VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P2438/2005
Permit Application no. P205/332	
CATCHWORDS	
Subdivision of land, Residential 1 Zone, No overlays, Variation in lot sizes, Whether adequate transition in lot sizes, Drainage easement, Amount of open space, Traffic, Connectivity	

APPLICANT	Macedon Pastoral Developments Pty Ltd	
responsible authority	Macedon Ranges Shire Council	
OBJECTORS	Michael Langley, Beth Parker and others	
SUBJECT LAND	80 Sutherlands Road, RIDDLES CREEK 	
WHERE HELD	Melbourne	
BEFORE	Peter O’Leary, Presiding Member
Mary-Anne Taranto, Member	
HEARING TYPE	Merits Review	
DATEs OF HEARING	15, 16 and 17 May 2006	
DATE OF ORDER	20 June 2006	
CITATION	[2006] VCAT 1154	

Order
The responsible authority’s decision is set aside.  In permit application P205/332 a permit is granted and directed to be issued for the land at 80 Sutherlands Road, Riddles Creek.  The permit will allow the subdivision of land, the creation of a restriction and modification (removal) of easements in accordance with the endorsed plans and subject to the following conditions.

1	Before any plan of subdivision is certified under the Subdivision Act 1988, amended plans (based on Version H of plans by Tomkinson) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be modified to show:
(a)	The central public open space facility with an area not less than 4.46% of the site area (through such means as deletion of Lots 21 and 114, realignment of Lot 22, and partial relocation northwards of Lots 115 – 118 inclusive).
(b)	Modification to the size of lots on the eastern boundary south of the drainage reserve to such an extent that they average at least 1100 square metres (with a minimum size of 1000 square metres).  Lots 1-5 (inclusive) may be modified to include a further lot provided the affected lots have a minimum frontage of 20m.  
(c)	Lots 175-178 (inclusive) may be reduced to three lots if the permit applicant wishes.
(d)	Provision of vehicular access to Southbourne Road with the road pavement through to Parkview Drive matching the existing road pavement.  The frontage of Lot 127 is to be shifted southwards, to generally match the alignment of existing lot frontages in the constructed part of Southbourne Road.  Lots 128-131 inclusive shifted northwards (while maintaining rear road access to these lots but including any consequential modifications to Lots 132 to 138) so that the frontage of these small lots align with the front boundary of Lot 127.  
(e)	Enlargement of the eastern drainage reserve to approximately 2,300sq.m (without a reduction in the size of the lots to the north of it (ie. Lots 93-100) for storm water retention purposes.
(f)	Provision of footpaths on at least one side of each street/road, with the exception of streets with footpaths in open space reserves.
(g)	Plan notations indicating that the following trees (as numbered on the plan of site analysis Ref. MJ4037 Version A) are to be retained:
(i)	Tree No. 2 – between Lots 149 & 150;
(ii)	Tree No. 3 – Lot 150;
(iii)	Tree No. 8 – between Lots 152 & 153;
(iv)	Tree No. 6 – Lots 166 & 167
(v)	Tree No. 5 – Lot 165
(vi)	Tree No. 4 – Lot 164;
(vii)	Tree No. 9 – Lot 170;
(viii)	Tree No. 10 – between Lots 170 & 171;
(ix)	Tree No. 11 – Lot 171
(x)	Tree No. 1 – between Lots 137 & 138
(xi)	Tree No. 12 (easternmost tree only) – between Lots 107 & 108;
(xii)	Tree No. 14 – between Lots 124 & 125
Tree Protection Zones (TPZs) not less than 5 metres from the trunk of trees to be retained are to be depicted on the plans.  The TPZs are to be measured from the outside edge of the trunk.
(h)	A plan of restriction for all relevant lots requiring that in relation to the trees referred to in Condition 1(g) above:
(i)	No buildings are to be erected within 5m of the outside edge of the trunk of any tree to be retained (i.e. within the TPZ) except with the written consent of the Responsible Authority;
(ii)	No works including any excavation or fill, driveways or swimming pools are to be carried out within 5m of the outside edge of the trunk of any tree to be retained (i.e. within the TPZ) except with the written consent of the Responsible Authority;
The plan of restriction must include a plan for each of the affected lots showing the location of each tree to be retained and the Tree Protection Zone.
(i)	Location of building envelopes on each lot less than 500m2 specifying setbacks from all boundaries including a frontage setback of generally not less than 6m.
(j)	A plan of restriction for each lot containing a building envelope (i.e. Lots 115 – 122 inclusive and Lots 128 to 131 inclusive) requiring that:
(i)	No dwelling or any other building is to be built outside the building envelope, except with the written consent of the Responsible Authority;
(ii)	Vehicle access to any garage, carport or car space is not permitted from any abutting road other than from the corresponding rear roadways on the north side of these lots, except with the written consent of the Responsible Authority;
(k)	The provision of street names in accordance with Council policy.
