The Tribunal orders that a permit issue for the subdivision of the review site into 25 lots, the development of 25 dwellings and the removal of vegetation. The permit shall be generally in accordance with Notice of Decision No. P579/04 dated 18 January 2005 save that there shall be the following amendments to permit conditions:

1 Conditions 1(a), (b), 1(h), 1(j), 1(k) and 1(l) shall be deleted.

2 Condition 1(c) shall be deleted and replaced as follows:

Heavy mulching or similar treatment designed to protect the optimal root zone of Tree No. 65;

3 The following words shall be added to Condition 1(d):

Unless the Responsible Authority is satisfied, following advice from a qualified arborist, that such additional works are unnecessary.....

4 Conditions 1(f) and 1(g) will be deleted and replaced as follows:

An amended site plan, generally in accordance with the plan prepared by Michael Rogers but showing all trees to be removed, and those to be retained.

5 The following sub-clauses shall be added to Condition 1:

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relocation of the visitor parking spaces;

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modification to common access to provide appropriate swept paths;

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modification to grades to show 1:4 for all parking spaces and 1:8 for all access;

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deceleration lane on Diamond Creek Road increased to 15 metres measured from the property boundary.

6 In Condition 15 the following words shall be included to precede Condition 15(1):

Unless the Responsible Authority otherwise determines ...

7 Condition 18 shall be deleted.

8 There shall be a consequent re-numbering of all permit conditions.

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

Mr D. Stoddart appeared on behalf of a number of applicants for review/objectors.

Mr S. Horne, an objector, appeared on his own behalf.

Ms C. Wilson, Town Planner, represented the Responsible Authority.

Mr P. Connor of Counsel (Direct Brief) appeared on behalf of the permit applicant.

Application under s 82 of the Planning and Environment Act 1987 for review of a decision to grant a permit.

Application under s 80 of the Planning and Environment Act 1987 for review of conditions in a permit.

Subdivision, removal of native vegetation and the erection of 25 dwellings.

1 The review site is an irregular shaped parcel of land having a total site area of 10789m2. It has a frontage of 24.38m to Diamond Creek Road, a primary arterial road carrying approximately 20,000 vpd. It also has a frontage (81.26m) to Pembroke Street, which is a residential street with a width of 4.7m between rollover kerbs. The land supports a 1970's style, two storey dwelling of unremarkable origins.

2 The rear portion of the site, away from the Diamond Creek Road frontage, supports significant vegetation including a number of large native trees and a plentiful understorey. The land slopes steeply downwards from Pembroke Street to a central valley running generally from east to west. There is a bluestone retaining wall along the Diamond Creek Road frontage. The site rises again on the southwest side. A number of dwellings have been constructed at this point on elevated adjoining land.

3 To the north, at No. 72 Diamond Creek Road, lie 5 two-storey contemporary dwellings separated from the review site by a common driveway. Pembroke Street is a suburban street with a high side to the north and a low side on the south where it adjoins the site. Pembroke Street contains a mix of single storey and two-storey dwellings of various styles, most of which have been set in attractive "native style" gardens.

4 The Responsible Authority provided the following summary of distances to nearby services and facilities:

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Greensborough Principal Activity Centre 1.2km to the south west.

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Bus route in Diamond Creek Road linking to Greensborough Railway Station, the bus interchange at the Greensborough Plaza and Eltham to the east and Plenty/Whittlesea to the north.

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There are various public open space reserves in the locality including Yandell reserve to the south and Greensborough Park to the south west.

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Primary schools include Greenhills to the north east and Apollo Parkways to the north west.

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Secondary schools are further distant with St Helena College to the north east and Montmorency College to the south. A campus of the Northern Melbourne Institute of TAFE has a campus on Civic Drive some 600m to the north west.

5 The Responsible Authority provided the following description of the application:

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Subdivision of the site into 25 lots ranging in size from 128m2 to 268m2. The lots are in 7 clusters with areas of common property in between with the total area of common open space comprising 4691m2.

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A common road with pavement width varying from 3.5m to 5.5m entering the site from Diamond Creek Road gives access to 19 lots and finishing in a cul-de-sac at the eastern end of the site;

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Six lots facing Pembroke Street with 4 individual and 1 shared driveways providing vehicular access;

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The dwellings proposed on each lot include 9 dwelling types, all 3 level townhouses, with 23 containing 3 bedrooms and 2 containing 4 bedrooms.

