VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference Nos. P1534/2019, p1535/2019 & P639/2020
Permit Application nos. P687/2017, P687/2017 &  P555/2019	
CATCHWORDS	
Development for dwellings and subdivision – native vegetation removal – Environmental Significance Overlay – Clause 52.17 – section 173 agreement – consent to vary width of road reserve – preferred future character	

APPLICANT	Panorama Investment (Albanvale) Pty Ltd	
responsible authority	Brimbank City Council	
Referral Authorities (P1535/2019)	Transport for Victoria, AusNet, Department of Environment, Land, Water & Planning, City West Water, Powercor Australia, Downer Tenix, Melbourne Water	
Referral Authorities (P639/2020)	Melbourne Water, AusNet, Transport for Victoria, Department of Environment, Land, Water & Planning	
RESPONDENTs (P1535/2019)	Helen Rzesniowiecki, Dr Megan O'Shea	
SUBJECT LAND	80A-80B Oakwood Road 
ALBANVALE  VIC  3021	
WHERE HELD	Melbourne	
BEFORE	Dalia Cook, Presiding Member
Kate Partenio, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	6, 7 and 8 July 2020	
DATE OF ORDER	10 August 2020	
citation	Panorama Investment (Albanvale) Pty Ltd v Brimbank CC [2020] VCAT 859	

applications P1535/2019 & P639/2020
1	The decisions of the responsible authority are affirmed.  No permits are granted. 
application p1534/2019
2	The application is allowed and the decision of the responsible authority is set aside. The Tribunal is satisfied that a northern road reserve width of 26.3 metres is satisfactory under Clause 5.4 of section 173 agreement No. AN504119F (registered on title to the subject land on 30 January 2017) in place of a 40 metre wide road reserve. 

Dalia Cook
Presiding Member		Kate Partenio
Member	

Appearances
For Panorama Investment (Albanvale) Pty Ltd	Mr John Cicero and Mr Edward Mahony, Solicitors, Best Hooper
They called expert evidence from: 
Mr Stephen Mueck, Botanist, Biosis 
Mr Brett Lane, Ecologist, Nature Advisory Pty Ltd
Mr Stuart McGurn, Town Planner, Urbis
Mr John Kiriakidis, Traffic Engineer, GTA Consultants
Mr Darren Atkinson, Landscape Architect, Urbis 

	
For Brimbank City Council	Ms Sophie Loddo, Town Planner, Acorn Planning
She called expert evidence from Mr Richard Francis, Ecologist, Abzeco and lay evidence from Ms Zoe Thompson, Biodiversity officer, Brimbank City Council 

	
For Transport for Victoria, AusNet, City West Water, Powercor Australia, Downer Tenix, Melbourne Water
For Department of Environment, Land, Water & Planning	No appearance

Mr Marc Boxer and Mr Simon Denby

	
For Helen Rzesniowiecki	In person

	
For Dr Megan O’Shea	In person

Information
Description of proposal	Application P1535/2019 – development of multi dwellings (177 townhouses), subdivision (178 lots), buildings and works and removal of native vegetation under Environmental Significance Overlay (Schedule 6) and Clause 52.17 and alteration of access to a Road in a Road Zone (Category 1)
Application P639/2020 – two lot subdivision 	
Nature of proceeding	Application P1534/2019
Application under section 149(1)(b) of the Planning and Environment Act 1987 –  review of a refusal to grant consent under a section 173 agreement 
Applications P1535/2019 & P639/2020
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit	
Planning scheme	Brimbank Planning Scheme 	
Zone and overlays	General Residential Zone (Schedule 1)
Commercial 1 Zone (south east corner, approximately 140sqm) 
Environmental Significance Overlay (Schedule 6) – ESO4-63A (ESO6)
Development Contributions Plan Overlay (Schedule 2)	
Permit requirements	Clauses 32.08-3 and 32.08-6 (subdivision and construction of dwellings under the General Residential Zone) 
Clause 34.01-3 (subdivision within the Commercial 1 Zone) 
Clause 42.01-2 (buildings and works, subdivision and removal of vegetation under ESO6) 
Clause 52.17-1 (removal of native vegetation) 
Clause 52.29 -2 (alteration of access and subdivision adjacent to a road in a Road Zone Category 1)	
Other relevant scheme policies and provisions	Clause 12.01 (environmental and landscape values)
Clause 15 (built environment and heritage)
Clause 16 (housing)
Clause 21.02 (key land use issues)
Clause 21.04 (strategic land use vision)
Clause 21.05 (natural environment)
Clause 21.07 (housing)
Clause 22.02 (environmentally sustainable development)
Clause 52.06 (car parking) 
Clauses 55 and 56 (ResCode)	
Land description	The subject land runs between Station Street and Oakwood Road, Albanvale and has a total area of approximately 8.8 hectares. It contains a  79 metre wide electricity transmission easement running north east to south west.  The Brimbank Shopping Centre is located to the south east and loading and car parking areas extend to the common boundary.  The land otherwise adjoins conventional residential areas in all directions. 
The land is grassed and vacant.  	
Tribunal inspection	The Tribunal used a series of mapping tools in addition to the materials presented at the hearing and subsequently by the parties in lieu of a site inspection.	

Reasons
What is this proceeding about?
1	The subject land is at the edge of an activity centre and an established residential area, being one of only a few large undeveloped sites in this part of the Brimbank municipality.   It is included in Schedule 1 to the General Residential Zone as an Incremental Change Area. 
