The decision of the Responsible Authority is set aside. A permit must not be granted and no permit is to be issued.

Mr T Ryan, Ms S Davison, Mr D Wilson in person and for other Applicants. Also Mr I Black in person.

Mr S Stewart, solicitor of Rigby Cooke lawyers. Evidence was called from Mr R Mildren, town planner.

1 This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by Mr T Ryan and others seeking review of a decision made by the Ballarat City Council ("the Council") to determine to grant a permit in application no. PLP/2004/900. The proposal is for the staged subdivision of the subject land into 110 lots, the removal of native vegetation and the removal of powerline and carriageway easements.

2 At the commencement of the Hearing, the Respondent sought leave to amend the description of the proposal included in the Notice of Decision and to vary the number of trees proposed to be removed although no conditions appeal was lodged. I did not rule on either matter indicating that I would make findings as required in my determination.

3 Mr Black submitted that a permit should not be issued because the planning permit did not satisfy the specific requirements of Sections 47(a) and 47(b) and also Section 57A(3)(c) of the Act. His written submission is retained on file. It sets out the basis of the request in terms of omissions from or errors in the permit application form including the correct nomination of the owner of the subject land. Mr Sullivan and Mr Stewart responded to these concerns referring (inter alia) to an amended form that was submitted to the Council to endeavour to address the deficiencies.

4 I note the issues raised but I am not persuaded that the permit application should fail because of them. I have powers pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to amend a permit application. Section 62 of the same Schedule enables me to disregard a failure to comply with a planning enactment if it is in the interest of justice to do so. In this case errors and/or omissions were made but an amended application form rectified them. I am satisfied that the owners of the subject land are aware of the permit application and I note Mr Stewart's comment that company directors attended the Hearing.

5 The subject site has an area of 15.38 hectares and is located on the south-east corner of Springs Road and Longs Hill Road. It forms part of the north-east boundary of the residentially zoned area of Ballarat. The land is used for grazing. It is undulating and generally falls to the west with a drainage line through the south-east section of the land.

6 Land to the north and east of the subject land is used for grazing and is zoned Rural. Land to the south is developed with single dwellings on substantial lots and has a low density residential character. These lots contain substantial native vegetation. To the west of Springs Road is rurally-zoned land that is heavily vegetated. The Gong Gong Creek is close to the road. That Creek is a tributary of the Yarrowee River. Further to the south-west is State Forest. The review site is not serviced by reticulated sewerage or gas and another proceeding has been lodged with the Tribunal to address the provision of reticulated sewerage to the subject land.

7 Approval is sought to subdivide the land into 110 lots.[1] The proposed lots would range in size from 713 square metres to 2,465 square metres, with 27 of lots being 800 square metres or less, 44 lots between 801 and 1,000 square metres, and 39 lots being over 1,000 square metres. The layout comprises a central east-west road from which two loop roads extend plus two small cul de sacs. Public open space of 8,135 square metres would be created at the high point on the land abutting the south-east boundary and including an area of native vegetation. A wetland reserve is to the south-west corner, abutting Springs Road, serving a stormwater detention function. Another small reserve to the north would provide a link to the internal road network and could be used for emergency access. One native tree would be removed with several trees included in the reserves or road reserves, one tree each on Lots 7 and 64, and a group of trees on Lot 57. Building envelopes are shown for lots fronting Springs Road and Longs Hill Road with a setback of 10 metres from those roads. Tree reserves are also shown for these edges. Several easements are proposed to be removed.

8 Conditions on the Notice of Decision would preclude vehicle access from the main roads to lots fronting Springs and Longs Hill Roads and also require fences for the same lots to be limited to a style approved under a Fence Plan (Condition 7). There would be no further subdivision of these lots nor lots with a Vegetation Protection Envelope that are located to the south-east portion of the site (Lots 98 - 104) and lots that contain a native tree(s). Thus, a total of 37 lots would have building and/or vegetation envelopes and be prevented from further subdivision by a Section 173 agreement.

9 The following provisions of the Ballarat Planning Scheme ("the Scheme") are relevant to the consideration of this Application:

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The subject site is zoned Residential 1 under the provisions of Clause 32.01. A permit is required to subdivide the land. The proposal must meet the requirements of Clause 56 and the State and Local Planning Policy Frameworks must be considered.

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No Overlays apply to the land.[2]

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As the land is more than 0.4 hectares, the provisions of Clause 52.17 apply in relation to the removal of native vegetation. The proposal was referred to the Department of Sustainability and Environment which offered no objection subject to conditions that were then included by the Council on the Notice of Decision.