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Elevations present a mix of flat, skillion and curved roof lines and a mix of materials for external finishes including brick, timber, rendered cladding, colorbond and untreated galvanised steel.

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A total of 55 car spaces are provided on site comprising 2 per dwelling and 5 visitor spaces spread throughout the site.

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Vegetation removal proposed in the advertised plans included removal of 36 trees and indigenous ground layer vegetation particularly in the vicinity of units 20-23 and units 11-13.

6 All dwellings are to contain three bedrooms save for Units 21 and 22 which would have four bedrooms. All units would have car parking for two vehicles. The density proposed equates to 1:431m2 and the site coverage would be 18%. Approximately 56% of the land is to be set aside for common areas, 40% in a Bushland Conservation Area (available to the general public) and 16.4% as central open space developed around the driveway and wetland areas. These percentages do not take account of the private open space areas allocated to each individual dwelling.

7 It is proposed that ongoing management of the remnant bushland will become the responsibility of the Body Corporate. Prior to this however the applicant, at its own expense, is to construct an extensive land management program including the installation of fencing, the removal of weeds, the protection of large areas of understorey, and a replanting program designed to replace approximately 10 mature trees that would be removed to facilitate the development. It is further proposed to provide two level surfaced areas suitable for informal gatherings such as barbecues.

8 Among other initiatives, investigations are underway to establish whether or not it is practical to provide a publicly available pathway leading down through the site commencing at Pembroke Street and connecting to Diamond Creek Road.

9 All the various arrangements described above are to be secured by a Section 173 agreement.

10 The individual dwellings as proposed have been architect designed by Bruce Henderson & Associates. The design approach has been to erect three storey dwellings taking advantage of the sloping terrain, and with a view to minimising ground floor footprints. This, in turn, minimises both the need for excavation and for tree removal.

11 The review site is situated in the Residential 1 Zone, the purposes of which include the provision of residential development at a range of densities to meet the needs of a variety of households. A permit is required for more than one dwelling on a lot and is subject to the various requirements of ResCode. The land is also situated within an Environmental Significance Overlay and the following objectives are relevant:

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To protect and enhance the conservation values of sites of botanical, zoological or habitat significance.

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To maintain the biological diversity of indigenous plants, animals and other organisms occurring within recognised sites of botanical, zoological or habitat significance.

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To provide for the ecological sustainability of recognised sites of botanical, zoological or habitat significance.

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To protect and enhance regional and strategic habitat links.

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To address the threatening processes associated with widespread habitat loss and degradation that has occurred in North East Melbourne.

12 Permits are required for the subdivision of the land and for the removal of vegetation.

13 The land is also subject to Design Development Overlay Schedule 8. The following objectives are relevant:

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To ensure that development does not penetrate the tree canopy.

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To ensure that the heavily vegetated character of the area is respected by new development.

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To ensure that the health of existing trees is not jeopardised by new development.

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To maintain the spaciousness and bush character of front gardens.

14 A permit is required to carry out works within the dripline of trees where a permit would be required for its removal, and for buildings exceeding 8m in height.

15 The application was advertised and attracted a total of 25 objections. These the Responsible Authority summarised as follows:

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Overdevelopment

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Environmental concerns

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Amenity

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Vehicle access and parking

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Inappropriate response to planning controls

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Management

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Neighbourhood character

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Inadequate plans.

16 A consultative meeting was conducted but it failed to resolve the issues in dispute. The application was referred to various Council departments internally and to external authorities including VicRoads. None objected to the grant of a permit.

17 On 18 January 2005, under delegation, the Responsible Authority resolved to issue a Notice of Decision to Grant a Permit subject to conditions.

