VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P283/2022
Permit Application no.YR-2020/664 	
CATCHWORDS	
Section 77 Planning and Environment Act 1987 (Vic); Yarra Ranges Planning Scheme; Green Wedge A Zone Schedule 1; Significant Landscape Overlay Schedule 3; Environmental Significance Overlay Schedule 1; Bushfire Management Overlay; Erosion Management Overlay; Restructure Overlay; Use and development of a dwelling; Planning Policy; Bushfire Protection Measures; Removal of vegetation; impact on ecological significance of the site; Erosion Management.  	

Applicant	Doris Ewen	

Responsible Authority	Yarra Ranges Shire Council	
Referral Authorities	Country Fire Authority	
	Department of Energy, Environment and Climate Action	

SUBJECT LAND	8-10 Myamin Close
SELBY Vic 3159	

HEARING TYPE	Hearing	

DATES OF HEARING	7 and 8 November 2022, 8 March 2023, 6 April 2023, 8 June 2023 and 23 August 2023	

DATE OF ORDER	31 August 2023	

CITATION	Ewen v Yarra Ranges SC [2023] VCAT 1017	

Order
Permit granted
1	In application P283/2022 the decision of the responsible authority is set aside.
2	In planning permit application YR-2020/664 a permit is granted and directed to be issued for the land at 8-10 Myamin Close Selby Vic 3159 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	The use of land for a dwelling in the Green Wedge A Zone Schedule 1
•	To use land for a dwelling as the proposed earthworks, filling, land forming, excavations and retaining walls are located beneath the canopy (the ‘drip line’) of any indigenous vegetation over 5 metres in height where a planning permit would be required to remove the vegetation (Clause 51.03-4)
•	The construction of building and works associated with a dwelling (Clause 35.05-5, Clause 44.06-2 and Clause 45.05-2)
•	Construct and carry out works associated with a building greater than 100 square metres (Clause 42.03-2)
•	The construction of buildings and works within four metres of a substantial tree (with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground (Clause 42.03-2)
•	The construction a building and construction of works within 10 metres of a road (Clause 35.05-5)
•	The construction of a building and to construct or carry out works within four metres of a significant tree having a trunk circumference of more than 1.1 metres (diameter .35 metre) at a height of 1.3 metres above the ground (Clause 42.01-2)
•	Construct and carry out works including the construction of a building greater than 100 square metres and the construction of buildings and works within four metres of a substantial tree. (Clause 42.03-2)
•	The construction of earthworks greater than 600mm (Clause 44.01-2)
•	To construct a garage (non-habitable structure ancillary to a dwelling) as the slope of the land within 20 metres of the garage exceeds 20 per cent (Clause 44.01-2)
•	The construction of three water tanks on the land as they exceed 4500 litres (Clause 44.01-2)
•	Remove substantial vegetation (with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground (Clause 42.03-2)
•	The removal, destruction or lopping of native vegetation (Clause 42.01-2, Clause 42.03-2 and Clause 52.17-1)
•	The removal, destruction or lopping of substantial trees  with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground (Clause 42.03-2)
•	To remove, destroy and lop vegetation with a trunk circumference less than 0.5 metres at one metre above the ground (Clause 44.01-3)
•	Remove, destroy or lop any vegetation that is native and exceeds 5 metres in height (Clause 51.03-3)

Katherine Paterson
Member			
Appearances
For applicant	Matthew Townsend, Counsel instructed by Jessica Kaczmarek of S & K Planning Lawyers.  He called the following witnesses:
•	Cameron Ryder, Arborist, C & R Ryder Consulting Pty Ltd
•	Lincoln Kern, Ecologist and Bushfire Consultant, Practical Ecology
Ms Kaczmarek appeared for the permit applicant on the 8 June 2023 and 23 August 2023.  At the hearing on the 23 August she called the following witness:
•	Stephen Darmawan, Geotechnical Engineer, Geotesta	
For responsible authority	Angus McGuckian Town Planner of Journeyman Planning.  He called the following witnesses:
•	Lynlee Tozer, Ecological Consultant, Habitat Links
•	Darren Paul, Geotechnical Engineer, WSP Golder	
For Country Fire Authority	Stephen Foster, Town Planner, CFA	
For Department of Environment, Land, Water and Planning.	No appearance	

Information
Description of proposal	Use and development of a dwelling, construct an outbuilding, retaining walls, rainwater tanks, and earthworks greater than 600mm.  The application also seeks to remove vegetation to facilitate the development of the dwelling and to achieve defendable space. A total of 171 trees are proposed for removal.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Yarra Ranges Shire Council	
Zone and overlays	Green Wedge A Zone – Schedule 1, (GWAZ1) Environmental Significance Overlay Schedule 1 (ESO1), Bushfire Management Overlay (BMO); Erosion Management Overlay (EMO), Restructure Overlay – Schedule 47 (RO47), Significant Landscape Overlay – Schedule 3 (SLO3)	
Permit requirements	GWAZ1:
•	Clause 35.05-1 – To use land for a dwelling
•	Clause 35.05-5 – To construct a building and works associated with a section 2 use and within 10 metres of a road.  
ESO1
•	Clause 42.01-2 – Construct a building and construct or carry out works within four metres of a significant tree (having a trunk circumference of more than 1.1 metres (diameter .35 metre) at a height of 1.3 metres above the ground)
•	and remove, destroy or lop native vegetation. 
SLO3
•	Clause 42.03-2 – Construct and carry out works associated with a building greater than 100 square metres
•	Clause 42.03-2 the construction of buildings and works within four metres of a substantial tree (with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground.
•	Clause 42.03-2 – Remove or lop native vegetation
•	Clause 42.03-2 - Remove substantial vegetation (with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground. 	
Permit requirements (cont)	BMO:
•	Clause 44.06-2 - to construct a building or construct or carry out works associated with accommodation (Dwelling).
EMO
•	Clause 44.01-2 A Permit is required to construct earthworks greater than 600mm 
•	Clause 44.01-2 A Permit is required to construct the garage (non-habitable structure ancillary to a dwelling) as the slope of the land within 20 metres of the garage exceeds 20 per cent. 
•	Clause 44.01-2 - A Permit is required to construct three water tanks on the land as they exceed 4500 litres.
•	Clause 44.01-3 – A permit is required to remove, destroy and lop vegetation
RO47
•	Clause 45.05 –A Permit is required to construct or extend a dwelling or other building.
Clause 51.03 Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan
•	Clause 51.03-3 – A permit is required to Remove, destroy or lop any vegetation that is native and exceeds 5 metres in height.
•	Clause 51.03-4 - A Permit is required to use land for a dwelling as the proposed earthworks, filling, land forming, excavations and retaining walls are located beneath the canopy (the ‘drip line’) of any indigenous vegetation over 5 metres in height where a planning permit would be required to remove the vegetation.	
Permit requirements (cont)	Clause 52.17 Native Vegetation 
•	Clause 52.17-1 A Permit is required to remove, destroy or lop native vegetation.	
Land description	The subject land is located at 8-10 Myamin Close, Selby and comprises of two titles, formally described as Lot 231 on LP13488 and Plan PC353614.  A Trust for Nature Covenant (Covenant N484666M) is attached to the land over the eastern part.  The land is located on the southern side of Myamin Close and has an area of 6,100sqm.  The land contains a partially constructed dwelling approximate to the centre of the subject land and was constructed around 1977.  A couple of small outbuildings are also present on the site.  The land contains a significant amount of both native and exotic vegetation.   	
Tribunal inspection	8 November 2023, accompanied by all parties.     	
Cases referred to	Boroondara City Council v 1045 Burke Road Pty Ltd VSCA 27, Department of Environment, Land, Water and Planning v Yarra Ranges SC (Red Dot) [2019] VCAT 323	

  Reasons
What is this proceeding about?
1	In 1931, the subject site was part of a residential subdivision which created small lots with frontage to Myamin Close and Maskell Street. Five of these lots form the current site.  The small lot subdivision was subsequently considered to be an inappropriate subdivision, and amendments were made to introduce a restructure overlay over the subdivision.  The land within the subdivision was consolidated in 1992 so that the subject site now consists of two lots, a smaller lot (Lot 231, 8 Myamin Close) which was created by the original subdivision and a significantly larger parcel which was created by consolidating four of the previously small lots.  
2	Between 1931 and 1992, two key events happened with the land.  In approximately 1977 the then owner of the land started to construct a dwelling on the site, which was never completed nor occupied.  The partially constructed structure still exists on the site today, and is shown in the photographs below:

Figure 1 – photographs of partially constructed dwelling provided by the permit applicant 

