The order of the Tribunal is that the decision of the Responsible Authority is varied. The Tribunal directs that Permit No. P529/03 must contain the conditions set out in the Permit No. P529/03 issued by the Responsible Authority on

21 November 2004 with the following modifications:-

1 Delete conditions 1(a), 1(b), 1(g), 3, 4, 28, 36, 37 & 38;

2 Replace Condition 1(f) with the following condition:

1.(f) The combination of lots 78 & 79 into a single lot and the combination of lots 82 & 83 into a single lot.

3 Replace Condition 1(i) with the following condition:

1.(i) The north south collector road in proposed stages 21 & 24 as a "trunk collector" road with a centre median continuing to the intersection at the south west corner of proposed stage 21, no tree reserves are requires adjacent to public open space other than to the extent necessary to contain road related infrastructure.

4 In Condition 10 replace the words Before the certification of any plan of subdivision with the words Before the issue of a statement of compliance in respect of the permitted subdivision;

5 Replace Condition 18(b) with the following condition:

18.(b) Provision must be made to cater for 1 in 100 year stormwater flows to the satisfaction of the responsible authority.

6 Replace Condition 24 with the following condition:

24. Within 12 months of the approval of engineering plans for the permitted subdivision the owner must construct a sealed connection between Cameron Street and the north south collector road in proposed stage 24/21 along the alignment of Linsell Boulevard (a two lane, two way, undivided roadway being required which is, where practicable, a partial construction of Linsell Boulevard) to the satisfaction of the responsible authority.

7 Replace Condition 25 with the following condition:

25. Before the issue of a statement of compliance in respect of stage 22 traffic management devices for the cross intersection near proposed lots 35 & 46 must be designed and constructed to the satisfaction of the responsible authority.

8 Replace Condition 27 with the following condition:

27. Pedestrian links to be provided in accordance with the Cranbourne East Development Plan.

9 Replace Condition 39 with the following condition:

39. The applicant must ensure that an area equivalent to seven and one half of one percent (7.50%) of the total area of all land in the Hunt Club Estate is set aside for public open space generally in accordance with the Cranbourne East Development Plan and Clause 52.01 of the Casey Planning Scheme to the satisfaction of the Responsible Authority.

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

1 This is an application to review conditions placed on a permit issued by the Responsible Authority for subdivision in relation to stages 21,22,23 and 24 of the Hunt Club Estate Cameron Street Cranbourne East.

2 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The responsible authority sought permission to make further written submissions after the conclusion of the hearing. The tribunal gave directions in this regard, and I have had regard to the submission and responses received.

3 The application for review relates to a very large number of conditions. At the hearing of the application, there was some agreement, and some concession in respect of some but not all the conditions in dispute. My approach to this decision is to list each of the contested conditions, followed by a discussion of my reasons for the resolution I have adopted in respect of each of the conditions.

1.(a) Proposed stage 21 extended to include all of the land in proposed stage 24.

4 I agree with Mr Rantino's submission t that orderly planning may require the staging of subdivision in a particular sequence, and therefore could reasonably be a requirement of a planning permit. However, in this case I do not think that there is any particular reason for varying the stages proposed by the Applicant, or for detailing the sequence in which they are developed. In particular I do not think that there is any traffic related reason for dictating the sequence of development, and here I refer to my conclusions in respect of condition 24. This condition should be deleted.

1.(b) A 12 metre wide plantation reserve along the northern side of the proposed location of Linsell Boulevard between Cameron Street and on the proposed north south collector road at stage 24/21 of the subdivision.

5 The proposed plan of subdivision incorporates a 12 metre wide service road/plantation reserve along its interface with the proposed Linsell Boulevard. This condition relates to a plantation reserve being sought by the Responsible Authority further to the west, although within the same estate, to the north of land within the estate which is set aside for the purpose of a shopping centre. I agree that there is room for debate about the merits of such large plantation reserves from an urban design perspective, and about whether or not the cost of setting aside land for that purpose should or should not be part of the overall cost of a development contribution plan, ultimately I do not think that these are matters which I need and perhaps even should resolve in the context of this application for review. It is my opinion that the land in question is remote from the land being subdivided, and the question of whether or not there should be a tree reserve as proposed should more properly be dealt with in the context of a proposal for the development of the shopping centre itself. This condition should be deleted.

1.(f) All of the proposed lots that are affected by the Urban Floodway Zone (being lots 78 to 83 inclusive) combined into one large lot.