(l)	Details of any staging proposed.
(m)	A landscaping plan generally in accordance with the schematic plan by Earth Tech, Drawing No. 106040L (May 2006) prepared by a suitably qualified person detailing the following:
(i)	provision of mature canopy trees of minimum height 3 metres at the time of planting within the reserve and along the boundary of the drainage reserve
(ii)	mulching/mounding treatment for trees
(iii)	tree specie selection to be indigenous to the area
(iv)	details of all landscaping and any recreational facilities within the Reserves.
2	The plan of subdivision submitted for certification must include the plan of restriction referred to in Condition 1 of this permit.  The plan of restriction must be created in accordance with the relevant provisions of the Subdivision Act 1988 and lodged for registration with the plan of subdivision.
3	The subdivision as shown on the endorsed plan must not be altered or modified without the prior written consent of the Responsible Authority.
WORKS AND MAINTENANCE REQUIRED
4	Prior to the issue of a Statement of Compliance for each relevant stage the following must be undertaken to the satisfaction of the Responsible Authority:
(a)	All services are to be provided underground.
(b)	All landscaping must be completed in accordance with the approved landscape plan.
(c)	The owner must enter into an agreement or pay a bond to ensure that all works and landscaping including street trees are maintained for a period of two years after the issue of the statement of compliance for the relevant stage.
(d)	A Footpath Cycle Way (not greater than 1.5 metres wide) must be constructed along the north side of Sutherlands Road between the southern road entrance and Racecourse Lane.
(e)	At each relevant stage of subdivision, the applicant / owner must construct all new roads within the subdivision.
(f)	All civil engineering works associated with the development.
(g)	All lots in the subdivision must be serviced by an underground drainage system.
(h)	The drainage system must be designed and constructed to limit downstream flow to pre-development levels.
(i)	The drainage design to incorporate the drainage from the proposed mid-density development.
(j)	The flow paths of a 1% AEP storm shall be determined and the subdivision designed so that no private property is inundated by such a storm. The flow paths shall be indicated on drainage plans.
(k)	The drainage system must be designed to include provision to intercept litter prior to connection with any Council drain or discharge to a watercourse.
(l)	The applicant is responsible for the construction of outfall drainage of the development to Council's approval. On completion of these works the Council will refund the $75,000 bond it currently holds;
(m)	The applicant/owner must restrict sediment discharges from any construction sites within the property in accordance with "Construction Techniques for Sediment Pollution Control" (EPA 1991) and "Environmental Guidelines for Major Construction Sites" (EPA 1995).
5	Pursuant to Section 36 of the Subdivision Act, the Responsible Authority considers that for the economical and efficient subdivision and servicing of the land covered by the Application for Permit it requires the permit holder to acquire an easement over other land not covered by the permit but in the vicinity of that land, namely, any land not owned by the developer through which a drainage extension servicing the development is to be located.  The easements created must be in favour of the Shire of Macedon Ranges.
CONDITIONS REQUIRED BY WESTERN WATER
6	The developer must pay a New Customer Contributions for each lot created by the development, such amount being determined by Western Water at the time of payment.
7	The developer must fund a feasibility study for the proposed water supply and sewerage services needed to serve the development.
8	The developer must provide a reticulated water mains and associated construction works to front each allotment within the development, at the developer’s expense, in accordance with standards of construction adopted by and to the satisfaction of Western Water.
9	Any existing water service which crosses any of the proposed allotment boundaries within the proposed development must be disconnected and relocated at the developer's expense, to be wholly within one allotment only and to the satisfaction of the Western Water.
10	The developer must provide reticulated sewerage and associated construction works to each allotment within the development, at the developer’s expense, in accordance with standards of construction adopted by and to the satisfaction of Western Water.
11	The developer must carry out the disconnection of any existing house connection drain, and each allotment is to be independently and directly connected to a sewer main of Western Water.
12	The developer is to provide easements in favour of Western Water over all existing and proposed sewer mains located within private property.  The easement shall be 3.0 metres wide for combined sewer and drainage easements and 2.5m wide for a dedicated sewerage easement.
13	Pursuant to Section 36 of the Subdivision Act, Western Water considers that for the economical and efficient subdivision and servicing of the land covered by the Application for Permit it requires the permit holder to acquire an easement over other land not covered by the permit but in the vicinity of that land, namely, any land not owned by the developer through which a sewerage extension servicing the development is to be located.  The easements created must be in favour of Western Water.
14	The developer must prepare a digitised plan of subdivision and ancillary requirements in accordance with Western Water’s drafting standards and practices.
15	The developer is obliged to enter into an Agreement with Western Water relating to the design and construction of any sewerage or water works required.  The form of such Agreement shall be to the satisfaction of Western Water.  A copy of the format of the Agreement will be provided on request.
