Mr Robert Szymanski and Mr Graeme Best (both Council officers)

1 This matter involves an appeal against Council's Notice of Refusal to Grant a Permit, in relation to the proposed two-lot subdivision of the land at 168 Broad Gully Road, Diamond Creek. The proposal would result in one linear-shaped relatively small 0.731 hectare lot running along the east side of Broad Gully Road, with the balance lot being about 7.283 hectares. Council had earlier issued a permit for a similar two-lot subdivision, but consisting of a smaller, more rectangle-shaped lot, occupying only the northern section of the linear-shaped lot now proposed under this fresh application.

2 The main issues discussed at the hearing were firstly whether the proposal is premature and lacks strategic support, secondly whether the proposal involves unacceptable risks of future vegetation loss, and thirdly whether the proposal should be found to be prohibited, if I am of the view that there the proposal is not "generally in accordance" with the 2003 Development Plan which exists pursuant to the applicable Development Plan Overlay Schedule 2. At the end of the hearing I indicated that I could not see any reason to refuse the Application in relation to the first and second issues, but I reserved my decision on the third issue.

3 To assist my decision making process, at the end of the hearing, I asked Mr Glossop for the Applicant to provide me with a consolidated plan, showing the existing approved rectangular shaped lot, the proposed new more linear shaped lot, the potential "carriageway easement" over the proposed linear lot, the location of the existing house roughly opposite Diamond Views Drive, and the entrance to that drive off Broad Gully Road. Mr Glossop duly provided same under cover of his letter of 8 June 2005.

4 I have now considered the final "consistency with 2003 Development Plan" issue and consider that even the "carriageway easement" variation on the proposal still leaves such uncertainty about the future intersection proposed for this section of Broad Gully Road that:

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I am not satisfied that this aspect of the proposal is "generally in accordance" with the 2003 Development Plan for the locality; and

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on this basis, I consider that the proposal constitutes a prohibited use under Clause 43.04-1 of the Planning Scheme.

5 This is an appeal under Section 77 of the Planning and Environment Act 1987 ("Act") against Council's Notice of Refusal. The Grounds of Refusal were as follows.

The subdivision is not generally in accordance with the approved Diamond Creek Area B Development Plan - September 2003, in regard to the movement network provisions.

The subdivision is prohibited by Clause 43.04-1 of the Development Plan Overlay, Schedule 2 of the Nillumbik Planning Scheme, as it is not generally in accordance with the approved Diamond Creek Area B Development Plan - September 2003.

The subdivision will adversely impact on the future development within a designated growth area.

The subdivision will compromise environmental objectives along Broad Gully Road identified within the approved Diamond Creek Area B Development Plan - September 2003.

6 At the hearing of this matter on 23 May 2005 I heard submissions from Council and the Applicant. See my comments in the "Summary" section above regarding the follow up process of Mr Glossop providing me with additional information after the hearing.

7 I refer to the following description of the site and locality from page 2 and 3 of the Council written submission.

The subject land is located on the east side of Broad Gully Road, immediately north of Herberts Lane with the east (side) boundary adjoining Bellbird Road (unconstructed)....

It is an irregular shaped parcel of land with a frontage of approximately 700 metres to Broad Gully Road and an area of 8.014 hectares. An existing dwelling is located within proposed Lot 1 and several outbuildings within proposed lot 2.

A high power transmission easement dissects the site from west to east.

The land contains a mixture of flat to undulating land and steeper slopes....It is covered by mixed vegetation species including eucalyptus polyanthemos (red box), eucalyptus macrorhyncha (red stringybark) and eucalyptus goniocalyx (long leaf box).

The land is located within DP02 - Diamond Creek Area B (designated growth area) along with adjoining land to the north, south and east. Land on the other side of Broad Gully Road (west) is located within DP01 - Area A (designated growth area) and is currently being developed for residential purposes.... .

