Mr Steve Kaylock, Town Planner, JCA Land Consultants. Mr Kaylock called Mr George Wright, Forester, to give expert evidence

Mr Rowan Farmer, Town Planner. Mr Farmer called Ms Alannah Matheson, Arborist, to give expert evidence.

For Trevor and Valerie Ward For Country Fire Authority and DTPLI

1. The subject land has an area of approximately 6,000 square metres and is located on the west side of Maroondah Highway. It adjoins an existing residential area in most directions, with an existing motel on adjoining land to the south and east.
2. The permit applicant sought a permit for subdivision of the land into 10 lots reflected by the then current Plan of Subdivision. The subject land is now included in the Residential 3 Zone and is covered by the Design and Development Overlay (Schedule 6) and the Significant Landscape Overlay (Schedule 22).[1]
3. The responsible authority issued a planning permit for a 9 lot subdivision, since it was not satisfied that the proposed density or layout of the subdivision was appropriate to its policy and physical context. It also imposed a number of conditions that would impact notably on the layout and form of the subdivision.
4. The permit holder has applied to amend the permit preamble and various conditions.[2] It also seeks the approval of an amended Plan of Subdivision that would substantially alter the means of access to the subdivision.
5. In summary, it seeks to contest the requirement to delete a lot and to reconfigure other lots as proposed. It also contests a number of permit conditions requiring tree protection and seeks to remove a number of trees that the responsible authority required to be retained. Other conditions were also contested on the basis that they were not necessary or reasonable.
6. The key issue for my determination is whether the conditions imposed are fair and reasonable, and whether the changes proposed by the permit holder warrant approval.
7. I propose to group the contested conditions for convenience, referring to the acceptability of the proposed Plan of Subdivision throughout (by comparison with the original Plan of Subdivision that resulted in the permit conditions being imposed). The matters that are canvassed by the conditions focus on:
   • whether a 10 lot subdivision can be sustained for this land, in line with the proposed layout,
   • which 'disputed' trees require retention and ongoing protection, and which can be removed,
   • the acceptability of two separate accessways for the two components of the subdivision and impacts on tree protection, and
   • whether a 5% public open space contribution is reasonable in all the circumstances.

1. Both parties agreed that it was essential to protect tree no. 56, an established eucalypt within the road reserve, given its contribution to the streetscape and broader environs. In the original layout of the subdivision, there was a potential for incursion into the root zone of this tree in providing access to the subdivision and for services. This was at a time when the applicant proposed to connect Marna Street as part of the subdivision works, to enable lots within the subdivision to exit in either direction. This would have completed the 'missing link' in the local street.
2. The contested conditions imposed under the permit would require Marna Street across the site frontage and north to Ayres Road to be sealed with a minimum specified pavement width. At the hearing, the responsible authority submitted that the standard of construction could be reduced to a 'bush seal'. The current condition is predicated on the plan of subdivision providing a through connection between the northern and southern parts of Marna Street. The applicant disputes the need for this.
3. By contrast, the amended plan of subdivision proposes a number of separate entrances/exits to the subdivision - a crossover servicing lot 1, another crossover servicing lots 2 and 4, a third crossover servicing lot 3 and a common driveway servicing lots 7-10. This would perpetuate the current lack of connectivity between Marna Street north and south, with the subdivision relying on direct access to the southern portion alone, terminating in a Y-head arrangement beside tree 56.
4. One potential benefit of the currently proposed alignment of the common driveway is that it would shift vehicular movements internal to the site, compared with interfacing with a number of residential properties to the north. This would reduce amenity concerns from traffic movements.
5. The responsible authority submitted that it was appropriate to require Marna Street to be continued as part of the subdivision works since it would provide improved connectivity between the lots and the local road network and would reduce the burden of traffic, noise and waste collection on land abutting the southern portion of Marna Street.
6. The permit holder submitted that a special charge scheme had earlier been proposed to facilitate the connection of the two parts of the street, but was abandoned because of a lack of resident support. In fact, it appears that at that time, numerous owners were opposed to the through-road proposal. The permit holder submitted that it would be ironic for the responsible authority to achieve the connection via permit condition for this subdivision in circumstances where it could not be achieved via a more direct and consultative process.
7. In my opinion, there is a lot to be said for the desirability of connecting the two parts of Marna Street when the currently disjointed local road network is considered. It would substantially improve driver choice and convenience. The question is whether this is a necessary condition to be imposed as a consequence of this particular subdivision.
8. Bearing in mind that the test for acceptability of a proposal is acceptability and not necessarily ideal outcomes[3], I consider that there is no need for this subdivision to construct a through road. The cul-de-sac is an existing road condition. I find that the creation of 10 new lots on this substantial parcel of land would not unreasonably burden the southern part of Marna Street in terms of additional traffic or in terms of amenity or waste collection. There was no also indication supported by evidence at the hearing that, subject to upgrades to the road adjacent to the property frontage, Marna Street could not reasonably sustain the likely additional traffic movements. In addition, the lots are conventional residential lots and the land is zoned accordingly.
9. On the issue of conditions requiring the road surface and infrastructure to be upgraded, I support the requirement to seal the road adjacent to the subject land, albeit to the 'bush seal' standard required by the responsible authority. I consider that this is a reasonable requirement that flows from the reliance of 10 additional dwellings on this part of the street for principal access and the likely additional traffic movements having regard to the existing state of the gravel roadway.
10. I recognise that the remainder of Marna Street would only be sealed by council initiative or a special charge scheme, and that this may be the only sealed component for some time. Nonetheless, I consider that the works are reasonably warranted by the current subdivision proposal and the conditions are therefore valid.
11. In terms of the proposed deletion of the crossovers for a number of lots, I consider that these conditions should be varied. I find that there will not be any unreasonable impact on the functionality of the roadway by permitting four crossovers for the development as a whole. I note that they would be at the very end of the cul-de-sac and, in terms of functionality, would only impact directly on the townhouses at 6 Marna Street opposite (which already have two crossovers to serve four lots).
12. However, in the physical context of the site, I find the proposed number and location of crossovers for the southern lots to be somewhat excessive in a streetscape with generally limited crossovers, notwithstanding the approximately 70 metre frontage width. In principle, I consider that the creation of reciprocal easements of carriageway is not overly complex or problematic and that this should be extended to service lot 3 rather than providing three separate crossovers in very close proximity to one another. This would have the added benefit of making it more feasible to retain tree 68 as I have required below. I would otherwise regard a crossover for lot 1, a shared crossover for lots 3, 4 and 5 and another shared crossover for lots 7-10 as acceptable.

