VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11957/2021 & P11969/2021
Permit Application no. YR-2020/20	
CATCHWORDS	
Application under section 149 of the Planning and Environment Act 1987 (Vic) – to review the Council’s decision to refuse to make a decision to grant amendments to the Development Plan by secondary consent. 
Application under section 79 of the Planning and Environment Act 1987 (Vic) – to review the failure to grant a permit within the prescribed time to amend the Development Plan in a manner not generally in accordance with the Site Concept Plan, to subdivide Lot S19 into five lots and a balance Lot A, and remove vegetation.	

APPLICANTs	Jeshing Property Management Pty Ltd & HGC Properties Pty Ltd	

Responsible Authority	Yarra Ranges Shire Council	
RespondentS	Australian and Pacific Investment Corporation Pty Ltd (ACN 005 445 107)	
	Yarra Valley Heritage Estate Pty Ltd	
	Owners Corporation 1 PS415064, Jenny and Roger Baird & Others	
Referral AuthoritIES	Ausnet Services	
	CFA	
	Comdain Gas - Planning Referrals	
	Department of Environment, Land, Water & Planning	
	Environment Protection Authority	
	Melbourne Water	
	National Trust of Australia (Victoria)	
	Wurundjeri Woi Wurrung Aboriginal Corporation	
	Yarra Valley Water	
SUBJECT LAND	1-3 Hughes Road 
CHIRNSIDE PARK VIC 3116    	
DATE OF HEARING	21, 22, 23, 28 & 29 March, 18 May 2023.  	
DATE OF ORDER	12 September 2023	
CITATION	Jeshing Property Management Pty Ltd v Yarra Ranges SC [2023] VCAT 930	

Order
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application for review in proceeding number P11957/2021 is amended so that paragraph one reads as follows:
Section 149(1)(a) of the Planning and Environment Act 1987 (Vic)
2	Pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the time for commencing proceeding number P11957/2021 is extended until and to include the date on which the application was lodged with the Tribunal, 21 December 2021.
3	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by: 
•	amending the description of the proposal to read: 
•	Subdivision, associated vegetation removal, and amendments to the stage 1 development plan in a manner that is not generally in accordance with the site concept plan.
•	Amending the documentation in accordance with the Statement of Proposed Changes dated 16 December 2022. 
Permit granted
4	In application P11969/2021 the decision of the responsible authority is set aside.
5	In planning permit application YR-202/20 a permit is granted and directed to be issued for the land at 1-3 Hughes Road, Chirnside Park in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Subdivision, associated vegetation removal, and amendments to the stage 1 development plan in a manner that is not generally in accordance with the site concept plan.
Development Plan Amended
6	In application P11957/2021 The Heritage Golf Club and Country Club Stage 1 Development Plan (Main Report) dated May 1996 and updated to 14 February 2011 (the Stage 1 Development Plan) must be amended to include the document Attachment 4: Subdivision and Development of Lot S19 (Dated 14 December 2022) subject to that document being amended as follows: 
•	The term ‘Notwithstanding anything in the approved development plan’ wherever appearing must be deleted.  
•	The Concept Plan of Subdivision by Human Habitats (Version 5 dated 21 November 2022) must be deleted and replaced with the Functional Layout Plan prepared by Charlton Degg Land Development Consultants (Rev. B) dated 9/5/23.
•	A Plan of Subdivision generally in accordance with Plan of Subdivision PS 415064K/S19 prepared by Charlton Degg Land Development Consultants Surveyors File Ref 1425/stg S19 Version 3 showing appropriate easements, particularly for the provision of drainage and sewerage infrastructure, to the satisfaction of the responsible authority; 
•	The Architectural Drawing Package prepared by Jackson Clements Burrows Architects (Revision 1, dated 29 November 2022) must be deleted and replaced with the updated drawings prepared by Jackson Clements Burrows Architects (Drawing Nos. TP1-100 Rev 3, TP1-101 Rev 2, TP1-102, 103, 401, 501, 502 all  Rev 1, TP2-101 Rev 2, TP2-102 Rev 2, TP2-103 Rev 1, TP2-104 Rev 1, TP2 105 Rev 1, TP2-105 Rev 1, TP2-106 Rev 1, TP2-401 Rev 2, TP2-402 Rev 2, TP2-501 Rev 2, TP2-502 Rev2, TP3-101 Rev2, TP3-401 Rev 2, TP3-501 Rev 2, TP10-110 to TP10-116 inclusive all Rev 2).
•	The Stormwater Management Plan prepared by Dryside Engineering (Version 2, dated 29 November 2022) must be updated to reflect the amendments detailed in this Order. 
•	The Concept Landscape Design prepared by Robert W Boyle and Associates Pty Ltd (November 2022) must be included.  
7	Before the plan of subdivision approved under permit YR-202/20 is certified under the Subdivision Act 1988, the amendments to Attachment 4: Subdivision and Development of Lot S19 (Dated 14 December 2022) detailed in Order 6 above must be submitted to and approved by the responsible authority.  When approved, Attachment 4: Subdivision and Development of Lot S19 (Dated 14 December 2022) as amended will be endorsed as an amendment to the Stage 1 Development Plan and will then form part of the Stage 1 Development Plan.  
8	Upon approval by the responsible authority of Attachment 4: Subdivision and Development of Lot S19 (Dated 14 December 2022) as amended as an amendment to the Stage 1 Development Plan, any consequential amendments to the Stage 1 Development Plan and the Heritage Golf Club and Country Club Stage 3 Development Plan (Main Report) Dated October 2003 as revised up to December 2008 (the Stage 3 Development Plan) must be submitted to and approved by the responsible authority.  When approved, those consequential amendments will form part of the Development Plan.  

Laurie Hewet
Senior Presiding Member		Greg Sharpley
Member	

Appearances
For Jeshing Property Management Pty Ltd & HGC Properties Pty Ltd	Paul Connor KC and Jason Kane of counsel instructed by Hunt & Hunt Lawyers.
Mr Connor and Mr Kane called expert evidence from: 
•	Amanda Ring, town planning.
•	Leigh Furness, traffic engineering.
•	John Hunter, wastewater treatment engineering.
•	Bill McMahon, surveying.
•	Cat Stephenson, bushfire consultant/botanist. 
•	Emma Barret, arborist. 	
For Yarra Ranges Shire Council	Andrew Sherman, solicitor.  	
For Australian and Pacific Investment Corporation Pty Ltd & Yarra Valley Heritage Estate Pty Ltd	Joanne Lardner of counsel instructed by S&K Planning Lawyers.  
Ms Lardner called expert evidence from: 
•	John Nolan, wastewater treatment engineering.	
For Owners Corporation 1 PS415064, Jenny and Roger Baird & Others	Reto Hoffman, solicitor.  	
For referral authorities	No appearance	