3	On 31 December 1987, the then owners of the land entered into a covenant with Trust for Nature pursuant to Section 3A of the Victorian Conservation Trust Act 1972.  
4	In 2017 the owners of the property applied for a planning permit to construct a dwelling on the land, which was withdrawn prior to a decision being made.  On 11 September 2020 the owners of the land reapplied for a planning permit, using the plans prepared in 2018.  Following the decision of Yarra Ranges Shire Council to refuse to grant a planning permit they requested that the Tribunal review this matter.  
5	Yarra Ranges Shire Council refused this application on a number of grounds, including the grounds of objection provided by the then Department of Environment, Land Water and Planning (DWELP).  The Department, who are a recommending referral authority under Clause 66.02-2 of the Yarra Ranges Planning Scheme, and therefore a party to the proceeding pursuant to 83(1)(a)(i) of the Planning and Environment Act 1987 (Vic), did not participate in the proceeding.  
6	Council submitted that given the number of permit triggers that apply in this case, the assessment of this case is a complex undertaking.  Council submitted that the Tribunal in this case should adopt the approach adopted by the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd VSCA 27.  In that case Warren J found:
[36]	Whether an overarching permit application is made for an entire proposal or the required permits are applied for separately is a matter of form rather than substance. In either situation, the triggered permit requirements must each be considered by the responsible authority, in the context of the overall proposal. For a cover-all permit to be granted, the responsible authority must be satisfied that in the context of the overall proposal, a permit should be granted in respect of each permit requirement triggered by the proposal, and also that the cover-all permit which is sought should be granted.
[37]	Put another way, the overall proposal is taken into account in the consideration of each permit requirement triggered by the proposal, and also as a final check before the project permit is granted. The individual permit requirements that are triggered are not to be considered in isolation or sequentially; instead each must be considered with regard for the other triggered permit requirements and the overall proposal.
[38]	If the responsible authority would not give every triggered permit requirement a ‘tick’ in that context, then it would be improper for the responsible authority to grant an overall permit for the proposal. To do so would involve either authorising a use or development of land that the responsible authority is not satisfied should be authorised, or a failure to make a decision regarding the triggered permit requirement at all.
7	The principles of this case were summarised by the Tribunal in Department of Environment, Land, Water and Planning v Yarra Ranges SC (Red Dot) [2019] VCAT 323 as:
[42]	As set out in the information section of this decision, there are 10 separate provisions of the planning scheme under which a permit is required for one or other of the use or development aspects of the proposal.  In the case of Boroondara City Council v 1045 Burke Road Pty Ltd11 (known as the 1045 Burke Road case), the Court of Appeal held that: 
•	A permit must not be granted unless the requirements under each permission are satisfied with or without permit conditions. 
•	Where the decision-maker is of the view that no permit should issue under one or more applicable controls, the proposal cannot proceed.
•	Even if requirements under each permission are satisfied, a permit must not be granted unless the proposal would result in an acceptable planning outcome
8	In this case, there are 17 provisions of the planning scheme which require a planning permit for the use and development of the land for a dwelling, including the vegetation removal associated with the construction of the dwelling and the provision of a defensible space around the proposed dwelling for bushfire prevention.  
9	Clause 71.02-3 of the Yarra Ranges Planning Scheme states:
Victorians have various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs, proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development.
The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
Planning authorities should identify the potential for regional impacts in their decision making and coordinate strategic planning with their neighbours and other public bodies to achieve sustainable development and effective and efficient use of resources.
10	The many controls that apply to this site are closely interrelated, as are the planning policies which inform the application of the various controls applying to the site.  The key questions arising out of the controls are as follows:
•	Is the proposal consistent with the covenant that applies to the land?
•	Is the use of the land for a dwelling acceptable having regard to the planning policies and controls that apply to this site?
•	Are the buildings and works acceptable having regard to the planning policies and controls that apply to this site?
•	Is the removal of vegetation acceptable having regard to the controls that apply to the site and the ecological values of the land?
Procedural issues
Conclave
11	On the 10 November 2022, following the first two days of hearing which included an accompanied site inspection, the Tribunal ordered that a conclave be held between the experts and the CFA to discuss:
a)	what vegetation may be retained, modified or removed to meet the bushfire protection measures, with a view of ensuring the best environmental outcome for the site if a dwelling was to be constructed.
b)	The method of tree removal
c)	The draft conditions previously provided by the responsible authority.
12	As a result of the conclave a revised tree removal plan was provided to the Tribunal, which altered the trees to be removed and retained, and provided for a number of trees to be removed to a habitat stump.  All parties accepted that should I be of a mind to grant a planning permit; this plan would form the basis of a condition of planning permit.  In my assessment of the application when considering the impact of the proposal on vegetation I have had regard to this plan.  
Planning Scheme Amendments
13	Amendment C197yranPt1, which was gazetted into the planning scheme on 18 May 2023, introduced a new restructure plan to the schedule to the Restructure Overlay being the Restructure Plan for Old and Inappropriate Subdivisions in the Yarra Ranges Council March 2022.  The plan did not alter the proposed restructure for the subject site, and therefore the amendment had no impact on the proposal before me.  
Is the proposal consistent with the covenant that applies to the land?
14	Section 61(4) of the Planning and Environment Act 1987 (Vic) states:
If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.
15	The covenant that applies to the land states:
…The purpose of this covenant is to achieve the following objectives of the Owner and the Trust in respect of the Land: 
To conserve its: 
(i) native plants and wildlife; 
(ii) natural interest and beauty; 
(iii) ecological significance; 
(iv) historical interest; 
(v) the visual amenity of the Puffing Billy Corridor
1.	No act or thing shall-be done by the owner. upon the Land at any time hereafter which in the opinion of the Trust is prejudicial to the conservation of the Land or which may disturb, damage or alter the ecology, natural configuration or actual appearance of the Land or any natural features thereof. 
2.	In particular, on and with respect to the Land, except with the prior written consent of the Trust, the Owner shall not: (emphasis added)- 
2.1 	clear, burn, poison or otherwise destroy or damage any native trees, plants or grasses; 
2.2 	plant any trees, grasses or plants other than local indigenous native flora; 
2.3 	permit any act or omission which may adversely affect any indigenous flora or fauna or related habitats; 
2.4 	permit any deterioration in the natural state or in the flow, supply, quantity or quality of any body of water provided however that the Owner may draw off water for reasonable farm purposes; 
2.5 	permit cattle, sheep, horses, goats or other livestock to enter, feed or otherwise be present upon the Land; 
2.6 	allow the introduction of any non-indigenous fauna or any cat, dog or other domestic animal; 
2.7. 	permit to be erected or displayed any sign, notice, hoarding or advertising matter of any kind; 
2.8 	carry out any mining, quarrying or exploration of any materials, petroleum or other substances or deposits; 
2.9 	dump, pile or otherwise store or deposit any rubbish or other materials except in the course of maintenance or during the duration of approved construction works; 
2.10	 permit to be erected upon the Land any building except: 
(a) 	one private dwelling together with the usual outbuildings; (emphasis added)
(b) 	buildings approved by the Trust which are necessary for the management of the Land and are consistent with the objectives of this deed;
2.11 	carry out any demolition, exterior alterations or additions: to any buildings on the- Land; 
2.13 	permit any building on the Land to be used for any purpose other than that for which it was designed or is currently being used; 
2.14 	allow the Land to be used for the purposes of an industry, or change the use of the Land; 
2.15 	permit the use of trailbikes, four wheel drive vehicles or other activities on the Land not consistent with the objectives of this deed.
2.16 	give notice of intention to subdivide the land under ~ the Local Government Act 1958 or any Act passed in substitution therefor. 
3.	The Trust will not unreasonably withhold its consent to any proposal submitted by the Owner if it is satisfied that the proposal will not prejudice the specified purposes of this covenant. (emphasis added).  
4. 	None of the prohibitions and restrictions specified in this covenant shall apply to the extent necessary for: - 
i.	reasonable fire protection, weed and pest control; (emphasis added)
ii.	maintenance of fences, culverts, dams, bridges, watercourses, buildings, tracks, paths and roads; 
iii.	the proper management of the Land as a protected environment for indigenous flora and fauna. 
5. 	The Owner shall notify the Trust of any advice received from a power authority, mining company or other body or person of intention to erect utility transmission lines or to carry out mining or quarrying on the Land and shall not give his consent to any such proposed work or activities without the written permission of the Trust. 
6. 	The Owner shall keep all fences and gates on the boundary of the Land in good order and condition. 
7. 	The Owner shall make reasonable efforts to prevent the invasion of pests and weeds. 
8. 	The Trust through its trustees, officers, agents or servants upon giving reasonable notice to the Owner may enter the Land in order to assess its condition. 
9. 	The Owner shall not permit members of the general public access to the Land except on terms and conditions from time to time agreed with the Trust. 
10. 	‘The Owner shall notify the Trust of any change of ownership ~ or control of any portion of the Land and shall notify the Trust of the name and address of the new owner or lessee. 
11.	Nothing in this instrument shall render the Owner personally liable for any breach of its terms committed after the Owner ceases to be the registered proprietor of the Land.
16	On the 13 September the Trust for Nature wrote to the permit applicant and advised:
Trust for Nature (the Trust) note that the original covenantors of the above-mentioned property, Keith and Bryony Beer, entered into a conservation covenant with Trust for Nature on 31 December 1987 (the Covenant Deed) specifically for the following purpose: “to conserve [the land’s] native plants and wildlife; natural interest and beauty; ecological significance; historical interest and the visual amenity of the Puffing Billy Corridor” [refer First Schedule of the Covenant Deed] 
Further, the Covenant Deed contains a broad, overarching statement that: “No act or thing shall be done by the Owner upon the Land at any time hereafter which in the opinion of the Trust is prejudicial to the conservation of the Land or which may disturb, damage, or alter the ecology, natural configuration or actual appearance of the land or any natural features thereof” [refer Clause 1, Schedule 2 of the Covenant Deed]. 
The Trust confirms that Clause 2.10 of the Covenant Deed makes an allowance for one dwelling to be built on the land, and the deed does not require the consent of the Trust regarding the building of that dwelling (emphasis added).  However the Trust notes that nothing in the Covenant Deed authorises the building of a dwelling, approval of which is a matter for the relevant local planning authorities. 
The Trust confirms that Clause 4 of the Covenant Deed allows for reasonable fire protection. The Covenant Deed does not require the Trust to determine what is reasonable and the Trust’s practice has been to defer to the relevant CFA / DELWP requirements on this issue. The consent of the Trust is not required for vegetation removed for reasonable fire protection pursuant to Clause 4 of the Covenant Deed.  (emphasis added)
The Trust notes that the defendable space clearing requirements that are in place in 2022 could not have been foreseen by the original covenantors. Their intention, as stated in the Covenant Deed, 2 was to conserve the land’s native plants and wildlife and not to allow works which may disturb, damage, or alter the ecology, natural configuration or actual appearance of the land or its natural features. The removal of 179 of the 243 trees from the property, as well as significant understory and mid-story vegetation, to allow for any proposed dwelling is not in line with the stated covenant purpose and is prejudicial to the conservation values of the land, which the covenant was designed to protect. 
Finally, should the applicant be successful in securing a planning permit, the Trust will consider any applications for consent for vegetation removal (not covered by Clause 4) in line with Clause 3 of the Second Schedule in the Covenant deed.
17	The permit applicant submitted that the granting of a planning permit for the proposed development would not result in a breach of the covenant as the construction of a dwelling and the removal of the vegetation for reasonable fire protection measures is specifically allowed for within the covenant.  I agree.
18	The covenant expressly exempts the construction of a single dwelling and associated outbuildings and the removal of vegetation for reasonable fire protection measures.  The covenant does not provide a definition of what is considered to be reasonable.  Whilst the covenant was entered into prior to the current bushfire protection requirements, such as the provision of a defensible space around dwellings, I am satisfied that the removal of vegetation for the current bushfire protection measures consistent with the covenant.  As such I am satisfied that the grant of a planning permit for this matter would not result in a breach of the covenant.  I will now consider whether a planning permit should be granted for the proposal having regard to the provisions of the Yarra Planning Scheme.  
Is the use of the land for a dwelling acceptable having regard to the planning controls that apply to this site?
19	The township of Selby, including the subject site is located outside the Urban Growth Boundary, as seen the map below, taken from VicPlan.  The majority of land within the township has been included within the GWAZ1.  