2	The applicant lodged two planning permit applications – one sought permission for a two lot subdivision and the other was amended to seek permission for the development of the land for 177 dwellings, removal of native vegetation, subdivision and associated approvals. 
3	The responsible authority refused to grant a permit in both applications, citing grounds including inferior subdivision and road layout, unacceptable impacts on biodiversity, overdevelopment and an inadequate built form response.  
4	The applicant sought review of both decisions and submitted that it was appropriate for a permit to issue in each instance.  
5	The Department of Environment, Land, Water and Planning (DELWP) and a number of objectors opposed the grant of a permit for the dwellings, subdivision and vegetation removal.  
6	The applicant also lodged a related application seeking review of the responsible authority’s refusal to grant consent for a narrower road reserve than that referenced in an agreement under section 173 of the Planning and Environment Act 1987.  This was material to the outcome of the other two permit review proceedings since it would determine the extent of the road reserve required for the northern part of the land and the residual land area.  
What are the key issues?
7	Key issues arising in these proceedings include: 
•	the acceptability of the proposal to carry out works and remove the vast majority of native vegetation to facilitate the proposed development in light of planning policy and relevant controls;
•	the width of the new road reserve to be created along the northern part of the land as well as the appropriateness of proposed new internal road layouts;
•	the suitability of the design and layout of the proposed dwellings and the landscape response; and 
•	whether the two lot subdivision would achieve acceptable outcomes for the land as an alternative proposition. 
8	The Tribunal acknowledges that the land is suitably zoned and located for infill development comprising medium density housing.  However, it has fundamental concerns with key components of the permit applications since they do not suitably respond to objectives of ESO6 seeking protection of threatened flora and fauna species, and the dwelling design and layout has significant shortcomings, including poor presentation to main roads.   
9	Notwithstanding, the Tribunal accepts that a future permit application for this land could provide a 26.3 metre wide road reserve for the new northern Public Road in place of the 40 metre width referred to in the section 173 agreement or the reduced width of 34 metres preferred by the responsible authority. 
section 173 agreement 
Background
10	The responsible authority advised the Tribunal that the subject land was once owned by VicRoads and contained a road reservation between 35-50 metres wide along its southern boundary. 
11	When the land was sold and rezoned, a section 173 agreement was entered into and registered on title requiring a road reserve to be set aside along the northern boundary of the site of up to 40 metres wide and a Public Road constructed within the reserve to the satisfaction of the responsible authority. 
12	Clause 5.1 provides a requirement to include a road reserve up to 40 metres wide in any future plan of subdivision.  Clause 5.3 requires the construction of the road but does not indicate at what stage this is required.  One feasible interpretation in the context of the agreement as a whole is that it accompanies the permission referenced in Clause 5.2 in conjunction with a planning permit for the development of the land or an intensification of the use.  
13	Clause 5.4 of the agreement requires the road to be constructed to the width reasonably required by any relevant authority, and relevant authorities are given the ability to consent to a width less than 40 metres.  
14	The applicant sought permission for a 26.3 metre wide road reserve as part of its amended permit application. It sought the responsible authority’s associated consent under the agreement for a reduction in the width of the road reserve from 40 metres. 
15	The responsible authority refused to grant such consent since it considered that a 40 metre wide road reserve was needed as part of a future strategic east-west link proposed to cross Kororoit Creek to the west, connecting into Rockbank Middle Road in the Shire of Melton.  
Submissions and evidence
16	The responsible authority submitted that the strategic road link is identified in a range of documents including the West Growth Corridor Plan developed by the Metropolitan Planning Authority in 2012. A 40 metre road reserve was considered necessary to accommodate a future duplicated carriageway.   
17	The applicant sought review of this decision on the basis that a road reserve of 26.3 metres would provide sufficient functionality and integration with the adjacent road network, being an extension of McCann  Drive to the west which has a width of 26.3 metres.  The applicant advised the Tribunal that the width of McCann Drive was debated extensively during the subdivision application for that site and ultimately, a consent position between that applicant and the responsible authority was reached for a road reserve width of 26.3 metres. 
18	At the hearing, the responsible authority indicated it was prepared to accept a 34 metre wide reserve to match the reservation width of Rockbank Middle Road.  The responsible authority submitted that the McCann Drive width, although accepted in 2010, is considered sub-standard and a reserve width of 34 metres would be more suitable for a future secondary arterial road providing a duplicated carriageway with on-road bike lanes and shared paths on both sides of the road.  It submitted that whilst a 26.3 metre reservation would allow for duplication, it does not have sufficient space for good urban design outcomes in terms of shared footpaths, landscaping etc.
19	Mr Kiriakidis gave evidence that a 40 metre road reserve would be typical for a 6 lane arterial road carrying up to 40,000 vehicles per day.  He advised that the most recent strategic transport modelling for the area appears to be undertaken by Aecom in 2014 (as reported in the Palmer Road Environment Effects Statement).  This modelling indicates that an east-west link to the west of Station Road would only be expected to carry in the order of 11,000 vehicles per day by 2046.  This was a reduction from the 2001 estimate in the Outer Western Suburbs Transport Study of 20-25,000 vehicles per day.
20	Mr Cicero on behalf of the applicant also pointed out that there does not appear to be any funding for the bridge and road linkage between the municipalities of Brimbank and Melton in any event. 
21	Mr Kiriakidis advised that the Council Meeting Minutes dated 2 February 2010 indicate that the decision to accept a 26.3 metre reservation for McCann Drive was based on a 2006 study undertaken by TTM for Council, which estimated a future traffic volume of 14,000 vehicles per day on McCann Drive.
