1. I have already commented that the clearest policy direction emerges from the State level.
2. Relevant state provisions include:
   • Clause 12 - Metropolitan Development
   • Clause 14.01 - Planning for Urban Settlement
   • Clause 15.09 - Conservation of Native Flora and Fauna
   • Clause 16.01 - Residential Development for Single Dwellings
   • Clause 16.05 - Affordability
   • Clause 18.09 - Water Supply, Sewerage and Drainage
   • Clause 19.01 - Subdivision
   • Clause 19.03 - Design and Built Form
   • Clause 52.17 - Native Vegetation
   • Clause 54 - Single Dwellings
   • Clause 56 - Residential Subdivision
   • Clause 65.02 - Decision Guidelines - subdivision
3. By contrast, the local provisions are limited to some general observations about vision (clause 21.04) and some general discussion about settlement and housing (clause 21.08). Clause 21.08 notes that:
   • Land for urban residential development north of the Pakenham Bypass (Princes Freeway). The population with the urban growth area is expected to grow from a current population of 32,000 people (2008) to 70,000 people in 10 years time and to a capacity of approximately 100,000 people in 2025.

and that key principles for development include (with my emphasis):

• To coordinate the appropriate staging and development of land.
• To ensure greater housing choice, diversity and affordability.
• To attract business investment and create diverse employment opportunities.
• To create vibrant well serviced activity centres.
• To provide sustainable transport networks.
• To ensure that urban areas are well serviced by utility infrastructure.
• To deliver accessible community facilities and infrastructure.
• To increase environmental sustainability.
• To achieve good urban design outcomes with a strong urban character.

1. Council advised me that it has no overall structure plan for this area, no local policy for Pakenham and no framework plan in the MSS. In addition, there is no outline development plan, no development plan overlay and no design and development overlay, all of which might have provided a hint as to how Council might want this area developed. That is not fatal, but it does suggest that applications will be assessed in isolation of a local strategic framework and will be more governed by the existing settlement pattern, past practice and typical standards. In addition to these, I agree with Mr Jones that, in the absence of strong local direction, the decision making process inevitably defaults to State level provisions including the SPPF, the zone and Clause 56.
2. I am also particularly mindful of the fact that the proposal dedicates nearly one third of the site to a permanent open space reserve. I acknowledge that the current permit does the same, but I think that it is a relevant factor that the potential yield of the land is influenced by the requirement to meet State and local obligations for native vegetation protection. This is a significant feature of the design and it is a significant community and environmental benefit for that amount of land to be permanently reserved.

1. There is no explicit standards in the scheme about density, lot yield, site frontage, or lot size. That being the case, I am guided by Clauses 54 and 56 on this issue.
2. Clause 54 sets objectives and standards for detached houses and specifies front and side setbacks, open space provision, car parking and other matters. Mr Jones submitted that, in a Pakenham context, modern home design in typical fringe estates is to consume large parts of the land with houses. In his view, the larger the lot, the larger the house. This is unsustainable in the long term and in part drives affordability beyond the reach of many. He referred to recent public discussion about affordability and reflected that Australia now has amongst the most unaffordable housing in the world and that Melbourne is near the bottom of the list in terms of affordable housing in Australia. In a general sense, I accept these observations and I support variations to the norm so that as much variety can be supplied into the housing market as possible. Both the SPPF (at Clause 16.01) and the LPPF (at Clause 21.08) call for greater housing diversity and range of lot sizes.
3. This is refined at Clause 56.04 (Lot Design) which has objectives including:
   • To provide a range of lot sizes to suit a variety of dwelling and household types.
4. Standard C7 of this clause asks that lot sizes should achieve the density specified in a zone or overlay but I note that there is no such provision in any part of the Cardinia Planning Scheme. Standard C8 notes (insofar as it is relevant to this application) that (with my emphasis):

• Contain a building envelope that is consistent with a development of the lot approved under this scheme, or
• If no development of the lot has been approved under this scheme, contain a building envelope and be able to contain a rectangle measuring 10 metres by 15 metres, or 9 metres by 15 metres of a boundary wall is nominated as part of the building envelope.

