The decision of the Responsible Authority in relation to permit application no. 2002/6758 is set aside. A permit is granted and is directed to be issued. The permit will allow the subdivision of the land at No. 100 Cathies Lane, Wantirna South, into five lots, in accordance with the endorsed plans and subject to the following conditions:

1. Before the Plan of Subdivision can be certified, an amended plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and 3 copies to be provided. The plan must be generally in accordance with the application plan but modified to:

a) delete references to the application of implied easements on the land.

b) re-position the boundary of Lot 3 to a point north of the easement shown in Lot 4, with revised dimensions to each lot as required.

2. The subdivision as shown on the endorsed plans must not be further altered without the prior written consent of the Responsible Authority.

3. The owner must provide a contribution to public open space in accordance with the Knox Planning Scheme and the Subdivision Act. The contribution shall consist of a cash contribution for Lots 2-5 equivalent to 8.5 per cent of the site value of all land in the subdivision. This payment must be made before a Statement of Compliance is issued and may be varied under Section 19 of the Subdivision Act 1988.

4. The applicant must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 to defer the contribution relevant to Lot 1 as required under Clause 51.01 of the Scheme. The agreement must provide for an additional open space contribution in accordance with the provisions of Clause 52.01 of the Knox Planning Scheme at the time of any further subdivision of Lot 1. The contribution shall be based on the value of Lot 1 at the time of the further subdivision. The agreement must be registered on title pursuant to the provisions of the Planning and Environment Act 1987 and the applicant shall be responsible for all costs associated with the preparation, lodging and ending of the agreement.

5. The owner shall pay to the Council a payment for supervision of works being 2.5% of the value of all works shown on the engineering plan and a payment for checking of engineering plans being 0.75% of all works shown on the engineering plan.

6. All telephone, light and power services are to be installed underground.

7. The owner of the subject land must enter into an agreement with South East Water Limited for the provision of water supply and fulfil all requirements to its satisfaction.

8. The owner of the subject land must enter into an agreement with South East Water Limited for the provision of sewerage and fulfil all requirements to its satisfaction.

9. Prior to certification, the Plan of Subdivision must be referred to South East Water Limited in accordance with Section 8 of the Subdivision Act 1988.

10. Prior to the issue of a Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage system.

11. Prior to certification, the plan of subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

12. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

13. The applicant shall enter into an agreement for supply of electricity to lots on the plan as required by TXU.

14. The applicant shall submit for approval in accordance with the Subdivision Act 1988 an engineering plan including schedule of quantities and costs and specifications (the engineering plan) for all works required under this Permit.

15. The applicant shall prior to the Council being required to issue a Statement of Compliance pursuant to Section 21 of the Subdivision Act 1988 construct and maintain for three months from practical completion to the satisfaction of the Council all works of drainage necessary for the proper drainage of the land. Drainage works shall have proper regard to the probable future use and development of the land and any other lands or premises in the vicinity thereof in accordance with this Permit. Construction shall be in accordance with the engineering plan approved by the Council.

16. Notwithstanding the requirements of the Conditions above, the owner may enter into an agreement with the Council pursuant to Section 17 of the Subdivision Act 1988 prior to the issue of a statement of compliance to enable specified completion works and the maintenance period to be bonded.

17. A vehicular crossing shall be fully constructed to each lot.

18. A 1.4 metre wide concrete footpath shall be constructed within Cathies Lane for the full abuttal of the land.

19. The applicant shall lodge with the Council prior to the issue of a Certificate of Compliance, three copies of a plan, certified by a qualified engineer, indicating the extent and depth of any filling placed as part of the subdivisional works and any prior filling which becomes evident during the course of design and/or construction.

ADMINISTRATION - TIME FOR STARTING AND COMPLETION

20. This permit will expire if one of the following circumstances applies:

c) The subdivision is not started within two years of the date of this permit.

d) The subdivision is not completed within five years of the date of certification of the plan.

21. The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

22. The applicant shall submit to the Council for certification under the provisions of the Subdivision Act 1988 a plan for the subdivision of the land that complies with the endorsed plan, that Act and the conditions of this permit.

Mr A Atkins appeared on behalf of the Applicant for Review. He called Ms D Donald, Traffic Engineer, to give evidence.

Mr R Lamont appeared on behalf of the Responsible Authority.