18 There are two matters now before the Tribunal. Application No. P215/2005 is by objectors against the Notice of Decision to Grant a Permit. Application No. P360/2005 is by the applicant against the following conditions:

1. Before the development permitted by this permit starts, 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 drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans submitted to Council on 1 September 2004 but modified to show:

(a) deletion of lot 19 and relocation of Lot 18 further west with a minimum setback of 3m to the common boundary of No 72 Diamond Creek Road and to provide increased distance to Tree 17;

(b) Deletion of Lots 1-3 and replacement with one (1) lot located a minimum distance of 9m from Tree 87 as identified in the Tree Survey Report prepared by Michael Rogers. A minimum setback of 7m to Diamond Creek Road must be maintained;

(c) Relocation of the 'congregating area' as shown on the advertised landscape plan prepared by Robert Boyle Landscaping away from the optimal root zone of Tree 65 as identified in the Tree Survey Report prepared by Michael Rogers;

(d) All dwellings in proximity to trees designated for retention are to be redesigned to allow construction on post and bearer footings with services suspended beneath these structures to avoid open trenching near trees;

(f) Amended site plans which show all trees to be retained including trees numbered 1, 41 and 87 as identified in the Tree Survey Report prepared by Michael Rogers; the tree located on 66 Diamond Creek Road and three Yellow Gum trees located in the south eastern corner of the site;

(h) Further assessment of distances of excavation from Trees 1, 3, 17, 23, 24, 29 and 65 to ensure that damage to roots of these trees will not occur and relocation of proposed dwellings as required;

(j) An Environmental Management plan to the satisfaction of the Responsible Authority as required by Condition 10 of this permit;

(k) Double glazing of habitable room windows within 30m of the Diamond Creek Road frontage;

(l) Landscaping as required by Condition 9 of this permit;

(m) Engineering plans showing a properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system;

9. (a) Amended site layout as referred to in Condition 1 above;

18. Unless otherwise agreed in writing by the Responsible Authority, prior to a Statement of Compliance being issued for the Plan of Subdivision under Section 21 of the Subdivision Act 1988, a 5% Public Open Space Contribution shall be paid to the Responsible Authority.

19 At the commencement of the hearing the Tribunal gave leave to Mr S. Horne, an original objector, to be joined as a party to Application No. P215/2005. Mr Horne is the owner of Unit 5, No. 72 Diamond Creek Road, immediately adjoining the site.

20 During the hearing all parties tabled and read written submissions. Mr Connor of Counsel, who represented the permit applicant, called evidence from the following persons:

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Mr D. Gold, a Town Planning Consultant.

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Mr D. Robertson, a Traffic Engineer.

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Mr R. Boyle, a Landscape Architect.

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Mr L. Kern, an expert in environmental management.

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Mr R. Galbraith, an Arboriculturalist.

21 In addition, the designer of the dwellings, Mr Bruce Henderson, was given leave to take the parties and the Tribunal through the plans of the proposal and to explain the design philosophy which underpinned it.

22 All witnesses save Mr Henderson spoke to written submissions that had been pre-circulated to the parties prior to the hearing. These were generally supported by other materials such as sketch plans, photographs and the like. Following the hearing the Tribunal conducted an inspection of the review site and the surrounding area.

23 The Tribunal does not propose to summarise the voluminous material generated by these two applications for review. Rather, it proposes to examine the submissions of the parties, and the evidence before it, by reference to the following headings:

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What is the appropriate policy balance to be struck having regard to the inherent conflict in the planning controls?

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Does the "cluster approach" offer a preferable solution to a more traditional form of subdivision?

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Do any unreasonable environmental consequences arise from this proposal?

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Do any unreasonable amenity consequences arise from this proposal?

24 It needs to be emphasised that none of these issues is wholly self-contained. Inevitably there will be overlap. There is also overlap between these matters and the question of conditions. Nonetheless, some attempt at segregation of the issues is necessary in order to arrive at an appropriate planning outcome for this unusual parcel of land.

25 There is an obvious conflict between the Residential 1 controls which seek that housing be developed with an appropriate degree of diversity, and the overlay controls that seek the protection of vegetation and habitat. The controls present a difficult dichotomy, but an appropriate planning outcome cannot be achieved by giving all the weight to one set of controls and none to the other. Notwithstanding the fact that it has access to a primary arterial road, exceeds 1 hectare in area and is located only a little over 1km from a primary activity centre, it would be as inappropriate to allow the land to be developed at a conventional density of say 1:250m2 as it would be to hold that every tree and blade of grass on the site should be preserved.