22	Mr Kiriakidis further gave evidence that a duplicated road was only needed for volumes above 18,000 vehicles per day.  Consequently, he was of the view that the future road would have ample capacity as a two lane road based on the 2014 Aecom data.  He emphasised that the overall road link would be constrained by its narrowest section such that providing a wider road reserve on this land than on McCann Drive to the west was considered to have little benefit.
Tribunal discussion
23	The Tribunal accepts the evidence of Mr Kiriakidis that the dye was cast when McCann Drive was designed and constructed with its current specifications.  In these circumstances, there is no traffic engineering advantage in requiring the limited length of adjacent roadway through the subject land to be designed to a higher standard since it is unlikely to result in any greater functionality. 
24	In terms of network connectivity, the Tribunal notes that the proposed Public Road will be supported by Neale Road which runs parallel just 360 metres to the south and is already duplicated between Oakwood Road and Station Road.  Neale Road could be expected to take a significant role in a future east-west road link across Kororoit Creek, even if Middle Rockbank Road is connected into McCann Drive, since it also forms the continuation of Cairnlea Drive at Station Road.  The Tribunal also notes that the Aecom modelling in 2014 appears to assume Middle Rockbank Road would connect directly into Neale Road at its western end.  
25	Whilst Station Road would be a preferred connection to a McCann Drive link than Oakwood Road, given the greater width of Station Road, one would expect that traffic would ultimately be split across both the proposed new Public Road and Neale Road if McCann Drive was ultimately connected to Middle Rockbank Road. 
26	In this way, the broader strategic vision (if still warranted) would not be diminished by allowing a road configuration akin to McCann Drive through the subject land. 
27	Although a 34 metre road reserve would provide scope for greater urban design outcomes in terms of landscaping etc in the event of duplication the modelling does not indicate a need for a duplicated road and on that basis, there appears to be no reason to require a road standard greater than that of McCann Drive.  The Tribunal is satisfied that suitable public realm treatments and associated linkages could be provided in this instance within a road reserve of 26.3 metres.  
28	On this basis, the Tribunal supports a reduction in width of the northern road reserve to 26.3 metres wide as proposed by the applicant.
removal of native vegetation
Relevant controls
29	Permission is required for buildings and works, subdivision and removal of native vegetation from the subject land under the provisions of ESO6 as well as Clause 52.17 of the Planning Scheme.  This pertains to the dwelling and subdivision application (Permit application no. P687/2017) but equivalent permission was not sought for the subdivision application alone. 
30	Part of the land is included in ESO6 as mapped in the figure below.  

Figure 1: ESO6 and Native Vegetation mapping
31	The Statement of Environmental Significance for ESO6 includes:
Plains Grassland and Plains Grassy Wetland are listed as “endangered” vegetation communities under the Victorian Flora and Fauna Guarantee Act 1988. Plains Grassland (Natural Temperate Grasslands of the Victorian Volcanic Plains) is also listed as “critically endangered” under the Australian Government’s Environment Protection and Biodiversity Conservation Act 1999, (EPBC Act). 
All ecological vegetation classes (EVC) found in Brimbank are listed as “endangered” by the Department of Sustainability and Environment. These vegetation communities provide critical habitat for several species of threatened fauna and flora including the Striped Legless Lizard (Delmar impar) which is listed as “vulnerable” under the EPBC Act, the Spiny Rice Flower (Pimelea Spinescens subs spinecens) and Golden Sun Moth (Synemon plana) which are both listed as “critically endangered”.
Preserving the biodiversity of the region depends on retaining and enhancing existing native vegetation, sensitive land management, revegetating land with indigenous species and strengthening habitat corridors.
32	Relevant Environmental Objectives to be achieved in Clause 2.0 of the schedule include: 
•	To protect and enhance the viability and connectivity of ecosystems, species and genetic diversity in areas of identified biological significance.
•	To ensure that any use, development or management of land within and adjacent to areas of biological significance are compatible with their long-term maintenance and conservation and will not have detrimental impacts on biodiversity values.
33	In addition to providing relevant surveys, addressing likely impacts on biodiversity and quantifying potential offsets, Clause 3.0 of the schedule provides the following permit application requirement:
An explanation of how the proposal addresses the “three step approach” to avoid, minimise and offset native vegetation losses as specified in Victoria’s Native Vegetation Management: A Framework for Action and the Port Phillip and Western Port Native Vegetation Plan.
34	Permission is also required under Clause 52.17 for the removal of native vegetation since the land is greater than 4 hectares. The purpose of this provision is “to ensure that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation”, to be achieved through the three step approach.  The decision guidelines in the Guidelines for the removal, destruction or lopping of native vegetation, Department of Environment, Land, Water and Planning, 2017 (Guidelines) are applicable.
35	Under the updated Guidelines, the proposed vegetation removal associated with the dwelling development proposal comes within the ‘detailed pathway’ and was referred to DELWP accordingly. 
36	The applicant advised the Tribunal and parties during the hearing that the Commonwealth Department of Agriculture, Water and Environment had advised of its intention to grant permission for the removal of native vegetation under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).  This permission was granted on 21 July 2020 subject to conditions including a requirement for offsets after the conclusion of the hearing.  
37	The applicant submitted that the Tribunal should give significant weight to this approval since it indicated that the Commonwealth Government considered that there would be no net loss of biodiversity to listed threatened species and communities including the Natural Temperate Grassland of the Victorian Volcanic Plains and habitat of the Striped Legless Lizard (SLL). 