8 See the summary of the proposal set out below taken from page 3 of the Council written submission.

It is proposed to subdivide the subject land into two lots, with Lot 1 having an area of 0.731 hectares and Lot 2, the balance of the land with an area of 7.283 hectares...

This application follows a recent application for a two lot subdivision (225/2004) for which a permit was issued....This application differs from the earlier one in that the proposed excision is larger. The previous application allowed a 0.4 hectare excision whereas the proposed lot is almost double that at 0.731 hectares. Lot 1 proposes a frontage of 188.7 metres to Broad Gully Road with a maximum depth of 37.76 metres, making it a very linear parcel of land. A small portion of Lot 1 is proposed within the existing electrical transmission easement.

This application, if approved, will supersede planning permit 225/2004.

9 It is significant that during the hearing Mr Glossop offered two variations on the proposal, put forward not as a formally substituted proposal but more on a "concept" basis:

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first, Mr Glossop indicated that his client is open to marginally shortening the extent of the new linear lot at the southern end, to allow more space for a new road between the southern end of the linear lot and the SECV easement further to the south; or alternatively

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Mr Glossop advised that his client would also accept a carriageway easement over roughly the middle section of the new linear lot, running roughly east-west, with this carriageway easement to be located just south of the existing dwelling on the subject land. The broad intent here, Mr Glossop advised, was to preserve this "carriageway easement" area for a potential eastern extension of the existing Diamond Views Drive, with the beneficiary of the easement being the owner of the balance lot. I requested Mr Glossop's provision after the hearing of the new consolidated plan, so as to better understand this revised concept. The consolidated plan which I now have the benefit of is useful in showing the proposed location of the carriageway easement, relative to the other relevant features of this particular area.

10 The subject land is zoned Residential 1, with the permit trigger for the subdivision proposal here being Clause 32.01-2 of the Planning Scheme. The majority of the site is also subject to an Environmental Significance Overlay Schedule 1, which also requires a permit for any subdivision of the subject land. I was referred to the objectives of both of these controls.

11 Significantly, the subject land is also subject to a Development Plan Overlay. I was referred to the objectives of this Overlay. The key provisions of this Overlay provide in Clause 43.04-1 that once a Development Plan has been approved pursuant to the Overlay (which is the case here):

* Be generally in accordance with the Development Plan.

* Include any conditions or requirements specified in a schedule to this Overlay.

12 The practical result is that where a proposal is found to fail to be "generally in accordance" with the relevant approved Development Plan, it effectively is then treated as a prohibited proposal.

13 I have set out at the Appendix to this decision a summary of the relevant aspects of the September 2003 Diamond Creek Area B Development Plan, which focus on the road layout issues and the protection of road-side vegetation and/or remnant native vegetation.

14 The subject land is also subject to a Development Contribution Overlay Schedule 2. Although this Overlay is otherwise not relevant, Council advised me that it does recognise the proposed intersection/eastern extension of Diamond Views Drive.

15 In relation to the State Planning Policy Framework, the key clause in the Planning Scheme is Clause 15.09 (Conservation of Native Flora and Fauna). With respect to local policies and the Council MSS, I was referred to Clauses 21.03 and 21.04-2 (which both emphasise the importance of Nillumbik's natural environment and landscape values) and Clause 21.05-1 (Settlement and Housing) which picks up the aims of responding to the features of the local landscape and protecting existing vegetation.

16 As I indicated at the end of the hearing, there are three main issues I need to address in deciding the merits of the proposal, being:

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whether the proposal is premature and/or lacks strategic support;

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whether the proposal involves an unreasonable risk of future native vegetation loss, in association with the likely re-subdivision of the linear shaped lot; and

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whether the proposal should be refused on the basis that it lacks accordance with the 2003 Development Plan for the locality.