The developer shall make a written request to Western Water for the terms and conditions of the agreement.
16	The plan of subdivision and any subsequent amendments lodged for certification is to be referred to Western Water pursuant to Section 8(1) of the Subdivision Act, 1988.
17	All contractors engaged on construction of Subdivision Infrastructure obtain a Water Carters Permit from Western Water and comply with that permit at all times. The permit will include a requirement for the Water Carter Permit holder to:
(a)	Own a metered hydrant approved by Western Water,
(b)	Meter and pay for all water taken, 
(c)	Display a Western Water Permit Number Sticker on the tanker,  
(d)	Only take water from nominated hydrants or standpipes,
(e)	Only use water for the purpose approved in the Water Carters Permit,
(f)	Avoid wastage of water on site; and
(g)	Comply with any water restrictions imposed by Western Water at the time water is used.
For the purpose of this condition, Subdivision Infrastructure includes new and alterations to existing: roads, drains, water mains, sewer mains, power supply, telephone, gas and any other service infrastructure required by this permit and dust suppression during construction of the same.
18	Notwithstanding the above, a Water Carters Permit is not required if the permit holder and contractors engaged by the permit holder can demonstrate to the satisfaction of Western Water that water is not required from Western Water’s town water supply systems to construct Subdivision Infrastructure as defined above.  
Where the land is to be developed in stages, the above conditions will, in general, apply to any subsequent stage of the estate development.  However as any future stages of the development will be connected to Western Water’s water supply and sewerage systems independently of this stage, Western Water reserves the right to revise any conditions applicable to any subsequent stages lodged.
CONDITIONS REQUIRED BY TELSTRA
19	The developer must enter 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.telstrasmartcommunity.com to Register Your Development.
20	The developer must pay to Telstra the reasonable cost of any works necessary, as a result of the subdivision, to remove or later the position of any existing facility on the Schedule 3 of the Telecommunications Act 1997.  Refer – Dial Before You Dig process – Ph: 1100.
CONDITIONS REQUIRED BY CFA 
21	The subdivision as shown on the endorsed plans must not be altered without the consent of the CFA.
22	Operable hydrants, above or below ground must be provided to the satisfaction of the CFA.
23	The maximum distance between these hydrants and the rear of all building envelopes (or in the absence of the building envelope, the rear of all lots) must be 120m and hydrants must be no more than 200m apart.
24	Hydrants must be identified as specified in ‘Identification of Street Hydrants for Firefighting purposes’ available under publications on the Country Fire Authority website (www.cfa.vic.gov.au).
25	Roads must be constructed to a standard so that they are accessible in all weather conditions and capable of accommodating a vehicle of 15 tonnes for the trafficable road width.
26	The average road grades must be no more than 1 in 7 (14.4%) (8.1 degrees) with a maximum of no more than 1 in 5 (20%) (11.3 degrees) for no more than 50 metres.  Dips must have no more than a 1 in 8 (12%) (7.1 degree) entry and exit angle.
PERMIT TIME LIMIT
27		This permit shall expire if:
(a)	the plan of subdivision is not certified within 3 years of the date of this permit; or
(b)	the subdivision is not registered within 10 years of the date of this permit.
The Responsible Authority may extend the time if a request is made in writing before the permit expires or within three months afterwards.

Peter O’Leary
Presiding Member		Mary-Anne Taranto
Member	

APPEARANCES:		
For Applicant	Mr M Naughton, Lawyer. Mr Naughton called evidence from:
	Mr A Clarke, Town Planner
	Mr T Palios, Civil Engineer
	Ms G Austin, Traffic Engineer	
For Responsible Authority	Ms A Lane, Lawyer. Ms Lane called evidence from Mr R Hansen, Town Planner.	
Objectors	Mr M Langley, Ms B Parker, Mr R Van Loon and Ms J McKee.	

Reasons
1	Macedon Pastoral Developments Pty Ltd lodged an application for review against the failure of Macedon Ranges Shire Council to determine an application for subdivision and removal of various easements at 80 Sutherlands Road in Riddles Creek.
2	The responsible authority subsequently formed the opinion that had a review not been lodged it would have refused the application on the basis that:
•	The proposal is out of character with the subdivision pattern in the area.
•	The proposal is inappropriate having regard to site features and adjoining developments.
•	The proposal is inappropriate having regard to the proper and orderly planning of the area.
3	Resident/objectors supported the responsible authority’s decision but also raised concerns about:
•	The significant effect the proposed development will have on the character of Riddles Creek.
•	The feeling that they had been misled about the development of the subject land.
•	The lack of opportunity to have input into the future development plan for Riddles Creek.
4	Mr Naughton on behalf of Macedon Pastoral Developments argued that:
•	The proposal is an appropriate one having regard to its Residential 1 zoning.