Submissions and evidence
38	The applicant commissioned a number of assessments to document the land’s ecological values.  The first was prepared by Ecology and Heritage Partners (EHP) in 2017 with targeted surveys of nationally threatened species in 2018.  A peer review and supplementary biodiversity assessment was undertaken by Biosis in 2019.  A further peer review was undertaken by Nature Advisory for the purpose of the review proceeding. 
39	In summary, these assessments confirmed that: 
•	the site contained over 4 hectares of Heavier Soils Plains Grassland (EVC123-61) corresponding to the FFG Act listed community Western (Basalt) Plains Grassland Community;
•	of this, the site supported 1.17 hectares of Natural Temperate Grassland of the Victorian Volcanic Plains (listed under the EPBC Act as Critically Endangered) which also supports a single recorded Spiny Rice-flower plant (also Critically Endangered); and
•	5.23 hectares was identified as suitable habitat known to support the SLL, a listed threatened species.  Tussock Skink was also recorded on the site (identified as Vulnerable in Victoria). 
Therefore, the application would result in the consequential loss of 4.002 hectares of native vegetation. 
40	In the dwelling development and subdivision permit application, the applicant proposes to remove all native vegetation from the subject land except a small portion with the electricity transmission easement.  It also proposes to undertake earthworks for the subdivision and development.  Its principal submissions were that: 
•	the extent and quality of native vegetation on the subject land was now so degraded that its removal would not unreasonably impact the biodiversity values sought to be protected;
•	the measures that would be required to protect remaining vegetation on the subject land would not be commensurate to its ecological values and cannot be justified; and 
•	suitable offsets can be secured to ensure no net loss of biodiversity. 
41	DELWP is a recommending referral authority and objected to the grant of a permit for the removal of vegetation. 
42	The responsible authority and DELWP opposed the proposed removal of the majority vegetation from the subject land, noting that the only patch proposed for retention (0.013 hectares) was within the electricity transmission easement.  Fundamentally, they considered that the application had not complied with key tenets of native vegetation policy, especially objectives that sought to avoid vegetation removal at first instance, or mitigation if avoidance could not be achieved.  
43	The responsible authority submitted that the applicant had given priority to the purpose of the General Residential Zone but had “completely disregarded” the environmental values of the site.  It called lay evidence from Ms Zoe Thompson, Council’s Biodiversity officer indicating that:
•	no avoid and minimise statement was provided as required by relevant planning scheme controls; 
•	the timing of both site assessments in winter was considered inadequate to reflect the full ecological values of the site.  This view was also expressed by Mr Francis, ecological expert called by the responsible authority;  
•	even accepting survey results undertaken on behalf of the applicant, the land retains high biodiversity significance; 
•	it is preferable to avoid all development within the portion of the land covered by ESO6 (by fencing and management for conservation) plus an equivalent proportion of land within the adjacent easement should be enhanced to offset the removal of vegetation for the new roadway to the north within the ESO.  This grassland could be actively managed to increase diversity; 
•	salvage and relocation should be undertaken from the remainder of the land into these areas (noting that smaller areas of maintained native grasslands within the municipality have been successful); and
•	the site is located within a highly urbanised environment and this contributes to making the management of biodiversity challenging. 
44	Mr Francis explained that SLLs are identified through the placement of roof tiles in a grid survey.  On one occasion, 11 SLLs were found within one grid within the ESO6 area (with a total of 18 identified that day), which suggests a very high population density in that area. He considered that most of the site has good habitat for this species, noting that it can inhabit both native and non native vegetation.  In addition, he confirmed that the rocky embankments within the site, especially within the area of the ESO6 mapping, were a “classic and important habitat” for the SLL.  
45	In terms of the quality of the vegetation he observed on site, Mr Francis considered the surveys undertaken by Biosis and EHP to be most representative of existing conditions (in circumstances where surveys were not undertaken in spring, which was considered to better reflect the underlying values of the site).  
46	Mr Francis expressed a similar view to Ms Thompson about the appropriateness of avoiding development within the land mapped in ESO6 and the potential to increase habitat connections in the adjacent electricity transmission easement.  He confirmed a view shared by the experts called on behalf of the applicant that there are recorded ecological values both within and outside the area mapped in ESO6 since these lines are too simplistic to reflect these values ‘on the ground’.  
47	DELWP had requested further information from the applicant which it claimed had not been provided to enable a fulsome assessment of the effects of the proposed vegetation removal.  It highlighted that the ‘three step approach’ required by the Guidelines and policy had not been followed – specifically, no avoid and minimise statement had been provided and a current DELWP-generated Native Vegetation Removal Report had not been prepared. 
48	However, DEWLP considered it was likely that the surveys (even though undertaken in winter) acceptably represented site values because similar conditions were reflected in all reports provided by the applicant. It explained that regardless of the reduced condition over time, there was a “significant opportunity” to protect and enhance the site’s values with appropriate management and that there were opportunities for connectivity with other habitat areas to reduce fragmentation. 
49	More fundamentally, DELWP considered that the applicant had not demonstrated that the proposal would be compatible with identified environmental values and the objectives of ESO6.  It also advised the Tribunal that there may be practical complications in retaining or protecting vegetation in the transmission easement because of relevant exemptions in the planning scheme for utility installations and the associated potential conflict of functions.
50	Ms Rzesniowiecki is an active resident who explained her role in rehabilitating local grasslands and the importance of small remnant areas in urbanised environments.  She noted that the land was purchased with knowledge that ESO6 applied and she was concerned about the loss of environmental and social capital as a result of the proposed development.  Ms Rzesniowiecki and Dr O’Shea both pointed out that offsets were likely to be provided remote from this site, contrary to policy preferring local offsets to maintain community benefit. 