Is Proposal Premature?/Native Vegetation Removal

17 In relation to the first and second of these main issues, I indicated at the end of the hearing that:

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I did not see any basis for refusing the Application simply due to prematurity or lack of strategic planning support. Council had urged me to make this finding, given Council's belief that the Application should have dealt in more detail with the likely future subdivision/development of the new linear lot, together with details of the intersection arrangements to allow the eastern extension of Diamond Views Road (which is envisaged by the 2003 Development Plan). While it is true that the Application could have been more comprehensive in dealing with these matters, and subject to my findings below regarding the substantial issues associated with the question of the intersection treatment, in my view it would be overly harsh for me to find that the Application documentation was sufficiently "half-baked" as to justify refusal in itself;

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I similarly did not regard concerns about possible future loss of native vegetation as in itself leading me to refuse the proposal. Council expressed concerns to me during the hearing that if this type of linear lot is approved along Broad Gully Road, it is probable that the owner will in due course be seeking fresh approval for some form of re-subdivision of the linear lot (eg into 6 new lots). Following Council's line of thinking, a fresh proposal at a later stage such as six new lots could lead to six new crossovers, with the associated loss of native vegetation. The better approach according to Council would have been for the Applicant to do some degree of master-planning as to the likely "end use" of the proposed linear-shaped lot. While I agree with Council that under Clause 65 I am entitled to look at the possible future implications if I approved the proposal, and that as a result I need to be cautious about the future implications of allowing a linear type of lot, at the end of the day this is a mere subdivision application (ie not a subdivision and development application) in front of me. In summary then, while I accept that this type of proposed linear shaped new lot creates more of a case that the Applicant should set out up-front the likely end-use of the new lot, and I accept that the lack of this information is a "negative" for the proposal, I do not see this as a "permit killer" in itself.

Is Proposal Generally in Accordance with 2003 Development Plan?

18 I now turn to the critical contentious aspect of the proposal, being whether or not it is "generally in accordance" with the 2003 Development Plan.

19 It was common ground at the hearing that the 2003 Development Plan envisages a new intersection somewhere along this section of Broad Gully Road, to allow what will effectively be an eastern extension of Diamond View Drive. The fact that there is an existing house on the other side of Broad Gully Road from the eastern end of Diamond View Drive makes it clear that any intersection treatment will have to be off-set. Other relevant factors are the restriction of the SECV easement running east-west further to the south, together with the significantly sloping nature of the locality and sensitivities about how much native vegetation will need to be removed for any such eastern extension.

20 The need for the new intersection to coordinate with the reality of Diamond View Drive to the west is reflected in the recognition at page 46 of the Development Plan of the need to "...Ensure that intersections serving Area B are appropriately located and designed to provide for safe and convenient access to the area". Similarly at page 50 there is reference to the need for the new intersection to be "...shared with Area A".

21 In this context, it is significant that the eastern side of Broad Gully Road just south of the existing dwelling has the advantages of:

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being relatively flat, in contrast to the significantly sloping nature of the subject land further south; and

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having more scattered native vegetation, if one moves in an easterly direction (ie where the eastern extension of Diamond View Drive might go).

22 Accordingly, in my view there is a high likelihood that the position just south of the existing dwelling on the east side of Broad Gully Road will be the preferred position for any intersection and eastern extension.

23 The Application as put forward to Council and then refused does not expressly respond to this "future intersection" issue, but more takes the approach that the subdivision should still be allowed to go ahead, on the understanding that the position of the intersection can be resolved in the course of events at a later stage. There is reliance here on the statement at page 9 of the Development Plan that the Plan is "conceptual" and that it will be "subject to modifications and refinement as more detailed consideration is given to individual subdivisions".

24 While I agree that the "conceptual" nature of the 2003 Development Plan means that the Application here need not go into huge detail, equally it seems fair to say that the proposed intersection to extend Diamond View Drive eastwards is a key planning issue under the Plan for this locality. Accordingly, I accept Council's submission that this Application needs to be able to demonstrate at least in basic terms how it responds to the impending feature of an intersection and eastern extension near the corner of Broad Gully Road and Diamond View Drive. This is reinforced by the much more sloping nature of the land further to the south and the SECV easement to the south, which make this more southerly position less attractive for an intersection and eastern extension.