26 Therein lies the key problem in the case advanced by Ms Stoddart. Her submission simply failed to give weight to those factors which favour development. There was scant acknowledgement of the fact that the applicant has gone to unusual lengths to come up with a development that, by virtue of its very limited site coverage and modest density, represents a genuine attempt to address environmental issues. For example, Ms Stoddart's criticisms of the private open space allocation as "not generous" simply ignores the 56% of common areas that would remain for use by the public at large. Criticism that the proposal offends neighbourhood character objectives because there are few unit developments in the area fails to recognise that the planning scheme calls for diversity "to meet the housing needs of all households". There would no doubt be households attracted to the prospect of residing in comfortably sized units nestled in a natural setting, but where small lot sizes minimise the need for individual labour.

27 Ms Stoddart was also critical of the notion of an "environmental management plan" contending that it would be "unworkable". The Tribunal does not share this pessimistic appraisal. It can see no reason at all why a group of like-minded owners, attracted to a particular type of environment, would not meet their legally imposed obligations under a s 173 agreement. Nor does it share Ms Stoddart's view that the City of Banyule will be "unable to enforce the requirements" of the proposed Plan. No reason was given to support this assertion which seems to be unreasonably derogatory of the Council and its officers.

28 In short, it is patently obvious that an appropriate balance needs to be struck. The Tribunal turns now to examine that question.

29 The concept of cluster development is not new. Indeed, in and around the 1970's, some noteworthy successes were recorded in the eastern suburbs of Melbourne. The demise of the Cluster Titles Act 1974 is not an indication that this form of subdivision has suddenly become inappropriate.

30 There seemed to be an implication in the objector's submissions that a more traditional form of low density subdivision offered a better solution. Ms Wilson told the Tribunal that, in the year 2000, a permit had issued for a 3 lot subdivision along Pembroke Street but that permit had since lapsed. She added that this particular form of subdivision frequently led to larger houses, the paraphernalia of tennis courts and swimming pools, and ultimately, a far greater loss of vegetation and understorey. The Tribunal agrees. Various areas in Warrandyte, Donvale and Templestowe provide the evidence.

31 The proposal has been laid out in a way that focuses the most intensive development along the east-west spine. Much of that spine has already been cleared and developed and it is far less environmentally sensitive than the sloping reaches along Pembroke Street. Moreover, because the spine forms the lowest point of the land, the height of the dwellings will not be intrusive. There is little reason to criticise the layout of Units 1 - 19, all of which directly face the central spine.

32 Units 20 -25 all gain their access from Pembroke Street. The land here falls quite sharply towards the valley. It also supports more intensive vegetation. However, approximately 40% of that portion of the site will still be contained in a "common area", fenced off and protected from human intrusion.

33 In answer to a question from the Tribunal, Mr Kern (whose evidence was commendably frank) indicated that he would be happier to (to use his words) "tweak the development" and, while maintaining a similar density, enlarge the common area in the north-eastern portion of the site. The Tribunal has given consideration to this comment and will return to it later in the decision.

34 Having considered the design concept, the Tribunal is convinced that clustering the development offers by far the best option for this land. Such an approach provides the opportunity to keep large, contiguous parcels of land in common ownership, thus offering habitat corridors and, through judicious management, viable areas where the environmental objectives of the overlay can be better achieved. The Tribunal adopts the following thoughtful analysis provided by Mr Kern:

Conventional suburban subdivision has been a disaster for the significant ecological values of the Greenhills area. Despite the fact many people "sympathetic" to the native vegetation may have historically moved into the area and retained native trees it doesn't appear as if this careful approach is being implemented today. For the most the only part of the local ecosystem that is maintained on private house blocks are remnant trees. These remnant trees are important and useful for Swift Parrots and other species that use the area but they are "ecological artefacts"; the typical local garden doesn't allow regeneration of the trees nor retain any indigenous shrub or ground layers. The local habitat is definitely on the decline because of conventional suburban subdivisions and the typical gardens that are installed. The conventional intensive unit developments simply exacerbates the significant negative impacts on local flora and fauna values that was started with the initial suburban development. The proposal is far superior to conventional urban and unit development in the local area.