Information
Description of proposal	Planning permissions are sought to facilitate a five lot subdivision (plus a balance lot) of land known as Lot S19 in PS415064.  Lot S19 is part of the Heritage Golf and Country Club.  
The five lots are proposed to accommodate a single detached dwelling with the balance lot proposed to have the effect of a tree reserve.	
Nature of proceeding	Application P11957/2021
Application under section 149 of the Planning and Environment Act 1987 – to review the Council’s decision to refuse to make a decision to grant amendments to the Development Plan by secondary consent. 
Application P11969/2021
Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time to amend the Development Plan in a manner not generally in accordance with the Site Concept Plan, to subdivide Lot S19 into five lots and a balance Lot A, and remove vegetation.	
Planning scheme	Yarra Ranges Planning Scheme	
Zone and overlays	Clause 37.01: Special Use Zone (SUZ2 – Major Tourist Facility).  
Clause 42.01: Environmental Significance Overlay (ESO1) – Does not apply to lot S19.
Clause 42.03: Significant Landscape Overlay (SLO2 – Open Valley Landscape).
Clause 44.04: Land Subject to Inundation Overlay (LSIO – Does not apply to Lot S19.  	
Permit requirements	A permit is required to allow amendments to the Heritage Golf and Country Club Stage 1 Development Plan in a manner not generally in accordance with the Site Concept Plan contained in Amendment L145 to the Lilydale Planning Scheme and incorporated in the Yarra Ranges Planning Scheme.
A permit is required to subdivide land, being the subdivision of Lot S19 in PS415064K into six (6) lots pursuant to Clause 37.01-3 (Special Use Zone). 
A permit is required to remove:
•	Native vegetation that occurs naturally in the Shire of Yarra Ranges
•	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
pursuant to Clause 42.03-2 and Clause 3.0 of Schedule 2 to the Significant Landscape Overlay.
A permit is required to remove vegetation pursuant to Clause 51.03-3 relating to the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan.	
Land description	The Heritage Golf and Country Club (HGCC) is located in Chirnside Park, on the eastern edge of metropolitan Melbourne and approximately 30 kilometres northeast of the CBD.
The HGCC is located to either side of the meandering Yarra River and is surrounded by land of a sparsely developed rural character.  
The St John Golf Course, the HGCC Clubhouse and the Yarra Valley Lodge, the Heritage Retreat and Day Spa and various forms of residential accommodation are developed to the south side of the river within and around an established street network.  A second golf course (the Henley course) is located to the north of the river.  
The site which is the subject of the current application is known as and referred to as 1-3 Hughes Road, Chirnside Park. The current application is on that part of the land being Lot S19 on Plan of Subdivision PS415064K, a plan that relates to all of that part of the HGCC to the south of the Yarra River.  
Lot S19 is an irregular, wedge shaped parcel with an area of 3,853m2.  It is sited in an existing residential streetscape in that part of the HGCC to the south of the river.  It is located at the southern end of and on the east side of Carnoustie Crescent. 
The northern part of the lot includes informal groupings of shrubs, a Monterey cypress and a benched area surfaced with blue metal road base, informally used for parking.  The balance of the site is otherwise vacant and undulating. 
The west side of Carnoustie Crescent comprises an open area of common property.  	

Reasons
what are these applications about? 
1	These are applications intended to facilitate the subdivision of a 3,853 m2 parcel of land located in the Heritage Golf and Country Club (HGCC) into five lots with a sixth, balance lot set aside as a tree reserve.
2	Each of the five lots are proposed to be developed with a single dwelling. 
3	The proposal has been the subject of a series of procedural orders issued by the Tribunal, following several practice day hearings, a preliminary hearing and compulsory conference.  
4	Importantly, following a hearing conducted on 20 and 21 June 2022, the Tribunal issued an Order dated 2 September 2022 which included detailed reasons addressing a series of questions of law framed around the operation of various planning provisions applying to the land.  
5	Consequently there are two applications before us in this proceeding.  
6	Application P11957/2021 is an application to review the Council’s failure to grant a planning permit to:
•	Amend the Development Plan in a manner not generally in accordance with the Site Concept Plan.
•	Subdivide Lot S19 into five lots and a balance Lot A.
•	Remove vegetation.
7	Application P11069/2021 is an application to review the Council’s decision to refuse to make a decision to grant amendments to a Development Plan by ‘secondary consent’ to facilitate:
•	An additional villa cluster housing node to be developed on Lot S19.
•	Five housing units or villas to be constructed on Lot S19.  
8	Both applications were heard together in a five day hearing in March and May 2023. 
9	Our decision in these matters is necessarily informed by and limited to a consideration of the issues relevant to the planning permissions required to facilitate the proposed subdivision of the land.  
10	The planning permissions can be categorised as being:
•	A planning permit for the subdivision of the land and the removal of vegetation.
•	A planning permit for the amendment to the development plan on the basis that the amendment is not generally in accordance with the Site Concept Plan.  The grant of a planning permit allows for the amendment of the Development Plan.  
11	Our assessment of the relevant issues associated with the permissions required have led us to conclude that the proposal is acceptable.  We have therefore decided to issue the permit to subdivide the land and to remove vegetation, to grant a permit to amend the Development Plan and to amend the Development Plan.    
12	Our reasons are set out below.  
relevant background 
What is the review site?
13	The review site is located within the Heritage Golf and Country Club (HGCC) which is an estate located in Chirnside Park, on the eastern edge of metropolitan Melbourne and approximately 30 kilometres northeast of the CBD.
14	The HGCC is an estate straddling both sides of the meandering Yarra River. It comprises two golf courses (one located to the north of the Yarra River in the Nillumbik Shire), the HGCC Clubhouse and the Yarra Valley Lodge, the Heritage Retreat and Day Spa.  Various forms of residential accommodation are developed to the south side of the river within and around an established street network. 
15	The review site which is the subject of these applications, is located in the southern section of the HGCC.  It comprises an irregular, wedge shaped parcel having an area of 3,853m2.  It is sited at the end of an existing residential streetscape located at the southern end of and on the east side of Carnoustie Crescent.  The northern part of lot S19 includes informal groupings of shrubs, a Monterey cypress and a benched area surfaced with blue metal road base, used for car parking
16	The immediate site context is depicted in Fig. 1 below: 

Fig 1.  Review site immediate context.  Aerial Photo extracted from Nearmap dated April 25, 2023.
What is proposed? 
17	Conceptually, the proposed subdivision is represented in Fig 2 below: 