51	Dr O’Shea objected to the grant of a permit given the impacts on vegetation and habitat. She has substantial professional experience as an environmental scientist in the identification and management of the SLL, including in the City of Brimbank.  
52	Like Mr Francis, Dr O’Shea considered that the site supports a high density population of SLL which she regarded as viable even though relatively isolated.  She considered the population was likely to persist if its habitat was retained and managed even if there is little prospect of movement much beyond this site.  Dr O’Shea confirmed her experience that small sites such as this can be viable and low species diversity can be reversed. She also explained the important role of the rocky embankments on the site as a refuge for this species.   
53	Mr Muerck and Mr Lane who gave expert evidence for the applicant were both of the opinion that this population of the SLL was not critical to the recovery of the species overall.  Mr Muerck explained that most of this species’ habitat is outside the ESO6 area on the land, such that the long term viability of this population on this site would be questionable.  
54	The Tribunal considers that important concessions were made by Mr Muerck in response to cross examination and questions by the Tribunal, as he was obliged to do as an independent witness. The Tribunal considers that these concessions fairly included, in summary: 
•	parts of the land (including the area mapped within ESO6) have high biodiversity significance;
•	he accepted the expertise and outcomes of the work of Dr O’Shea in respect of the SLL (summarised above), and confirmed that all known breeding populations are of national significance, although he confirmed his view that reconciling its requirements for vegetation cover with the need for regular biomass control to manage native grasslands can be problematic in small areas; 
•	he was advised by the applicant of its preference from outset to remove all vegetation from the site (i.e. no avoidance strategy) and was provided with a proposed development footprint similar to the current application which had dictated the response; and
•	in his view, there was scope to integrate some areas of native vegetation and retain their values and he had told the applicant to try to retain some of the native vegetation within ESO6. This approach was not adopted. 
That said, Mr Muerck accepted that securing an offset would lead to a good biodiversity outcome overall.  
55	Mr Lane’s evidence concluded that:
•	the subject land was found to support significantly less remnant native vegetation compared with earlier assessments in 2017, with only a total of 2.394 hectares of native grasslands remaining (in patches) compared with 4.098 recorded in 2017 and 2019; 
•	the extent of endangered vegetation was limited - it was highly fragmented and had degraded over time such that it would be challenging to reinstate to a reasonable condition; 
•	there was a lack of habitat connectivity (or any reasonable prospect in future) for the SLL as a functioning metapopulation; and
•	removal of habitat from this site would be unlikely to compromise retained remnant ecosystems. 
Tribunal discussion
How would protected values be affected?
56	The Tribunal accepts the position of DELWP and the applicant that the assessments undertaken on behalf of the applicant over time are sufficient to demonstrate key ecological values of the land, notwithstanding the timing of these assessments and the fact that a more complete picture of existing native flora could potentially have been provided if undertaken at other times of the year. 
57	Although the Tribunal accepts that endangered species are also found elsewhere on the subject land outside the ESO6 mapping, it finds that the area within the ESO6 is the part of the site that contains the highest biodiversity values.  A site responsive development should have formulated ways to minimise the impacts on this area.  
58	Turning to the relevant decision guidelines, the Tribunal finds that the site retains the biodiversity values which have been recognised and are sought to be protected by the ESO.  In particular, the land supports the Heavier Soils Plains Grassland, an endangered flora species.  There is also clear evidence that the site supports a reasonably high density of SLLs, a threatened fauna species.   
59	These biodiversity values would be irrevocably lost from the subject land as a consequence of the combined removal of the native vegetation and alteration of habitat (removal of rocky embankments).  This outcome would be directly in conflict with the purpose of ESO6 – to protect the viability of threatened species and ensure that any use, development or management of land within and adjacent to areas of biological significance are compatible with their long-term maintenance and conservation and will not have detrimental impacts on biodiversity values. 
60	Even if the removal was justified, it does not appear that there is a reasonable prospect of local offsets in connection with the grant of a planning permit as preferred in line with policy, or specific species offsets (as opposed to general offsets).
61	Therefore, the Tribunal considers that the proposal fails at the first hurdle – seeking permission for vegetation removal, works and subdivision under the ESO6. 
62	Similar issues relating to vegetation removal arise under the application of Clause 52.17 although the schedule to the ESO provides more specific local guidance.  On balance, having regard to the quality and distribution of native vegetation across the site, the Tribunal would not oppose the removal of native vegetation from parts of the land outside the ESO6 and adjacent electricity transmission easement.  This is also consistent with reasonable development expectations in the General Residential Zone. 
63	For the record, the Tribunal is not persuaded that determinative weight should be given to the permission granted by the Commonwealth Government for the removal of the vegetation and effects on the SLL under the EPBC Act.  While the Tribunal agrees that this is a relevant matter and accepts that appropriate offsets would be sourced under conditions of that approval, the issue before it principally concerns state, rather than national significance.  
64	It is clear that the provisions of the planning scheme differ from those of the EPBC Act.  The local planning provisions reflected by the ESO6 confirm the rarity and local significance of the threatened flora and fauna species.  It is also relevant that Mr Mueck advised that the SLL is considered to be at the higher level of threat of ‘endangered’ in Victoria compared to a listing of ‘vulnerable’ under the EPBC Act.
Three step approach 
65	The Tribunal also has fundamental concerns about the approach taken to this development application relative to state policy provisions which rely on the three step approach to the assessment of removal of native vegetation. 