1. The responsible authority was concerned that lots 7 and 10 were of awkward shape and would have relatively small developable areas, also noting the building exclusion zone within lot 10.[4] It also considered that the development of this number of lots would require excessive removal of trees.
2. On the issue of whether lots 5, 6 and 7 must be consolidated into two lots of similar size with one lot fronting Marna St and the other the common property (to address the above), the responsible authority submitted that this was warranted because of the inclusion of the subject land in an Incremental Change Area in clause 21.04-1 of the planning scheme, where more spacious settings for dwellings were encouraged. Such areas are intended to predominantly maintain a low density residential character and seek to avoid adverse impacts on natural, built form or landscape amenity. Notably, clause 21.08 of the planning scheme seeks to promote a variety of lot sizes to encourage subdivision to be responsive to the retention of significant vegetation.
3. Given transitional provisions, this permit application was not subject to the Schedule to the Design and Development Overlay. In terms of what it is

now seeking to achieve, the responsible authority pointed to a relevant objective of the DDO:

To ensure subdivision and residential development occur in a more spacious style that respects existing neighbourhood character and is at less density than in preferred consolidation areas.

To create lots large enough to accommodate future and existing development while retaining natural or established vegetation.

To ensure new vacant lots are large enough to accommodate future buildings consistent with the site coverage provisions in this schedule.

1. I accept that the policies I have identified above are an important 'driver' for the layout of the subdivision but consider that, on balance, the proposed size and layout of lots 5, 6 and 7 would comply with these policy as designed. More specifically, they would have an area of 502, 502 and 603 square metres respectively. Lots 5 and 6 would assume a conventional rectangular shape, while lot 7 would be more triangular and would call for a non-conventional design response for any future dwelling.
2. I do not accept the submission of the responsible authority that it would be almost inevitable that substantial additional trees would need to be removed for the construction of dwellings on the lots to be created. For example, it is conceivable that a sensitive design could work around tree no. 37 within lot 7. In any event, it seems to me that there would be only minimal difference in vegetation removal outcomes (especially significant trees) on the original application plans that formed the basis for the approval compared with the amended plans, especially if modifications were made to retain the grevilleas and two of the blackwoods (as required below).
3. Importantly, the site context includes a genuine mix of existing housing stock, normally on large lots with moderate to fulsome vegetation cover, as well as a high component of medium density development in the form of units with increased areas of hard surfacing. Further east, the area also includes smaller residential blocks that are generally developed with single detached dwellings.
4. To this extent, the area includes notable variety in lot patterns and sizes. The zone itself encourages residential development at a range of densities, whilst respecting neighbourhood character. Subject to variations to the conditions to require various trees to be protected (in line with my reasons below), I consider that the proposed Plan of Subdivision strikes a suitable balance in this regard.
5. Lot sizes within this subdivision vary from 502-753 square metres and in my opinion, are reasonably configured to provide suitable areas for the development of a dwelling and the retention of more highly valued existing vegetation. I consider that the provision of lots of this size and configuration is a comfortable fit in this setting. It is also relevant that the schedule to the zone (were it applicable) would be met by the proposed lot sizes at over 500 square metres each. I consider that there would still be realistic areas available for landscaping beyond the anticipated dwelling envelopes.[5]
6. On the issue of the minimum setbacks specified from the common driveway in the permit, proposed to be reduced by the permit holder, I find that there is scope for some latitude. The reduced setbacks would still allow for appropriate separation between dwelling forms and would preserve space for landscaping, especially considering the common accessway will be contained within an approximately 6 metre wide strip with capacity for side landscaping, to supplement the setbacks to dwellings within individual lots. In terms of neighbourhood character, there are also numerous sites in the immediate area (north and northwest) with dwellings set quite close to each other. By contrast, this development would provide for a more spacious dwelling layout.
7. Following from my determination about the adequacy of the lot layout, I propose to delete the condition requiring the lot boundaries for lots 8, 9 and 10 to be shifted southwest. In addition, I would oppose any suggestion that the common driveway for lots 7-10 should be widened - this is excessive having regard to the number of lots and projected usage and is not of itself necessary to facilitate waste collection.