The parties presented both written and oral submissions. A number of plans, photographs and other documents were tendered to the Tribunal. All of the material presented to the Tribunal is retained on file and has been taken into consideration. The site and locality were inspected by the Tribunal subsequent to the Hearing.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Timespan Incorporated to review a decision of the City of Knox ("the Council") to refuse to grant a permit in permit application no. 2002/6758. A Notice of Refusal was issued on 15 October 2002 on the following grounds:

1. The proposed plan compromises the proper and orderly planning of the balance of the site and the immediate neighbourhood by not facilitating future road connections at the safest and most logical position, being the Sylvana Street roundabout contrary to clause 56.02-2 of the Knox Planning Scheme.

2. Safe vehicle access to at least one of the proposed lots cannot be achieved due to the proximity of the roundabout, contrary to clause 56.02-2 of the Knox Planning Scheme.

2. An Application for Review was lodged on 13 November 2002 by Mr Atkins on behalf of the Applicant. The grounds relied upon are:

1. The proposed subdivision will not impact on the proper future planning of the area, given the continued use of the majority of the land for its existing purpose of a Church and a Meeting Hall.

2. The proposed subdivision for the land is entirely appropriate having regard to the State and Local Policies and the objectives contained within the Planning Scheme.

3. Safe and convenient access can be provided to all allotments contained within the proposed subdivision.

4. The proposed subdivision complies with the objectives and techniques contained within Clause 56 of the Planning Scheme.

3. The subject site is located on the west side of Cathies Lane, south of Pumps Road. It has an area of some 2.4 hectares. The land has a fall to the south-east. The land is presently occupied by a meeting hall, outbuildings, car park and caretaker's dwelling that are related to the use of the land for religious purposes. I understand that the use operates under an existing planning permit. The site is extensively planted, particularly across the frontage where there is a strong landscaped presence, in contrast to much of the immediate area.

4. The site abuts another religious use to its north and a residential subdivision to its south. To its west is the reserve for the Scoresby Freeway. The east side of Cathies Lane comprises a residential area. The form of residential development ranges from single to double storey and I was advised by Mr Lamont that lot sizes are generally 625 - 925 square metres.

5. The review site is located opposite Sylvana Street, a short street that links with Wakely Crescent. Richardson Rise is a no-through road that extends west from Cathies Lane and then heads north. This northern leg terminates at the subject site, although there is no court bowl. The southern leg of Richardson Rise is Orlando Court. These courts serve around 20 lots.

6. Cathies Lane provides a north-south link between the Burwood Highway and High Street Road. I was advised that traffic counts by the Council in 2000 showed it to carry around 5,614 vehicles over a 12 hour period, which Ms Donald estimated translates to about 7,300 vehicles per day. Mr Lamont referred to a 2002 count of some 6,000 vehicles over 12 hours. Buses operate along Cathies lane and parking is also provided on each side of the road.

7. Three roundabouts have recently been installed by the Council in Cathies Lane as part of a Local Area Traffic Management Scheme. One roundabout is at the intersection of Sylvana Street and Cathies Lane.

8. It is proposed to subdivide the land into five lots. Three lots (3, 4 and 5 to the southern portion of the site frontage) have an area of 850 square metres, Lot 2 has an area of 866 square metres and the remainder has an area of around 2.06 hectares. The larger lot (lot 1) retains the existing caretaker's residence and other facilities used for the religious activities of the owner.

9. Lots 2-5 are proposed to be provided with access directly from Cathies Lane. Lot 1 relies on the existing driveway access to the north of the site frontage.

10. Lots 3, 4 and 5 are proposed to have a street frontage of 25 metres, with Lot 2 having a frontage of 25.49 metres and Lot 1 being 31.77 metres.

11. The subject site is zoned Residential 1 under the provisions of Clause 32.01 of the Knox Planning Scheme ("the Scheme"). A permit is required to subdivide the land. The decision guidelines require consideration of the Scheme's state and local policies as well as Clauses 56 of the Scheme.

13. A number of other Clauses of the Scheme are relevant to the consideration of this Application, and have been taken into account by the Tribunal, including Clauses 14, 15, 16 & 19 of the State Planning Policy Framework, Clause 21 (Municipal Strategic Statement), and Clause 65 (general decision guidelines). Amendment VC16 and Melbourne 2030 have also been taken into account.

14. The Council's Neighbourhood Character Study is a reference document in the Scheme. I understand that the residential areas surrounding and opposite the site are within the Villa Court Precinct 1, although the subject site appears to have been excluded. The Villa Court Precinct 1 is said in the Study to be characterised by a curvilinear and cul-de-sac street pattern with large, frequently two storey dwellings built from the 1980s to present, and small and low level gardens. Double garages are prominent. Those features were evident on inspection and in the material tendered by the parties at the Hearing. The statement of desired character for Villa Court Precinct 1 encourages garages to be positioned less prominently and high front fences to be avoided.