Lots greater than 500m² should be able to contain a rectangle measuring 10 metres by 15 metres, and may contain a building envelope.

A building envelope may specify or incorporate any relevant siting and design requirement.

Any requirement should meet the relevant standards of Clause 54 ....

Lot dimensions and building envelopes should protect:

• Solar access for future dwellings and support the siting and design of dwellings that achieve the energy rating requirements of the Building Regulations.
• Existing or proposed easements on lots.
• Significant vegetation and site features.

1. I didn't see much variety in lot size in this part of Pakenham on my inspection. Most lots are seemingly about 16-18 metres wide and have an area around 700m². On my inspection, it was apparent that the houses and gardens consumed most of the front of the lots. Front and side vegetation was not apparent. Built form was easily the most dominant characteristic.
2. I agree with Mr Jones that whatever the lot sizes here, the house will be tailored to suit. The reality is that a house will consume most of the front and that will be so if the lot is 18m wide or 12m wide. Of course, there has to be some point at which a subdivision would be so alien as to be uncharacteristic and I think that Standard C8 provides some guidance on this issue with its requirement for a building envelope of 10m x 15m. I note that an envelope of this size can comfortably be accommodated on the amended plan while still notionally allowing some side relief.
3. In the absence of any clear Council policy or direction I am satisfied that lots of about 12m in frontage are supported by Clause 56 of the Scheme and, while different, will introduce some variety into the settlement pattern in the area.
4. I am also satisfied that lots of the size proposed are compatible with, and provide an appropriate interface to, the green wedge area to the north. The reality is that residential land butts up against green wedge land at the urban growth boundary. Some interface is inevitable and a change from one side of the fence to the other will be apparent. Whether it be 13 lots (as is approved) or 19 lots (as is proposed) fronting this northern boundary is really neither here nor there in my view.
5. Either way, there will be houses and rear yards on the urban growth boundary and this is the inevitable consequence of the zoning regime in the area. The transition that will occur is from the vegetation in rear yards to the rural residential lots to its north. This will be similar to that which exists on the north side of Breyleigh Drive at present.
6. I note that Council fear that the proposed 20 lots fronting the north side of Oskar Court will have a more damaging streetscape impact by way of cut and fill than would the existing 14 lots, which have been approved on this same side of the street. As noted by Mr. Jones, I suspect that much the same 'cut and fill' would eventuate in either scenario given that the larger lot will simply lead to a larger footprint and therefore larger excavation.

1. There was considerable discussion at the conclusion of the hearing about permit conditions in the event of an amended permit being issued. I was urged to 'tidy up' the existing conditions especially as some had been first introduced in 2003 and others were a carry over from the current permit.
2. I have tried to rationalise and simplify the permit without changing the intent of the conditions especially those of the referral authorities. I support the identification of building envelopes on all lots inclusive of showing the 10 x 15m developable parcel. This draws down from Clause 56.04 and should provide comfort to Council that Standard C8 is met in the subdivision design even if the lot frontages are reduced. I also support a "staggering" of the frontage setbacks in Oskar Court so as to introduce some variety into the streetscape and built form appearance so as to allay another of Council's concerns.
3. I have rationalised Condition 6(a) quite a bit and have absorbed parts of conditions 22 and 25. In essence, this condition seeks to implement a public realm streetscape plan for Oskar Court and Ahern Road and it requires vegetation sourced from seeds of local provenance to maintain generic integrity. Its implementation is part of the offset management plan required for the removal of the eight trees on the site. It acknowledges the retention and protection of four other trees and acknowledges the protection of all vegetation within the proposed reserve at Lot 44. The condition requires a total of 43 new street trees which is a more than adequate offset for the lost vegetation.
4. Condition 6(h) was an awkwardly worded requirement for a vegetation management plan for a weed eradication program for Lot 44. I prefer the earlier condition in the original 2004 permit and I have cross-referenced the weed management program with the arborists report.
5. Conditions 6(i) and (7) overlap one another and I have brought them together in a modified Condition 16.
6. I have finally split the conditions into separate items as it had become a very difficult permit to read. While there are now over 50 conditions, I think that the permit reads a little clearer that it did before.