The proposed development would be a significant departure from the typical model. It is a departure that is much more likely to achieve a better outcome. Areas of significant vegetation, not just the indigenous trees, would be retained and enhanced over time. This "bushland" and ephemeral wetland (in the gully) management regime would allow regeneration of trees over time and the retention and growth of diverse indigenous habitat over time. This is an important and useful initiative for the site and neighbourhood; it may even prove an inspiration to others to pay more respect to the local habitats.

(c) Environmental consequences

35 Clearly, one of the adverse consequences of the proposal is that several mature Yellow Box trees will be lost. Several matters are at issue here, not the least of which is the safety of future occupants.

36 The evidence given by Mr Galbraith was to the effect that a number of the trees to be removed, although in good condition, are not of a domestic scale and are at risk of losing limbs. In this regard, the Tribunal will return later to some specific examples.

37 Ms Stoddart expressed concern regarding potential for discovery onsite of some scarce species including the Eltham Copper Butterfly and the Swift Parrot. However, there does not appear to have been any specific siting of either on the review site. Certainly there was no evidence to that effect. The Tribunal therefore prefers to adopt the assessment of Mr Kern, namely, that while the land may be "a potential reintroduction site", no sitings have taken place.

38 The land forms part of a regional wildlife corridor and its habitat value will vary according to the season. However, there is no evidence, nor indeed is there any reason, to believe that its habitat value will be significantly affected by a development of the relatively low intensity now proposed.

39 The evidence provided by Mr Kern contained the beginnings of a land management plan. As he pointed out, more work will need to be done. However, the Tribunal was impressed with the evidence of Mr Kern and accepts his assessment. Specifically, it agrees with the following passage from his conclusion:

The house sites and this land management plan have been designed to respond to the site constraints and attempted to balance reasonable development objectives. It is suggested that limitations put on the site's development by its ecological values should actually be seen as assets and opportunities. A home surrounded by a natural ecosystem is increasingly seen by many people as a desirable place to live; this site is an opportunity to ultimately create many homes in a unique and beautiful environment.

40 The Tribunal has given thought to Mr Kern's suggestion that the development could be re-arranged to offer more protection to bushland adjacent to Pembroke Street. However, having inspected the site, the Tribunal considers that the most vigorous bushland areas will be well protected and the balance achieved by the plans before the Tribunal is a satisfactory one.

41 The objector's concerns regarding loss of amenity focused on submissions that:

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traffic levels would increase and emergency vehicles could not gain access to the site;

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there would be a loss of views;

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there would be an increase in noise levels.

42 As to the first, the Tribunal accepts the evidence of Mr Robertson that there is no difficulty for emergency vehicles in gaining access, even to the more remote parts of the site and further, that traffic and parking arrangements offer no impediment to the grant of a permit. As to the second, there is no right to a view, the planning scheme does not specify views as a relevant amenity consideration, and any view across this residentially zoned land is one fortuitously enjoyed. The argument is specious.

43 As to the third, there is no reason to believe the occupants of this development will be any noisier than other persons or families occupying premises in the residential zone. Given the density proposed, this argument is also specious.

44 This application does not give rise to any amenity consequences whatsoever. The individual dwellings have been carefully and thoughtfully designed by a prominent Melbourne architect. They will not detract in any way from neighbourhood character or amenity.

45 It follows from the foregoing analysis that the Tribunal regards the objector's concerns as being without a sound town planning foundation. Accordingly, it believes a permit should issue subject to conditions. The Tribunal turns now to that issue.

46 The key conditions in dispute are conditions 1(a) and (b). Each requires a modification resulting in fewer units. Both have been included with a view to retaining a particular tree.

47 Condition 1(a) relates to Unit 19. Effectively, the condition requires that Lots 18 and 19 be consolidated into one lot to protect Tree No. 17 as identified on the relevant plan. Mr Galbraith's assessment of the situation was as follows:

Tree 17 This is a very tall, at least 28m, and somewhat top heavy Yellow Box. It is shown as being retained on the plans but realistically and from a responsible view point in any development of the site, it cannot be successfully retained. It has a branch shedding history and has recently shed a large 'widow maker'. Shedding is likely to continue and furthermore I would suggest that a large section of the stem is at risk of snapping in a severe storm. Although the proposal may not affect its health, it is very unlikely that people living in the dwellings near it would tolerate it for long. I suggest it be removed as part of this application.