•	The proposal provides a variety of lot sizes.
•	There are no traffic implications deriving from the proposed subdivision.
•	There is adequate open space for the proposal.
•	There is an appropriate transition in lot sizes to abutting Residential 1 zoned land.
•	The proposed lots will be consistent with the emerging character of Riddles Creek and that abrupt change in lot sizes can be expected in those circumstances where there is a change in zoning, ie. to the adjoining low density residential land and if necessary trees on the site can be protected.
5	Essentially the primary matters we are required to make findings on are:
•	Is the proposed subdivision an appropriate planning outcome having regard to lot sizes and the relationship with adjoining Residential 1 and Low Density zoned land?
•	Does the subdivision provide a reasonable transition between larger lots on adjoining land?
•	Can the site be drained adequately?
•	Is there sufficient public open space within the subdivision to cater for the needs of future occupiers in the subdivision?
•	Does the subdivision raise traffic difficulties?
Purpose Sought
6	It is proposed to subdivide the land into 181 residential allotments. The size of lots comprise:
•	12 lots of 500m2 or less
•	23 lots between 501m2 and 800m2
•	75 lots between 801m2 and 1000m2
•	19 lots between 1001m2 and 1200m2
•	48 lots between 1201m2 and 2000m2
•	4 lots greater than 2000m2
7	The proposed subdivision has larger lots that are proposed along the western boundary of the site and along the frontage to Sutherlands Road. In addition lot sizes generally graduate downward in size toward centre of the site so that 12 medium density allotments, ranging between 359 and 500 square metres are placed around a centrally located public open space reserve. 
8	There are two other reserves proposed which are primarily intended to serve as drainage reserves. These are located along the Sutherlands Road frontage and about midpoint along the eastern side of the subdivision.
9	The subdivision will have vehicular access from Amess Road and Sutherlands Road. There is also opportunity for access to Southbourne Road in the south-western section of the site although the amending plans at the hearing did not show this. The subdivision will also connect with Rangeview Drive to the north, Cheriton Drive to the west and Sutherlands Road to the south.
10	 All lots will be connected to reticulated sewerage, water, electricity and telephone services. There is also a need to modify existing easements on the land to respond to the layout.
Locality
11	The subject site is situated toward the north eastern periphery of the Riddles Creek Township. This is a relatively small commuter township about 15km north of the Sunbury Township. It has highway access to Sunbury, Gisborne and Romsey, and train services to Melbourne and Bendigo. There are various facilities in the town including a primary school, maternal healthcare services, emergency services, railway station, shops and parks.
12	The subject site is located on the northern side of Sutherlands Road and extends for most parts to the rear of properties fronting Amess Road. There is also connection to Rangeview Road and a smaller section of land which will create four lots fronting Amess Road.
13	Land to the west of the site comprises detached dwellings on relatively large suburban lots. Most of these lots form part of what was Stage 1 of a 1999 subdivision. At that time it was in a Township B Zone which limited lot sizes to 2000 square metres.
14	Land to the north and north east comprise larger lot subdivisions, some lots are about 8000 square metres in area. Other more recent lots in Grandview Close are about 2000 square metres in area. New dwellings have been or are in the process of being erected in Grandview Close.
15	Land to the east comprises houses on relatively large lots in a Low Density Residential Zone. Some of these houses have recently been erected and have various levels of tree planting. 
16	Land to the south, that is south of Sutherlands Road is the Melbourne to Bendigo rail line. The Riddles Creek railway station is about 800 metres to the south west.
Planning Controls and Policies
17	The subject site and land to the north and west of the subject site are all zoned Residential 1 under the Macedon Planning Scheme. A permit is required under Clause 32.01-2 to subdivide land. This then triggers assessment of the proposal under Clause 56 (Rescode).
18	The relevant purposes of this zone are:
•	To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
•	To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
•	To encourage residential development that respects the neighbourhood character.
19	A planning permit is also required to remove easements and to create a (plan of) restriction.
20	There are various State and Local planning policies of relevance to this application including:
•	Clause 11			Introduction, Goals and Principles
•	Clause 12			Metropolitan Development
•	Clause 14			Planning for Urban Settlement
•	Clause 15.10		Open Space
•	Clause 16.01		Residential Development for Single Dwellings
•	Clause 19.01		Subdivision
•	Clause 21			Municipal Strategic Statement
•	Clause 22.01		Macedon Ranges and Surrounds
•	Clause 22.02		Townships
•	Clause 22.02-5	Riddles Creek Township
•	Clause 52.01		Public Open Space and Contribution
•	Clause 52.17		Native Vegetation
•	Clause 56			Rescode
•	Clause 65			Decision Guidelines
The Review Hearing
21	At the review hearing the various representatives tabled and read from detailed written submissions and made various oral comments. We were provided with photographs of the subject site, aerial photographs, plans of the proposed subdivision, landscaping plan, details of previous approvals granted, proposed amendments to the Macedon Ranges Planning Scheme, and information from referral authorities. Various expert witnesses were available for cross-examination. 