15. Having inspected the subject site and locality, considered the submissions presented by the parties, and examined the applicable planning policies and objectives of the Planning Scheme, I set out my findings in relation to the key issues in this Application below. I do not recite the detailed submissions made by all parties as the documentary material is retained on file, rather, I focus on the following key issues:

s whether adequate access arrangements are made for the new lots, particularly given the positioning of Lots 3 and 4 near to the roundabout at Sylvana Street.

s whether the layout of the subdivision is acceptable in terms of orderly planning having regard to the future subdivision of Lot 1.

16. It is not in dispute between the parties that the subdivision of the land is acceptable, in principle, and that most requirements of Clause 56 are met.

17. The lots proposed are generally consistent with the range of lots sizes present in the area in density terms. The subdivision is also consistent with the purposes of the Residential 1 Zone which are, among other things, to implement the Scheme's policies. I do not need recite the relevant provisions from Clause 21 in support of the subdivision of land such as the review site.

18. The layout of the lots, with four facing Cathies Lane, reflects the pattern of lots along Cathies Lane. Therefore, the proposal is acceptable in terms of the existing lot layout in the immediate and wider area and is also consistent with neighbourhood character objectives.

19. There are few physical or servicing constraints that would prevent single dwellings or, subject to further approval, multiple unit development as a matter of principle. The extensive vegetation along the site frontage was said by Mr Atkins to have been planted (and later supplemented) in conjunction with the permit that issued many years ago for the religious use of the land. Other than what may be relevant under the existing permit conditions, there are no controls in the current Knox Planning Scheme relating to the removal of that vegetation.

20. Mr Lamont submitted that the layout of the site has not properly allowed for the future development of Lot 1 in terms of vehicle access, and that the arrangement would compromise any future safe road connection. Mr Lamont submitted that an access point to Lot 1 at the Sylvana Street roundabout is logical. He noted that the likely development of Lot 1 is recognised by the termination of Richardson Rise at the southern site boundary but it does not have sufficient capacity to cater for the whole of a development on Lot 1 (assuming residential lots at a similar density as the surrounding areas). He suggested that Richardson Rise could terminate in a court bowl or continue as a horse-shoe through the site.

21. Mr Lamont did not support the use of the existing access driveway to service Lot 1 as he said that roundabouts are safer and preferred when compared with a T intersection. He was of the view that given that a roundabout exists, it is appropriate that it be used. Moreover, the provision of a fourth leg to the roundabout would balance its use providing a more even flow, and increasing vehicle use of the existing drive may impact on the dwelling opposite.

22. In response to questions from the Tribunal, Mr Lamont indicated that there is no current local plan, traffic management plan or outline development plan to support this submission. He said that there was a local structure plan some years ago, but that was destroyed in the fire at the Council offices in 1994. Mr Atkins also made some comments about the history of planning for this area, having been employed by the Council for some years.

23. In response, Mr Atkins noted that the current owner has no desire to depart the site and the Council's option would be create a wasted and dead space mid-block. He relied on the evidence of Ms Donald, a traffic engineer, to challenge the Council's submissions. Ms Donald referred to a number of options for access into the site, including a cul-de-sac termination of Richardson Rise and a new cul-de-sac using the existing driveway area to Lot 1. She said that this arrangement would be safe and appropriate and would limit significant increases in traffic in Richardson Rise (compared with a through link).

24. In considering the submissions, it must first be said that although there may be no intent for the existing owner to develop Lot 1, it is, nonetheless, appropriate to consider the future access needs for that lot. That is a matter that is properly included in the decision guidelines of Clause 65.

25. I give weight to the apparent absence of any overall traffic management scheme or development plan that gives some strategic justification basis to the Council's position from a planning viewpoint. There does not appear to any "masterplan" or strategic plan that gives a sound basis to an imperative to create a link at Sylvana Street.

26. While it is logical to provide for a proper termination of Richardson Rise, it is questionable whether the extension of that road through the site is desirable, particularly from the perspective of local residents (as reflected in some of the objections lodged with the Council).

27. I am persuaded that Lot 1 is provided with adequate area to allow its future access needs to be properly provided for. The existing driveway is some 6 metres in width and the lot has a frontage of some 31 metres that gives ample flexibility should more extensive road works be required to service a development or varied land use.