25 As I indicated at the end of the hearing, my finding is that the Application as refused by Council fundamentally fails to respond to these issues, and clearly fails the test of being "generally in accordance with" the 2003 Development Plan. In this regard, Mr Glossop's submission that his client should effectively be allowed to just "suck it and see" in terms of how the intersection unfolds seems misguided, and I agree with Council that proper forward planning is needed here.

26 I also fail to see how Mr Glossop's first fall-back "concept position" of shortening the southern end of the proposed new linear lot (to allow more space for an intersection between the bottom of the new lot and the SECV easement) changes this basic finding. The evidence available to me (ie the more significant slope of the southern area and thicker native vegetation) suggests to me that the chances are low of an intersection being seen as feasible in this more southerly location.

27 This brings us to what might be seen as the Applicant's "final roll of the dice", being its second fall-back "concept position" of having a carriageway easement about mid-way along the new linear lot, just south of the existing dwelling. Mr Glossop put to me that:

• the beneficiary of this easement would be the owner of the balance lot, which would effectively preserve that part of the new linear lot affected by the carriageway easement for future access purposes;

• the carriageway easement has deliberately been put over that part of the new linear lot where the intersection and eastern extension is likely to proceed; and

• the carriageway easement is a fair compromise, and (having put this carriageway easement in place) there is no good planning reason why the proposed two lot subdivision should be refused.

28 In response, Council maintained its opposition to this modified proposal, on the basis that even the carriageway easement leaves too much uncertainty about how the intersection will proceed, plus the risk that Council's traffic engineers might in the final result want at least part of the intersection to be positioned on land outside of the extent of the carriageway easement.

29 Having considered these submissions, I consider those of Council to be more persuasive, and my finding is that even the "carriageway easement" second "concept position" fails to be generally in accordance with the 2003 Development Plan. My unresolved concerns here can be summarised as follows:

• While it is true the 2003 Development Plan has a conceptual flavour, the relevant provisions of this Plan make it clear that facilitating the necessary intersection and eastern extension of Diamond View Drive is a major issue for the residential growth of this locality. Accordingly, I accept that a even a more basic two-lot subdivision such as this can reasonably be expected by Council to address with reasonable certainty how the anticipated intersection will be located and work, and how that fits in with the likely end-use of a linear lot such as the one proposed here that will have a significant frontage (ie almost 190 metres) on the east side of Broad Gully Road;

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it seems highly likely that the intersection and eastern extension will be located just south of the existing dwelling opposite the eastern end of Diamond View Drive;

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while the carriageway easement concept at least shows initiative in seeking to preserve a certain part of the land south of the existing house for the purpose of this intersection, at the end of the day I consider a carriageway easement to be an overly blunt tool which does not provide suitable certainly as to how and precisely where the intersection and eastern extension will go ahead;

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in particular, I have the following concerns about how the proposed carriageway easement might operate. First, the carriageway easement is arranged to sit close to the south side of the existing dwelling, and to be at 90 degrees to Broad Gully Road. However it is possible that the better traffic engineering approach might be for the intersection to not be quite as close to the existing dwelling, and/or for the eastern extension to branch off from Broad Gully Road on a more off-set angle rather than extending off at 90 degrees (as is the case with Diamond View Drive). Either way, the practical risk is that the best traffic engineering position for the intersection and eastern extension may not necessarily fully correlate with the extent of the carriageway easement (which could leave a real mess). Secondly, I have concerns about the enforceability of the carriageway easement arrangement, in that Council would have no such enforcement rights, just the owner of the balance lot. For so long as the one owner controls both lots, or even where there are separate owners but the balance lot owner has a different agenda to Council, there does not seem a lot of practical joy for Council in having a carriageway easement on title;