22	Following the review hearing we viewed the subject site (including all trees), adjoining properties and the neighbourhood in general and various parts of the Riddles Creek Township.
23	At the commencement of the hearing Mr Naughton sought leave to substitute the application plans with amended plans circulated to the parties prior to the hearing. The amended plan (MJ4037PS) is known as Version H and should be read in conjunction with the Outline Development Plan MJ4037 Revision A. There was no objection and the plan was substituted. 
24	Mr Naughton also sought leave to substitute the Applicant for Review’s name Les Whorlow to Macedon Pastoral Developments Pty Ltd, the latter who is the owner of the land. There was no objection and the substitution was made. 
25	Mr Naughton also advised of the need for minor corrections to allotment areas nominated on Lot 100 and 14. We also noted the aerial photographs and landscaping plan tabled. We also gave the various parties an opportunity to view the landscaping plan to make further comments.
Basis for Decision
Neighbourhood Character Issues
26	Both the responsible authority and objectors claimed the subdivision would not respect the character of the area. They also claimed proposed subdivision will not respect existing subdivision patterns on abutting properties nor achieve the desired character which is emerging for this section of the Riddles Creek Township.
27	We consider it is appropriate to acknowledge that this is a relatively large parcel of paddock land zoned Residential 1 with few design constraints and there are no density controls in the planning scheme. 
28	The Planning Scheme directs that a design respect the neighbourhood character, but that does not necessarily mean it must copy in every detail the elements of adjoining subdivisions. So we consider that most of the subdivision will be respectful of the general character of this emerging residential area.  Most of the lots in this subdivision will be, in metropolitan terms, relatively large and they are capable of containing a large detached dwelling, ancillary garages and sheds with generous gardens and vegetation around them. 
29	We consider that, by and large, the proposed subdivision of this land has responded to the planning policy framework and the emerging neighbourhood character which is expected to derive from a Residential 1 zoned parcel of land.  We do however propose some modifications at the eastern interface with the larger lots in the Low Density Residential Zone which will discuss shortly.
30	During the hearing we were requested to undertake an inspection of the large part of the Riddles Creek Township so that we would have a better understanding of the full impact of this subdivision on the overall town. From our perspective we consider the proposed subdivision is a reasonable response having regard to the zoning, the State and Local Planning Policies and the relationship of the various lots with neighbouring properties. In broad terms, we are satisfied that roads will integrate well into the existing subdivision, that open space has been provided in an appropriate manner and that the existing road system can accommodate the proposed vehicular access to the site. 
Adequacy of transition in lot sizes
31	Land to the west has been subdivided into 2000 square metre lots and the applicants have proposed similar sized lots close to or abutting the existing subdivision provide a suitable transition between subdivisions in the western interface. Similarly there is a reasonable transition in lots sizes between abutting subdivisions or close to the northern and north- eastern interface. 
32	There is a different interface with land to the east within the Low Density Residential Zone.  We are of the opinion that the proposed lots at this eastern edge may not adequately respect the character of the area but we consider that can be addressed by a condition on permit which will reduce the number of lots abutting 141 Sutherland Road.
33	We examined the interface between the east boundary of the subject site and whether there should be a better transition in lot sizes along the eastern boundary of the site with the Low Density zoned land. Ms Hansen claimed in evidence that there should be larger lots of around 2000sq.m abutting the low density zoned land to respect the low density sized lots whilst Mr Clarke argued that the boundary between the Residential 1zone and the Low Density zone formed an appropriate abrupt barrier and land in each zone had its own character. 
34	Mr Clarke claimed that an abrupt change in lots can be expected and is reasonable in these circumstances where there is a change in zoning. Whilst we acknowledge there will be some noticeable change between the densities of development in a Residential 1 Zone compared to Low Density zoning, we consider that the proposed change, or transition, particularly on lots south of the eastern drainage reserve and the low density lot at 141 Sutherland Road, is too abrupt and should be modified.  In saying this, we are mindful of the ResCode provisions (Clause 56.01) which recognise that the surrounding pattern of development is a relevant contextual consideration to which proposals like this must respond.
35	As a result we consider that there should be at least three lots removed and the remaining lots enlarged to a minimum average of 1100sq.m. We have adopted 1100sq.m average lot size, with a minimum of 1000sq.m on those lots south of the proposed drainage reserve, as recommended in part by the council’s draft condition. This will probably result in a loss of about three lots, together with the loss of another lot along this boundary required to enlarge the drainage reserve.
