context adjacent to urban development;

• the existing and continuing threats to the site's ecological values unless there is intervention;

• the design of the subdivision to allow for the provision and protection of the central reserve area; restrictions to limit vegetation removal and other measures outlined earlier in these reasons, and

• DSE's general acceptance of the proposal and advice that options exist to provide offsets required to achieve net gain under the NVF;

I find that the proposal, in terms of the removal of vegetation and subdivision represents an outcome that is consistent with and contemplated by the planning scheme's controls and policies.

108

The NVF is a policy that must be weighed and balanced against a range of other considerations. It must be applied in a sensible and pragmatic way, particularly when dealing with land zoned for urban use and development. It seems nonsense to on the one hand to have a strategy that identifies land for residential use, to zone and service the land in response to the strategy, to allow surrounding land to be redeveloped in accordance with that zoning and then to say that it cannot be developed, or alternatively developed at levels that really reflect some other zoning. In my view, this proposal has sought to achieve a reasonable balance between the various competing provisions and policies that apply and it appropriate for off site offsets to be employed to achieve net gain.

109

I now turn to some other matters raised by Ms Stupak and Mr Drysdale with respect to Clause 56.

110

Ms Stupak raised concerns about the layout of the subdivision. The particular concerns were that some of the larger trees were located on lots and their viability for retention was questionable. Concerns were also raised that there may be some drainage and stormwater issues associated with the building envelopes of some lots being well setback from the front boundaries.

111

I do not accept either of these criticisms. The lots on which the larger significant trees are to be located are relatively large and have the capacity to allow for both the construction of a dwelling and the retention of trees. Further, the owners of lots in this subdivision would have to comply with the Section 173 agreement that requires, amongst other things, the preparation of a Vegetation Management Site Plan which must be certified as being to the Council's satisfaction before vegetation is removed. The significant trees are marked on the "Preliminary Landscape Plan". I think that there is plenty of scope for these trees to be protected.

112

With respect to drainage, I was not presented with any compelling evidence or argument to show that this would be a problem, particularly with the regime of conditions proposed.

113

Ms Stupak also submitted that the proposed central bushland reserve should not be considered as the "open space" contribution for this subdivision. Ms Stupak said that the Council has identified a need for a playground to be provided in the neighbourhood and that the bushland would not be able to be used for this purpose nor is it "usable" for other purposes. I do not agree that it should be incumbent on the applicant to provide an additional 5 per cent of open space over and above the central bushland area. This area already comprises nearly a quarter of the site, and in my view, makes a contribution not only to the lots within the site, but also the wider area.

114

Mr Drysdale questioned whether the proposal meets several of the Standards set out at Clause 56. I have considered his submissions on the various points raised but cannot agree with him. The proposed subdivision is not the first stage of a larger subdivision; on the contrary, it would be the last. Other land has already been subdivided and allowed to be developed for residential purposes. The strategic decision to zone the subject site and the adjacent area for residential purposes was made some time ago and it has been implemented. I would not regard the distance to facilities and public transport as a factor that would render the site unsuited to subdivision and residential use.

115

An assessment of the proposal against the provisions of Clause 56 was set in the Officer's report to the Council.[10] No major concerns that could not be overcome by conditions or changes were raised. Further, I note that Ms Stupak did not raise any other concerns with respect to the proposal's compliance with Clause 56. I consider that the requirements of Clause 56 have been met.

116

On having reviewed this matter, it is not surprising that the Council's Planning Officer came to the conclusion that the application should be approved. DSE have also considered the proposal and have not objected.

117

I appreciate that the proposal will bring about change. I understand that part of the community will not agree that what is being proposed as acceptable change. However, the zoning of the site and the strategies that underpin it, its context together with the details of the proposal including the response to the site's natural values are all factors that weigh substantially in favour of the grant of a permit. DSE's acceptance that this is a case where a combination of on site and off site actions can be undertaken to achieve net gain also favours the proposal.

118

I have come to the conclusion that a permit should be granted. I note that draft condition 17 suggested by DSE is not really a condition; rather, it is more in the form of explanation as to the actions which the Council may take. This can be included as a note on the permit. Ms Stupak agreed that condition 50 was acceptable to the Council for open space purposes. I have settled the final form of the other conditions having regard to the submissions presented.

[1] Submission on behalf of Responsible Authority pages 12-15 inclusive

[2] Submission on behalf of Responsible Authority pages 3-8 inclusive

[3] Officer Report to Council 25 February 2004

[4] Kelly P (12 August 2004) Statement of Evidence paragraph 13

[5] Miller J and Koehler S (July 2004) Statement of Evidence for VCAT hearing page 10

[6] Miller J and Koehler S (July 2004) Statement of Evidence for VCAT hearing page 26

[7] Miller J and Koehler S (July 2004) Statement of Evidence for VCAT hearing page 8

[8] McMahon A (12 August 2004) Statement of Evidence page 13

[9] NRE (2002) Victoria's Native Vegetation Management - A Framework for Action page 23

[10] Officer Report to Council 25 February 2004 page 22