endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

1. I recently affirmed Council's decision to refuse a permit for a re-subdivision of two lots in the Green Wedge A Zone at Olinda.[1] The specific circumstances of that case are not of particular relevance to the proposed dwelling at Thomas Road North, but my commentary about old and inappropriate subdivisions is worth repeating as it sets the scene for my assessment of the proposed dwelling at 100 Thomas Road North, bearing in mind the submissions made by the parties in this case.
   1. Old and inappropriate subdivisions are scattered across Victoria, and the Shire of Yarra Ranges and the Dandenong Ranges contain many such subdivisions. The 'worst' of these subdivisions contain small suburban sized lots in estates that have been laid out with little or no regard to topography, watercourses, native vegetation, susceptibility to flood and erosion, or to landscape character. Since the introduction of the first statutory planning controls in Victoria in the 1940's, many of these subdivisions which remained undeveloped at that time have reverted to public ownership, been restructured to create fewer but larger lots by the use of such tools as Restructure Overlays or had their development potential restricted by the use of tenement controls. Within the Shire of Yarra Ranges there are examples of all three approaches being used to prevent or limit development on these very small lots. In other cases the estates have been allowed to develop as originally laid out but often with substantial later infrastructure improvements such as water supply, sewerage, drainage and construction and sealing of roads.
   2. A step up from these subdivisions containing very small lots are those that include lots which in many cases are physically capable of being developed but which in many cases have also been laid out with little or no regard to topography and the site context. The subdivision incorporating land along Hacketts Road, Roy Road and Ida Grove is one such example where the lots are generally larger but only cursory attention appears to have been paid to topography and physical features when the subdivision was designed. The fact that Ida Grove meanders slightly suggests that some regard has been had to topography but the regular lot pattern which takes no account, for example, of the watercourse running through Lot 34, suggests that site context had little bearing on lot configuration. At a minimum, any subdivision along Ida Grove today would either exclude the watercourse from within an individual lot or provide significant buffers to any potential development envelope.
   3. But we are faced with dealing as best we can with these past decisions having regard to current planning controls and attitudes to development in areas such as Ida Grove. In the absence of any suggestion that Lot 34 be purchased as a stream reserve, it is necessary to assess whether a restructuring of lot boundaries and the construction of an additional dwelling results in an acceptable outcome based on applying relevant planning provisions to the particular site context.
2. In the case of the small lots in Restructure Overlay 23 (RO23) located along Thomas Road, Emerald -Monbulk Road, Holman Road, Butterfield Road and Nobelius Street, the approach adopted has been to consolidate and restructure lots to create larger development sites. In the case of the land now owned by Mr and Mrs Usatov, the restructure plan combined three small lots into two. Lot 55 fronting Emerald-Monbulk Road contains the existing dwelling and was retained as a separate restructure lot while Lots 99 and 100 abutting Thomas Road were combined to form another restructure lot.
3. However the Restructure Overlay at Clause 45.05-1 allows Council to approve a different combination of lots provided no additional lots or subdivision potential is created. In 1995 a planning permit was issued which allowed for a different restructuring of the three lots. Lots 55 and 99 were combined as one restructure lot and Lot 100 was retained as a separate restructure lot. Although neighbours suggested that an earlier owner thought she had consolidated all three lots, the fact remains that under RO23 the three lots have the potential to contain two dwellings. Whether the lot configuration arising from the 1995 permit is less desirable than that included on RO23 is a point of contention, with neighbours suggesting that Lots 99 and 100 should be 'recombined' so that any new dwelling could be located on the mainly cleared area of Lot 99. To the extent that their concerns relate to issues covered by the RO, I note that Clause 45.05-3 exempts applications under the RO from notice and review by third parties, and Council was not advocating that Lots 99 and 100 be recombined as one restructure lot. The fact remains that in 1995 Council was of the opinion that Lot 100 was able to 'stand alone' as a restructure lot, and although a permit was not granted for a dwelling at that time, there must have been an expectation that at some point in time a dwelling would be constructed on the lot. Otherwise why approve a different combination of lots which, if I agree with the submissions now made by Council and residents, means that Lot 100 cannot be used for a dwelling despite the restructure plan nominating two dwellings for these three lots?
4. In my view it would be very unjust to prevent a second dwelling on these three restructure lots, given the original assessment undertaken in preparing and approving the restructure plan and the legitimate expectation of landowners that dwellings would be allowed in conformity with the restructure plan, or subsequent variations approved by Council.
5. Although a dwelling is not an automatic entitlement since the actual design and siting of any dwelling needs to be assessed, it does mean in my view that there needs to be exceptional reasons why a dwelling cannot be sited on a restructure lot. These might include, for example, factors not known when the plans were prepared such as soil contamination, soil stability or flooding. But nothing that has been raised in submissions suggests that there are such factors in play here. What is in play are design and siting issues and the removal of vegetation - not unknown factors when decisions were made about the restructuring of the three lots in RO23 and again in 1995. It is to these matters that I now turn my attention.