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while the points above are the key ones in terms of the failure of the proposal, it also goes against the proposal that there has been no real attempt at master-planning the likely end use of the new linear lot, and dealing with the native vegetation removal implications of how further subdivision of the linear lot might occur. It was also a relevant factor that the Applicant was not able to point to any particular "good planning" reasons why it wanted a linear shaped and bigger lot compared to the smaller and more rectangular shaped lot which it already holds a subdivision permit for. The impression I got was that the desire for the larger and longer lot was essentially driven by commercial factors, which may well be understandable at a personal level, but which did not provide me with any planning benefits to try to off-set against the planning problems I have set out above.

30 In summary, for the reasons set out above, my finding is that the original Application refused by Council and both of the fall-back "concept position" arrangements fail to be generally in accordance with the 2003 Development Plan, and hence are prohibited.

31 For the reasons set out above, Council's Notice of Refusal to Grant a Permit is affirmed, as I have found that the Application (plus the alternative fall-back "concept position" arrangements) fail to satisfy the requirements of Clause 43.04-1 of the Planning Scheme and hence are prohibited.

32 While having made this finding, I note that it might still be possible for the Applicant to at a later stage produce a worthy alternative two lot subdivision plan beyond the existing subdivision permit held. However given the particular complications involved here in terms of the physical characteristics of the subject land, the SECV easement and the need for the new intersection under the Development Plan, the Applicant will need to substantially "beef up" its research and investigations, consultation with Council/any relevant road authority and end-use master planning to provide a more certain and thought-through fresh proposal to jump the hurdle of moving away from its existing subdivision permit but still being generally in accordance with the 2003 Master Plan.

The Diamond Creek Area B Development Plan was approved in September, 2003 (Appendix 9). The relevant aspects of the plan for this application are as follows:

Figure 8 (page 58) of the approved Development Plan indicates, amongst other things, the road layout. It envisages a new intersection for the subject site, which is to be co-ordinated with the intersection of Area A (DP01), located on the west side of Broad Gully Road (Diamond Views Drive). The plan goes on to state:

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The Development Plan is conceptual and will be subject to modifications and refinement as more detailed consideration is given to individual subdivisions (page 9).

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... provide safe and convenient access to and through the development area, for normal vehicle traffic, pedestrian and cycle movement ... (page 46) ...

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Ensure that intersections serving Area B are appropriately located and designed to provide for safe and convenient access to the area ... (page 46) ...

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Co-ordinate intersections on Broad Gully Road with those planned for Area A to the west (page 46).

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A new intersection will be provided on Broad Gully Road approximately midway between Herberts Lane and Collard Drive. The intersection will be shared with Area A (page 50).

Protection of Remnant On-Site and Roadside Vegetation

The approved Development Plan identifies high quality remnant roadside vegetation for the site, north of the High Power Transmission Line (page 8) and as shown in Figure 5 (page 44).

Figure 8 (page 58) identifies the majority of the site having a high biological value, with slopes greater than 20 per cent. The high biological value is further reinforced on page 36 of the plan.

• The remnant Grassy Dry Forest along Broad Gully Road (particularly the section between Herberts Lane and Collard Drive, and a further area in the north west part of Area B), is considered to be of high biological value (page 43).

• Council's preference is to minimise the number of new driveways providing direct access to future residential lots along Broad Gully Road, north of the power line easement.

Driveways will be allowed in situations where the responsible authority is satisfied that:

• The proposed access will not result in a materially higher environmental impact (taking into account impacts of remnant vegetation, and the extent of earthworks required) than would occur if access was provided from local roads within the site.

In cases where frontage access is prohibited, a reserve or other measures will be provided at the time of subdivision to prevent direct vehicle access, and to protect remnant roadside vegetation (page 51).