1. It is not in dispute that this land should be subdivided into residential lots. It is zoned residential and it is the last lot on the west side of Ahern Road before one crosses the urban growth boundary.
2. On my inspection, I observed a similarity in lot sizes in the immediate area and in much of this part of Pakenham, north of the highway.
3. The dispute between the parties goes to the question of lot yield and density, although in my view, whatever the outcome, the density could only be termed as "conventional". Council prefer there to be 30 lots of about 700m² while the applicant prefers 43 lots of about 500m². Both options will result in a predominantly detached house format that will address the green wedge to the north by way of back yards.
4. While there is little local strategic direction in the scheme, I think that a crucial factor in support of smaller lots is that it provides some diversity and range where it is otherwise lacking. I also acknowledge that nearly a third of the land is given over to open space which militates in favour of a more dense outcome than if only a small portion of the land were to be so reserved.
5. In all the circumstances, I support the amendment as requested and it is directed that an amended conditional permit be issued.

1. Prior to the certification of a plan of subdivision, three (3) copies of amended plans must be submitted to and approved by the responsible authority. The plans must be generally in accordance with the submitted plans, but modified to show:

1. building envelopes for all lots with staggered front setbacks and of a size containing a rectangle measuring 10 metres by 15 metres 2. a restriction on the plan of subdivision requiring all buildings (excluding sheds, garages and/or carports) to be located within the building envelope except with the prior written consent of the responsible authority

1. tree protection zones for trees to be retained on lots 3, 27 and 28 and in front of lot 2 on Oskar Court

all to the satisfaction of the responsible authority.

1. The layout of the subdivision, as shown on the approved plan/s, must not be altered or modified without the consent in writing of the responsible authority.
2. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the approved plan in accordance with the authority's requirements and relevant legislation at the time.
3. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
4. Under section 8 of the Subdivision Act 1988, any plan of subdivision submitted for certification must be referred to the following authorities:
   • Melbourne Water
   • South East Water
   • SPI AusNet
   • Telstra
5. Prior to a Statement of Compliance being issued, an overall Streetscape Master Plan ('streetscape plan') for Ahern Road abutting the subdivision, and Oskar Court within the subdivision must be prepared by a suitably qualified person and submitted to the responsible authority for approval. In addition all works must be completed as necessary. The streetscape plan shall include:
   • a street tree in front of every allotment to be planted adjacent to the boundary with Oskar Court within the subdivision and on Ahern Road abutting the subdivision
   • the species of trees to be planted in Oskar Court within the subdivision and in Ahern Road shall be to the satisfaction of the responsible authority
   • every effort shall be made to retain trees numbered 3, 5, 8 and 9 as identified in the Arboricultural Inspection Report by Nick Archer dated Friday, 13 June 2003
   • the plants to be used in revegetation must be sourced from the seeds of local provenance to maintain genetic integrity. Seed collection should be made from trees existing on the site. Consideration should be given to including plantings of E. obliqua in the landscape plan as this species is also represented on site
6. Prior to commencement of any works on the land, an Offset Management Plan will be required for the removal of vegetation proposed for removal. The Offset Management Plan should detail:
   • locations where offsets will be provided
   • types of offsets to be provided for the vegetation removal (for example, protection of existing vegetation or revegetation works)
   • details of any proposed revegetation including number of trees, shrubs and other plants, species mix and density
   • means of interim protection for the offsets during the construction phases of the development
   • persons responsible for implementing the monitoring of the Offset Management Plan
   • timeframe for implementation of the Offset Management Plan
   • identification of the land status and land manager of the proposed offset site
   • any ongoing management works required within the offset site, and the responsible persons
7. Prior to a Statement of Compliance being issued, the permit holder is to lodge a landscape maintenance bond to the value of $250.00 per tree. Once the trees have been planted a site inspection by the responsible authority shall be carried out, and if satisfied with the planting, a certificate of practical completion will be issued by the responsible authority.
8. The landscaping maintenance bond shall be refunded in full or part to the satisfaction of the responsible authority after a 24 month maintenance period, and following the issue of a certificate of final completion by the responsible authority.
9. Prior to a Statement of Compliance being issued, road and drainage construction must be completed in accordance with plans and specifications approved by and to the satisfaction of the Council. The standard of construction recommended shall include:

1. construction of a fully sealed road pavement with SM2 kerb and channel, 7.5 metres kerb invert to kerb invert, within a 17 metre road reserve
2. construction of an approved turning area at the end of Oskar Court
3. construction of a concrete footpath on one side only
4. construction of underground drainage in the road reserve and easements as required to drain the road reserve and lots
5. construction of concrete vehicle crossings to service all proposed lots
6. provision of underground power to all proposed lots.