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The provisions of the State and Local Planning Policy Frameworks including Clauses 11, 14, 15.07, 15.09, 15.10, 15.12, 16, 19.01, 19.03, 21 (Municipal Strategic Statement), 22.01 (Residential Policy), as well as the particular provisions at Clause 65 (general decision guidelines and decision guidelines relating to subdivision).

10 At the Hearing, a comprehensive submission was presented by Messrs Ryan and Wilson and Ms Davison on behalf of the Applicants and detailed submissions in response were presented by Mr Sullivan and Mr Stewart. With the consent of the parties I inspected the review site and locality on the morning of the second day of the Hearing. I also visited the area again at the conclusion of the Hearing.

11 Having considered the submissions and statements of evidence with regard to the policies, objectives and decision guidelines of the Scheme I have decided to order that the decision of the Responsible Authority be set aside. The following sets out the reasons for my decision. I do not recite all of the material presented although I do refer to some of the main points below.

12 The review site forms the north-east edge of Ballarat's residentially zoned land. It is some 12.5 kilometres north-east of the town centre and several kilometres north of the Western Freeway/Daylesford Road. It is within a well vegetated valley surrounded by low density residential lots of around 4,000+ square metres to the east and south, State Forest to the west and agricultural land to the north.

13 The Council's MSS was amended in April 2005 by Amendment C65. It notes that Ballarat is in a key strategic position at the centre of some of Victoria's most important freight, tourist and commuter transport routes.[3] Through Melbourne 2030 and state policies, Ballarat is one of several regional centres promoted and targeted as a viable alternative urban location to metropolitan Melbourne.[4]

14 The Council has recognised that its expansion options are limited by various constraints so that promotion of urban infill is encouraged and long term opportunities for urban expansion are directed to the west and south-west.[5] The aim is to provide for residential growth in and around the Ballarat urban area in an orderly and efficient manner.[6] Changes in built form are sought to be sympathetic to valued character elements. Settlement strategies include[7]:

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Assess new development within ...Brown Hill ... against the ODPs for these areas.

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Provide residential land within a range of areas in order to provide for different parts of the housing market.

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Encourage a range of lot sizes and densities within new residential subdivisions.

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Encourage the take up of development opportunities within the existing urban area.

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Discourage the creation of residential subdivisions where lots back onto streets.

15 The residential framework plan includes the review site within an existing residential area. Despite the Residential 1 zoning of the land, the existing context of the site is rural and low density residential. The designation of the subject site and land to its south within a Residential 1 Zone will mean significant change to this character over time.

16 The inclusion of this area within a Residential 1 Zone is at the core of concerns expressed by local residents in relation to the future development of their neighbourhood. Prior to the introduction of the new format Ballarat Planning Scheme the area was apparently zoned low density residential. That former zoning is a residential-based zoning albeit at a lesser intensity than expected by a Residential 1 Zone. I can understand the concerns expressed by the Applicants but this proceeding is not a review of zoning and I must apply the Scheme's provisions as they exist today.

17 I observe that the structure plan and ODP to which I was referred[8] did not regard the subject land as capable or likely for urban development as it was identified as unsewerable.[9] It is said in one document that there are other parts of the study area that are more easily sewered so they should proceed first and if public health issues arise then it may be possible to prepare a sewerage scheme to the area of the review site subject to funding.[10] The area of the subject site clearly was not a priority for urban development. A 1993 ODP does not encompass the review site as it was prepared as a more detailed structure plan for areas identified in a 1990 Ballarat Region Strategy as recommended for future development.[11]

18 The relevance of this background material is that there is no ODP applying to the review site to provide the basis for assessment as would otherwise be required by Clause 21.05-3 and 22.01. Despite the desire for orderly urban development referred to in the Scheme there is an obvious void in relation to the subject land and specifically development staging in this part of the urban corridor that one might usually expect would be in place. That seems to have arisen because this precinct was not seen as a priority for development. Moreover, I note that the 1998 Ballarat Strategy Plan, which is an incorporated document at Clause 81 of the Scheme, identifies residential development priorities but there was no indication in any submission presented to me that the review site is within a priority area.