48 Condition 1(b) relates to Units 1 - 3. Effectively, the condition requires that Lots 1 - 3 be consolidated into one lot to protect Tree No. 87 as identified on the relevant plan. Mr Galbraith's assessment of the situation was as follows:

Tree 87 This is a large somewhat prominent twin trunked Yellow Box in good condition near the west of the site. It is listed as being removed because it cannot be retained according to the existing proposal. I agree that it cannot be retained for this reason. However I have doubts as to the longevity of this tree, even if no development was to take place. The base of the tree is only 2.6m from the existing masonry dwelling. I would suggest that anybody living in this house would not be happy about retaining such a large tree so close, particularly after a storm has blown out some of the branches.

49 In each case, on balance, the Tribunal accepts Mr Galbraith's evidence. Unit 19, although close to the boundary, will not affect the amenity of the neighbouring dwelling which has virtually blank walls at the interface, and whose private open space is orientated north, away from the proposed unit. Given that no amenity implications arise, and having regard to the state of the tree, it believes the condition is unreasonable.

50 Units 1 - 3 are located towards the Diamond Creek Road frontage, which is the most heavily modified portion of the site. These lots are close to a road carrying 20,000 vpd. It seems unreasonable therefore to attempt to retain an 18m high tree which is clearly of a scale not suitable for a residential environment when all other considerations weigh against retention.

51 Condition 1(c) is unreasonable in the circumstances. The evidence suggests that heavy mulching, or some similar treatment, would be sufficient to protect the root zone from occasional human incursion.

52 Condition 1(d) has been modified at the Tribunal's suggestion to offer some form of discretion in regard to the use of post and bearer footings. A similar accommodation was reached with regard to conditions 1(f) and 1(h).

53 Conditions 1(j) and 1(l) repeat other permit conditions. The Tribunal regards this repetition as unnecessary.

54 Condition 1(k) requires double glazing for units within 30m of the Diamond Creek Road frontage. The Tribunal notes that the units at No. 72 Diamond Creek Road did not face a similar requirement. There is no evidence before the Tribunal to justify double glazing and, in the absence of any empirical assessment, the condition is unreasonable.

55 It was said that condition 1(m) has already been fulfilled. If so, there is no real impediment to its retention. It can therefore remain.

56 Condition 9(a) is unnecessary, repetitive and serves no useful purpose. It should therefore be deleted.

57 Condition 18 requires a 5% contribution for public open space. It is, on any view, an unreasonable condition. The key determinant in assessing any requirement for a contribution to public open space is whether the subdivision will create a need for additional open space. In assessing this question, the Tribunal has always given considerable weight to the availability of public open space nearby, and to the adequacy of private open space within the development itself. It is obvious, for instance, that a development opposite a large area of public open space is unlikely to attract the same level of contribution as a development which is remote from such facilities.

58 In the present case, the proponent is contributing to existing public open space in two significant ways. First, it is making 40% of the total site area available to the public for its use. Second, it is committing a substantial monetary sum to make that land free from weed infestation, and to present it in a way which will benefit the community at large. Moreover, by virtue of the s 173 agreement required by condition 15 of the permit, the future Body Corporate will be committed to a significant annual contribution for the ongoing upkeep of the common areas.

59 For all those reasons, the Tribunal believes it unreasonable to impose any further requirement at all. Condition 15 will therefore be deleted.

60 This proposal is one of those rare examples where it is apparent that the proponent has diverted a significant level of resources to achieving a balanced, well considered planning outcome. From the outset, it obtained sound expert advice and the Tribunal has been impressed with the level of commitment and, particularly, the expert evidence of Mr Gold, Mr Kern and Mr Boyle. It may be true that there is a degree of experimentation in the approach. The Tribunal views that as a good thing, not a negative aspect to be rejected simply on the basis that it is novel, or untried.

61 The Tribunal has endeavoured to explain its reasons at greater length than is its custom. It has come to the conclusion that, subject to the amended conditions, the grant of a permit provides a reasonable and balanced outcome and one which will ultimately be a benefit to both the environment and to the general community.