Fig. 2.  Concept Plan of Subdivision.  Extracted from Stage 1 Development Plan with Proposed Attachment 4 (Tribunal Book 1 PDF page 917).
18	The subdivision proposal comprises five irregularly configured lots and a balance lot to be set aside as a tree reserve.  
19	It is proposed to erect a single dwelling on each of the five lots.  Layout plans, elevations, sections and perspective drawings for each of the dwellings have been submitted by the applicant. 
20	The application also proposes the removal of vegetation from lot S19 to facilitate the construction of the five dwellings.  Additional vegetation has been identified for removal based on their poor condition and low retention value. 
21	There are a series of amendments to the Development Plan that are required to facilitate the proposed subdivision of the land.
What planning scheme permissions are required? 
22	The planning scheme provisions relating to the development of the HGCC have a storied and complex history. The Council in its submission to us comments that the planning approval process and operation for the HGCC development has suffered, both due to the nature of its original approval, complexities around its documentation and approval mechanisms and the passage of time.  
23	The background to the construction of the planning scheme provisions for the HGCC are not matters before us in this case, but does provide some context to the complicated planning scheme provisions that now apply and to the permissions that are required to facilitate the proposal that is before us.
24	The planning scheme provisions that apply are in summary set out below:
•	The site is included in the Special Use Zone (SUZ2 – Major Tourist Facility).  The purpose of SUZ2 is to provide for the use of land for a major tourist facility subject to appropriate controls on any future changes to the use and management of the land.
•	SUZ2 contains requirements for specific sites.  In relation to the HGCC the specific requirement is:
Crown Allotments 7C and 7D, Parish of Evelyn, 1-3 Hughes Road, Chirnside Park may be developed and used for a major tourist facility comprising two 18 hole golf courses, business convention facilities and residential accommodation, in accordance with the requirements of Amendment L145 to the former Lillydale Planning Scheme.
25	The reference in SUZ2 to the requirements of a planning scheme amendment (L145) is unorthodox and somewhat unhelpful.   We agree with the Council’s submission that the development of the HGCC has suffered at least in part due to the nature of its original approval, complexities around its documentation and approval mechanisms.
26	Nevertheless, we are required to assess the applications before us having regard to the planning scheme provisions as they currently exist.   Our assessment has proceeded on that basis.  
27	Relevantly Amendment L145 to the former Lillydale Planning Scheme (Heritage Golf Course, Hughes Road, Chirnside Park) is an Incorporated Document at Clause 72.04 of the Yarra Ranges Planning Scheme.  
28	The incorporated document among other matters, relevantly references a Development Plan which, except with a permit, must be generally in accordance with the Site Concept Plan.   The development of the subject land must be in accordance with the Development Plan.
29	The Development Plan is in three stages.  Stage 1 and Stage 3 are within the Yarra Ranges Shire and Stage 2 (the Henley Golf Course) is within Nillumbik Shire.  
30	The Development Plan comprises several documents.  Member Cook who undertook a detailed exploration of the relevant planning scheme provisions following a Practice Day Hearing at which the parties crafted a number of detailed questions of law pertaining to the operations of the various planning scheme provisions applying to the land, identified the following documents as the relevant components of the Development Plan: 
•	The Heritage Golf Club and Country Club Stage 1 Development Plan (Main Report) dated May 1996 and updated to 14 February 2011.
•	Development Plan Stage 2 (for land north of the Yarra River and within the Nillumbik Shire Council).
•	The Heritage Golf Club and Country Club Stage 3 Development Plan (Main Report) Development Plan Stage (for land north of the Yarra River and within Nillumbik Shire Council).
•	Documents and plans directly approved under these, such as the traffic report, flora and fauna report, etc. 
31	Stages 1 and 3 of the Development Plan have been amended on a number of occasions since the original approval in 1996 (Stage 1) and 2004 (Stage 3).  
32	Clause 1 of Amendment L145 sets out the matters that must be shown in the Development Plan.  Relevantly, these include the following: 
•	The location (including building envelopes) and elevations of any
•	buildings.
•	A schedule of all external building materials and finishes.
•	The location and details of all vehicle and pedestrian ways.
•	The location and details of carparking areas on site.
•	Subdivision of the land.
•	The provision of physical infrastructure to accommodate the subdivision including provision of water, sewerage, drainage, electricity, gas and telecommunications services.
33	Amendment L145 also includes the Site Concept Plan. The Site Concept Plan which is reproduced below is best described as rudimentary and highly conceptualised, characteristics which complicate the task of deciding whether the Development Plan and/or amendments to it are in accordance with it.  