19 As land designated for residential development it is appropriate to consider subdivision for that purpose as this permit application pursues. Although there is no impediment to subdivision in policy terms, I can find nothing in policy terms driving the immediate or intensive development of this locality when considering the strategies set out in the Scheme - the subject land is not within a targeted priority area and it is excluded from/beyond the ODP. Moreover, the site does not abut areas that are currently being developed for more intensive residential purposes - those sites are a considerable distance to the south where reticulated services can currently be accessed.

20 The Applicants relied on the fact that the site is distant from more conventional residential development to contend that the proposed subdivision is out of sequence. They also submitted that many other locations are available in this corridor and the west/south-west of Ballarat to fulfil housing demand. In response the permit applicant argued against these submissions and contended that the subject land could be better utilised in accordance with its zoning. Further, as an argument in favour of the permit application, the Council and permit applicant relied on the ability of this proposal to provide an impetus for more residential development in the corridor given the proponent's preparedness to extend the sewer to the subject land from which other properties would benefit.

21 Both sides of these arguments have merit. The proposal could fairly be expected to provide the impetus referred to, even though the existing land owners involved in this proceeding say they do not have such ambitions. It is relevant that the extension of reticulated sewerage and gas as proposed would clearly have significant broader benefits for the development of land in this corridor in accordance with its Residential 1 zoning. These outcomes carry weight in reaching a decision. However, the proposed development would be quite remote being at the edge of the designated urban area for this part of the City of Ballarat and around two kilometres from the developed area of Browns Hill. Further, based on the material included in the Scheme and as can be gauged on inspection, there are ample opportunities for residential development that would be proximate to existing public transport and other services and would provide a more logical progression of urban development in this corridor.

22 The officer report to the Council in relation to this permit application suggested that an ODP be prepared[12]. That is very sound advice to overcome the obvious gap to which I have referred; such an approach would accord with Clause 12 of the Scheme as well as the strategies at Clause 21.05. An ODP extending to the whole area zoned Residential 1 would assist with orderly development at a macro level (such as principles for landscape corridors, potential reserves, servicing and pedestrian/road links throughout the area) and help avoid a situation where each piecemeal subdivision turns its back on the next with few opportunities for neighbourhood integration. Furthermore, as is evident from my findings below, there are elements of the layout that would be much better informed and guided by such a plan.

23 However, in making these remarks it is important to state that the current lack of an ODP is not the main determinant in my decision and it is not an impediment to any subdivision proceeding. The objectives and standards set out in Clause 56 and both sets of decision guidelines at Clause 65 provide the basis for assessing whether the proposal meets the requirements of the Scheme.

24 In the context of this site, the question of a suitable response to neighbourhood character is not a simple matter. The subject land is within a semi-rural setting with open pasture and forest to the north and west and low density residential lots to the east and south where dwellings are nestled into their undulating and vegetated surrounds. The policy context is such that, with the Residential 1 Zone applying and assuming reticulated services become available, the existing character will change. It cannot be assumed that the status quo will remain nor is it appropriate to adopt the status quo as the basis for assessment or as a preferred character. Having said that, it is common ground between the parties that the landscape character that is derived from public and private land around the review site, less so than from stands of native vegetation on the subject land itself, is valued and the proposal should respond to that feature.

25 The Applicants' case is focussed in part on the failure of the proposed development to respond to the site's setting. They seek a subdivision that integrates more gradually with the locality comprising a "buffer" of larger wider lots to the edge of the subject land and facing Spring Road and Longs Hill Road, larger lots enabling canopy planting, open space corridors through the land to service wildlife including responding to drainage lines, and retention of native trees in public open space or road reserves. In response, the Council submitted that the proposal would essentially create it own character. In addition, Mr Stewart submitted that lot size and density are not the sole factors in character and it is important here that there is an ability to provide canopy trees on lots with an average size of 1,000 square metres. Mr Mildren saw the outcome differently insofar as stating that the proposal would respond to the existing important character features (being the bushland setting, tree cover and wider valley outlook and context and in particularly an improvement in tree cover) rather than creating a new distinct character. In his oral evidence Mr Mildren also referred to the reasonable expectation of achieving canopy tree planting on larger lots when compared with lots of a size of 800 square metres or less which "have a different complexion". Mr Mildren referred to a "minor inadequacies" in the layout and design of the subdivision that he said could be improved such as the presentation of lots to face the main roads, interface between the proposed lots and adjacent properties, provision of a link to the land to the south, orientation of lots and a minor variation to the road alignment to respond to the drainage line.

26 I note that the Applicants and Mr Mildren shared the notion that one valid approach might be larger lots on the periphery with more intensive development internally as a way of integrating the development with its setting. However the Applicants and Mr Mildren varied in their conclusions as to whether the current proposal effectively does this.