1. While I acknowledge that constructing dwellings in conformity with restructured lots - even those specifically varied by permit - is not an automatic right, there is an expectation that some type of development can occur on such lots since the 'use' of land is not restricted under the RO and only subdivision and buildings and works require approval.

1. The proposed dwelling is single storey, has a footprint including the double garage of 202 square metres and a maximum height to the top of the ridge of 6.8 metres. The building has a horizontal rather than vertical form with the longest side orientated towards the north eastern boundary. It is positioned between 1.9 and 3 metres off this boundary and is set into the ground by 600mm. Although this seems very close to the boundary in such a setting, the adjoining Mitchell/Bowley property to the north has screen planting along its boundary nearest the proposed dwelling, and a garage close to Thomas Road North which largely screens the driveway and front area of the proposed dwelling from the yard and dwelling to the north. The orientation of the living areas is to Menzies Creek with service areas and bedrooms facing the north eastern boundary, thereby minimising opportunities for overlooking. Because of its location there are no overshadowing impacts on neighbouring properties.
2. Neighbours were also concerned about the impact and inconvenience of construction activities. It is obvious that any building works will create temporary inconvenience to the owner and surrounding neighbours while the works are being undertaken. Within any community people have to accept a certain amount of temporary inconvenience while neighbours go about building or making changes to their properties and I am do not accept that a permit should be refused because of that inconvenience or noise.
3. Thomas Road North terminates near the northern 'point' of the review site, and the remainder of the road reserve towards Menzies Creek is undeveloped and heavily vegetated. The section of the road reserve that is formed and cleared has the appearance of a private drive serving the Dickinson property on the opposite side of Thomas Road North. The proposed driveway is positioned so that an existing 'drive' and gate to Thomas Road North can be utilised. While I can understand why Mr and Mrs Dickinson are concerned about the impact of new traffic which will use 'their' section of Thomas Road North, Lot 100 has a legal right to gain access from the road reserve and the position chosen for the driveway and gate access uses an exiting access point and hence minimises removal of vegetation.
4. Although neighbours raise concerns about drainage and effluent disposal and adverse impacts on trees and on Menzies Creek, I have no expert evidence to support these concerns. Ms Lydall in particular made detailed submission about these matters and told of her experiences as to the effect of waste water on trees on her property at Lots 58 and 97 Emerald-Monbulk Road. At the hearing she was able to ask Mr Latter about these and other matters. Mr Latter conceded that trees can fall because of excess water and gave the example of a site in Monbulk where he has seen trees fall over within 12 months because of poor trench construction. A planning permit cannot guarantee the quality of workmanship and it is up to the Council - operating under other statutory controls - to ensure building works, drainage, effluent disposal and the like are to the requisite standard. I note that none of the relevant Council departments (such as Health) objected to the development provided appropriate conditions were included on the permit. Those dealing with drainage and effluent disposal are included. However I do accept that the construction and operation of traditional trench systems can damage trees and therefore support the use of a lower impact 'drip irrigation' system.
5. It is clear that nearby residents oppose the idea of any dwelling being constructed on Lot 100 and would rather any dwelling, if there is one at all, be located on Lot 99. However that is not possible based on the re-subdivision approved in 1995 and in my view it is quite reasonable that a dwelling be constructed on Lot 100. I consider that the proposed dwelling is a very modest design that has taken account of its site context. I accept that it is positioned quite close to the north eastern boundary and that a larger setback would provide greater opportunities for the planting of screening landscaping. However deciding where to position the dwelling on the site is a balancing act and there are pros and cons no matter where the house is sited. For example, positioning the house further from the boundary would require it to be located closer to the creek reserve with resultant negative impacts such as less space for effluent disposal and the probable loss of Trees 12, 13, 22, 23 and 24. An alternative design with a smaller footprint, and hence less tree clearing, may have required a double storey dwelling in order to obtain the same number of rooms but with greater visual bulk and blocking of views towards the Menzies Creek reserve.
6. It is a truism that any development on the review site will significantly change the current view and sense of openness from adjoining properties and neighbours will certainly notice a big difference in outlook compared to existing views over a vacant but vegetated piece of land. Those owners have benefited from living next to undeveloped land and in a sense have been borrowing the review site for their own feelings of spaciousness and views of bushland. While I understand their desire to maintain the status quo, I am not convinced that a dwelling on the review site has such unacceptable impacts on neighbours and the Menzies Creek reserve that it should be refused.