36	However we find no need to provide any further transition for those lots north of the drainage lot close to Mr Langley’s property at 147 Sutherland Road because from both a visual and physical viewpoint it will be difficult to distinguish the change in density between the two different subdivisions or the extent of development. In this instance there is a substantial vegetation buffer along the western boundary of 147 Sutherlands Road. In addition the owners have undertaken extensive tree planting in and around this interface area and installed a pond which appears to receive overflow water from the existing drainage area/dam. If anything, in a matter of years, this extensive planting will further buffer a view of the subdivision from this property.  
37	During our inspection we observed that the portion of the review site closest to Mr Langley’s dwelling would comprise the eastern drainage reserve and one other lot once this reserve is enlarged as recommended by Mr Palios.  We also observed that Mr Langley’s dwelling is setback more than 60m from this nearest lot and the dwelling has its main living areas and windows facing north away from the review site.  Having regard to these relevant circumstances, we consider that the subdivision will not cause unreasonable impacts at this interface.
38	We also noted in the earlier subdivision permit that 8 lots abutted 141 Sutherland Road and with the modifications we will require the net result will be 7 or 8 lots. So if anything, there will be no net increase in dwelling density at the abuttal between the old and new subdivisions. Whilst the lots will be smaller than those originally approved, the difference would be much less perceptible because there will be a similar number of dwellings.
39	We therefore consider that it is not necessary to lower the density on those lots north of the drainage reserve.  Most are shown in the order of 1040sq.m -1085sq.m and we consider that is a satisfactory outcome having regard to their relationship with a large landscaped/treed buffer along that section of the property boundary to the Low Density Residential Zone. 
40	During the hearing Ms Hansen suggested that the eastern lots could be increased in size and lots on the southern side of Cheriton Drive (Lots 1 to 5). We generally agree and we have allowed the opportunity for a net increase of one lot, provided the minimum frontage is 20 metres. We have suggested a 20 metre minimum having regard to the relatively long depth of each of those lots.
Suitability of higher density lots in the centre of the subdivision
41	We acknowledge the criticism of objectors about providing various low density size lots in the centre of the subdivision, but we consider that these will provide an appropriate opportunity for a variation in lot sizes commensurate with the purposes of the Residential 1 Zone. Ms Hansen in evidence claimed that there should be a higher proportion of small lots in the centre of this site. We are not convinced there is an overriding necessity for more higher density lots because the site is located at least 800 metres, if not 1km, from the railway station and the centre of town and the lower density lots themselves are in the order of 1.5km from the centre of town. 
Legitimate Expectations
42	Objectors based much of their criticisms on previous planning scheme controls and earlier stages of a subdivision permit for this land which had a minimum lot size of 2000 square metres. They claimed that it was out of character with the subdivision pattern in this area, inconsistent with the development pattern of Riddles Creek, and was inappropriate having regard to proper and orderly planning. As Mr Langley pointed out in his submission:
The subject land as originally zoned R2 with approval for lots sizes not less than 2000m2.”  This was the expectation that residents had for this area. The contribution that this type of development makes to the character of the town was the main reason why people move to Riddles Creek and why residents chose to buy their properties in this location.
43	Mr Langley claimed that the developer has used this opportunity to overturn what they believe was good planning. He claimed it was not fair that residents should have to live with the results of inappropriate development because of executive decisions made by state governments and the inability of local government to deal with planning issues expeditiously. He claimed the neighbourhood character must be protected.
44	We acknowledge that there were signs on the site until recently promoting the 2000 square metre type lots. We also acknowledge that various residents also formed the view that the remainder of the entire subdivision would be developed into lots of 2000sq.m in size. Whilst we acknowledge the disappointment raised by resident/objectors about the changes in zone controls that is not a reason to reject the application. Our role is to consider the appropriateness, or otherwise of the subdivision having regard to the current planning policy framework and the provisions in the Macedon Ranges Planning Scheme.
45	Since the original permit was issued in 1995 the land has been rezoned to Residential 1 and there are no overlays in the VPP based Macedon Ranges Planning Scheme. Whilst it may have been intended to place some overlays to control the size of lots in this neighbourhood, this has not occurred and we were told that attempts by the responsible authority/planning authority to place density controls over this land has been fruitless. 
46	We appreciate the disappointment for some residents in the Town when their expectations for this land have not been met but we consider that the Planning scheme does not mirror their expectations. This is a town that has valuable Residential 1 zoned land in relatively close proximity to its centre with access to commuter transport facilities to Bendigo and Melbourne, community facilities such as parks, community buildings, shops and medical facilities. It is a pleasant town and we can see people wishing to purchase the various sized lots building homes, and settling into the township and making a valuable contribution to its services and the community.
Open Space Provision
47	During the hearing the Council argued that the proposed central public open space reserve was inadequate in terms of its shape and size.  Council argued for a full 5% open space provision as identified in Section 18(1) of the Subdivision Act but sought to exclude any land required for a drainage reserve. 