27 In my view, having regard to the submissions and evidence, the key issues arising in relation to neighbourhood character focus on:

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the ability of the subdivision of the subject land to make a positive contribution to the landscape character which is regarded as a important and distinctive feature of the area;

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the presentation of lots to the existing road frontages, mindful that as the outer edge of the urban area I think that the land will be a marker or have some type of gateway role and, as the first intensive subdivision, it will establish some benchmarks for future housing;

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the way in which the proposed subdivision responds to the site features and landform;

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the way in which the proposed subdivision relates to abutting lots to the south and east mindful that based on current zoning at some time in the future they may be far more intensively developed for housing.

28 The numerical density is not a primary driver to my assessment rather the critical matters are the way in which the proposal responds to the above considerations in terms of achieving an acceptable planning outcome. My view is the same as adopted by other divisions of the Tribunal[13] and, in Fern Ridge, some similar issues arose as before me in the current case.

29 There are a number of elements of the layout and design that are acceptable. They include retention of major group of trees within an area of communal open space, the retention of other trees, roads that follow the contours rather than producing steep grades, road reserves with space for street tree planting, the amount of public open space provided, low key and transparent (post and wire) fencing to the main roads, and the intent to adopt environmentally sustainable design features such as water tanks.

30 However, the Applicants and Mr Mildren have identified several issues in relation to the design and layout of the proposed subdivision that are less appropriate. I am not persuaded that the deficiencies are minor to the extent that they can be overlooked or that they can properly be addressed by the measures advocated by the Council. In particular, I refer to the following:

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Presentation to roads. Some of the smallest lots are proposed to the Longs Hill Road frontage. Lots to both existing roads have frontage widths of 17.4 - 22.5 metres (except to the road corner and north-east corner). The Council's engineers seek all vehicle access to lots to be from within the development with no direct access to the existing roads. With lots of the size and frontage proposed there is a very likely prospect that houses would back onto the main roads. Post and wire fencing to the street is proposed to supplement planting but that fails to respond to the obvious desire of residents wishing to enclose a backyard for reasons such as privacy, security and childrens' safety.

The Council has required a Section 173 agreement that any additional fence be within the building envelope thereby raising the prospect of a double row of fences with 10 metres of land between and the backs of lots/houses. This approach is not acceptable and the layout is contrary to Standard C1 of Clause 56 as well as the policy 21.05-3. As a "gateway" insofar as it would be the first urban development seen by motorists travelling from the north, the presentation of multiple fences and backyards is not desirable and I do not think this would establish a good precedent for other subdivision southward of the review site. Sightlines along Springs Road are reduced as one moves north along the site's frontage but I have not been persuaded that only one access must be used when sightlines are adequate further southwards along this frontage. Section 173 agreements may address fencing now but could prove problematic and a nuisance for land owners. Mr Mildren rightly said that the design should ensure a sound outcome from the start. It would be possible to provide fewer wider lots to these roads.

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Retention of trees in lot 7, 57 and 64 may prove problematic in the long term. It is on the basis that these lots would be developed with dwellings that the Nuleaf report has said that the trees represent a danger and should be removed. The road reserve could be modified to retain these trees within public spaces as the trees generally follow a linear alignment. The trees could be on the north and south sides of the road reserve while retaining the manna gum (south of lot 56) as a major feature when viewed from an entry way into the site.

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The clustering of smaller lots at 800 square metres and less toward the northern portion of the land would limit opportunities to make a contribution to the vegetated character of the area. There is scope for planting within the public realm but the presentation of an intensive urban development with the back of houses and associated service areas to main roads combine to represent an inappropriate outcome.

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Slope. I have examined the lot forms particularly lots to the east where the slope is steeper. Based on the contours, some lots have a steeper grade than 1 in 5. That raises potential issues such as soil erosion noting that significant excavation would be required to construct dwellings and useable private open space. Moreover, the potential for trees would be more limited. This affects lots such as 26 - 30 & 90 - 97.

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Orientation of lots. Mr Mildren's evidence was that 70% of lots would not achieve the objective at Clause 56.06-2 although Mr Stewart submitted that his advice was different and the standard is met. The relevant point is that there are some difficulties with lot orientation particularly when coupled with the landform and lot widths that would constrain the siting of a dwelling.