1. The permit holder submitted that a group of Grevillea robusta (Silky Oaks - Trees No. 46, 47 and 48) growing above an embankment on proposed lot 10 could be reasonably be removed as part of the permission sought, without any unreasonable landscape or environmental impact.
2. Mr Wright gave evidence that this species is inherently unsuitable in a heavily used residential setting, and that they had the potential to become dangerous over time in an urban area. I regard his evidence as coloured by general perceptions about this species of tree, without adequate regard to the particular trees in question in their particular setting.
3. With respect, I prefer the evidence of Ms Matheson on this point and consider that her assessment was more comprehensive from an arboricultural perspective. I accept her assessment that such trees are not known for being inherently dangerous in the sense of being prone to failure and causing damage to property or harm to people. Likewise, I accept that their location on the embankment does not necessarily compromise their stability or increase their level of risk unacceptably.
4. I further accept her opinion that the trees are attractive natives that make a contribution to the immediate landscape setting, and that this would be enhanced with the development of the subdivision which would bring residential living closer to the trees.
5. Given the lot sizes and configuration, it seems possible that only consequential changes may need to be made for the provision of a driveway to lot 10 if the grevillea trees were retained as required. In theory, special methods of construction could be used to avoid unreasonable impacts on the tree protection zones of these trees having regard to the relevant Australian Standard.
6. Bearing in mind that the amended conditions were intended as a 'package' together with the amended plan of subdivision, it is important to first ascertain whether the subdivision layout would still be functional if the grevillea trees required retention. For example, it may not be possible to comply with the relevant Australian Standard for tree protection by providing access so close to these trees, since they are sited directly in front of the common property and there is no meaningful western setback on lot 10 beyond the trees. This may also necessitate consequential changes to the configuration of lots 9 and 10.
7. Subject to being capable of achievement, I would propose a condition requiring details of the proposed driveway for lot 10 and its connection from the common property accessway to be depicted on the plan for endorsement (via condition 1). This would be subject to a requirement that all works must comply with Australian Standard for the Protection of Trees on Development Sites (No. 4970-2009) in respect of trees to be retained under the permit (including the grevilleas). Consequential amendments to the layout of lots 9 and 10 would be permitted if required.
8. Alternatively, my decision in respect of tree retention may call for a more fundamental reconsideration of the suitability of the common property accessway in its proposed 'southern' alignment or may necessitate additional changes to the layout of the subdivision.
9. I propose to allow the permit holder to explore these options and to communicate its position to the Tribunal and parties and for the responsible authority to consider its response.
10. On the issue of the blackwood trees within the adjoining road reserve (Nos. 67, 68 and 69), they are native trees which are visible from the public domain. I find that they are in reasonable health and condition to warrant retention. I do not consider that the evidence of Mr Wright demonstrated that they are in sufficiently poor condition or were unreasonably affected by previous roadworks to justify removal. They are also capable of making an enhanced amenity contribution in the coming decades.
11. From a practical perspective, I consider that the wide frontage to the land provides sufficient flexibility for at least trees No. 68 and 69 to be retained, and for modifications to be made to the siting of the (now reduced) crossovers.
12. I accept that replacement trees could theoretically be replanted if they needed to be removed but, in the interim, it would leave the streetscape quite barren. My preference is for them to be retained in the absence of any real need to remove them.
13. I appreciate that the permit holder may seek some flexibility in respect of further tree removal into the future, in connection with the development of new dwellings. This is to be balanced against permit conditions that would require permission for further tree removal. While it may seem appropriate to only constrain the removal of trees that are assessed as 'significant' under the Significant Landscape Overlay, but to permit other trees to be removed if required without further permission, I consider that this would not necessarily be a suitable outcome for this site having regard to relevant policies read as a whole.[6] On this basis, I support the aspect of the requirement for a section 173 agreement whereby further tree removal must be to the satisfaction of the responsible authority.[7]
14. In the lead-up to this hearing, the parties agreed on a form of wording in respect of street tree planting, and I propose to give effect to this.