66	Even though the experts properly treated all vegetation on the site as ‘lost’ for their analysis, there is no evidence before the Tribunal that any effort was made by the applicant to avoid the removal of any native vegetation from the site (other than the small patch within the easement).  To the contrary, both experts advised of their client’s express preference for the almost complete removal of all vegetation in conjunction with a fully formed site plan from the outset. 
67	Likewise, the Tribunal finds that there has been no attempt made to mitigate the effects of the development on native vegetation. This is significant in circumstances where the land hosts native vegetation that is critically endangered and where it provides habitat for a threatened fauna species.  
68	Had this approach been taken, the Tribunal considers that the applicant should have recognised that the native vegetation and habitat it provides represent both a site opportunity and a constraint.  In its opinion, a balance needs to be struck between expectations for residential (or other) development that arise from the General Residential zoning of the land with the environmental values of the site to achieve an acceptable outcome.  
69	The Tribunal acknowledges the submission made by Mr Cicero on behalf of the applicant that policy in Clause 21.01-1S and the 2017 Guidelines are predicated on the extent of avoidance being “commensurate” with biodiversity and other values of the vegetation and focus on the areas of native vegetation that have the highest value.  For example, it is clear that there is native vegetation and habitat values in multiple areas of this land, with varying distribution and quality.  
70	In this instance, the Tribunal agrees with the responsible authority and its experts that priority should be given to the maintenance and enhancement of key environmental values within the land mapped ESO6, with potential integration with land in the adjacent transmission easement.  
71	Regrettably, this proposal has taken the opposite approach.  It proposes to remove all vegetation and to carry out works to alter habitat to achieve conventional medium density residential development within ESO6, comparable to other parts of the site that do not share the same environmental sensitivity.  This is a significant indicator that the development is not site responsive.  
Approach to managing land within ESO6
72	It is evident that the condition of native grasslands in urban locations in Victoria tend to decrease over time unless properly managed.  However, the fact that the condition of the vegetation on this land has deteriorated is not a reason of itself to allow the removal of this threatened flora species.  
73	The Tribunal accepts the submissions and evidence that the condition of this particular species could be improved with management, particularly weed control.  Likewise, it accepts the submissions and evidence that there is a reasonable likelihood that the SLL population would continue to be viable on this site within a reduced area, such as the area delineated by ESO6 and potentially in conjunction with adjacent land within the transmission easement.  In its opinion, there is still value in retaining this threatened breeding population even if it has limited connectivity with other local populations.  
74	The suggestion by the applicant that Council has not managed vegetation within the transmission line easement to specifically enhance biodiversity may point to a missed opportunity, but does not negate the value of retaining key vegetation and habitat on the subject land and the patch within the transmission line easement.  That said, the Tribunal acknowledges the practical challenges in seeking to manage the land within the easement more intensively to enhance its environmental values given potential conflicts with the designated purpose of this land.  
75	The Tribunal also recognises that measures to protect and enhance this native grass species and the SLL on the subject land will come at a cost, particularly because of the small scale of the area to be protected.   It has considered the expert opinions of both Mr Muerck and Mr Lane that disproportionate resources may be required, or that there may well be other locations where funds to protect these species may be more efficiently expended - such as on larger sites or sites with vegetation in better condition. 
76	While these considerations of where best to manage limited state wide resources may be pertinent for state authorities, this is not to the point in determining this particular application.    The planning scheme calls for an assessment of the acceptability of the removal of native vegetation and habitat from this site in connection with a permit application to develop the land.  There is a preference to retain valued vegetation and habitat in situ, rather than to provide offsets on other land to compensate.  
77	The Tribunal also rejects the submission by the applicant that there could be no compulsion to upgrade environmental values or ecological connectivity as an outcome of the permission granted, since there would be no relevant nexus.  Instead, it concludes that there is clear scope under the three step approach and associated planning scheme provisions to both limit the extent of the development to protect identified environmental values, and to require maintenance and enhancement of these values at the cost of the developer in exchange for allowing removal of other vegetation from the land for the purpose of development.  This is a feasible approach for the future development of this land. 
78	Tribunal accepts that confining the SLL to the more limited area of the ESO6 (compared with the larger potential habitat offered by the site as a whole) may make this species more vulnerable to threats such as bushfire. However, these threats are already extant and are not a reasonable justification for allowing their removal from the site as a consequence of redevelopment. This is especially the case when all experts and DELWP confirmed that there is no government willingness to approve translocation of this species. 
79	It is not the role of the Tribunal to redesign the development proposal but, at this stage based on the evidence before it, it appears that there may not be scope for any active use or development on the portion of land within ESO6 (approximately 1.389 hectares) and that its highest and best use is for conservation (subject to allowing limited through access for pedestrians and for the ‘Public Road’). 
Traffic and parking
Acceptability of new roadways throughout the estate 
80	The proposed development proposes a new network of public roads on the western side of the land (Zone A) and a new network of private roads on the eastern side (Zone B).  
81	Council submitted that a number of road cross-sections, intersection radii, provision of cross-streets without roundabouts, driveways close to intersection and dead end streets without turning facilities (such as at the southern end of Road 1 and Road 4) would create road safety issues and do not comply with Council’s standards.
82	Mr Kiriakidis gave expert traffic engineering evidence on behalf of the applicant that the road cross-sections in Zone A (western part of the land) would meet the cross-section requirements for roads set out in Clause 56.06 of the planning scheme for an Access Street and Access Place.  He advised that a roundabout at the cross-roads was not necessary given the low traffic volumes projected for the dead-end road sections.  He advised that driveways should be at least 6 metres from an intersection and this may require one to three driveways to be relocated to comply.