Figure 2 – Map prepared using VicPlan showing the location of the Urban Growth Boundary and zoning of Selby.  Map prepared 23 May 2023.  
20	A planning permit is required to use land for a dwelling under the provisions of the GWAZ1 and Clause 51.03-4 to the Yarra Ranges Planning Scheme. 
GWAZ1
21	The GWAZ1 has the following purposes:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To provide for the use of land for agriculture.
To protect, conserve and enhance the biodiversity, natural resources, scenic landscapes and heritage values of the area.
To ensure that use and development promotes sustainable land management practices and infrastructure provision.
To protect, conserve and enhance the cultural heritage significance and the character of rural and scenic non-urban landscapes.
To recognise and protect the amenity of existing rural living areas.
22	A planning permit is required to use land for a dwelling under the Clause 35.05-1 to use land for a dwelling.  When considering whether a planning permit should be granted to use land for a dwelling, the Tribunal needs to have regard to the decision guidelines of Clause 35.05-6, as relevant to this application.  
Clause 51.03-1-4
23	The permit trigger under the provisions of Clause 51.03-4 appears to be the result on an anomaly created by two recent amendments to the Yarra Ranges Planning Scheme.  
24	Amendment C148yran was gazetted on 1 December 2022.  The amendment sought to implement a comprehensive revision of the planning scheme, updating the LPPF, vegetation controls, and Clause 51.03 (which gives effect to the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan in the planning scheme).  Among the changes made to the scheme was the rewording of the permit controls for buildings and works under the schedule to the zone, one of which included a requirement for earthworks and retaining walls on the Green Wedge A Zone that either:
•	Are more than one metre in height of depth, or cover an area of more than 4000 square metres; or
•	Are located beneath the canopy (the ‘drip line’ of any indigenous vegetation over 5 metres in height where a planning permit would be required to remove the vegetation. 
25	The schedule was altered by amendment C148yran to state that a planning permit is not required to construct a building or construct or carry out works under the schedule to the zone.  This provision remains in place.  
26	Amendment C215yran was gazetted on 9 March 2023 and sought to correct technical errors in the Yarra Ranges Planning Scheme that arose from the changes made by Amendments C148yran and C195yran to the Yarra Ranges Planning Scheme.  The amendment reinstated a permit requirement for the earthworks, however instead of returning the provision to 1.0 of the schedule (Buildings and Works), it placed it under 2.0 (Use of land).  Whilst this may have been in error, I need to assess the proposal under the planning scheme provisions as they currently exist within the Yarra Ranges Planning Scheme.  As the proposal will result in earthworks beneath the canopy of indigenous vegetation over 5 metres in height, a planning permit is required to use the land for the purpose of a dwelling.  
27	In considering whether a planning permit should be granted to use land for a dwelling, Clause 51.03-6 requires the Tribunal to have regard to the Municipal Planning Strategy and the Planning Policy Framework.
28	The application involves works within the drip line of four trees, being Trees 20, 23 26 and 50 as identified within the arborist report prepared by Cameron Ryder who provided arboricultural evidence to the Tribunal.  The works involve the construction of the driveway, garage and pathway to the proposed dwelling.  All four trees are Mountain Grey gums which range in height from 22 to 40 metres.  Trees 20, 23 and 50 have been given a high retention value and tree 26 has been rated as having moderate retention value.  Mr Ryder recommended that a tree protection management plan be required following the determination of all trees to be retained and removed.  I agree that this is appropriate.  Provided tree protection measures are implemented in accordance with the Australian Standard AS4970-2009 Protection of trees on development sites, I am satisfied that the proposed works can occur and retain the proposed trees.  
Planning Policy Framework
29	Clause 02.03-1 Settlement provides further guidance with respect to the Green Wedge Areas of the municipality, stating:
The Green Wedge areas will continue to support a diverse mosaic of agricultural activities, rural lifestyle opportunities, tourism and bushland areas. New developments, subdivisions, and land use changes, will continue to be managed in a way that protects and enhances the primary Green Wedge values of supporting sustainable farming, retaining a healthy biodiversity and protecting valued landscapes
30	 The policy divides the Green Wedges into three broad categories.  It was common ground that the subject site was within a rural residential area, which are described by the scheme as areas where:
•	Lots sizes are generally between 0.1 hectares and 2 hectares
•	Most lots are used for residential purposes in a heavily treed environment
•	Very few lots are used for productive agriculture (meaning lots of more than 4 hectares that are used for horticultural production or lots of more than 10 hectares that are predominantly cleared and sown with pasture grasses)
•	Many of the existing lots have been created by the consolidation of smaller lots under subdivision restructure and tenement requirements of previous planning schemes
31	Clause 02.03-3 states:
The combination of Yarra Ranges’ natural topography, its urban fringe location and projected climate changes has resulted in many communities being exposed to environmental hazards including bushfire, landslip, flooding and soil contamination.  Priority should be given to the protection of human life in the management of areas that are affected by environmental hazards.
32	Strategies include:
•	Discourage additional dwellings, subdivision and other sensitive land uses in bushfire prone areas and where the required defendable space would necessitate significant removal of high-quality indigenous vegetation. 
•	Locate and design development within areas of landslip risk to minimise the potential risk to life and property.
33	Plan Melbourne, a referred document at Clause 11.01-1S of the Yarra Ranges Planning Scheme recognises the role that Melbourne’s Green Wedges have for Melbourne, including protecting biodiversity assets.  The strategy states that planning for the green wedge areas should:
•	define and protect areas that are strategically important to the metropolitan area and the state, for the environment, biodiversity, landscape, open space, water, agriculture, energy, recreation, tourism, environment, cultural heritage, infrastructure, extractive and other natural resources
•	protect and manage the value of green wedges consistent with green wedge management plans
•	avoid development in locations where there is risk to life, property, the natural environment and infrastructure from natural hazards such as bushfire and flooding
•	accommodate additional housing and employment in established towns that have the capacity for growth
•	provide for non-urban breaks between urban areas.
34	Clause 11.01-1R seeks to protect the green wedges of Metropolitan Melbourne from inappropriate development.  Strategies include consolidating new residential development in existing settlements and in location share planned services are available and green wedge values are protected.  The clause references the Upper Yarra Valley and Dandenong Ranges Region - Regional Strategy Plan (1996)
35	The regional strategy divides the region into various policy areas, with the subject site included within LL1 – Landscape Living 1.  The regional goals for this precinct include:
•	Ensure that land within this zone remains committed to single detached housing as the primary function of these policy areas. 
•	Minimise adverse visual and other impacts associated with the use and development of land within these policy areas. 
•	Ensure that uses and development which generate waste provide the means to treat and dispose of those wastes in a manner that has regard to recycling and to their impacts on the land and the area generally. 
•	Require the long term restructuring of land holdings within some of the existing subdivisions, where these areas are inappropriately subdivided having regard for local environmental, servicing and landscape considerations. 
•	Ensure that all development has regard to the natural features of the land and is properly designed and sited in recognition of such factors as land slope, vegetation characteristics and other local amenity considerations. 
•	Ensure that development has regard to the built form and is designed and sited to maintain overall design consistency with surrounding development and without detriment to the local environment. 
•	Provide for the long term protection and enhancement of remnant vegetation, particularly Sites of Botanical or Zoological Significance.
36	The regional strategy provides an overview of the Landscape Living 1 policy area, describing it as:
…The area is used predominantly for low-density residential living, recreation and tourism activities, together with associated retail and commercial uses, usually found in the hamlets scattered along the Mt. Dandenong Ridge. Generally, the land has already been subdivided, into lots varying in size from 0.1 hectare ‘suburban’ type lots, to lots of about 2 hectares and larger. 
The landscape of the Landscape Living Policy Areas is highly significant, with one of the important attributes being the presence of indigenous and exotic vegetation, with tall mountain ash trees being the major feature. Many residential properties, particularly those located on larger lots have well established and maintained gardens, which together with a "hills" and bushland environment makes this area one of the most desired low-density living locations within the Region. 
37	The primary purpose for the Landscape Living 1 Policy Areas is to:
…maintain and where possible enhance indigenous and significant exotic vegetation and native fauna, special landscape characteristics and the existing low density residential character, roads and other infrastructure.
38	Clause 11.01-1L-03 ‘residential development in the green wedge’ provides guidance for the establishment of dwellings within the GWAZ1.  One of the objectives of the policy is to manage development impacts on, biodiversity environmental and landscape values.  The strategy for rural residential areas is to provide for additional dwellings in Rural Residential Areas on large lots or on land parcels created through the restructure of consolidation of small lots in old subdivisions.  The policy guidelines state:
Consider as relevant:
•	Limiting dwellings in Rural Residential Areas to lots with an area of at least 4000 square metres. 
•	Providing for dwellings on lots with an area less than 4000 square metres if the lot is of a size similar to or larger than the other lots in the surrounding area that are used for a dwelling. 
39	As indicated above, the subject site consists of two lots, a large lot created through the consolidation of small lots, and one smaller lot.  The site has a combined area of 6,100sqm.  It is therefore a site where the construction of a new dwelling is generally supported by Clause 11.01-1L-03. I have required the consolidation of the lot in accordance with the Restructure Overlay as a condition of permit, in recognition that its planning policy that only one dwelling is constructed over the two lots.  
40	Clause 13.02-1S contains provisions regarding Bushfire Planning.  It has the objective ‘to strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life.’ Strategies include:
Give priority to the protection of human life by:
•	Prioritising the protection of human life over all other policy considerations.
•	Directing population growth and development to low risk locations and ensuring the availability of, and safe access to, areas where human life can be better protected from the effects of bushfire.
•	Reducing the vulnerability of communities to bushfire through the consideration of bushfire risk in decision making at all stages of the planning process.
Ensure settlement growth and development approvals can implement bushfire protection measures without unacceptable biodiversity impacts by discouraging settlement growth and development in bushfire affected areas that are important areas of biodiversity.
41	This site is constrained by its steep topography, significant environment values and risks which are reflected in the varied planning controls that apply to the site.  Whilst I find that the use of the land for a dwelling is generally supported by planning policies for the GWAZ1, the design and siting of the dwelling must respond to the constraints and environmental values of the site.  The balance is weighted in favour of protecting the biodiversity values of the site.  If the dwelling will have an unreasonable outcome on those values, it follows that a planning permit should not be granted for the construction of a dwelling on this site.  
Regional Catchment Management Strategy
42	The GWAZ1 requires consideration of the regional catchment management strategy that applies to the plan, in this case the Port Phillip and Westernport Catchment Strategy.  The catchment strategy is available as a website, which divides the strategy into various areas and describes the municipalities of Yarra Ranges and Nillumbik as the ‘lungs of Melbourne’:
…Less than an hour from Melbourne, the Yarra Ranges and Nillumbik region is renowned for its natural beauty and diverse landscapes. Boasting areas of significant native vegetation, forested mountains, rural valleys and waterways, this region makes up a critical part of Melbourne’s water supply catchment.
Set in the foothills of the Great Dividing Range, the natural environment of the Yarra Ranges and Nillumbik region is one of Melbourne’s greatest assets – helping to provide the air we breathe, the water we drink, the soils that grow our food, and the habitats that are home to indigenous wildlife.
The Yarra Ranges and Nillumbik region are some of the most environmentally important areas in the Port Phillip and Western Port Region, including the Mountain Ash forests of the Dandenong Ranges and Central Victorian Highland – home to iconic species such as the Powerful Owl, the Helmeted Honeyeater and Leadbeater’s Possum.
…The region is a popular destination for local and international visitors alike who are attracted to the national parks, State forests, recreational trails and well known attractions such as the Puffing Billy Railway and the Healesville Wildlife Sanctuary.
43	The catchment management strategy contains a number of targets based on themes of water, biodiversity, land, Traditional Owners, communities and Climate Change.  Many of the targets are addressed through the various provisions applying to the site.  
Are the buildings and works acceptable having regard to the planning policies and controls that apply to this site? 
GWAZ1
44	Pursuant to Clause 35.05-2, a lot used for a dwelling must meet the following requirements:
•	Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.
•	The dwelling must be connected to reticulated sewerage, if available.  If not available, all wastewater must be treated and retained within the lot in accordance with the requirements of the Environment Protection Regulations under the Environment Protection Act 2017 for the construction, installation or alteration of an on-site wastewater management system. 
•	The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes.
•	The dwelling must be connected to a reticulated electricity supply or have an alternative energy source.
Access