1. In terms of the condition requiring a 5% public open space contribution, the responsible authority submitted that the subdivision would generate more need for open space and would increase demands on existing local facilities. It pointed to the adopted Recreation and Open Space Strategy as outlining the upgrades that are sought and the fact that there are no proximate facilities at present (i.e. within a kilometre).
2. The permit holder conceded that the subdivision would result in an increase in the use of public open space facilities. It did not specifically contest the fact that the subdivision would result in a need for more open space in line with Section 18 of the Subdivision Act 1988. Rather, it contested the amount payable and suggested that it should be reduced to 3% of the value of the land.
3. The Tribunal has held[8] that there are two separate decisions to be made - whether there is a need for more open space and then, what amount should be payable. There is no specific legislative guidance on calculating the percentage payable.
4. The Tribunal in Peter J Mulcahy and Associates Pty Ltd v Whittlesea CC[9] noted that:

In situations where a specific requirement is not set out in Clause 52.01, in my experience, it is not uncommon for Councils to seek the full 5 per cent allowable under Section 18 of the Subdivision Act 1988.

1. In Bunnings Properties Pty Ltd v Kingston CC[10],the Tribunal used the following (non exhaustive) aspects to guide its assessment of an appropriate contribution:

1. The existing and likely future use of the land. This will be the basic determinant of the demand for more open space. . . 2. The extent and quality of open space currently accessible to the land. . .

1. The amount of land that is reasonably required to satisfy the demand. Residential development is likely to generate greater use of open space for longer periods than commercial development. . .

1. The cost of providing the land, and whether that cost exceeds five percent of the site value of the land.
2. Having regard to the number and size of lots, their conventional residential nature and the likely future demands of users, I consider that the subdivision would notably increase the need for open space compared with the existing site condition, and will generate demand for and usage of a broad variety of facilities. While there are various open space opportunities within the municipality, none are particularly proximate to the subject land and residents will need to look further afield.
3. On balance and against this background, I am not persuaded by the permit holder that it would be appropriate to reduce the contribution imposed from 5%.

1. I have considered other conditions that are sought to be deleted or varied but consider that they have been suitably imposed and are sufficiently reasonable and functional to justify their retention.
2. Based on my findings above, I propose to amend the permit preamble to refer to 10 lots. I have affirmed the general layout and size of the lots and the access to them, subject to deleting one crossover. At the same time, I consider that the subdivision justifies the sealing of the adjacent part of Marna Street (albeit to a lesser standard than originally required). I support the tree retention proposed by the responsible authority, in addition to the public open space contribution as imposed.
3. I have withheld final orders in this case to provide the parties with an opportunity to work through the impact of the retention of the grevilleas on the access for Lot 10, to identify whether a workable amended permit can issue.

[1] Permission is required for subdivision under the DDO and for vegetation removal under the SLO. It is also relevant to assess the proposal against clause 56 of the planning scheme pertaining to subdivision.

[2] under section 87(1)(c) of the Planning and Environment Act 1987 as facilitated by Deputy President Gibson at a Practice Day hearing 9 May 2013.

[3] Rozen v Macedon Ranges SC & Anor [2010] VSC 583, a decision of Osborn J. Relevant issues include the objectives of planning in Victoria as outlined by the Planning and Environment Act 1987.

[5] This has regard to the fact that lots 1, 3 and 5 provide a 6 metre building exclusion zone to Marna Street and a building exclusion zone upwards of 5 metres is provided for lot 10 beside Maroondah Highway. A further rear setback of 3-4 metres is intended for tree protection on lots 2, 4 and 6.

[6] And also principles espoused in Box v Moreland CC (Red Dot) [2014] VCAT 246.

[7] Noting that the responsible authority must act reasonably in making such an assessment and its decision is subject to review to this Tribunal.

[8] In cases such as Stupak v Hobsons Bay CC (Red Dot) [2011] VCAT 618.

[9] [2013] VCAT 375, a decision of Member Cimino.

[10] [2013] VCAT 1257, a decision of Senior Member Wright.