83	Mr Kiriakidis also advised it was not necessary to provide for turning circles within the Access Places, as visitors would be required to park in the Access Street.  Nevertheless, he recommended that hard stand areas be provided at relevant intersections to accommodate waste bins for collection from the Access Street.
84	The Tribunal accepts the evidence of Mr Kiriakidis that the road cross-sections in Zone A meet the requirements of Clause 56.06 and agrees that a roundabout control is not necessary at the cross-roads due to minimal cross-traffic movements.  However, some type of speed control is recommended along Road 2 given its length to meet the target speeds in Standard C21 and this may be best placed at the intersections.  
85	The Tribunal agrees with Council that the proposed location of waste collection for dwellings within the Access Places, particularly for Road 4, is not acceptable.  With potentially up to 12 bins being placed near each of the corners on Road 2 this would require a hard stand area of up to 12 metres, allowing for two bins per household.  This would intrude into the landscaping and the parking bay on Road 2 which is required to serve visitor parking needs.  In addition, the design of Road 4 makes it likely that delivery trucks would enter the street and need to reverse back out - posing safety risks.
86	In relation to Zone B, Mr Kiriakidis gave evidence that the private road network meets the requirements of Clause 52.06 for car park design.
87	The decision guidelines in Clause 52.06 include consideration of the relevant standards of Clauses 56.06-2, 56.06-4, 56.06-5, 56.06-7 and 56.06-8 for residential developments with accessways longer than 60 metres or serving 16 or more dwellings.  
88	Given that Road 6 and Road 8 scale in the order of 180-220 metres in length we consider that consideration should be given to the requirements of Clause 56.06, particularly in relation to the provision of pedestrian paths on both sides of a Access Street, verge widths and speed control, noting that these straight lengths of streets are not conducive to a shared pedestrian and vehicle environment.
Parking and changes to avoid the Melbourne Water easement
89	Melbourne Water originally objected to the proposed location of a loop road over its water main  easement on the eastern side of the transmission easement in Zone B.  It subsequently sought permit conditions based on the Amended Plans requiring the removal of all parking spaces on the easement (four spaces) and the deletion of the pedestrian link near the junction of Road 6 and Road 7 crossing its easement, or an equivalent reduction in crosspaths.
90	The applicant advised the Tribunal that this car parking could be removed.  This was supported in evidence by Mr Kiriakidis who advised that given the subject land was within the Principal Public Transport Network, no visitor parking was required (under Column B of the table to Clause 52.06).  Notwithstanding,  Mr Kiriakidis advised that some replacement visitor parking would be appropriate given the site’s outer suburban location. 
91	The Tribunal accepts that the car parking spaces depicted on the Melbourne Water easement in the amended application plans could be reasonably deleted by condition and relocated elsewhere in close proximity.  The Tribunal also accepts the deletion of the pathway as requested by Melbourne Water.
design and layout
Quality of amended plans
92	Council explained that it was challenging to evaluate the amended plans since inadequate information was provided by the applicant. For example, some key dwelling and other setbacks were not dimensioned until supplemented at the hearing. 
93	The Tribunal accepts that there are some deficiencies or inconsistencies in the amended plans, such as in the external design of the dwellings.  However, these have not prevented it from undertaking a substantive analysis of the merits of the amended proposal by reference to relevant controls, policy and the physical setting. Had the merits assessment resulted in the grant of a permit, these issues could have been resolved through detailed permit conditions.  
Dwelling presentation and configuration
94	The responsible authority accepted that the subject land was sufficiently large to create its own character.  However, it was concerned about a number of aspects of the design of dwellings within the proposed subdivision, including what it regarded as repetitive design and inadequate side setbacks and building articulation to new roads.  
95	Subject to resolving irregularities in the plans, the Tribunal is not persuaded that the exterior presentation of the dwellings is unacceptable.  They have a contemporary suburban residential presentation, with variation in design, treatment and materials across the proposed estate.  Provided that the floor plans for the side facing dwellings were adjusted to match the photo montages (with relevant projections and recesses), this element of the design would be supported given the design quality and layout of adjacent road infrastructure.  
96	The Responsible Authority also expressed concern about an insufficient mix of dwelling diversity in the sense that 93% of dwellings would be three bedroom, 6% would be two bedroom and one individual four bedroom unit would be provided.  This was contrasted with current demographic trends indicating an ageing population and declining dwelling size, and a demand for smaller housing which is listed as a key issue in clause 21.02. 
97	The Tribunal considers that this is a shortcoming of a proposal of this scale, particularly since it appears that there are no dwellings readily capable of accommodating people with limited mobility and no single bedroom dwellings and only a small number of two bedroom dwellings.  This should be revisited in any future development proposal, recognising the emphasis in local policy on creating diverse housing opportunities. 
98	The responsible authority also considered that inadequate attention had been given to the design of dwellings to prevent overlooking.  More passive ways of resolving this issue should be considered in any redesign proposal.  
99	The Tribunal addresses the responsible authority’s concern about a high proportion of many lots providing garaging and accessways in excess of 40% of the site frontage contrary to Rescode in more detail below. 
Landscaping and streetscape character 
100	The responsible authority emphasised that certain standards within Clause 55 (ResCode) had been modified by Schedule 1 to the General Residential Zone to require additional canopy tree and driveway planting, varied dimensions for private open space and a preference for secluded private open space in the rear of dwellings. 