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Intensity of lots abutting existing large lots to the south and east. This is a matter of concern to the Applicants and it is a matter upon which Mr Mildren also remarked. This is related to some of the elements I have already addressed. Wider and larger lots to the south-east can serve to provide a more site responsive building outcome without the potential for soil erosion and extensive cut as well as produce a more graduated response to the large neighbouring lots. This is particularly an issue where the subject land abuts land that is within a rural zone wherein a vegetated interface may be desirable.

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Drainage reserve/wildlife corridors. The Applicants seek to protect the drainage line to the south-east of the land and facilitate wildlife movement through the site given forest that is present to the west and heavily vegetated land to the east/south-east. Mr Mildren remarked that the drainage line could be reflected in a simple realignment of an internal access road and that could be accommodated. I am not persuaded that substantially more public open space is justified when a reasonable proportion of the site has already been allocated for public open space. However, Mr Mildren's suggestion is a simple response to the landform and the drainage line could be used in a revised layout to link with land to the south (discussed next).

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Links to adjacent lots. Mr Mildren commented on the desirability of creating a link to enable future connection to land to the south. That is sound on its face but the question is where and in what form given that there is no proposal for the adjacent land and no ODP or like plan to assist in this regard. This may require further consideration and could be linked with the drainage line included in a small reserve.

31 These are not insignificant matters when considered together. They require changes to the proposal to achieve an acceptable outcome. They require a revised lot layout, revised access design and a reduced lot yield.

32 There are two main infrastructure issues arising from the submissions.

33 The first matter relates to sewer and gas connection. The former is the subject of a separate proceeding before the Tribunal that has yet to be heard. The latter has been agreed to be provided by the permit applicant.

34 The second matter relates to the condition of Spring Road and the ability of that road in its current form to cope with additional traffic generated by the proposed subdivision. Concern was raised by Mr Ryan about increased danger along this road given the 80km/hr zone, the narrow form and curved alignment. There were also questions about the ability of a bridge to cope. The implication arising was that the permit applicant should pay for upgrading given the extent to which traffic volumes would increase.

35 I am not persuaded that the permit application fails for reasons relating to increased traffic or that the proponent should be required to pay for road upgrading beyond what is necessary to directly access lots associated with a subdivision of the subject land. Spring Road is in a Road 2 Zone and although its traffic volumes are relatively low at present for a road in such a zone[14] the road's higher order function is expected. I am not persuaded that the increase in traffic that would result from the proposed development would jeopardise safety and, in time, as the area develops, it will be a matter for the Council as road manager to determine further works that might be required. It is this type of matter that might, for example, be the subject of a Development Contribution Plan developed through an ODP or like process.

36 For the above reasons, I conclude that the proposal does not represent an acceptable outcome in terms of the policies and decision guidelines of the Ballarat Planning Scheme. I have contemplated how to proceed, either by way of an interim decision directing changes to the plans (as Mr Stewart suggested may be appropriate) or by directing that no permit issue. Having carefully considered both options, I am concerned that the changes may well be substantial and that in turn will have implications on this project given major infrastructure works are proposed. Given that the nature of the changes required, it is appropriate that any revised subdivision proposal be considered through a fresh permit application.

[1] As set out in an amended application filed with the Council in July 2005 that was readvertised.

[2] I was referred to a possible amendment to introduce a Vegetation Protection Overlay over the area but that has not advanced to a stage where it can carry any weight.

[5] Clause 21.05-1. These areas being where future rezoning for urban development would occur as demand requires and following the preparation of an Outline Development Plan.

[8] Clause 21.08 lists reference documents including "Nerrina & Brown Hill Outline Development Plan". It is not clear whether such a document exists. I was referred to two documents - "Structure Plans for Nerrina and Brown Hill Shire of Bungaree (by Meldrum Burrows & Partners Pty Ltd, September 1991) and "Outline Development Plans for Urban Development Areas at Brown Hill, Shire of Bungaree" (by Network Planning Consultants, June 1993). Neither title matches the undated document listed in Clause 21.08.

[9] Sub Area 3A on Plan 14 of the 1991 Structure Plan.

[10] Section 3.4.1 of the 1991 Structure Plan.

[11] 1993 Outline Development Plans for Urban Development Areas at Brown Hill at page 3.

[12] Page 15 of report to Council 28 September 2005.

[13] See for example Fern Ridge v Macedon RangesSC [2003] VCAT 1973.

[14] A total of around 1,400 vehicles per day in one count although at other times it may well be higher when potato trucks are moving produce.