6 The parties agree that this condition should be reworded to require the combination of lots 78 and 79, and of lots 83 and 82, to create two larger lots rather than the single lot proposed.

1.(g) Lots abutting the Melbourne Water pipe track to be of sufficient size and shape to ensure tree planting can occur along the pipe track while still allowing for sufficient space for buildings to be well clear of the trees to reasonably prevent any damage to buildings from the trees.

7 The parties agree that this condition should be deleted.

1.(i) The north south collector road in proposed stages 21 & 24 as a "trunk collector" road with a centre median continuing to the intersection at the south west corner of proposed stage 21.

8 The Applicant was prepared to agree to this condition provided that there was no tree reserve required in association with the trunk collector road where it abuts the proposed public open space other than to the extent required for road related infrastructure such as drainage etc. I agree that this is a reasonable compromise in the circumstances and the condition should be modified accordingly.

3.(c) For plans creating lots with an area of between 300m2 and 500m2, the creation of restriction to control the construction of dwellings on those lots to locations defined by building envelopes to the satisfaction of the Responsible Authority.

9 Again I agree with Mr Rantino that there will be circumstances in which it is appropriate to require the specification of building envelopes as part of a subdivision creating lots between 300 square metres and 400 square metres. This would be particularly true where attached dwellings, or an extensive reliance on zero lot lines, is contemplated. However, given the extension of ResCode standards to single dwellings, the small number of lots within this size range, the topography of the land, and the relatively generous width of these smaller lots, I accept the Applicant's submission that building envelopes are not required in this case. This condition should be deleted.

4. The subdivision must proceed in the order of stages as shown on the endorsed plans unless otherwise agreed in writing by the Responsible Authority.

10 For the reasons set out in relation to condition 1(a) this condition should be deleted.

10. Before the certification of any plan of subdivision abutting the Melbourne Water Pipe Track the owner must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 (the Act) to provide for:

(a) Buildings on lots abutting the Melbourne Water pipetrack to front the pipe track to provide casual surveillance opportunities to improve community safety.

(b) The tree planting on lots abutting the Melbourne Water pipetrack to be maintained by future owners to the satisfaction of the Responsible Authority, including replacement of trees lost over time for any reason, except with the agreement of the Responsible Authority.

11 The Applicant in this case is seeking to change the trigger date from certification to statement of compliance. The Responsible Authority argued that the earlier trigger point was desirable, to avoid there being any confusion in the mind of a person who purchases an effected lot off the plan. On balance I am of the view that the permit and its conditions are sufficient for this purpose, and that it is not unreasonable to extend the timeframe in which the agreement should be prepared. While the condition as a whole is not contested, it is my observation that while the purpose of the condition is understandable, it does seem to me to create a considerable imposition upon the future owners of the affected lots.

11. Prior to the issue of a Statement of compliance for the plan of subdivision creating the water treatment/sediment control areas the owner must enter into an agreement pursuant to Section 173 of the "Planning and Environment Act 1987" with Melbourne Water and the Responsible Authority to provide for:

* the developer to maintain all land located below the 300mm above the normal water level for a minimum of two years following practical completion of the subdivision.

* the developer to maintain all land above the line 300mm above the normal water level for a 12 month period following execution of the Section 173 maintenance agreement.

* Following the above maintenance periods Council to take over responsibility for the future care and maintenance of the land and infrastructure on the land within the reserve and above a line 300mm higher than the normal water level within any open water bodies. Melbourne Water being responsible for the future care and maintenance of the balance land below the line 300mm higher than the normal water level within any open water bodies.

* The owner/applicant must pay the reasonable costs of the preparation, execution and registration of the section 173 agreement.

12 The Applicant's complaint in respect of this condition is the different maintenance periods for the wetlands fringe vis a vis the balance of the public open space. I agree that the differing maintenance periods have the appearance of being unnecessary and complex. However, this criticism was unsupported by any evidence as to what constitutes an appropriate maintenance period, and because it may indeed be possible that a wetlands fringe is more difficult to establish than a grassed open space area, I do not believe that there is sufficient basis for me to alter this condition.

18.(b) Provision must be made to cater for 1 in 100 year flows along the proposed alignment of Linsell Blvd between Cameron Street and the proposed north south collector road in stage 24/21 of the Hunt Club Estate.

13 The issue in relation to this condition is the specification of the route for overland flows in the condition itself. While I agree that the subdivision has developed to a stage where the options for other alignments are constrained, I am of the view that the condition should be generalised and it is unnecessary to specify the alignment in the condition itself.