1. I now want to discuss the issue that has caused me greatest concern and the one which has the greatest potential to impact on the character of the review site, the Menzies Creek reserve and the locality more generally. There is no doubt that removal of vegetation is the single most important impact resulting from the construction of a dwelling on the review site. In making these comments I acknowledge that Council has already granted a permit (YR-2004/1876) for the removal of 7 trees on the site being Trees 3, 7x2[2] , 8, 10, 14 and 15 and the pruning of Tree 1 (Tree 1 has subsequently died but a permit is not required for its removal).
2. Twelve trees are to be removed as part of this approval - being Trees 6, 25, 27, 28, 29, 30, 31, 32, 33, 34, 36 and 37. I note that Council's submission on page 5 refers to 9 trees being removed (all the above except Trees 6, 36 and 37) and Ms Wolfers on page 4 of her submission refers to 10 trees being removed but both figures are incorrect. Based on the plan notations and the evidence of Mr Latter, Tree 37 needs to be removed since it is well within the building envelope while Trees 6 and 36 , although outside the building envelope, will be affected by the driveway. I have therefore proceeded on the basis that 12 trees require a permit for removal.
3. Despite submissions from residents about the adverse environmental and visual effects of removing these trees, the only expert evidence before me from Mr Latter is that the removal of these trees will not have any significant impact on flora or fauna in the area and further that offset planting should comprise indigenous species of local provenance from the ground and shrub layers. Councils' Arborist and Environmental Department supported the development subject to the inclusion of conditions requiring an altered driveway alignment and the submission of an amended Net Gain Offset Management Plan. Significantly the Department of Sustainability and Environment (DSE) has also given its approval subject to conditions.
4. While submissions by the Council and neighbours suggested that there would be unacceptable impacts on vegetation and habitat within the adjoining Menzies Creek reserve, I am not convinced that these impacts are so dire or so unmanageable that the removal of trees should be prohibited. The review site, whatever its previous condition, is now largely cleared of understorey plants and ground cover and has a completely different appearance to the adjoining public land. In character it is not dissimilar to nearby properties which in some cases have lawn areas and more formal gardens. Implementation of conditions dealing with revegetation and land management have the potential, over time, to significantly improve the flora and fauna values on the review site and to complement the vegetation that exists on the adjoining public land.
5. I now want to refer to changes that have been made to the State wide native vegetation controls. Since the hearing in August, Amendment C49 has been gazetted which amongst other changes, includes amendments to the Native Vegetation provisions at Clause 52.17. Whereas previously a permit was not required to remove, destroy or lop native vegetation necessary for the construction, use or maintenance of a dwelling, that provision has been replaced by one that only provides an exemption for buildings where a permit had been granted before the 15 September 2008. In a practical sense not much has changed because a permit was already required for vegetation removal under Clause 53 and the application had also been referred to the Department of Sustainability and Environment pursuant to Section 55 of the Planning and Environment Act 1987.
6. Furthermore Mr Harrison and Mr Latter were engaged to undertake a native vegetation framework assessment and their reports were available when Council made its decision on the application. As already noted, Mr Latter gave written and oral evidence and was available for cross-examination at the hearing; I am satisfied that the revised provisions of Clause 52.17 do not require any additional assessment over and above that provided at the hearing.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions and discussion about them at the hearing, including the written additions tabled by residents. I have included conditions requiring corrections to the numbering of the trees on the plan, required the effluent disposal system to be designed and constructed to minimise damage to tree roots, required Tree Protection Zones around retained trees, and required the Net Gain Management Plan to be updated to take account of the 12 trees being removed. I have deleted the 'notes' as these can be included as an attachment or covering letter to the permit. I have also made some minor changes to replace the word 'shall' with the word 'must' in order to give some consistency in the way conditions are worded.