Figure 3 – Extract from plan prepared by Millar Merrigan (Drawing 21715 P3 Version2 dated May 2021)
45	Access to the site is via a crossover to Myamin Close and an approximately 26 metre accessway, which will lead to a garage.  Pedestrian access to the dwelling will then be via the existing path to the unfinished dwelling.  Whilst the access arrangements are unusual, they have been designed to respond to the difficult topography of the site.  
46	Clause 52.06-9 provides design standards for accessways.  Design Standard 3 states that access grades must be no more steeper than 1:10 (10%) within five metres of the frontage, and then no more steeper than 1:5 (20%) if the access is to be greater than 20 metres.  
47	As the land is included within a Bushfire Management Overlay, a bushfire management plan was prepared for the site, which required the access to comply with the following requirements to enable access via fire fighting vehicles:
Access for fire fighting vehicles must meet the following requirements: · 
•	All-weather construction. · 
•	A load limit of at least 15 tonnes. ·
•	Provide a trafficable width of 3.5m. · 
•	Be clear of encroachments for at least 0.5m on each side and 4m vertically. 
•	Curves must have a minimum inner radius of 10m.
•	The average grade must be no more than 1 in 7 (14.4 percent) (8.1 degrees) with a maximum of no more that 1 in 5 (20 percent) (11.3 degrees) for no more than 50m. · 
•	Dips must have no more than a 1 in 8 (12.5 percent) (7.1 degrees) entry and exit angle.
48	The application proposes a gradient of 1:7 (14.29%) for the first five metres and then a gradient of 1:5 (20%), 1:7 and 1:8 (12.5%) thereafter.  Whilst I am satisfied that the majority of the accessway is consistent with design standard 3 and the bushfire management plan, the first five metres needs to be altered to achieve a 1:10 grade and enable a vehicle to enter and exit safely from the site.  I have required this as a condition of permit. 
49	This will mean a change in earthworks at the entry point to the site, and may require additional cut or fill in the first five metres of the site.  The required works to the accessway are in proximity a number of trees to be removed including trees 242 (a 22 metre Mountain Grey Gum located in the Tree Reserve) and Tree 243 (a 25 metre forest She-oak identified as high retention value by Mr Ryder in his evidence statement).  
50	Tree 242 was initially shown for retention on the plan.  This differed from Mr Ryders expert statement which indicates that Tree 242 was to be removed and Tree 243 was to be retained.  However, following the conclave it was agreed that both trees are required to be removed as part of the creation of the defendable space for the dwelling.  As a consequence the required changes to the accessway can occur without affecting any vegetation to be retained on the site.  I will consider the impact of the removal of the vegetation on the ecological values of the site later in my decision.  This tree is located within the road reserve, and Ms Tozer in her evidence advised that no approval for the tree has been given.  In the event that the removal of tree 242 is not supported by Council the driveway will need to be redesigned.  This should be considered via a separate amendment process.  
51	The works required for the accessway may also have an impact on the geological stability of the site, and as such I have required a revised geotechnical assessment which considers whether any additional measures are required as a consequence of the changes to the accessway.  
Services
52	A storm water management plan prepared by Miller Merrigan accompanied the application dated 11 May 2021.  This report indicated that storm water is proposed to be retained on site.  
53	The plans also indicate that it is proposed to treat wastewater onsite, with a 450 square metre effluent disposal field provided to the south of the dwelling.  
54	The permit applicant advised during the hearing that the dwelling is proposed to have its own potable water supply, in the form of tanks and power will be provided to the dwelling through the use of solar panels and batteries.  As such the dwelling will be “off grid”.  This is the choice of the landowners which in principle I find to be acceptable.  However, as discussed later in my decision, the management of storm water from the site has the potential to increase the erosion and landslip risks associated with this site.  
Decision Guidelines
55	 Having regard to the decision guidelines of the zone, I note that as the area in which the site sits is generally used for rural living purposes and not agriculture.  As such the dwelling will not have an impact on any existing operations.
56	The siting and scale of the proposed dwelling means that it will not be highly visible from the public realm, no neighbouring properties and therefore is unlikely to have an adverse impact on the amenity of the adjoining properties.  
57	The decision guidelines also require me to consider the impact of the proposed dwelling on the flora and fauna of the site, the need to protect and enhance the biodiversity of the area.  I consider these matters in detail later in my decision.
58	Having regard to the decision guidelines of the zone, I am satisfied that the construction of a dwelling on this site is an acceptable response to the purposes of the GWAZ1.  
ESO1
59	The subject site is included within an ESO1, which is titled ‘highest biodiversity habitat areas and biolink corridors’.  A planning permit is required to construct buildings and works within four metres of a significant tree (having a trunk circumference of more than 1.1 metres (diameter 0.35 metres) at a height of 1.3 metres above the ground).
60	Following the conclave the trees proposed to be removed and retained were reconsidered.  Based on the plan that was prepared by Mr Ryder as an outcome of the conclave a planning permit is required for the works within four metres of Trees 20, 23, 26, 32, 45, 50, 96 and 108.  The works includes the footpath and effluent disposal field.  A planning permit is also required under the overlay to remove vegetation, which I consider later in this decision.  
61	In his evidence Mr Ryder recommended that a Tree Protection Management Plan be prepared to detail how the trees to be retained during demolition, prior to and during construction and post construction.  I agree that this is appropriate, and I have required this as a condition of permit.  
SLO3
62	The SLO3 applies to the Puffing Billy Railway Corridor, with the schedule outlining the key elements of the landscape as follows:
The Puffing Billy Railway is a major tourist attraction and feature of the Dandenong Ranges. The railway is operated to provide a rural experience for visitors, based on a style and theme reminiscent of the 1930s. The Puffing Billy Railway Scenic Corridor includes those rural landscapes which are visible from the Puffing Billy Railway and are a feature of the railway’s tourist appeal. The corridor contains built and natural features, including historic railway stations and other buildings, bridges, residential development and extensive vegetation, both native and exotic.
Most of the residential development within this landscape is well integrated into the forest environment and is only apparent at close quarters. Forest trees and large exotic plants extend into private gardens and roadway edges. Roads are narrow, often without kerb or channel treatments. Some pockets of cleared land are managed as grazing pasture and these reinforce the generally rural character of the area.
It is important that the cultural and scenic significance of the corridor and the viewlines from the railway are protected by ensuring that future use and development along the corridor is appropriately sited and integrated with the landscape. It is also important to recognise the significant contribution that remnant vegetation in the corridor plays in defining the character of the landscape.
63	Objectives to be achieved by the overlay are:
•	To protect the historic and cultural importance of the Puffing Billy railway and the scenic corridor through which it passes.
•	To retain a forest dominated landscape in which large canopy trees and understorey vegetation soften the distinction between private and public land, and provide a sense of enclosure.
•	To retain the mix of indigenous, native and exotic trees which contribute to the landscape.
•	To maintain the appearance of a generally rural landscape as seen from the railway, of dense vegetation, pockets of farmland and unobtrusive buildings.
•	To retain remnant vegetation in recognition of its important contribution to the landscape character of the corridor.
•	To ensure that all new buildings and works are inconspicuous elements within the landscape and have only a minimal impact on views from the railway.
•	To ensure that development is responsive to the natural characteristics of the land including slope and remnant vegetation and associated wildlife habitat.
•	To ensure that the health of existing trees is not jeopardised by new development.
64	A planning permit is required to construct the dwelling and garage under the provisions of the SLO3 as the dwelling is more than 100 square metres in area and the works involve works within four metres of substantial vegetation.  
65	I have discussed the impact on the development on the retained vegetation when considering the requirements of the ESO1, and I will consider the overlay when assessing the loss of vegetation from this site later in my decision.
66	With respect to the construction of a dwelling on this site, the key objectives of the overlay are to ensure that the proposed dwelling and garage is an inconspicuous element when viewed from the railway.  These objectives are reflected in the decision guidelines of the overlay.  
67	On the 11 January 2021 the Emerald Tourist Railway Board advised the Council that they had no objection to the proposal, provided no additional vegetation was to be removed from the site than that previously identified on the plans.  Since that advice was provided the amount of vegetation to be removed from the site has changed significantly in response to the requirements of the CFA.  Following enquires by the responsible authority, the Puffing billy Railway provided an updated response on the 21 October 2022:
…So, in summary at this stage Puffing Billy would not propose to change our position as I feel that the development as proposed does not offer a clear, significant or inimical impact on our visual amenity. As stated, we do note with concern the total number of trees proposed to be removed and potential consequences across a number of risk factors as a result. These are however not within our scope of authority or referral.
68	I am satisfied that the scale of the proposed dwelling, the topography of the land and the existing vegetation that is to be retained on the site will mean that only glimpses of the dwelling will be possible from the railway line.  This will be assisted by presence of a significant amount of road side vegetation, with only one tree in the road reserve likely to be removed as a part of this proposal.  I am therefore satisfied that the proposed dwelling is consistent with the outcomes sought by the Significant Landscape Overlay Schedule 3.  
BMO
69	The subject site is located within a Bushfire Management Overlay and Bushfire prone Area.  The CFA who are a party to these proceedings described the bushfire risk to the site as follows:
Generally, the subject site is surrounded in all directions by extensive forest vegetation over undulating and steep terrain. This vegetation is interspersed with cleared land used for agriculture or animal husbandry and residential development (dwellings and commercial areas within small townships and individual dwellings spread throughout the landscape).  
The greatest risk in Victorian bushfire conditions is from the north-west, around to the south-west under a typical afternoon/evening wind change. 
The most likely form of bushfire threat to the appeal site and surrounds in the wider landscape would be in the form of ember attack and a surface-based fire through forested areas, especially where significant understorey fuel exists. 
Ember attack is likely to comprise lighted elements such as small branches, leaves, etc from larger forested areas and private land. These embers may cause spot fires to ignite and spread, if left unattended. Significant fire weather conditions are unlikely to prevail from the eastern direction, unless driven by a large scale fire. 
While there is no recent record of bushfire in proximity to Selby, there is a significant history of bushfire in the Dandenongs landscape.
The intensity of any bushfire in the landscape would be reduced through fuel reductions burns and management by public authorities, as implemented through programmed Fire Operation Plans (such as that undertaken along the reserve of the Puffing Billy rail line north of the appeal site)
70	The aerial image below shows the vegetation within the area.  The image indicates that the land to the south and East of Myamin Close is heavily vegetated, with sites to the north west of the site more sparsely vegetated.  The land to the immediate north of the site is the Puffing Billy Railway Line which provides a narrow break in the vegetation from the north west and the site.  