24. Prior to the issue of a Statement of Compliance for stage 21 the owner must construct Linsell Boulevard as to provide a sealed connection between Cameron Street and the north south collector road in proposed stage 24/21.

14 At the hearing of the application for review the parties in effect agreed for the temporary purposes of this condition that Linsell Avenue need only be constructed to the standard necessary to achieve a 2 way 2 lane undivided connection between the subdivision and Cameron Street. There remained considerable disagreement in relation to the timing of the construction, and to a lesser extent the standard of construction.

15 The Responsible Authority continued to require the construction of the road prior to the issue of the statement of compliance, the Applicant on the other hand proposed that the construction of the roadway be completed within 12 months of the approval of engineering plans for the proposed subdivision. I am satisfied on the basis of Mr Turnbull's evidence, that in the short term the traffic associated with the proposed subdivision can be acceptably accommodated within the existing road network developed as part of the earlier stages of the estate. It is probable that the timeframe proposed by the Applicant will mean that the additional connection along the alignment of Linsell Avenue will be available before or shortly after the complete development and occupation of lots within the proposed subdivision, this seems to me to be an acceptable outcome.

16 In relation to the construction issue it is my view that kerbs should only be required if there is a reasonable prospect that that part of the roadway to be constructed with kerbs will not require reconstruction when Linsell Avenue is ultimately fully developed.

17 I accept the Applicant's contention that the partial construction of Linsell Avenue as required by this condition should be regarded as part of the works covered by the development contribution plan.

25. The cross intersection near proposed lots 35 & 46 requires a traffic management device such as a round about to improve traffic safety.

18 It was agreed by the parties that this condition be modified to delete reference to a roundabout.

27. Pedestrian links to be provided in accordance with the Cranbourne.

28. Footpaths and shared foot/cycle paths must be provided and constructed to the satisfaction of the Responsible Authority.

19 These conditions appear to have created some confusion, and in the final analysis they appear only to relate to a desire for a pedestrian connection between court heads adjacent to Linsell Avenue, an uncontroversial requirement. The solution appears to be to correct condition 27 so that it refers to the Cranbourne East development plans and to delete condition 28.

36. The developer must construct and paint or suitably finish (depending on fence type and materials) all fences along the common boundary between plantation reserves and the lots to the requirements and satisfaction of the Responsible Authority.

20 Again I agree that this would be a reasonable condition in the event that there was a long expanse of fencing along an arterial road reserve resulting from the subdivision. However, this is not the case in this subdivision, and I agree with the Applicant's submission that a conventional paling fence or similar is all that is required. This condition should be deleted.

37. The developer must pay a contribution to the Responsible Authority for half the cost of fencing where lots abut a municipal reserve.

38. Connecting walkways and reserves must be provided in accordance with the endorsed plan.

21 The parties agreed that both these conditions could be deleted.

39. The applicant must ensure that an area equivalent to seven and one half of one percent (7.50%) of the total area of all land in the Hunt Club Estate is set aside for public open space to the satisfaction of the Responsible Authority. Any shortfall in the area of land set aside for public open space must be made up as a cash payment in-lieu of the provision of land.

22 The parties agree that this condition should be amended to make reference to the Cranbourne East development plan and Clause 52.01 of the planning scheme.

41. Before the issue of a statement of compliance or as agreed by the Responsible Authority the developer must pay a development infrastructure levy to the Council in accordance with the provisions of the approved Development Contribution Plan for LSP 3 Cranbourne - East Development Contributions Plan.

23 The Applicant ultimately accepted this condition while remaining concerned that the approved development contributions plan is no longer entirely consistent with the approved Cranbourne East development plan.

43. Prior to certification of the plan of subdivision or any stage of the subdivision, a detailed landscape plan and plant schedule must be submitted to the Responsible Authority for approval. Detailed landscape plans and plant schedules must be provided for all public open space areas, including streetscapes, parkland water retention areas, buffer zones, service corridors and community use areas. They plans must show:

* the location, size and species of existing vegetation on the land.

* existing vegetation that is proposed to be retained, removed or lopped.

* new planting to be provided in all road, open space, plantation or municipal reserves.

24 The Applicant argued that the trigger date for this condition should be the statement of compliance rather than the certification of the plan. This contention was in my view not strongly supported by argument or evidence. In the normal course I would have thought that the landscaping works shown on the landscaping plan should be implemented prior to the issue of statement of compliance, and in this context it would not be unreasonable that the plan itself be submitted and approved prior to the certification of the plan. For this reason I believe that the condition should remain as it is.