48	We consider that the open space facility in the centre of the site is generally a good concept, but we consider that it needs to be enlarged to provide for most of the public open space in this subdivision.  We will take up the suggestion of Mr Naughton that it should be enlarged generally by deleting Lots 14 and 21, moving Lots 115 to 118 northwards into the remnants of Lots 114, and realigning Lot 22 so that there is a net 4.46% of the site serving as open space. 
49	We acknowledge this is under the full 5% sought by the Council which could generally be justified for a subdivision of this nature.  While the two smaller reserves are to be designated as drainage reserves, reflecting their primary purpose, we consider that they will nonetheless offer some supplementary recreational opportunities and will adequately complement the larger central open space facility.  These smaller reserves are to be landscaped and will available for public use most times of the year. 
50	We consider that the general shape and location of the open space at the centre of the subdivision is an interesting one and will complement the subdivision. We also consider that this is a superior result to the previous subdivision which had no open space within the subdivision.
51	With the modifications we propose, we do not see justification for a more regular shaped lot as suggested by Ms Hansen. We are satisfied that it will both provide for a good outlook from residential properties abutting it, and that overall it is well integrated with the subdivision layout and the contours of the land. 
52	Whilst it may have been an ideal situation to provide some water feature in the public open space reserve, we are satisfied with the evidence of Mr Palios that it was not either feasible or practical to provide it having regard to both the Council’s Standards for drainage and the very fact that it would be practically difficult to provide this as a waterway.
Traffic and road layout considerations
53	During the hearing there was criticism of the dead ends at three locations in the subdivision. There was criticism that this would result in poor identification of the dwellings on the lots and isolate them. We do not agree with this criticism. We consider these lots are well positioned, relatively generous and if anything they may be the most popular because of their orientation and proximity to quiet low trafficked sections of the subdivision.
54	The main vehicular access is from Sutherlands Road and Amess Road. These roads are zoned Road Zone Category 2 and it is both appropriate and reasonable to expect the primary vehicular access form these roads. In addition the new access to Southbourne Road will complement traffic management in the subdivision.
55	We find that Southbourne Road should be connected into the subdivision. In the original 1995 subdivision this was to be a collector road in the subdivision.  The earlier version of plans under this application as considered by the Council also showed this connection.  It is necessary to provide good connectivity between this subdivision and the developed lots in the western section of Southbourne Road. We acknowledge this may result in some additional traffic movements in Southbourne Road above and beyond the existing conditions. Its connection was supported by Ms Hansen and we also agree that it will provide a necessary and desirable connection that ultimately provides a more direct route to the township.  
56	We accept Ms Austin’s evidence that the new and existing road pavement widths of Southbourne Road should match.  We recognise that this connection will also have some flow on effects to the frontage alignment of Lot 127 and Lots 128-131.  We anticipate that Lot 127’s frontage should shift slightly southwards to match the existing lot frontages of properties within the existing constructed portion of Southbourne Road.  Lots 128-131 will also need to be relocated further north so that their frontages generally match the realigned Lot 127.  We acknowledge that some consequential modifications to the layout of Lots 132 to 138 may flow from these changes.  Our conditions will reflect this.
57	Ms Hansen was critical of the roadways at the rear of the smaller lots which she regarded as inappropriate and unnecessary.  We have not been persuaded that this arrangement is unacceptable.  We think this layout will allow houses on these smaller lots to better address the primary surrounding streets given the relatively narrow lot width of just over 12m.  Access to these lots from the rear roadway will avoid the domination of street frontages by garages and other carparking facilities.  Our conditions will give effect to this outcome which we regard as desirable.
Footpaths
58	We have required pedestrian paths on at least one side of each road so as to provide good access for pedestrians. However, we do not see there is a need for a pedestrian path on both sides of each road having regard to the relatively low density of this subdivision. We have not required a footpath to extend along Southbourne Road noting that there is no footpath now and it is expected that a footpath will be provided along Parkview Drive probably within the park itself therefore obviating the need for further pathways on the eastern and northern side of Parkview Drive.
59	We also consider a shared pedestrian/ bicycle path should be provided in Sutherland Road (north side) between Racecourse Lane and the southern vehicle entrance to the subdivision.  We consider that it is a fair and reasonable offer by the applicant and we do not consider it is fair to provide a shared pedestrian cycle path beyond the southern access point linking with a Low Density zone to the east. 
60	Firstly, we see there is no nexus to extend it westwards because no owner or occupier in the proposed subdivision will necessarily benefit from it and secondly, because it is more likely to provide better pedestrian access linking with the main public facilities in the town to the west.  We are therefore unable to conclude that there is any fair or reasonable justification for it to extend further eastwards to the Low Density subdivision.