Fig.3 The HGCC Site Concept Plan
34	Other relevant provisions of the planning scheme are:
•	The Environmental Significance Overlay (ESO1) which applies to the northern part of 1-3 Hughes Road, Chirnside Park but does not apply to lot S19.
•	The Significant Landscape Overlay (SLO2 – Open Valley Landscape).
•	The Land Subject to Inundation Overlay (LSIO) which applies to the northern part of 1-3 Hughes Road, Chirnside Park but does not apply to lot S19.
35	Clause 51.03 Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan applies.  The purpose of this Clause is:
To ensure consistency between this planning scheme and the
Upper Yarra valley and Dandenong Ranges Regional Strategy
Plan pursuant to the requirement of Part 3A of the Planning
and Environment Act 1987.
36	As mentioned above Member Cook examined the operations of the planning scheme in providing the legal opinion on the questions of law raised by the parties.  Those questions of law focussed on the following key issues:  
•	how the relevant provisions of the planning scheme operate, including:
o	whether permission is required to use or develop land within the estate (including subdivision); and
o	the mechanism by which permission can be granted for matters that are not generally in accordance with the Site Concept Plan;
•	whose consent is required in order to apply to amend the approved Development Plan;
•	regulation of the provision of housing in the form of condominiums and cluster housing nodes and whether they are subject to any limitation; and
•	the location and provision of a maintenance and service compound.
37	Ms Cook’s opinion on the questions of law and the accompanying reasons, provide a comprehensive analysis of the relatively complex applicable planning provisions.    
38	The parties referred us in some detail to Ms Cook’s opinion on the questions of law and the accompanying reasons.  
39	On the questions of law Ms Cook relevantly expressed the opinion that:
•	A planning permit is required for subdivision pursuant to Clause 37.01-3 of the SUZ. 
•	A planning permit is not required for buildings and works provided they are in accordance with the Development Plan, or to use land for any purpose specified in the preamble to the Incorporated Document.
•	The appropriate mechanism for the amendment of the Development Plan is by an application for secondary consent to the Council.
•	In the event that amendments to the Development Plan are not generally in accordance with the Site Concept Plan, a planning permit will be required in advance of the amendments to the Development Plan. A twostep process is therefore contemplated.  
40	One of the issues in this case ventilated by respondent objectors (Owners Corporation 1 PS415064, Jenny and Roger Baird & Others) concerns the provision of and location of a maintenance and service compound (referred to during the hearing as a Non Golf Maintenance Facility – NGMF).  In relation to this matter, Ms Cook concluded that a planning permit could issue to facilitate a relocation, or deletion, of the “Maintenance and Service Compound” contrary to the Site Concept Plan.  
41	In addition to the above, Ms Cook relevantly concluded that the consent of all owners of land within the Development Plan area is not required to amend the Development Plan, and the Site Concept Plan does not specify a mandatory maximum number of condominiums or cluster housing nodes, nor does it require that a minimum number of residential units be provided. 
42	In addition to the above matters, a planning permit is also required to remove two indigenous trees and three substantial trees pursuant to SLO2 and to remove vegetation pursuant to Clause 51.03-1, unless exempted by the schedule to the Clause.
is the proposal acceptable?
43	Notwithstanding the complexity of the planning scheme provisions affecting the HGCC, together with difficulties associated with the age and questionable quality of the documentation that underpin the planning scheme, the planning permissions that are required to facilitate the proposed subdivision, have been resolved in line with Ms Cook’s resolution of the questions of law.  
44	Our discretion in this matter is therefore informed by and limited to a consideration of the issues relevant to the planning permissions necessary to facilitate the proposed subdivision of the land. 
45	We are required to decide whether the proposal achieves an acceptable outcome having regard to the matters relevant to the planning permissions.  
46	Our task in this respect has not been assisted by the wave of information provided to us in the form of written and oral submissions and evidence, at least some of which is at best peripherally relevant and some that is not relevant at all.   
47	We reiterate.  Our discretion is limited by the applicable planning permissions and our consideration of the proposal proceeds on that basis.  
48	Having regard to the combination of planning permissions required to facilitate the subdivision of the land, there is an issue before us as to the sequence or the order in which planning permissions are required to be considered and issued.   
49	In the event that the proposal is found to be acceptable when considered against the relevant matters pertaining to each of the permissions, we have concluded that each of the permissions can be issued contemporaneously.  We agree with the Council’s submission in this respect that it should be acceptable to allow the subdivision permit to be issued contemporaneously with the secondary consent approval and with the other permissions.  
50	Consequently our reasons that follow have been structured around a consideration of the relevant issues under each of the planning permissions.  We have therefore grouped our consideration of the issues under the following headings: 
•	Is the subdivision acceptable? 
•	Is the vegetation removal acceptable? 
•	Are the amendments to the Development Plan Acceptable? 
Is the subdivision acceptable?  
51	The Council is not opposed to the subdivision subject to appropriate conditions, including with respect to the management of the wastewater treatment facility (WWTF). 
52	The Council’s support for the subdivision is also dependent on the resolution of overlapping issues concerning the consideration of the Development Plan amendments.  These issues include in particular those relating to the siting of the NGMF.    
53	The owner’s corporation oppose the subdivision for a multitude of reasons but which are most conveniently and relevantly summarised in Mr Hoffman’s submission as follows:
The land is not appropriate for residential subdivision. As stated earlier, S19 is on a private road identified in the SCP as being for “Commercial Access Only” which should remain as commercial access only to the benefit of the broader Estate into the future. Consistent with this designation, the history of the Estate demonstrates that S19 was intended for a common non-golf maintenance facility to be anchored to the road. Unlike the original Applications, no alternate location for the non-golf maintenance facility is included in the amended Proposal to remedy this significant loss to the Estate.
54	The owner’s corporation also raise a range of other largely procedural matters.  Among their myriad complaints, there is concern about the common property plantation strip along the eastern boundary of S19, maintenance of landscaping responsibilities, difficulties with the provision of drainage and sewerage infrastructure in the easement, and the loss of the car park currently located on part of lot S19.
55	The owner’s corporation submit that the subdivision is not site responsive because the lots are too narrow resulting in subsequent development that will not respond acceptably to the character and streetscape of the estate.
56	The owners corporation also submit that the proposal is not consistent with the purpose of the SUZ2 which emphasises the tourist function of the estate.  They submit that the applicable policy framework supports the important role the estate plays in the region’s economy as a tourist related resource.  Policies emphasising the protection of landscape and environmental qualities are also referenced in the context of their submission that the proposal does not contribute to the achievement of policy objectives.  
57	The Australian and Pacific Investment Corporation Pty Ltd (APIC) and Yarra Valley Heritage Estate Pty Ltd (YVHE) each own a number of lots which comprise rooms in the hotel and function centre known as the Yarra Valley Lodge which is a hotel located on the grounds of the Heritage Golf & Country Club.
58	Their concerns about the proposed subdivision are primarily related to the wastewater infrastructure treatment plant system (WWTP) for the estate as a whole, which they submit does not have sufficient capacity to service the influent loads associated with existing facilities in an environmentally sustainable manner and in accordance with the applicable EPA Licence. 
59	It is their submission that the treatment of wastewater on the property has and continues to be the subject of a number of documented problems, resulting in at least five enforcement proceedings instituted by the EPA in relation to the operation of the WWTP.  
60	They rely on the evidence of Mr Nolan in support of their submission.  
61	They submit that in these circumstances, it is inappropriate to add to the loading of that infrastructure in the manner that is contemplated by the proposed subdivision.
62	They submit that any permit issued for the subdivision should only occur when it can be demonstrated that the WWTP for the whole estate has been upgraded and operates in an environmentally sustainable manner.  
63	The owners corporation and the Council broadly support the position of APIC and YVHE in relation to this matter.  
Conclusions about the subdivision
64	We have concluded that the proposed subdivision is acceptable. 
65	We have reached this conclusion because the subdivision layout responds positively to the existing residential character of the immediate neighbourhood.  The lot sizes and subdivision pattern are largely extensions of the existing subdivision pattern in Carnoustie Crescent.  Each lot is intended to accommodate a single dwelling, in line with the existing density of development.  
66	The building plans submitted as part of the Development Plan amendments demonstrate that front and side setbacks that respectfully respond to the character of the area are capable of being provided.  