Figure 4 – Nearmap Aerial Image, dated 24 April 2023, retrieved 26 May 2023.  
71	A planning permit is required under the BMO to construct a dwelling.  As stated earlier a Bushfire Management plan has been prepared for the site which contains a number of requirements including that the built form is constructed to a Bushfire Attack Level (BAL) of 29 and the provision of a defendable space measuring either 50 metres or to the property boundary.  The area of the defendable space is shown as a pink link in the following extract from the Bushfire Management Plan:

Figure 5 – Extract from Bushfire Management plan (prepared by Millar Merrigan, drawing number 21715 bMP1_v2 Dated May 2021 
72	Within the Defendable Space the Bushfire Management Plan requires:
•	Grass must be short cropped and maintained during the declared fire danger period. · 
•	All leaves and vegetation debris must be removed at regular intervals during the declared fire danger period. · 
•	Within 10 metres of a building, flammable objects must not be located close to the vulnerable parts of the building. · 
•	Plants greater than 10 centimetres in height must not be placed within 3 metres of a window or glass feature of the building. · 
•	Shrubs must not be located under the canopy of trees. · 
•	Individual and clumps of shrubs must not exceed 5sqm in area and must be separated by at least 5 metres. · 
•	Trees must not overhang or touch any elements of the building. · 
•	The canopy of trees must be separated by at least 5 metres, with the exception of: T70 & 71, T114 & 57. · 
•	There must be a clearance of at least 2 metres between the lowest tree branches and ground level.
73	These requirements would result in the loss of a considerable amount of vegetation from the site, 177 trees were initially identified for removal from the site.  Following the conclave, the CFA agreed to a variation to the standard defendable space measures to protect additional trees, bur considered that the low level shrubs would need to be removed to avoid a fire using shrubs as ‘ladders’ up the trunks of retained trees.  This approach will result in:
•	69 trees being retained
•	15 trees being converted to a habitat stump
•	156 trees being removed from the site.  
74	Whilst I am satisfied that the proposal will achieve an acceptable outcome having regard to the provisions of the BMO, clearly the requirements will have a significant impact on the existing vegetation on the site and the ecological values of the site.  I will consider whether this aspect of the proposal is acceptable later in my decision.  
75	I have required the Bushfire Management Plan to be updated to reflect the outcomes of the conclave, and included the conditions required by the overlay and recommended by the CFA on the planning permit.  
Is the removal of vegetation acceptable having regard to the controls that apply to the site? 
76	A planning permit is required to remove vegetation from the site under the SLO3, ESO1, EMO, Clause 51.03 and Clause 52.17.  Whilst each control has differing decision guidelines, the key issues that need to be determined by the Tribunal in this matter are:
•	What are the ecological values of this site?
•	Will the proposal have an adverse impact on those values?
•	Can the vegetation be offset in accordance with the requirement of Clause 52.17?
•	Will the removal of the vegetation increase the erosion risk of this site?
77	I will consider each of these questions in turn.  
What are the ecological values of this site?
78	The schedule to the ESO1 that applies to the land has been applied to ‘highest biodiversity habitat areas and bio link corridors.’.  The overlay was recently amended via amendments C148yran and C215yran.  The amendments introduced a new reference document to the scheme, being the Yarra Ranges Environmental Significance Overlay Review 2013 - Ecology Australia.  The document outlines that the purpose of the review was:
The purpose of this stage of the project is to identify areas supporting the highest biodiversity values within the Shire and where long-term protection of these values is potentially achievable through the use of an Environmental Significance Overlay. It utilises the best available biodiversity mapping and modelling to determine which areas should be considered for the ESO. The second stage of the review will involve implementing the recommendations from this report and finalising the inclusion criteria and boundaries of the ESO.
79	In its conclusions the study states:
Small subdivisions  Long-term retention of high biodiversity values is unlikely to be achieved in residential lots such as Low Density Residential and small lots, particularly those than 0.4 ha (c. 1 acre) in size. These areas are recommended to be removed from areas to be considered for an ESO1. The intensity of land-use and implementation of fire protection measures has in most cases resulted in biodiversity values being severely compromised. Values (particularly canopy trees) within these lots (which are not protected under Clause 52.17 of the planning scheme) maybe better protected to an ESO tailored to a more urban environment or through a Vegetation Protection Overlay (VPO). 
Old subdivisions in the Green Wedge and Rural Zones with small allotments that have not yet been developed and that are covered by a Restructure Overlay (that potentially limits the extent of future development) should not necessarily be excluded. High quality remnant vegetation still occurs within some of these areas.
…Having reviewed the aerial photography, the results of the site assessment, and literature it is anticipated that a patch size of 10 ha or more (which may cross a number of allotments or include adjoining public land) will most likely capture much of the areas supporting vegetation of higher quality, higher species diversity and where protection of high biodiversity values is potentially achievable in the long-term. A 10 ha minimum patch would capture large areas of remnant vegetation on private land not currently included within the current ESO1
80	Following the review, the boundaries of the ESO1 were changed, however the subject site remains within the ESO1.  The site is the only site within private land within Myamin Close to be included within the overlay. 
81	The overlay as shown on the VicPlan map indicates that the ESO has been applied to the railway corridor and reserves, which the subject site containing the only private land within Myamin Close where the overlay has been partially applied to:

Figure 6 – ES01 applying to the site and nearby properties and reserves.
82	When combined with the rail reserve and the two public reserves located at either end of Myamin Close, the subject site does form part of a habitat patch which exceeds 10 hectares in area.  
83	The statement of environmental significant for the ESO1 is:
Yarra Ranges contains an extensive network of bushland remnants that are an integral part of the municipality’s unique landscape and environmental character.  These bushland areas comprise a wide range of different ecosystems that provide habitats for a rich diversity of flora and fauna.
The value of habitat areas in Yarra Ranges’ network of flora and fauna habitats is enhanced where there are opportunities for birds and other wildlife to shelter while moving between them.  The connectivity between habitat areas increases their long term sustainability and value in biodiversity protection by reducing the risk of creating isolated and vulnerable habitat areas.  This connectivity enables native species to respond to adverse climatic changes, providing greater opportunities for breeding and foraging, and allowing native species to recolonise areas following major disturbances such as bushfires.
The biolink corridors that have been identified in Yarra Ranges generally follow waterways although they also include some roadsides and other areas containing indigenous vegetation remnants.  In some areas the extent and condition of indigenous vegetation within these habitat corridors has been fragmented and degraded by past land management practices.  There are many opportunities to improve the habitat value of Yarra Ranges’ network of flora and fauna habitats through the rehabilitation of these degraded areas especially along watercourses.
84	In their objection to the proposed dwelling and associated tree removal the then Department of Environment, Land Water and Planning advised:
The property is a Site of Botanical and Zoological Significance (Site B75 and Z33) identified in clause 42.01-1 as part of Myamin Close Bushland. This reflects its value as an important Department of Environment, Land, Water & Planning ‘ORIA SSeinment 2 habitat area that is part of a network of wildlife corridors that should be protected from incremental loss and incompatible development.
85	The changes made to the ESO1 via amendment C148yran and C215yran mean that the sites of botanical and zoological significance are no longer specifically referenced in the scheme.  
86	The ESO1 now requires an assessment of:
•	the quality of the vegetation in respect to its type and condition
•	its value as habitat for indigenous flora and fauna
•	the potential effect of the proposed development or vegetation removal on the habitat value of adjoining and nearby land
87	The application was accompanied by a Flora and Fauna Assessment which placed the site within the Highlands – Southern Fall Bioregion, the Port Phillip and Western Port Catchment and assessed the vegetation on the site as being consistent with the Ecological Vegetation Class (EVC) 23: Herb Rich Foothill Forest.  It was common ground that this vegetation class is of least concern within the Bio-region.  
88	The report identifies 14 Large Trees on the site, all Mountain Grey Gums (trees 23, 26, 50, 51, 60, 63, 72, 111, 113, 114, 122, 160, 175. 206).  Following the conclave, four of these trees are identified for removal being trees 51, 111, 122 and 160.  The report following the conclave identified two other large trees which will be retained on the site being trees 264 and 271.  
89	Following the conclave Trees 51, 111, 122 and 160 are proposed to be retained as habitat stumps on the site.  Mr Ryder in his evidence explained the process as follows:
•	Removal of all branches and foliage from the tree. 
•	Retention of the general trunk and large branch structure 
•	Killing the tree so that it is retained as a dead stump.
90	The Tribunal was provided with ecological evidence from Lynlee Tozer for the responsible authority and Lincoln Kern for the permit applicant.  Both experts were part of the conclave conducted during the hearing, and both were present during the accompanied site inspection.  
91	The experts identified three critical species for this site, being the Powerful Owl, the Greater Glider and the Southern Brown Bandicoot.  It was common ground between Ms Tozer and Mr Kern that whilst the site is likely to form part of the feeding territory of the powerful owl, there was no evidence that the species nests on the site, however both experts agreed that the existing vegetation on the site could support a roosting powerful owl, although no evidence was found that this actually occurs on the site.  I agree with Mr Kern that whilst the site does form part of the habitat for the Powerful Owl, it is not critical habitat for its survival, noting the evidence of both ecologists that the trees were not of a size to produce hollows large enough for nesting and no evidence was provided that the bird roosts on the site.  
92	Mr Kern consider that is was highly unlikely that the Southern Brown Bandicoot on the site.   Whilst this s disputed by Ms Tozer, she did conceded that the retention of shrubs in clumps separated by five metres would still provide some habitat for the Southern Brown Bandicoot.  Whilst I agree with Mr Kern that it is unlikely that the species exists on the site, even if it does, I am satisfied that the retention of clumps will provide some habitat for the species.  Both experts agreed that more work regarding the exact location of the clumps need to be undertaken, which I have required to be completed as a condition of permit.  
93	Turning next to the Greater Glider.  In her evidence following the conclave Ms Tozer stated:
Retention of all large Mountain Grey Gum, including trees that would likely serve as both hollow bearing habitat and those serving as feed trees for the Great Glider, is considered beneficial improvement on the original proposal. While the retention of hollow bearing trees and suitable feed trees is desirable, the absence of protective tall shrub and subcanopy cover will limit overall habitat viability as dense shrub stratum offers protection for species such as Greater Glider from aerial predation. Under BMO requirements, the tall shrub and subcanopy cannot be retained within the Defendable Space
94	Ms Tozer was also critical of the loss of Tree 242, which is a large tree located within the road reserve which she said had excellent habitat value.  As indicated earlier in my decision the removal of this tree requires the consent of the Council as landowner. Should that consent not be obtained the driveway will need to be redesigned.  I note that as the tree has a DBH of 82 cm it is not considered a large tree within the bioregion (90 cm).  
95	The question then becomes the likelihood that the Greater Glider is present on the site.  
96	In her evidence to the Tribunal, Ms Tozer provided a list of the significant fauna species which have been recorded at the site.  The Southern Greater glider was observed on the site in 8 December 1998.  Mr Kern went through the records and stated that there were few records of it being sited within the area, with it more likely to occur within the National Park.  
97	In his evidence Mr Kern stated that it was his belief that the Greater Glider would no longer be present on the site.  It was his evidence that the species needs dense habitat including the feeder trees described by Ms Tozer.  In his view it is likely that modern bushfire prevention methods have meant that the species would have retreated to larger reserves and away from private land.  
98	On balance, I accept the evidence of Mr Kern and I find that it is unlikely that the species would be present on the site.  The accompanied site inspection revealed that whilst the taller species, particularly the Mountain Gums remained on residential properties in the area, the undergrowth, particularly the shrub layer has largely been removed.  This is most apparent on the properties south of the site in Maskell Street.  I have included a couple of the photographs tendered by the responsible authority below of properties in Maskell Street below:

Figure 7 – Extract from photographs provided to the Tribunal by Journeyman Planning.  

99	Mr Kern submitted that the outcome on this site would differ from the outcome which has been provided on the Maskell Street properties, because of the topography of the site which means that the site would be very difficult to mow, and as such the site would need to be maintained over time via brush cutters, rakes and chain saws during the fire prevention periods.  
100	Whilst the proposal will result in a significant amount of tree removal from the site, I am satisfied that the changes to the application made as a result of the conclave mean that the vegetation which is of highest ecological value to this site will be retained.  The conclave provided a number of other recommendations to achieve the best ecological outcome for this site which include:
•	The retention of some large logs (those measuring 300mm diameter or more) on the site;
•	The retention of shrubs in clumps spaced five metres apart which would provide some habitat for the Southern Brown Bandicoot if it is present on the site;
•	 A detailed tree removal methodology including the use of a ‘Menzi Muck’ excavator to sensitively remove the vegetation on the site;
•	Draft permit conditions including a requirement for a property management plan.  
101	There was dispute between the experts as to whether a Claret Ash should be removed from the site.  Mr Kern preferred the tree to be retained because it provides a great deal to the amenity of the area.  Ms Tozer wanted the tree to be removed as it is not a native species.  On balance I find the retention of the tree to be acceptable, as whilst it is not an indigenous tree, it does add to the character of the area.  
102	There is no doubt that the proposal will result in a significant amount of vegetation from the site.  However, based on the evidence I am satisfied that this loss will not have an unreasonable impact on the habitat values of the site or area.  
103	Clause 52.17-5 requires the vegetation to be removed to be offset.  In his supplementary evidence statement Mr Kern provided the Tribunal with a calculation of the required offset.  I have included this as a permit condition. 
Will the removal of the vegetation increase the erosion risk of this site?
104	The subject site has been included within the EMO, the purposes of which are:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To protect areas prone to erosion, landslip, other land degradation or coastal processes by minimising land disturbance and inappropriate development.
105	The schedule to the overlay provides for the submission and peer review of Geotechnical assessment and land risk assessments.  The schedule also requires consideration of the following:
•	The recommendations of the Geotechnical Assessment, any Landslip Risk Assessment and any other information accompanying the application;
•	The advice of any Geotechnical Practitioner who has reviewed the application;
•	The risks associated with the development requiring ongoing monitoring and maintenance of all mitigation measures;
•	The risks associated with non-compliance with any conditions of any permit which may be subsequently issued.
106	One ground of objection contained within the DWELP referral response was:
The proposal does not satisfy the erosion and landslip management objectives under EMO because: 
a. 	The removal of vegetation on this site will increase susceptibility to erosion, landslip or other land degradation processes as indicated in the proponent’s geotechnical and landslip assessment (Geotesta May 2021); and 
b. 	No reasonable erosion and landslip mitigation measures have been confirmed as part of the application
107	The Geotechnical and Landscape risk Assessment report prepared Geotesta dated 11 May 2023 by states:
Revegetation of bare patches resulting from any construction works on slope is essential for limiting the effects of erosion. Revegetating reshaped batters is integral to maintain surface stability. 
Tree removal is generally not recommended on sites subject to potential landslip risk. 
Where tree removal is required as part of the proposed development, tree roots and stumps should be kept in the ground to avoid soil erosion and long-term instability of slopes.
108	The report also states that the retaining walls required for the construction of the garage and accessway may result in a possible ‘shallow Slump Failure.  The report indicates that this impact may be mitigated by ensuring good drainage and the appropriate placement of fill.  Another failure which may occur is a “deep seated failure”.  
109	Following the practice day hearing held on 8 June 2023, the permit applicant circulated a letter from Geostesta Pty Ltd which addressed the matters raised in that order.  The order provided the parties an opportunity to provide the Tribunal with further written submissions on the material filed in accordance with the order.  
110	In response, Yarra Ranges Shire Council filed a peer review of the material provided by the permit applicant conducted by WSP Golder.  The peer review included a detailed submission at page 4 of the document and concludes:
I consider that the proposed tree removal plan, in conjunction with on site effluent and stormwater disposal downslope of the proposed dwelling warrants further assessment of landslide hazards in relation to landslides originating downslope of the proposed dwelling and the consequences of such landslides to properties and dwellings downslope of the site.
111	The Council response then provided a draft set of conditions to address this issue.  The permit applicant than circulated a revised set of conditions, which were disputed by Yarra Ranges Shire Council.  
112	Clause 44.01-8 of the Yarra Ranges Planning Scheme contain a number of decision guidelines which the Tribunal is required to consider.  These include:
•	Any proposed measures to manage concentrated runoff and site drainage.
•	Whether the removal of vegetation will increase the possibility of erosion, the susceptibility to landslip or other land degradation processes, and whether such removal is consistent with sustainable land management.
•	The need to stabilise disturbed areas by engineering works or revegetation.
113	The Tribunal was concerned that the matters raised in the WSP Golder report cannot be addressed as a condition and needed to be considered prior to making a decision on this matter.
114	For that reason, the Tribunal listed this matter for an additional hearing to hear from the parties on this issue.  
115	Prior to the hearing on the 23 August 2023, a joint witness statement was prepared by Mr Darren Paul of WSP Golder and Mr Stephen Darmawan of Geotesta, following a joint meeting which occurred on site on 8 August 2023.  This process was of the party’s own volition, and the Tribunal is grateful for the practical approach taken in this case.  The report, dated 14 August 2023 includes the following advice:
At the time of preparing their landslide risk assessment in May 2021 … the stormwater management plan and the tree removal plan were not available yet, Therefore Geotesta did not assess the hazards associated with discharging both effluent and stormwater into a cleared area downslope of the proposed dwelling. Hazards associated with the proposal to discharge both effluent and stormwater on site are not addressed in that report. 
The proposed removal of trees and discharge of both effluent and stormwater downslope of the dwelling is expected to cause an increase in the soil moisture content at and downslope of the discharge area. This will increase the likelihood of a landslide originating at or downslope of the discharge area being either on the property at 8-10 Myamin Close or on the properties downslope of the site at 9 and 11 Maskell Street. 
There is a prominent gully located on the vacant property at 9 Maskell Street which extends upslope into 8 – 10 Myamin Close … This landform is likely to be associated with past landslide indicating that the area immediately downslope of the site has susceptibility to landslide.
116	Both engineers agreed as to the appropriate methods that should be employed to minimise the level of landslide risk associated with the site.  The report states:
Appropriate risk mitigation could include directing stormwater to a legal point of discharge in lieu of on site disposal. There is a stormwater drain on Maskell Street which may be an appropriate point of stormwater discharge. We note that this would require stormwater to be piped across one of the properties between 7 and 13 Maskell Street. 
The discharge of treated effluent by subsurface irrigation method into the proposed cleared area downslope is considered acceptable provided that the design criteria stipulated by the responsible authority are met and effluent discharge is not undertaken in conjunction with on site stormwater disposal.
117	Following further enquiries by the permit applicant, a letter was provided by Geotesta which states:
Question: 
If direct connection to stormwater is unable to be achieved, what volume of stormwater discharge, if any, can occur on the subject land? Are there any parameters which the drainage engineer should have regard to in designing the stormwater system in terms of volume, duration or location of stormwater discharge? 
Response: 
The drainage engineer should look into the stormwater drainage design requirements in the Shire of Yarra ranges. The estimated volume of stormwater discharge due to the new development should take into account a storm with average recurrence interval (ARI) of 100 years, applied on the impermeable surface of the development, or as stipulated by the Council. The storm water should then be discharged to the legal point of discharge as directed by the council. As there is no legal point of discharge identified within the subject property, the collected storm water from the roof of the proposed structures can be discharged to an above ground detention tank. The overflow of above ground water tank is to be discharged away from the house. 
The discharge of the detention water tank shall be drained out via the following options: 
Option 1: When the detention water tank is full, the excess stormwater in the tank shall be drained out to the legal point of discharge at Maskell Street.
If discharging the stormwater in the tank directly to Maskell Street is not possible, the following two options can be considered: 
Option 2: Drain out via an orifice outlet to control the volume and velocity of the water flow and discharge the water by subsurface or surface irrigation in the area downslope of the proposed dwelling, not less than 10m from the proposed dwelling. The irrigation area should be dedicated only for the stormwater discharge and not to be used to discharge the treated effluent. The required irrigation area shall be estimated and designed by a qualified Civil Engineer. The irrigation area can be located to the south, southwest or southeast of the proposed dwelling. To minimize the spread of moisture in the ground, allow a minimum 10m spacing between the stormwater irrigation area and the effluent discharge area. 
Option 3: Drain out the collected stormwater from the detention water tank as above, and pumped up to the Myamin Close roadside open drain.
118	The joint report and further response were reviewed by Council’s engineers, who considered that there were three options to manage storm water from the site.  These options were outlined by Council’s engineers as follows:
Option 1 – drain to a legal point of discharge at Maskell Street Council agrees this is the best option to manage the stormwater from the development. However an easement would need to be established across the abutting rear property, to provide a legal way to get stormwater to Maskell Street. An easement would be required to be established before council will approve this option as the site’s legal point of discharge. Water across the rear abutting lot would be required to be piped to the road side drain. 
Option 2 – Discharge on site 
Insufficient information has been provided to demonstrate that this is feasible option. A feasibility study prepared by a Stormwater Engineer is required to determine the envelope scale and rate. 
Option 3 – Pump to Myamin Close Council does not support pumps to manage stormwater across the council. Pumps are unreliable and have a high rate of failure. The failure of the pump will affect downstream properties and will lead to excessive water on site, leading to further risk.
119	Both Mr Paul and Mr Darmawan provided the Tribunal with oral evidence.  Mr Paul outlined the landslide risk associated with the site, which is exacerbated by wet soils.  He outlined that there was evidence that a landslide has previously occurred on the site which he estimated occurred at some point between the late 1800s and 1930, when the general area was cleared for logging.  
120	The removal of vegetation from this site has the potential to increase the risk of landslides occurring on the site by increasing the amount of water which occurs on the site as the vegetation will no longer absorbing water from the site.  
121	Based on the reports, it is clear to the Tribunal that the best option to mitigate the erosion risks from this site is for the land to be drained to a legal point of discharge in Maskell Street.  This will be at considerable cost to the land owner.  
122	In submissions to the Tribunal, the permit applicant submits: 
However, given the costs associated with this option and, as our submissions below explain, due to the fact that there has not been an opportunity to consider whether an alternative onsite discharge option would pose a ‘tolerable risk’, we consider that, if any permit is to issue, it should provide an opportunity for the landowner to satisfy Council of an onsite stormwater discharge system which meets the ‘tolerable risk’ criteria under the EMO.
123	They request that this opportunity be offered through a secondary consent process.  While it is clear that the landslip risks associated with this site will be able to be addressed by connecting the site to a legal point of discharge, I accept that there may be alternative solutions to enable the site to be drained onsite.  I have therefore required the site to be connected to a legal point of discharge at Maskell Street except with the written consent of the responsible authority.  I have also included the other conditions recommended by Council’s drainage engineers as conditions of permit.  
What conditions are appropriate?
124	Draft conditions were discussed in detail throughout the hearing, and any changes to those conditions reflects those discussions as well as further consideration by the Tribunal.  
Conclusion
125	This site is an extremely complex site, which is reflected in the various controls that apply to this site, and the findings of the Tribunal.  However, with the requirements I have put in place, I find that the construction of a dwelling is an acceptable response to the Yarra Ranges Planning Scheme.  
126	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Katherine Paterson
Member			