1. Having regard to the above I will direct that a permit issue subject to the conditions set out in the Appendix.

1. Prior to the commencement of the permitted use/development, an amended plan must be submitted for approval to the satisfaction of the Responsible Authority showing:
   • (a) Provision of native screen landscaping along the northeast and west boundary adjacent to the dwelling and along the boundary adjacent to the Thomas Road North road reserve.
   • (b) The provision of a suitable reversing area on site for vehicles to turn and exit in a forward direction.
   • (c) Correctly identifying and numbering the 12 trees to be removed as part of this approval (being Trees 6, 25, 27, 28, 29, 30, 31, 32, 33, 34, 36 and 37) together with the trees removed by permit YR2004/1876 and the trees to remain (a consistent numbering system is to be used to identify each tree).
2. The layout of the site and the size of any proposed buildings and works shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
3. The use of any land or building or part thereof as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
4. Prior to the occupation of the permitted development, the parking areas and vehicular accessways shown on the endorsed plan must be constructed with crushed rock surfacing, drained and delineated to the satisfaction of the Responsible Authority.
5. Prior to the occupation of the permitted development, a vehicle crossing must be constructed in Thomas Road North to serve the development to the satisfaction of the Responsible Authority.
6. Prior to the occupation of the permitted development, piped drainage must be constructed to drain all paved areas to the satisfaction of the Responsible Authority.
7. The construction of all internal civil works, including car parking, vehicular accessways and drainage is to be inspected and approved by a suitably qualified or experienced civil engineer or person. Prior to the occupation of the permitted development, the engineer or person must certify the construction of these works, to the satisfaction of the Responsible Authority.
8. All vehicles must enter and exit the site in a forward direction.
9. All trees that are to be retained, or are located within or adjacent to any works area must be marked, and a temporary chain mesh and star picket tree protection fence is to be erected prior to the commencement of building and excavation works to define Tree Protection Zones. Tree Protection Zones must also be provided on Lot 100 to protect the root zones of trees located on adjoining properties. The fences are to remain in place until the construction works are complete. Except as allowed by Condition 10, no vehicular or pedestrian access, or soil excavation for roads, services and works other than as shown on the endorsed plan, is to occur within this area, nor is any storage or dumping of tools, equipment or waste to occur within these Tree Protection Zones. The ground surface within the Tree Protection Zone is to be covered by a protective 75mm layer of mulch and extra watering applied. The location of such Tree Protection Zones is to be determined by a qualified Arborist and verified by an authorised officer of the Shire of Yarra Ranges to the satisfaction of the Shire of Yarra Ranges.
10. All excavations and boring potentially affecting trees within the Tree Protection Zones must be supervised by an Arborist who must ensure that the works are done in a manner that minimises any damage to those trees. This will include boring for services, rather than open excavation and trenching, to the satisfaction of the Responsible Authority.
11. All sewage and sullage waste water from the proposed development must be discharged into an on site septic tank system or other effluent disposal system which is approved by the Environment Protection Authority, retains all wastes within the boundaries of the land, minimises trenching and excavation (including the use of a drip irrigation system) to avoid damage to tree roots and is located within any wastewater envelope indicated on the endorsed plan to the satisfaction of the Shire of Yarra Ranges Health Department. The applicant must make application for approval to install or alter an effluent disposal system.
12. This permit will expire if one of the following circumstances apply:
    • (a) the development is not started within two years of the date of this permit;
    • (b) the development is not completed within four years of the date of this permit.

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.

1. Prior to the commencement of the permitted use and development, the Net Gain Offset Management Plan must be amended and submitted for approval to the satisfaction of the Responsible Authority incorporating the following amendments:
   • (a) Updates the offset planting requirement based on the removal of 12 trees approved by this permit;
   • (b) All works are to be undertaken by a person with plant identification skills;
   • (c) That the eradication of high threat woody weeds is to be <1% cover;
   • (d) The spot spraying of exotic grasses include spot spraying of other high threat non-weedy weeds to<10% cover.
2. Prior to commencement of the use/development, an agreement under Section 173 of the Planning & Environment Act 1987 must be entered into between the owner of the site (being Lot 100 on PS 015876, Volume 08169 Folio 697 and Lot 2 on PS344805L, Volume 10240 Folio 785) and the Responsible Authority requiring:
   • (a) That agreement is to be binding on the land owner's successors in title;
   • (b) Details of works outlined in the Net Gain Offset Management Plan to be undertaken to protect vegetation; and
   • (c) That conservation management of flora and fauna on the land will be undertaken for a minimum of 10 years.

This agreement is to be prepared by the Responsible Authority at the owner's expense and will be recorded on the folio of the register relating to the site. The owners agree to pay on demand all costs and expenses of and incidental to the preparation, execution and recording of this agreement.

1. Reducing damage to remaining biodiversity assets:
   • (a) The boundaries of all native vegetation stands to be removed and retained must be clearly marked or temporarily fenced during construction;
   • (b) Removal and disposal of native vegetation or construction activities must not cause damage to vegetation stands to be retained and to the Menzies Creek or its surrounding vegetation;
   • (c) The clearing of native vegetation must not take place within 20 metres of the Menzies Creek (unless approved in writing by the Responsible Authority after consulting the Department of Sustainability and Environment); and
   • (d) Dogs and cats must not be permitted inside the offset area at any time.

[1] Lithgow v Yarra Ranges SC [2008] VCAT 1971 (22 September 2008).

[2] The numbering system is somewhat confusing because the original approval included Tree 3 (now Tree 7) together with a Tree 7 which has been removed and has not been given a new number by Mr Latter).