67	We emphasise that the building plans are not approved as part of the permit for the subdivision.  They form part of the Development Plan amendment application. We have had regard to them in our assessment of the subdivision to inform our conclusions about the capacity of the lots to accommodate subsequent development.  
68	The concept landscape plan which is also part of the Development Plan amendments, demonstrates there is sufficient space available in each lot to create a garden setting. 
69	We are satisfied therefore that the subdivision and the subsequent development of each lot can be effectively integrated into the Carnoustie Crescent streetscape without disrupting in any significant way the character of Carnoustie Crescent or the estate more generally.  Consequently those policies referred to by the owners corporation in particular relating to the landscape and environmental qualities of the area, are not offended by a proposal to add 5 dwellings in the manner proposed, to an estate already given over to a mix of tourist and residential uses.
70	It is also significant having regard to the objector’s submissions, that SUZ2 as it relates to the Heritage Golf Course, contemplates residential accommodation.  We were advised that the estate has developed with a mix of tourist related facilities and residential accommodation.  This proposed subdivision does not disrupt that mix of uses.     
71	We address subsequently the issues relevant to the removal of the vegetation.     
72	The strip located along the eastern boundary of the proposed subdivision marked ‘Balance Lot A’ on the concept subdivision plan, continues the existing tree reserve which extends to the north to the rear of the abutting dwellings.  This, combined with the opportunity to landscape the southernmost corner of proposed lot 105 allows for the continuation of the tree reserve and the establishment of a landscaped setting at the entry to Carnoustie Crescent.  
73	With respect to Balance Lot A, we received contradictory submissions about the manner in which this land is best managed.  We have proceeded on the basis that the community will benefit by the retention of the significant vegetation running along the eastern boundary of the subdivision.  Because of that community benefit, it is desirable and preferable that the tree reserve (Balance Lot A) is shown on the subdivision plan as Common Property 1.  
74	In the event that for whatever reason, Balance Lot A cannot be vested as common property, a less desirable but nevertheless still acceptable outcome, would be to absorb parts of the tree reserve into each respective lot.  That outcome would necessitate an amendment to the permit which the Council would need to consider.  Any failure to achieve a vesting of Balance Lot A as common property should not be regarded as an insurmountable obstacle to the subdivision.  
75	Our views about the proposal’s acceptability are reinforced by the vehicle crossover locations that provide for safe and convenient vehicle access. The location of the crossovers will not disrupt pedestrian movement along Carnoustie Cres.  Additionally the length of each driveway can accommodate a visitor car space, limiting the need for on street car parking.   The evidence of Mr Furness who assessed the traffic engineering impacts of the proposed subdivision is informative in this respect.  Importantly that evidence was not disputed by contradictory expert evidence.  
76	We address in detail below, issues concerning the connection of the lots to wastewater, drainage and sewage.  Subject to our findings with respect to those matters we are satisfied that all lots will be connected to services.  
The Non Golf Maintenance Facility (NGMF)
77	In relation to the resolution of issues around the siting of the NGMF, these issues overlap with the consideration of amendments to the Development Plan.  The Council and the owner’s corporation submit that this is an issue relevant to the consideration of the subdivision application because the approval of the subdivision precludes the NGMF from being sited on lot S19, an outcome which in their submissions is contrary to the Site Concept Plan and the Development Plan.  
78	We were advised that there is an expectation that the NGMF is to be provided on S19, with that expectation informed by a combination of a  reference in the Site Concept Plan to a Maintenance and Service Compound marked with the symbol ‘m’ and by the following reference in the Stage 1 Development Plan (at page 24): 
Non-golf Maintenance Compound and Staff Facilities 
The non-golf maintenance compound and staff facilities building will be located along the eastern boundary of the site. Its primary use will be for staff amenity facilities, storage of service equipment and as a point of arrival and departure for service vehicles such as rubbish collection trucks.
Detailed plans of the compound (including elevations and finishes) will be prepared and submitted to Council for approval prior to its construction.
79	While the symbol “m” appears on the Site Concept Plan in an area generally proximate to lot S19, the Survey Plan prepared by Paroissen Grant & Associates shows that the “m” is not within the boundary of Lot S19 but rather is located well to the north-west where roads and dwellings have already been constructed.
80	Consequently this proposal does not require the “m” to be relocated from where it currently exists in the Site Concept Plan. It follows therefore, that the symbol ‘m’ cannot reasonably be relied on by those submitting that the Site Concept Plan imposes a requirement for an NGMF to be provided on lot S19.  
81	It is also relevant that the Site Concept Plan does not reference an NGMF.  The reference to an NGMF appears in the Stage 1 Development Plan as detailed above.  That reference is not specific to lot S19.  The generic reference to an NGMF being located along the eastern boundary does not constitute a statutory requirement for the construction of the NGMF by this applicant (or by any other entity) whether on lot S19 or at any other location.  
82	Importantly, while we acknowledge that the Development Plan’s reference to an NGMF creates an expectation that one will be provided, the Development Plan is silent in ascribing a responsibility for the provision of the NGMF, its funding, its siting (beyond the generic term ‘along the eastern boundary’), the timing of its provision, and the responsibility for its ongoing management and maintenance.    
83	We were also advised that a planning permit (YR-2006/811) was issued on 22 November 2006 on the review site for tree removal.  The plans endorsed under that permit show, among other things, a staff amenity building, an implement & storage building with adjacent parking (8 spaces), and a 5 metre plantation reserve along the eastern boundary of the site.  A notation on the plan also states that the maintenance compound will only be used in association with maintenance of the real estate and residential properties within the Heritage Golf and Country Club.
84	We were advised that the under that permit the trees have been removed and the car park constructed, but the balance of the structures shown on the endorsed plans have never been constructed.  
85	We accept that the grant of that permit provides an indication that at a point in time, lot S19 was identified as a site on which the NGMF could be provided.  The permit however does no more than that.  
86	The existence of the permit does not entrench an obligation on the permit holder or any other entity, to provide the NGMF on lot S19.
87	We note that notwithstanding the Council’s submission that the permit should not be granted in the absence of a resolution of the NGMF issue, it acknowledges that there appears to be no statutory requirement for the construction of the NGMF.  
88	Having regard to the above we therefore agree with the applicant’s submission that no legal requirement has been identified under the planning scheme or elsewhere to the effect that the applicants are required to construct an NGMF on land not owned by the owner’s corporation for the exclusive use and occupation of the owner’s corporation as a maintenance facility.  
89	In these circumstances we are not persuaded that the dispute about the NGMF is a barrier to the grant of a permit for the subdivision of lot S19.  Similarly we are not persuaded that it is incumbent on the applicant to identify a location for the NGMF or to otherwise establish a process to resolve the dispute about its provision, as a prerequisite for granting a permit for the subdivision.  
90	We emphasise that our findings should not be interpreted to mean that we have concluded that there is no need for an NGMF.  We make no findings about that.     
91	Issues around the provision of the NGMF, the timing of its provision, responsibility for its funding and management, its role and its location are not matters appropriately resolved through this planning permit process.  There are other avenues through which that issue can be appropriately pursued.   
The Wastewater Treatment Plant (WWTP)
92	The WWTP was constructed approximately 26 years ago to service both the residential development and golf associated facilities on the whole site and has been upgraded in subsequent years.  Over the years the number of dwellings has increased above the original concept of 120 cluster dwellings in 5 nodes to 157 with an additional 37 (including the 5 proposed in this application) in the planning stage.  The Tribunal was advised that there have been issues with the operation and maintenance of the WWTP and its performance for several years.
93	The objectors referenced the prior poor operating history of the WWTP citing various EPA notices etc as a reason to refuse the development of the additional 5 dwellings.
94	Mr Hunter gave evidence for the applicant advising that his company had been recently appointed to undertake an evaluation of the current plant and to provide operational assistance and independent monitoring of the WWTP performance.  He acknowledged that in the past the plant had not been well operated or monitored and advised that his company had recently been undertaking some repairs and improvements to various elements of the WWTP, as well as monitoring and operational improvements.