1. construction of a fully sealed road pavement with SM2 kerb and channel across the Ahern road frontage of the property
2. construction of a concrete footpath on the west side only
3. construction of underground drainage in the road reserve and easements as required to drain the road reserve and lots
4. construction of concrete vehicle crossings to service all proposed lots
5. provision of underground power to all proposed lots.

1. Prior to a Statement of Compliance being issued, outfall drainage must be constructed to the approval of Melbourne Water and the Shire Council and provide for drainage of the land to the north affecting the subject property.
2. Prior to a Statement of Compliance being issued, the permit holder must pay to the Council an amount of $400 per created allotment towards upgrade works in Ahern Road to provide appropriate sealed access to the site.
3. Prior to a Statement of Compliance being issued, all construction works required in condition (10) & (11) shall be completed.
4. Prior to a Statement of Compliance being issued, a cash contribution to the satisfaction of the responsible authority must be provided for the provision or augmentation of public infrastructure. (Note: The current contribution is $3027.00 per additional lot created. The contribution is subject to periodic review, therefore the contribution may vary depending on when the contribution is paid.)
5. Prior to a Statement of Compliance being issued, a vegetation management plan for the 1.13 hectare area to be proposed public open space (Lot 44) must be submitted to Council for approval. Such plan shall include a weed management program in accordance with the aboricultural report of Nick Archer (June 2003) which must be implemented prior to the sale of the lots. The vegetation management plan shall show remnant vegetation within the area of the proposed public open space and will show the location, extent and boundaries that includes the following features:
   • Topographical information
   • Natural assets (all flora and fauna species including significant species that exist on site and ecological vegetation communities)
   • Proposed management activities
   • Location of proposed revegetation
   • Within the proposed public open space the abundance of weed cover over the native remnant vegetation will be reached at the rate of:
     • Rubus species (Blackberry) to less than 100m²;
     • Pittosporum undulatum (Sweet Pittosporum) to less than 100m²;
6. A site specific Environmental Management Plan (EMP) must be submitted to Council for approval a minimum of 14 days prior to commencement of any works. All works must be undertaken in accordance with the approved EMP. Such plan shall include:

1. Temporary fencing of native bush land of the area of proposed public open space 2. Erection of temporary signage stating "This bush land reserve contains significant native vegetation. No machinery, works, storage of material or rubbish dumping is permitted. No stock piling, disposal of building materials or soil on this site"

1. Method of communicating to all contractors on the content of the Construction Environmental Site Management Plan
2. No native trees except trees 1, 2, 4, 6, 7, 10, 11 and 12 as identified within the aboricultural report of Nick Archer, dated Friday 13 June 2003, shall be removed except with the approval of the responsible authority.
3. All environmental work undertaken on the site will only be carried out by persons appropriately qualified in environmental restoration.
4. Prior to the removal of any native vegetation, a detailed plan of the revegetation to be undertaken in the proposed public open space for the offset planting of 260 indigenous plants, must be provided and approved by the responsible authority. The details will include planting timelines, number and type of species to be planted in the restoration of the vegetation to the appropriate ecological vegetation community benchmarks.
5. Within four (4) weeks of the registration of the plan of subdivision at the Land Titles Office, a duplicate copy of the Certificate of Title vested in the responsible authority on the plan of subdivision and a clear A3 copy of the plan of subdivision approved by the Registrar of Titles must be forwarded to the responsible authority.
6. Each lot must be provided with reticulated sewer.
7. Where vegetation is removed then it must be mulched or removed from the site.