Appendix A – Permit Conditions

Permit Application No	YR-2020/664	
Land	8-10 Myamin Close
SELBY Vic 3159	

What the permit allowS	
In accordance with the endorsed plans:
•	The use of land for a dwelling in the Green Wedge A Zone Schedule 1
•	To use land for a dwelling as the proposed earthworks, filling, land forming, excavations and retaining walls are located beneath the canopy (the ‘drip line’) of any indigenous vegetation over 5 metres in height where a planning permit would be required to remove the vegetation (Clause 51.03-4)
•	The construction of building and works associated with a dwelling (Clause 35.05-5, Clause 44.06-2 and Clause 45.05-2)
•	Construct and carry out works associated with a building greater than 100 square metres (Clause 42.03-2)
•	Clause the construction of buildings and works within four metres of a substantial tree (.with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground (Clause 42.03-2)
•	The construction a building and construction of works within 10 metres of a road (Clause 35.05-5)
•	The construction of a building and to construct or carry out works within four metres of a significant tree having a trunk circumference of more than 1.1 metres (diameter .35 metre) at a height of 1.3 metres above the ground (Clause 42.01-2)
•	Construct and carry out works including the construction of a building greater than 100 square metres and the construction of buildings and works within four metres of a substantial tree. (Clause 42.03-2)
•	The construction of earthworks greater than 600mm (Clause 44.01-2)
•	To construct a garage (non-habitable structure ancillary to a dwelling) as the slope of the land within 20 metres of the garage exceeds 20 per cent (Clause 44.01-2)
•	The construction of three water tanks on the land as they exceed 4500 litres (Clause 44.01-2)
•	Remove substantial vegetation (with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground (Clause 42.03-2)
•	The removal, destruction or lopping of native vegetation (Clause 42.01-2, Clause 42.03-2 and Clause 52.17-1)
•	The removal, destruction or lopping of substantial trees with a trunk circumference greater than 1.1 metres (0.35 metre diameter) at a height of 1.3 metres above the ground (Clause 42.03-2)
•	To remove, destroy and lop vegetation with a trunk circumference less than 0.5 metres at one metre above the ground (Clause 44.01-3)
•	Remove, destroy or lop any vegetation that is native and exceeds 5 metres in height (Clause 51.03-3)	
Conditions
	Amended Plans	
1.	Prior to the commencement of the use and/or development (including the removal of any trees or other vegetation), amended plans must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and form part of the permit. The plans must be drawn to scale, with dimensions, and be generally in accordance with decision plans prepared by Millar Merrigan, dated May 2021, Revision 02, but modified to show:
a)	The accessway gradient modified to be no more than more steeper than 1:10 (10%) within five metres of the frontage, and details of the required earthworks including retaining walls to enable this to occur. The design of the retaining walls must be generally in accordance with the recommendations of the revised Geotechnical and Landslip Risk Assessment Report endorsed under this permit.  
b)	Maximum retaining wall height on each elevation for the dwelling and garage. 
c)	Capacity (litres) of the tanks for ‘Detention & Re-use Purposes’.  
d)	List the Tree number, Tree name, Retention value of the trees to be removed on the Tree Plan.   
e)	Tree retention and removal and the areas 5m2 of spaced retained vegetation in accordance with the Proposed Tree Retention and Removal Plan produced by Ryder Arboriculture and Environment, dated 24/01/23 and included as part of the expert conclave minutes.
All of the above must be to the satisfaction of the Responsible Authority.  	
	Endorsed Plans	
2.	The layout of the site and the size of any proposed buildings and works shown on the endorsed plans shall not be altered or modified without the written consent of the Responsible Authority.	
	Use of land	
3.	The use of any land or building or part thereof as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority. 	
	Consolidation of lots 	
4.	Within six (6) months of the date of this permit, the lots comprising the subject land, namely Lot 231 on PS013488 and PC353614G must be consolidated in Title (by Plan of Consolidation) to the satisfaction of the Responsible Authority. Covenant N484666M must continue to apply on Title.  	
	Wastewater treatment	
5.	All sullage waste water from the proposed development must be discharged into a new EPA approved on site wastewater treatment system which retains all wastes within the boundaries of the land and is located within any wastewater envelope indicated on the endorsed plan. Approval to install or alter an onsite wastewater treatment system must be obtained from the Yarra Ranges Council Health Department.	
6.	All waste secondary septic system to be installed within the effluent field shown on the endorsed plans.  	
	Tree Protection and Management Plan	
7.	A Tree Protection and Management Plan (TMP) must be submitted to and approved by the Responsible Authority. The TMP must be prepared by an arborist with a minimum AQF level 5 qualification to the satisfaction of the Responsible Authority and must detail tree protection and management actions prior to, during and post works (including demolition and tree removal) required:
a)	To maintain and protect the condition of all retained trees; and
b)	To comply with “protection of trees on a development sites” (Australian Standard AS 4970-2009).
The TMP must include all tree related requirements conditioned in this permit and be consistent with the recommendations listed at section 6.10 (Tree Removal Methodology) of the Construction Impact & Defendable Space Tree Assessment prepared by Ryder Arboriculture & Environment (dated 5 May 2021) and the draft Tree Removal Procedure prepared by Ryder Arboriculture & Environment dated 31 January 2023.  
The TMP must List the Tree number, Tree name, Retention value of all trees to be removed and retained on site.  
All works in the TMP must be implemented and/or monitored by an arborist with a minimum AQF level 5 qualification to the satisfaction of the Responsible Authority. The TMP must be certified as complete by the Project Arborist and this certification must be submitted to the Responsible Authority at the completion of works.  	
	Tree Removal Methodology 	
8.	Prior to the commencement of any buildings or works (including vegetation removal), a report detailing the proposed Tree Removal Methodology must be submitted to and approved to the satisfaction of the Responsible Authority. The tree removal methodology must:
a)	be in accordance with the Tree Protection and Management Plan, Construction Management Plan and generally in accordance with the outlined ‘Tree Removal Methodology’ as specified in the ‘Construction Impact & Defendable Space Tree Assessment’ (Ryder, 2021) and Conclave minutes prepared by Ryder dated 23 January 2023
b)	be prepared by an ecologist in consultation with the arborist that prepared the Tree Protection and Management Plan, a tree removal contractor and a suotably qualified registered building contractor.  
c)	take into account the recommendations of the revised Geotechnical and Landslip Risk Assessment Report 
d)	outline how retained native vegetation will be protected during construction.  
When approved, the tree removal methodogy plan will be endosed and form part of this permit.  All tree removal works must be done in accordance with the endorsed tree removal methodology to the satisfaction of the responsible authority. 	
	Construction management plan	
9.	Prior to the commencement of any buildings or works the Construction Management Plan (CMP) (dated 23/4/2021) submitted with the application must be updated to include all recommendations listed at section 6.10 (Tree Removal Methodology) of the Construction Impact & Defendable Space Tree Assessment prepared by Ryder Arboriculture & Environment (dated 5 May 2021), the draft Tree Removal Procedure prepared by Ryder Arboriculture & Environment dated 31 January 2023 and the revised Geotechnical and Landslip Risk Assessment Report .  	
	Arborist Pruning 	
10.	The pruning of any tree must comply with the Australian Standard for pruning of amenity trees ‘AS 4373 – 2007’ to the satisfaction on the Responsible Authority. 
Environment	
11.	Prior to the commencement of any buildings or works (including the removal of any trees or other vegetation), an amended Native Vegetation Removal (NVR) report in accordance with the Scenario report prepared on 8/2/2023, as submitted in the Supplementary Expert Witness Evidence (Kern, 2023) must be submitted to the satisfaction of the Responsible Authority.	
12.	Prior to the commencement of any buildings or works (including the removal of any trees or other vegetation), the permit holder must advise all persons undertaking the vegetation removal and works on site of all relevant conditions of this permit.	
13.	To offset the removal of 0.563 hectares (or adjusted to accord with the amended NVR) of native vegetation as shown in approved the approved Native Vegetation Removal Report (Report ID: PRE_2020_032), the permit holder must secure a native vegetation offset, in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP 2017) as specified below:
A general offset of 0.425 (or as adjusted) general habitat units:
•	located within the Port Phillip and Westernport Catchment Management Authority boundary or Yarra Ranges Council municipal district,
•	with a minimum strategic biodiversity value score of at least 0.480,
•	4 Large trees. 	
14.	Before any native vegetation is removed, evidence that the required offset has been secured must be provided to the satisfaction of the Responsible Authority. This evidence is one or both of the following:
a)	credit extract(s) allocated to the permit from the Native Vegetation Credit Register, AND/OR;
b)	An established first party offset site including a security agreement signed by both parties, and a management plan detailing the 10 year management actions and ongoing management of the site. 
A copy of the offset evidence will be endorsed by the Responsible Authority and form part of this permit.	
15.	A Property Management Plan must be submitted to and approved by the Responsible Authority. The Property Management Plan must outline how the vegetation within the defendable space is managed to maximise the retention of habitat for native fauna and other biodiversity values.  The plan must include but is not limited to; 
a)	A map showing, the entire subject property mapped as a conservation zone, with the exception of a domestic zone around the dwelling. 
b)	The Tree Removal and Retention Plan, Tree removal methodology, the defendable space requirements in the Bushfire Management Plan (Miller and Merrigan 2021) and the Geotechnical and Landslip Risk Assessment t
c)	The minimum management actions for the conservation zone includes:
i.	No vehicles or machinery is to enter the Conservation Zone apart from agreed and mapped access tracks.
ii.	Retain all standing trees or retain dead trees as stags within the Conservation Zone and protect hollow-bearing trees. 
iii.	Allow understorey (herbs and grasses), midstorey (shrubs) and overstorey (trees) species to regenerate within the Conservation Zone taking into account vegetation management requirements of Table 6 in Clause 53.02-5. 
iv.	Stock, domestic pets (cats and dogs) or grazing animals including horses are not allowed on the subject land. 