95	His evaluation of the capacity of the plant is that there is more than adequate capacity to treat the additional load generated by this proposal.  In support of his opinion, he provided recent effluent monitoring results over the course of the hearing which demonstrated full compliance with the relevant EPA requirements over an approximately 6 month period.
96	Mr John Nolan gave evidence for APIC and YVHE.  He raised concerns in relation to the capacity of the WWTP S based on the lack of compliant monitoring results, issues with the EPA required Long Term Environmental Management Plan and the lack of detailed design information in relation to the design and construction of the plant.   
97	It is Mr Nolan’s evidence that the plant has the capacity to treat the average daily load, but not the peak daily load.  While Mr Nolan acknowledged that the increased load from 5 additional dwellings is comparatively small, it was Mr Nolan’s contention that the applicant should demonstrate 12 months compliant maintenance, influent and effluent monitoring before additional load is allowed.
98	It appears to the Tribunal, and acknowledged by the applicant, that the WWTP has not been adequately operated or monitored for a number of years, resulting in breakdowns and poor effluent quality which has eventually been addressed by the EPA on occasion and more recently by the employment of an external consultant to review, upgrade and monitor operation and effluent quality. 
99	Based on the recent monitoring program the WWTP appears to be able to adequately treat the current load from the golf facilities and the existing dwellings on the site.  While Mr Nolan has some reservations in relation to the ultimate capacity of the WWTP, Mr Hunter is confident that the additional 5 dwellings will not result in the overloading of the plant, particularly after the recent plant improvements and demonstrated compliant monitoring results.
100	We acknowledge the legitimate concerns of the various objector parties in relation to the historical issues associated with the WWTP.  We acknowledge in particular, concern about the long term compliant operation of the plant if the number of dwellings increases.
101	We are not persuaded however that it is appropriate to address issues around the WWTP for the whole estate through an application to create five additional residential lots in an estate comprising more than 150 dwellings, golf courses and associated tourist facilities.  
102	As we have commented previously the WWTP operates under and is regulated by an EPA licence.  The appropriate mechanism for addressing the overall operation of the WWTP is through that regulatory mechanism.  
103	The evidence presented to us demonstrates that historical issues with the performance of the WWTP are belatedly being addressed through that mechanism.  
104	We must be satisfied however that the additional five lots can be accommodated by the WWTP.  To this end it is appropriate that we impose a condition on the permit for the subdivision requiring the applicant to demonstrate to the satisfaction of the responsible authority, that the WWTP either has the capacity to receive and treat, in addition to the whole of the estate, the proposed discharge from the new lots, or details of any necessary upgrade to the WWTP needed to achieve that outcome.  
Services
105	We have been provided with site plans identifying the location of the various services - water, sewerage, electricity, etc. which we were advised could be extended to adequately meet the requirements of the additional dwellings.  This aspect was not disputed by the parties.
106	During the hearing however, we sought clarification in relation to the provision of drainage services, particularly in relation to the treatment and discharge of stormwater.
107	The initial plans included a raingarden across the rear of two of the dwellings, together with a large diameter pipe underground the detention tank to maintain discharge to the adjacent stormwater pipe at predevelopment flows. It was intended that the raingarden and detention tank be maintained by the Owners Corporation.  The Owners Corporation advised of no discussion or acceptance of such an arrangement. 
108	As the raingarden and detention tank were located on what was proposed to be the individual dwelling’s property, we sought clarification as to how such a scheme could operate.
109	On the last day of the hearing revised plans were submitted with reduced lot and dwelling size, smaller individual raingardens on each lot maintained by the owner and no dwellings above the sewerage and drainage easement.  At the rear of lots 1901 and 1902 the sewer and drainage easement was widened to 4.5m to enable the construction of the detention tank and a 3m easement behind lots 1903 and 1904.  
110	The arborists report was revised to address the changes and identified no significant additional issues in relation to the trees situated along the eastern boundary of the property. 
111	This revised layout is an improvement on the previous layout in terms of the collection and treatment of storm water.  However, we continue to have some concerns in relation to the siting and management of 2m2 raingardens and rainwater storage tanks in the relatively confined rear garden area of each property and the maintenance aspects of the underground storage tank being situated on private property but maintained by the Owners Corporation.
112	As noted by the objectors a detailed Stormwater Management Plan has yet to be prepared for the development which would be expected to address the issues raised above.
113	On the last day of the hearing, Mr Sherman raised the potential for there to be no rain gardens or underground detention tank, with storm water from the roofs of the new dwellings discharged via above ground storage tanks on each lot and thence to the existing stormwater pipe to the north.  This would result in the storm water being discharged to the existing onsite detention dams used for irrigating the golf course and would remove the requirement for the Owners Corporation to maintain the raingarden and detention tank.
114	The Tribunal notes that the original development proposed such an arrangement.
115	On reflection this would appear to be a suitable arrangement but would require hydraulic analysis of the stormwater system to the north, redesign of the onsite tanks and discharge pipes, etc for each lot to ensure that the existing system is able to cope with the increased flow. 
116	In addition, consideration of the water quality aspects of the stormwater discharged to the internal dams would need to be considered.  
117	We are satisfied that there are a number of design solutions available to provide appropriate drainage services to the subdivision.  The resolution of the detailed design aspects of the drainage system is most appropriately achieved through permit conditions requiring the applicant to demonstrate to the satisfaction of the responsible authority, an acceptable drainage solution.
Other matters
118	In addition to the matters we have addressed above, other matters have been raised by the Council and the objectors about the proposed subdivision. Some of those matters are related more specifically to the amendment of the Development Plan but there are overlapping issues and we set out our findings about them below:
•	The loss of the car park currently located on part of lot S19 does not have a significant adverse impact, noting that the applicant is not obliged to retain the car park. The evidence of Mr Furness in relation to traffic engineering and car parking matters demonstrates to our satisfaction that visitor car parking for each lot can be provided by both on street and onsite parking.     
•	The evidence of Mr Furness also demonstrates to our satisfaction that the additional traffic generated by the five lots can be readily accommodated on Carnoustie Crescent and the local road network.  The additional traffic movements (estimated at 50 per day with 5 vehicle trips in each peak hour period) is very low.  While the Site Concept Plan refers to Carnoustie Crescent being purposed for ‘commercial use only’, the street already provides vehicular access to dwellings located on both sides of Carnoustie Crescent to the immediate north of lot S19.  Carnoustie Crescent therefore already plays a mixed residential/commercial function within the estate’s street network.  Because of the small number of additional vehicle movements generated by the proposal, the street’s existing function is unchanged by this proposal.  
•	The fact that the entrance to Carnoustie Crescent from Woorarra Court to the south, is gated and closed at particular times of the day, is not a significant barrier to the grant of a permit.  Alternative access and egress is available from the north, as noted on the signage at the Carnoustie Crescent/Woorarra Court intersection.  
•	The review site is located in a designated bush fire prone area, but a Bushfire Management Overlay (BMO) does not apply.  Consequently the proposal is not subject to assessment under the BMO.  Clause 13.02-1L of the planning scheme applies to all land in a designated bushfire prone area that is not covered by a BMO, but the policy only applies to a subdivision that creates 10 or more lots.  The CFA has not objected to the application.  We are therefore satisfied the proposal is acceptable in relation to bushfire management issues.
•	The application is not subject to assessment against Clause 56 of the Planning Scheme, the provisions of which apply to an application to subdivide land in the Neighbourhood Residential Zone, General Residential Zone, Residential Growth Zone, Mixed Use Zone or Township Zone and any Comprehensive Development Zone or Priority Development Zone that provides for residential development.
•	The decision guidelines at Clauses 65.01 and 65.02 of the planning scheme are relevant.  We have had regard to those guidelines.  Our assessment of the proposal articulated above have addressed the guidelines relevant to the consideration of the proposal’s acceptability.   
 Is the application futile?
119	Council and objector submissions raised the prospect that the grant of a permit maybe futile because there are aspects of the proposal that are likely to require the consent of the owners corporation, and that the granting of consent is unlikely, or at least cannot be guaranteed.  
120	Objector submissions in particular reference the prospect of Balance Lot A being invested as common property.