28. The lot pattern in the area is one with cul-de-sacs and curvilinear roads. The layout of the proposed subdivision allows for that pattern to be continued, should it be desired. Similarly, the layout allows for access and lot form in a similar fashion as has occurred elsewhere on the west side of Cathies Lane, with short straight or dog-leg courts.

29. I am therefore not persuaded that the lot layout, as proposed is unacceptable in terms of the orderly and future planning of the area.

30. Mr Lamont submitted that the frontage of proposed Lot 3 is almost fully contained within the roundabout and its traffic islands and this is not acceptable. More specifically, Mr Lamont referred to concerns about the positioning of the roundabout that would constrain access to the lot, generate confusion for motorists and create a safety issue if drivers seek to reverse from Lot 3. Lot 4 was said to be potentially a problem for the same reasons, but it was conceded by Mr Lamont that its driveway could be positioned south of the traffic islands leading to the roundabout. The Council submitted that it is better to avoid a problem than create it and although it may not be uncommon for driveway to be located within roundabouts, it is not a desirable practice when planning a new subdivision.

31. Mr Lamont submitted that, with a second access created to Lot 1 opposite the Sylvana Street roundabout, the boundaries of Lots 3 and 4 could be relocated to avoid driveways within the profile of the roundabout.

32. In response, Mr Atkins relied on the evidence of Ms Donald. Ms Donald's evidence was that the arrangements proposed are adequate and safe, with ample room available on Lot 3 to allow (or require) cars to depart the site in a forward motion. Ms Donald said the arrangement would not be suitable for a higher intensity use (eg. service station) but is acceptable for the limited number of vehicles associated with a single dwelling or a multi-unit development on Lot 3. Ms Donald referred to several options for the appropriate positioning of an access point to Lot 3, including being directly at the roundabout (ie. as a fourth entry to it) or to the north of the roundabout. She considered, however, that south-bound cars should not be able to turn right to Lot 3 over the pedestrian refuge and therefore it is preferable for cars to travel around the roundabout and then turn left into the lot, or to positioning the access north of the traffic island.

33. Given my findings above, I am not persuaded that the inclusion of a second access point for Lot 1 at the roundabout is imperative and therefore I do not consider that this option proposed by Mr Lamont is worthy of pursuit.

34. I am persuaded by Ms Donald's evidence that adequate arrangements can be made to access Lot 3, with the positioning of a driveway possible at several points. However, while I accept that permit conditions could attempt to control cars reversing from the site, that is impossible to enforce, albeit that leaving the site in a forward motion might be what most drivers would do. Moreover, with the volume and speed of traffic that is recognised by all parties as problematic, and given this is a new subdivision, it is appropriate in my view to adopt an approach that works towards a preferable design outcome rather than only an adequate solution, particularly as this can readily be achieved.

35. On the evidence before me, it appears that the proposed boundary of Lot 4 allows an access point to be provided that is south of the traffic island associated with the roundabout. This lot therefore requires no change.

36. Re-positioning of the boundary of Lot 3 to include and extend slightly beyond the easement currently shown on the southern boundary of Lot 4, would allow a northerly access point that is more distant from the roundabout itself while still retaining the option of an access at the roundabout, as the fourth entry directly to it. This would result in Lot 3 being around 28 metres in width and Lot 4 reduced to around 21.5 metres in width. I do not find that this would cause such difficulties in terms of neighbourhood character to cause me to depart from my findings above.

37. Draft permit conditions tendered by Mr Lamont and discussed at the conclusion of the Hearing. I refer briefly to three conditions which were proposed but I have not accepted:

s the Council proposed building envelopes for each lot, I understand with the aim of vegetation protection. While the vegetation makes a contribution to the locale, it is not remnant vegetation and I am not persuaded that there are sufficient grounds to require building envelopes. There are no planning controls relating to tree or vegetation protection and the lots sizes are such that there is ample area to allow new plantings.

s I have linked an open space contribution for Lot 1 to the Scheme provisions that apply at the time of any subdivision - I am not persuaded that adopting a figure of 8.5% as suggested (linked to the current provisions of Clause 52.01) is reasonable.

s I am not persuaded that there is any fair or reasonable basis for land to be transferred at no cost to the Council for additional road reserve opposite the subject site, at the roundabout, to accommodate a footpath/nature strip. There is adequate area for such to be constructed at present and any acquisition should proceed through proper process.

For the above reasons, the Application for Review is allowed in part and I will order that the decision of the Responsible Authority set aside and a permit issued subject to conditions.