Tree Protection Measures
61	No native vegetation is to be removed in this subdivision proposal and there was debate about the long term protection of various native trees particularly in the northern section of the subdivision. There was also concern about the loss of a row or two of remnant pine trees. We do not consider the pine trees are significant landscape features and whilst it may be preferable to keep them, at least in the short term, we consider that in the long term most of these properties will be landscaped along conventional residential themes.
62	We inspected each of the remnant native trees and whilst several trees are in relatively poor condition (i.e. Trees 4, 7, 12 (western-most) and Tree13) we consider the remainder should be retained and in fact will enhance the amenity of the new subdivision and probably the marketability of this section of the subdivision. Accordingly we have required the applicant to provide tree protection measures around the nominated trees which will prohibit any building or works within 5 metres of the tree trunk.  We appreciate that many of these trees are not likely to be directly affected by conventional dwellings being erected on these lots (because these trees straddle lot boundaries).  Nonetheless, we consider the trees should not be placed under any pressure from measures such as crossings, driveways and other hard surfaces or buildings which may undermine their long term retention.  Our conditions will therefore require the identification of Tree Protection Zones which are to be given effect through the creation of a plan of restriction.
Drainage and sewerage issues
63	We are satisfied that the subject site can be appropriately drained and in fact we consider that in some respects there may be a better drainage regime deriving from the proposed plans than the original 1995 subdivision.  As we have alluded to previously, we accept Mr Palios’ evidence that the eastern drainage reserve should be enlarged to about 2,300sq.m to provide the necessary flood protection to surrounding land.  We acknowledge that the provision of this reserve will also reduce overland flows thus reducing nuisance flows eastwards over Mr Langley’s property and land further downstream.
64	We note the responsible authority has required various drainage standards including a design for a 10 year ARI event rather than a 5 year ARI event. We are satisfied that this can be included as a condition on permit, but we also note that the Council does not request “Best Practice” environmental standards due to potential ongoing maintenance cost. 
65	We have modified the drainage conditions to make them simpler having regard to the evidence of Mr Palios. In this regard we note that easements will also need to be varied throughout the site in line with Western Water’s recommendations.  
66	We also accept Mr Palios’s evidence that this site and in fact lots in the Low Density Residential Zone to the east, will benefit by the provision of a continuous drainage easement connecting with the receiving waters of Sandy Creek with the gaps in the easement eliminated. 
67	It is therefore necessary to put a condition triggering the possibility of compulsory acquisition of a drainage easement over land to the east of the subject site in the Low Density Zone (i.e. over land where the easement is presently discontinued).
68	When we examined the interface with the properties to the east we notice the existence of existing sewerage manholes along the eastern boundary and a sewer pumping station at the very south-east corner of the site. We are not sure whether this is sufficient to deal with sewerage issues from this subdivision but as no party referred to the pumping station at the hearing, we consider it appropriate to question whether in fact the condition imposed by Western Water requiring further easements is in fact necessary.  Whilst we have some doubts about the need for this type of condition concerning the sewer connection, we have nonetheless included the relevant condition sought by Western Water which envisages the need to acquire an easement over land nearby for sewerage purposes.
69	We otherwise see no reason to oppose the variation to some existing easements on the land - this was not a contentious part of this application.
Drainage Authority
70	We accept the evidence of Mr Palios and the subsequent correspondence that Melbourne Water is not the relevant drainage authority for this type of subdivision.  We are led to understand that the Council is the relevant authority.
Fencing
71	When we viewed the fencing treatment at the rear of existing residential allotments, we noticed both solid and open styles.  These ranged from typical timber paling fences to open wire styles.  We observed that the open style fencing was more prevalent at the interface with the review site – perhaps allowing residents to enjoy pleasant views over a large uninhabited open paddock from their backyards.  With the creation of new residential allotments this situation will of course change and with it privacy is likely to become a particularly important consideration.
72	We have therefore not imposed any condition about fencing as we consider that this is a civil matter that is best resolved by negotiation between the various affected landowners having regard to their individual needs and preferences, including backyard privacy.  
Conclusion
73	We consider the proposed subdivision generally responds to the planning policy framework and the provisions of the planning scheme. Whilst there are some concerns about the transition of lot sizes on the eastern interface and the adequacy of open space, the Southbourne Road connection and protection of remnant native vegetation we consider these matters can be readily addressed by conditions on the permit.
74	For the above mentioned reasons the responsible authority’s decision is set aside.  We will direct the grant of a permit for the land’s subdivision subject to appropriate conditions.  Where we have not specifically mentioned conditions that we regard as necessary or appropriate, we confirm that we have reviewed and in some instances modified the Council’s draft conditions.  In doing so we have also taken into account the submissions made by the various parties at the hearing about them.

Peter O’Leary
Presiding Member		Mary-Anne Taranto
Member