121	We have commented previously about this specific issue and the merits associated with that lot being vested as common property.  We reiterate our conclusion that there is a community benefit that justifies that outcome.  
122	In any event, we adopt the approach consistently, although not universally, taken by the Tribunal in the cases referred to us by the applicant which have addressed the issue of futility.
123	The Tribunal in the decisions referred to us has overwhelmingly taken the view that the merits of an application ought to be addressed through the planning permit process.  While subsequent processes may create an obstacle to the passage of the proposal, there are mechanisms available under those subsequent processes through which a dispute can be resolved. 
is the removal of vegetation acceptable? 
124	The objectors oppose the removal of vegetation because the trees to be removed contribute to the landscape character of the area and have aesthetic and amenity value.  
125	All vegetation on the site has been assessed for their retention value from an arboricultural perspective.  Ms Barrett who was called to give evidence by the applicant concluded that: 
The majority of trees on site are growing as part of a windbreak row of mature and semimature Eucalypts along the eastern boundary shared with the property at 14 Woorarra Court. The windbreak is made up of a mix of Eucalyptus species, the most common of which is Eucalyptus mannifera (Brittle Gum). It is not proposed to remove any of this windrow for subdivision or construction purposes, however, four trees within the windrow are proposed for removal due to their poor health and structure ……..
Also present at the site are species which are indigenous to the Yarra Ranges region, including Eucalyptus melliodora (Yellow Box), Eucalyptus viminalis (Manna Gum), Eucalyptus goniocalyx (Long-leaved Box) and Eucalyptus camaldulensis (River Red Gum).
All trees at the site have been planted in recent decades and are not remnant vegetation………
126	Ms Barret concluded that 8 trees require removal to facilitate the proposed design. They are all contained in the 5 subdivision lots.  Ms Barrett concluded that 4 of those trees have medium retention value being semi-mature specimens in good condition and are well established.  Ms Barrett classified the remaining 4 trees as having low retention value and do not warrant a design modification to allow their retention.  
127	Ms Barrett also assessed the impact of dwelling construction on the TPZ of retained vegetation, based on the floorplans contained in the amendment application.  Ms Barret made a series of recommendations with respect to the TPZ encroachments, including further amending building footprints, and/or undertaking non-destructive root investigations to determine the size and quantity of roots present, the results of which will determine the extent of design modifications required, if any.  
128	As we have commented previously on the last day of the hearing revised plans were submitted with reduced lot and dwelling size, and amended sewerage and drainage designs and easements.   
129	Ms Barrett’s witness statement was revised to address the changes.  No significant additional issues in relation to the trees situated along the eastern boundary of the property, were identified.   
130	Ms Barret concluded: 
The most significant trees on site are a windrow of Eucalypts on the eastern boundary. In keeping with the residential sites to the north of the subject site ……..these trees run along the rear of the properties and are a windbreak that provide amenity value as well as food and habitat to local wildlife. These trees should remain on site.
………….
The trees that are within the 5 subdivision lots and require removal are either in poor condition (example Tree 25), or semi-mature specimens that can be easily replaced in the landscape (example Tree 59), or small weed species (example Tree 62). None of the trees that require removal are of arboricultural significance.
131	Ms Barret’s evidence was not disputed by contradictory expert evidence. 
132	We are satisfied that Ms Barrett’s evidence provides a comprehensive and balanced assessment of the arboricultural conditions applying to the vegetation on the review site.  Ms Barrett’s recommendations for the retention and management of vegetation are capable of being implemented by way of permit conditions. 
133	Having regard to the Landscape Character Objective to be achieved under the Significant Landscape Overlay (SLO2), we are satisfied that the proposed removal of vegetation is acceptable. The retention of the vegetation located along the eastern boundary of the review site (except for the 4 trees to be removed for safety reasons) constitutes a positive response to the landscape character objectives of SLO2. The vegetation that is to be removed does not disrupt in any significant way the landscape character of the area. 
are the amendments to the development plan acceptable? 
134	Having regard to our findings about the acceptability of the subdivision and vegetation removal, it follows that we are satisfied that it is appropriate to amend the Development Plan in order to allow the permit to be acted on.  
135	In relation to the amendments to the Development Plan, the substantive issues have been addressed above in our assessment of the permit application. 
136	There are other matters which need to be assessed separately.  Our findings about those matters are set out below. 
137	The Council and the objectors variously submit that the Development Plan needs to be amended to address a range of matters including: 
•	The creation of a new villa cluster which exceeds the 5 villa clusters identified on the Site Concept Plan;
•	The creation of a new villa cluster shown in a location on the Site Concept Plan that clearly does not contain a villa cluster;
•	The construction of the proposed dwellings (or villas) within the new villa cluster. 
•	The change to the number and location of villa clusters (and therefore dwellings)
•	The location of a maintenance and services compound
•	The change to the identification of a “commercial access only” road.
138	Concerns are also expressed about the inclusion of the dwelling plans and the form and content of those plans.  
139	The use of an attachment document as the mechanism for amending the Development Plan is also criticised.  The owners corporation describe the approach as crude and lazy.  The Council submits that the applicant’s approach conflicts with the historical method of amending the Development Plan 
140	Importantly, there is no specific mechanism for the amendment of the Development Plans mandated in any of the documentation we have been to.  
141	 We are satisfied that the approach proposed by the applicant is appropriate because, unlike the balance of the Development Plan it is seeking to amend, there is clarity and unambiguity in what it provides for.  
142	Our conclusion on this point is in part informed by our view that the historical approach advocated by the Council in particular, is unsophisticated and lacks transparency.
143	The historical approach typically involved amended pages being struck through and/or removed and new pages inserted, generally subject to handwritten notations showing approval dates.  In addition there are aspects of the estate’s development that do not accurately reflect what is provided for in the Development Plan.    
144	 We note for example the location of the symbol “m” on the Site Concept Plan (referring to the Maintenance and Service Compound) is not within the boundary of Lot S19 as alleged, but rather is located well to the north-west where roads and dwellings have already been constructed.  The Development Plan has not been amended to reflect that on-site condition.  
145	We do not regard the historical approach to the amendment of the Development Plan as a model that warrants replication here.  
146	We do however acknowledge that the amendment of the Development Plan through the insertion of the attachment, will create some inconsistencies in with the balance of the Development Plan.  We note for example the current Stage 3 Development Plan, tabulates the accommodation components within the estate, referencing both Stage 1 and Stage 3.  That table should preferably be updated to reflect the additional dwellings approved by this proposal.  
147	It is likely there are other inconsistencies that we do not need to document here.  That is a task best left to the applicant to resolve with the responsible authority.  
148	We have therefore ordered that any consequential amendments to the Development Plan following the approval of this proposal, should also be submitted to and approved by the responsible authority.   
149	With respect to concerns about the inclusion of the dwelling plans, we have decided that it is appropriate that they be included as part of the amended Development Plan.   We agree with the applicant’s submission that L145 requires this information to be included in the Development Plan.  Such requirement is sensibly carried through to any amendment of the Development Plan that provides for dwellings to be constructed.
150	We were advised that a separate process for the approval of individual dwellings in the estate has been implemented.  That process involves the referral of plans to a Design Advisory Committee with plans assessed against a set of guidelines.  
151	That process functions outside any mechanism authorised under the Planning and Environment Act 1987 or the planning scheme. We have therefore proceeded in our assessment on the basis that any (undefined) statutory basis for the operation of a Design Review Committee will continue to be followed in respect of this proposal.
152	During the hearing the applicant filed and served a series of documents and plans intended to respond to the issues raised by the Council, objectors and the Tribunal.  
153	The documents were not formally substituted for the application documents that were substituted at the start of the hearing.  Parties were however provided with the opportunity to review that material and comment on it.  We are satisfied that no party has been prejudiced or disadvantaged by the receipt of the documentation.  We have had regard to that material and, where appropriate, we have referenced that material in our Order.  
conclusion and conditions
154	It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit issued and the Development Plan amended.  
155	In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