v.	Fallen timber and logs to be retained in perpetuity, and twigs and leaf litter are to be retained outside the fire season for habitat provision. Collection of fallen leaves and fine fuels is only allowed during the declared fire season.
vi.	An appropriate weed and pest animal management plan for an active management period of at least 10 years. This plan must outline; 
i.	What weeds/ pest animals are currently present and where.
ii.	Appropriate methods of control, including proposed techniques, chemical use, and timeframes. 
iii.	Achievable and measurable goals with a realistic timeframe, reducing weed cover to a minimum. 
vii.	A note that only indigenous plant species, which are native to the area are allowed to be planted on the subject property, including grasses, herbs, shrubs, and trees. 
viii.	A revegetation plan to revegetate any bare patches resulting from any construction works as outlined in the revised ‘Geotechnical and Landslip Risk Assessment Report’, using indigenous plants only and in accordance with the defendable space management requirements in the endorsed Bushfire Management Plan.  
d)	The provision of a report at years 2, 5 and 10 to the responsible authority that details works undertaken, incomplete works, recruitment success and include photos of pre and post works.
When approved the plan will be endorsed and form part of the permit and the management actions in the plan must be undertaken upon commencement of the permit.	
16.	Prior to the commencement of any buildings or works (including the removal of any trees or other vegetation) the owner of the site must enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987, requiring the management actions detailed in the Property Management Plan approved by the Responsible Authority to be undertaken in perpetuity.
The agreement is to be binding on the landowner’s successors in title, shall be prepared to the satisfaction of the Responsible Authority at the owner’s expense and will be recorded on the folio of the register relating to the site. The owners agree to pay all costs and expenses of, and incidental to, the preparation, execution and recording of the agreement. 	
	Fauna Impact and Mitigation and Translocation Plan	
17	Prior to the commencement of any buildings or works (including the removal of any trees of other vegetation), a Fauna Impact Mitigation and Translocation Plan (FIMTP) must be submitted to and approved by the Responsible Authority.  The FIMTP must be developed and implemented by a suitably qualified person that holds a current permit under the Wildlife Act 1975 and must include:
a)	all trees, accessible tree hollows and hollows beyond practical access to be inspected by a suitably qualified zoologist for the presence of fauna no more than 2 weeks prior to removal. 
b)	methods for fauna exclusion and blocking of identified hollows where practical.
c)	the tagging of all trees with identified or potential fauna presence in hollows or canopy nests.
d)	measures to mitigate the impacts to native fauna from tree removal works including self dispersal, humane possum trapping and translocation to suitable habitat.
e)	management of any threatened species.
f)	management of chicks and young wildlife in trees to be removed.
g)	management of fauna and supervision requirements during tree felling works.	
18.	Two weeks prior to tree removal, all trees and tree hollows must be inspected by a suitably qualified zoologist for the presence of fauna. Trees must also be examined for the presence of external nests, i.e., possums’ and birds’ nests. Should any native animals be detected, they must be caught and relocated no more than 12 hours before felling the trees by a suitably qualified and experienced zoologist that holds a current permit under the Wildlife Act 1975.  A report must be prepared by the assessing zoologist following the inspection and submitted to the Responsible Authority prior to any tree removal being undertaken.	
19.	While felling trees, a suitably qualified and experienced fauna handler that holds a current permit under the Wildlife Act 1975 must be present at all times to ensure affected wildlife is not harmed. The zoologist is to inspect every tree and tree-hollow immediately before and subsequently after felling. If displaced wildlife cannot be relocated on site to an appropriate location away from the construction footprint, or injured wildlife is observed, contact a local vet, DEECA or a wildlife rescue organisation for further advice.  	
	Geotechnical 	
20. 	Prior to commencement of any buildings or works (including the removal of any trees or other vegetation), an updated Geotechnical and Landslip Risk Assessment Report (Updated GLRA Report) must be submitted to and approved by the Responsible Authority.  The Updated GLRA Report must be generally in accordance with the GLRA Report prepared by Geotesta Pty Ltd dated 11 May 2021, but updated by a suitably qualified person to include, to the satisfaction of the Responsible Authority: 
a.	the updated recommendations in the Geotesta memo titled ‘Amendment of recommendations’ dated 6 July 2023; and 
b.	any additional mitigation measures necessary to address landslide risk downslope of the dwelling, having regard to the comments in the WSP Golder memo 18101888-100-L-Rev0 dated 13 July 2023.
c.	Any additional requirements as a consequence of the changes to the gradient of the driveway required under condition 1.   
When approved, the Updated GLRA Report will be endorsed and form part of the permit and the recommendations in the Updated GLRA Report must be implemented to the satisfaction of the Responsible Authority.	
21.	Prior to the occupation of any building or structure or the commencement of any use authorised by the permit, the applicant must submit to the responsible authority a statement made by the Geotechnical Practitioner, who prepared the Geotechnical Assessment or Landslip Risk Assessment, stating that the conditions have been complied with and the permitted development is suitable to be used or occupied for the purpose for which the permission has been granted and guidelines in the Erosion Management Overlay.	
22.	All replanting downslope of the dwelling must be completed in accordance with the endorsed plans within six (6) months of the occupancy of the dwelling, to the satisfaction of the Responsible Authority. 	
	Engineering	
23.	All wastewater effluent disposal must be via a surface irrigation system.	
24.	Stormwater must be discharged to a legal point of discharge to Maskell Street to the satisfaction of the responsible authority.  If an alterative system is proposed, the applicant must demonstrate that the proposal will represent a tolerable risk having regard to the requirements of the Erosion Management Overlay.  	
25.	To the satisfaction of the Responsible Authority, retaining walls with a height of one metre or higher must be designed by an engineer with suitable qualifications and experience. The retaining walls be designed and constructed from durable material with a design life greater than the approved dwelling. 	
26.	The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes.	
27	The dwelling must be connected to a reticulated electricity supply or have an alternative energy source. 	
28.	All vehicles must enter and exit the site in a forward direction.	
29	Unless otherwise agreed otherwise in writing by the Responsible Authority and prior to the occupation of the permitted development stormwater outfall drainage that takes all stormwater to a legal point of discharge must be constructed to the satisfaction of the Responsible Authority.  
Should the outfall drainage be determined to be an asset of the authority then the following requirements must be met to the satisfaction of the responsible authority:
a)	Prior to the occupation of the permitted development a detention system, must be constructed/installed to drain all impervious areas,
b)	Prior to the occupation of the permitted development the construction of all civil works within the site, including detention system must be fully completed and subsequently inspected and approved by a suitably experienced Civil Engineer at the arrangement and expense of the owner/developer. This person must supply written certification that the works have been constructed in accordance with this permit and to relevant standards.
c)	Prior to the occupation of the permitted development piped Council outfall drainage must be constructed.
d)	Prior to the approval of engineering construction plans an inspection/surveillance fee to the value of $500 or 2.5% of the estimated cost of all Council works required by this permit, whichever is greater must be paid to the Responsible Authority.
e)	Prior to the approval of engineering construction plans, a maintenance bond to the value of $5000 or 5% of all Council works, whichever is greater, as required by this permit, must be paid to the Responsible Authority.
f)	The Council works as required by this permit must be maintained in good condition and repair by the developer for a period of twelve months from the date of practical completion.
g)	Prior to an Off Maintenance inspection and subsequent return of the maintenance bond, “As Constructed” plans of all Council works together with a CCTV footage and report in accordance with the Water Services Association of Australia (WSA) 05-2008 2.2 Code of Practice, of the full length of all Council piped drainage, must be submitted to, and approved by, the Responsible Authority.  	
	CFA Conditions	
29	The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority and the relevant fire authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed. 	
	Bushfire Management Plan	
30.	Before the development starts, an amended Bushfire Management Plan must be prepared to the satisfaction of the CFA then submitted to and endorsed by the Responsible Authority. Once endorsed the plan must not be altered unless agreed to in writing by CFA and the Responsible Authority. The plan must be generally in accordance with the Bushfire Management Plan ref. 21715 BMP1_V2 and dated May 2021 but updated to show:
Defendable space
a)	Label each tree proposed for retention (as shown on the Proposed Tree Retention and Removal Plan prepared by Ryder Arboriculture and Environment, dated 24/01/23).
b)	Include a table on the BMP titled ‘Trees for Retention’ which lists these trees with the label, botanical and common names.
c)	Show the retention of the identified 5m2 clumps of shrubs to be retained (as shown on the Proposed Tree Retention and Removal Plan prepared by Ryder Arboriculture and Environment, dated 24/01/23)
d)	Under the heading Defendable Space, update dot point 8 to read:
“Except for trees identified in the table Trees for Retention, the canopy of trees must be separated by at least 5 metres.” 	
	Permit Expiry - Development	
31.	This permit will expire if the development is not started within three years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within six months afterwards.
This permit will expire if the development is not completed within five years of the date of this permit. A request may be made to Responsible Authority to extend the time to complete a development or a stage of the development if:
a)	The request for an extension is made within 12 months of the permit expiry.
b)	The development or stage has lawfully commenced before the permit expiry.	
	Permit Expiry - Use	
33.	This permit will expire if the permitted use is not commenced within five years of the date of this permit.
	
– End of conditions –