1. Operable below ground hydrants meeting the requirements of Australian Standard 3952 Water supply-Spring hydrant valve for water works purposes must be provided to the satisfaction of the CFA.
2. The fire hydrants must be located within 120 metres of the furthest edge of every building envelope (or in the absence of building envelopes, the rear of the lots).
3. Three copies of water reticulation drawings must be provided to CFA for approval.
4. Fire hydrants must be clearly identified in accordance with the Fire Services Guideline - Identification of Street Hydrants for Firefighting Purposes.
5. Emergency vehicle access must be provided to each of the allotments meeting the design requirements of the CFA guideline "Requirements for Water Supplies and Access, for Subdivisions in Residential 1 and 2 Township Zones".
6. The amount and location of parking facilities should not impede access of emergency vehicles (off-street parking is therefore encouraged where possible).
7. Areas of public open space or common property must be managed to a minimum fuel condition during the declared Fire Danger Period.

Department of Sustainability and Environment conditions

1. Trees that are to be felled and those that are to be retained must be clearly marked.
2. No top soil should be stockpiled on native vegetation that is to be protected.

1. 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 water and stormwater from the subject land directly or indirectly into Melbourne Water's drainage system.
2. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

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

1. The owner of the subject land must enter into an agreement with SP Electricity Pty Ltd for supply of electricity to each lot on the approved plan.
2. The owner of the subject land must enter into an agreement with SP Electricity Pty Ltd for the rearrangement of the existing electricity supply system.
3. The owner of the subject land must enter into an agreement with SP Electricity Pty Ltd for rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by SPI Electricity Pty Ltd.
4. The owner of the subject land must provide easements satisfactory to SPI Electricity Pty Ltd for the purpose of "Power Line" in the favour of "Electricity Corporation" pursuant to section 44 and Schedule 2 of the Electricity Industry Act 1993, where easements have not been otherwise provided, for all existing SPI Electricity Pty Ltd electric power lines and for any new power lines required to service the lots on the endorsed plan and/or abutting land.
5. The owner of the subject land must obtain for the use of SPI Electricity Pty Ltd any other easement required to service the lots.
6. The owner of the subject land must adjust the position of any existing SPI Electricity Pty Ltd easement to accord with the position of the electricity line/s as determined by survey.
7. The owner of the subject land must set aside on the plan of subdivision Reserves for the use of SPI Electricity Pty Ltd for electric substations.
8. The owner of the subject land must provide survey plans for any electric substations required by SPI Electricity Pty Ltd and for associated power lines and cables and executes leases for a period of 30 years, at a nominal rental with a right to extend the lease for further 30 years. SPI Electricity Pty Ltd requires that such leases are to be on the title by way of a caveat or a notification under Section 88 (2) of the Transfer of Land Act prior to the registration of the plan of subdivision.
9. The owner of the subject land must provide SPI Electricity Pty Ltd a copy of the plan of subdivision submitted for certification that shows any amendments that have been required.
10. The owner of the subject land must agree to provide alternative electricity supply to each lot owners and/or each lot until such time as permanent supply is available to the development by SPI Electricity Pty Ltd.
11. The owner of the subject land must ensure that all necessary auditing is completed to the satisfaction of SPI Electricity Pty Ltd to allow the new network assets to be safely connected to the distribution network.

1. The applicant enters into an agreement with Telstra or other licensed telecommunications carrier for the satisfactory provision of telephone cable reticulation to one (1) metre into each allotment created. Refer www.telstrasmartcommunitty.com to Register Your Development.
2. The applicant pay to Telstra, the reasonable cost of any works necessary, as a result of the subdivision, or any adjacent land or Government Road, pursuant to Clause 53 of Schedule 3 of the Telecommunications Act 1997. Refer - Dial Before You Dig - Ph: 1100.
3. The applicant must set aside on the plan of subdivision reserve/s satisfactory to Telstra, for Telecommunications substation/s if required.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • The development is not started before two (2) years from the date of the permit
   • The development is not completed before four (4) years from the date of the permit.

In accordance with section 69 of the Planning and Environment Act 1987, 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.

(Note: The starting of the subdivision is regarded by Section 68(3A) of the Planning and Environment Act 1987 as the certification of a plan, and completion is regarded as the registration of the plan.)