Laurie Hewet
Senior Presiding Member  		Greg Sharpley
Member	

Appendix A – Permit Conditions

Permit Application No:	YR-2020/20	
Land:	1-3 Hughes Road 
CHIRNSIDE PARK VIC 3116    	

What the permit allows	
In accordance with the endorsed plans:
•	Subdivision of the land into five lots, associated vegetation removal, and amendments to the stage 1 development plan in a manner that is not generally in accordance with the site concept plan that forms part of the Incorporated Document of the Yarra Ranges Planning Scheme “Amendment L145 to the former Lillydale Planning Scheme (Heritage Golf Course, Hughes Road, Chirnside Park)”	

Conditions:
1	Prior to the commencement of the permitted development (including the removal of any trees or other vegetation), and prior to the Certification of the Plan of Subdivision amended plan(s) 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 the plans proposed as Attachment 4 to the Stage 1 Development Plan incorporating cover sheet by Human Habitats dated 14 December 2022, Concept Plan of Subdivision by Human Habitats (Version 5 dated 21 November 2022), Site Location Plan by Human Habitats (Version 5 dated 21 November 2022), Architectural Drawings Package by Jackson Clements Burrows Architects (Revision 1, dated 29 November 2022) but modified to include or show: 
(a)	A Functional Layout Plan generally in accordance with the plan prepared by Charlton Degg Land Development Consultants Drg. No. 1425/FLP01 Rev B dated 09/05/203;  
(b)	A Plan of Subdivision generally in accordance with Plan of Subdivision PS 415064K/S19 prepared by Charlton Degg Land Development Consultants Surveyors File Ref 1425/stg S19 Version 3 showing appropriate easements, particularly for the provision of drainage and sewerage infrastructure, to the satisfaction of the Responsible Authority; 
(c)	The Architectural Drawing Package prepared by Jackson Clements Burrows Architects (Revision 1, dated 29 November 2022) deleted and replaced with the updated drawings prepared by Jackson Clements Burrows Architects (Drawing Nos. TP1-100 Rev 3, TP1-101 Rev 2, TP1-102, 103, 401, 501, 502 all  Rev 1, TP2-101 Rev 2, TP2-102 Rev 2, TP2-103 Rev 1, TP2-104 Rev 1, TP2 105 Rev 1, TP2-105 Rev 1, TP2-106 Rev 1, TP2-401 Rev 2, TP2-402 Rev 2, TP2-501 Rev 2, TP2-502 Rev2, TP3-101 Rev2, TP3-401 Rev 2, TP3-501 Rev 2, TP10-110 to TP10-116 inclusive all Rev 2).
(d)	A Landscape Plan generally in accordance with the plan prepared by Robert W Boyle and Associates Pty Ltd dated November 2022; 
(e)	All references in any plans to “Balance Lot A” deleted and replaced with a reference “Common Property 1”. 
All to the satisfaction of the Responsible Authority.  
2	The subdivision as shown on the endorsed plans must not be altered without the written consent of the responsible authority.  
3	Prior to the issue of a statement of compliance it must be demonstrated to the satisfaction of the responsible authority that the existing wastewater system serving the Heritage Development has the capacity to receive and treat the proposed discharge from the five (5) lots authorised under this permit, or details of any necessary upgrade to that wastewater system.
4	In the event that the wastewater system requires upgrading, details of these upgrades must be submitted to and approved by the responsible authority.  All required upgrades must be completed to the satisfaction of the responsible authority prior to the issue of a statement of compliance.  
5	Prior to the issue of a statement of compliance each lot must be connected to the existing or upgraded wastewater system to the satisfaction of the responsible authority. 
6	The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) must not be altered or modified unless agreed to by the Responsible Authority. 
7	This permit will expire if one of the following circumstances applies: 
(a)	The Plan of Subdivision is not started within two (2) years of the date of this permit, as evidenced by the plan of subdivision being certified (all stages) by the Council within that timeframe; or 
(b)	The registration of the subdivision is not completed within five (5) years of the date of certification. 
The Responsible Authority may extend the two year period if a request is made in writing before the permit expires, or within six (6) months afterwards. 
8	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, electricity and gas services to each lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time. 
9	All existing and proposed easements and sites for existing or required utility services (including the private wastewater system) and roads on the land must be set aside in the Plan of Subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.  
10	The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act. 
11	Following the final designs (including landscaping, crossovers and installation of utilities), any non-destructive root investigations required, and following Council approval, a Tree Management Plan (TMP) Report with a Tree Protection Plan (TPP) must be prepared to specify tree protection measures that will be required to protect retained trees throughout all stages of the proposed works.
12	A Project Arborist must be engaged to oversee all works within the TPZ of retained trees, verify TPZ fencing locations, attend monthly site visits and/or supervision of works to ensure TPZ guidelines, specifications and recommendations are adhered to.
13	TPZ fencing is installed to protect trees. The details of location, specifications and guidelines must be detailed in the Tree Management Plan
14	Canopy pruning must be carried out prior to construction commencing. Pruning must be undertaken by a qualified arborist and conform to AS 4373 – 2007, Australian Standard, Pruning of Amenity Trees, Standards Australia. Any pruning must be supervised by the Project Arborist to ensure canopy loss is minimised.
15	All underground service pipes including storm water and sewerage must be diverted around any Tree Protection Zones of trees to be retained, or bored underneath with a minimum cover of 800mm to top of conduit from natural surface level. If the trees have not been assessed the TPZ is calculated by 12x the trunk diameter measured at 1.4m above ground level.  
Ausnet Services 
16	The applicant must: 
(a)	Enter in an agreement with AUSNET ELECTRICITY SERVICES PTY LTD for supply of electricity to each lot on the endorsed plan.  
(b)	Enter into an agreement with AUSNET ELECTRICITY SERVICES PTY LTD for rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by AUSNET ELECTRICITY SERVICES PTY LTD. 
(c)	Provide easements satisfactory to AUSNET ELECTRICITY SERVICES PTY LTD for the purpose of “Power Line” in the favour of “AUSNET ELECTRICITY SERVICES PTY LTD” pursuant to Section 88 of the Electricity Industry Act 2000, where easements have not been otherwise provided, for all existing AUSNET ELECTRICITY SERVICES PTY LTD electric power lines and for any new power lines required to service the lots on the endorsed plan and/or abutting land. 
(d)	Obtain for the use of AUSNET ELECTRICITY SERVICES PTY LTD any other easement required to service the lots. 
(e)	Provide to AUSNET ELECTRICITY SERVICES PTY LTD a copy of the plan of subdivision submitted for certification that shows any amendments that have been required. 
(f)	Agree to provide alternative electricity supply to lot owners and/or each lot until such time as permanent supply is available to the development by AUSNET ELECTRICITY SERVICES PTY LTD. Individual generators must be provided at each supply point. The generator for temporary supply must be installed in such a manner as to comply with the Electricity Safety Act 1998. 
(g)	Ensure that all necessary auditing is completed to the satisfaction of AUSNET ELECTRICITY SERVICES PTY LTD to allow the new network assets to be safely connected to the distribution network. 
Comdain
17	A Statement of Compliance be obtained from Multinet Gas prior the plan of subdivision being released from the Titles Office. 
Yarra Valley Water  
18	The owner of the subject land must enter into an agreement with Yarra Valley Water for the provision of water services. 
CFA 
19	Prior to the issue of a Statement of Compliance under the Subdivision Act 1988 the following requirements must be met to the satisfaction of the CFA:  
20	Above or below ground operable hydrants must be provided. The maximum distance between these hydrants and the rear of all building envelopes (or in the absence of building envelopes, the rear of the lots) must be 120 metres and the hydrants must be no more than 200 metres apart. These distances must be measured around lot boundaries.  
21	The hydrants must be identified with marker posts and road reflectors as applicable to the satisfaction of the Country Fire Authority.  
Note – CFA’s requirements for identification of hydrants are specified in ‘Identification of Street Hydrants for Firefighting Purposes’ available under publications on the CFA web site (www.cfa.vic.gov.au)  
22	The owner of the land must enter into an agreement with: 
(a)	a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time; and 
(b)	a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre. 
23	Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from: 
(a)	a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and 
(b)	a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre. 
24	Prior to a Statement of Compliance being issued piped drainage must be constructed to drain all lots to the satisfaction of the Responsible Authority. 
25	Prior to the issue of Statement of Compliance vehicle access must be constructed to connect each lot to the internal private road (Carnoustie Crescent) to the satisfaction of the Responsible Authority. 
26	Prior to the issue of a Statement of Compliance (and if applicable having regard to the earlier subdivision of the development including the land) a payment equivalent to 5 % of the value of the land as determined by the Responsible Authority must be made to the Responsible Authority being payment of cash-in-lieu of the Public Open Space requirement. 
- End of conditions -