101	The responsible authority confirmed that the dwellings would be below the maximum three storey height permissible in the zone and that they would achieve compliance with the mandatory garden area. 
102	However, it submitted that the design response had a number of key deficiencies. The responsible authority regarded presentation of dwellings to the proposed northern Public Road and to Oakwood Road as unacceptable, with no or limited surveillance opportunities due to high fences protecting principal private open space areas located at the front of dwellings.  
103	The responsible authority also noted that the front of most dwellings fronting internal roads was dominated by a garage door and a brick wall at ground level, broken only by the entry door and surrounded by a 1.5 metre high fence - providing limited or no surveillance opportunities to the street.
104	Mr Atkinson gave expert landscape evidence on behalf of the applicant that the landscape design provides for street trees and one canopy tree in both the front and rear yards of each dwelling.  
105	He advised that the 1 metre wide planting strips along the edges of the internal roads was sufficient to grow street trees, and that any reduced visual amenity due to the narrow verge widths in Zone B would be offset by the view line down the road to the electricity transmission easement. 
106	Mr Atkinson advised that the proposed pedestrian network was designed with consideration of existing movements between Eaton Court to the north and the shopping centre to the south via the transmission easement.  He indicated that he had observed this as the principal pedestrian desire line based on existing tracks through the land.  When questioned by the Tribunal, he conceded that a more direct pedestrian connection from Zone A to the shopping centre would also be appropriate.
107	Mr McGurn gave expert planning evidence on behalf of the applicant. He advised that he was satisfied with the presentation of high fences to Oakwood Road as only a short section of the road would be impacted and the fences included a pedestrian gate to the dwellings.
108	In respect of the new Public Road, he opined that the boundary fences could be set back with low planting provided in front of a high fence.  He advised that the first floor windows of the dwellings would provide some surveillance opportunities although he agreed that the proposed tree plantings may limit views.
109	Clauses 52.06, 55.03 and 56.06 all require that walking and cycling networks have natural surveillance along streets and from abutting dwellings and be designed for personal safety and security - particularly at night.
110	The Tribunal is not satisfied that the overall subdivision and development design achieves this aim and agrees with the responsible authority that these standards are not met.  
111	The design involving the 1.8 metre high front fences on Oakwood Drive leading into the principal private open space of each dwelling (with direct dwelling entry into the dining area) is not a well resolved frontage presentation to this connector road.
112	The Tribunal has even greater concerns about the relatively uniform presentation of dwellings and key landscape elements to the new Public Road.  The applicant submitted that it would assume a connector or low order arterial role in future, but the consistent presentation of high rear fences (as proposed) is more in line with expectations for a high order arterial road.   While it appreciates the desire to provide north facing principal private open space areas for the dwellings, improved streetscape activation and opportunities for natural surveillance are required.  In the Tribunal’s opinion, this would require fundamental reconsideration of the overall lot layout, siting and design of dwellings along this new roadway (beyond the staggered fencing solution suggested by Mr McGurn).  The Tribunal also notes that the northern side of the Public Road is primarily faced with high rear fences, which would be more acceptable for a primary arterial road, but with a reduction in the roads’ role and reservation width this means that the southern side has to do the heavy lifting in relation to the streetscape outcome. 
Design of private roads
113	The responsible authority submitted that the use of private roads in Zone B appear to be public roads without meeting the same design standards as expected for a road of this type was unacceptable.
114	In relation to the use of private roads in Zone B, the Tribunal accepts that it is legitimate to provide private roads to service townhouse developments in appropriate circumstances.  However, we do not find that the design of Zone B fits purely within the typical expectations of a private road network, and only appears to differ from Zone A by virtue of less verge widths along the road and footpaths on only one side of the road.  We note there is no entry treatment or gate that signifies a private development or other indication of a different paving design nor different building designs. 
115	In terms of the design response, the provision of 1.5 metre high front fences and long straight road lengths does not encourage a sense of community inclusion, which is normally a significant positive expected from a private road network. 
116	Whilst entry treatments are not essential in order to support a reduced road reservation, the design should include elements that are conducive to a shared road environment such as a low speed environment and the Tribunal is not convinced that this has been achieved.
117	The 1.5 metre high front fences, combined with limited windows at ground level and a very narrow verge for Zone B would result in an environment with limited streetscape amenity and natural surveillance for pedestrians.  As noted earlier, a reduction in verge width should be supported by landscaping in front setbacks to maintain reasonable amenity levels particularly in locations without a footpath.  
118	The Tribunal also notes that the pedestrian network fails to meet the standard for connectivity (Standard C15) with paths terminating abruptly on Road 7 and Road 8 and not connecting across streets, as well as a lack of connection between Zone A and the nearby shopping centre, although this could otherwise be addressed by permit condition.
Noise attenuation
119	Council submitted that a noise assessment was required to determine and address any unacceptable noise impacts on the residential properties along the south side of Zone B (eastern portion of the site) from the adjacent shopping centre loading dock. 
120	Mr McGurn gave evidence that noise impacts from the loading dock could be addressed by permit condition.  For example, acoustic fencing could be provided; equally a condition requiring acoustic testing and other amelioration.  In addition, he noted that the supermarket is required to comply with controls under state-wide environmental regulations.
121	Mr Cicero for the applicant did not object to a condition of this nature and the Tribunal is satisfied that noise impacts from the loading dock could be addressed suitably.
Two lot subdivision
122	The applicant explained this was an alternative proposal to the permission sought for the townhouse development with associated subdivision.  It sought to subdivide the land into Lot A (4.29 hectares on the western side and including the electricity transmission easement) and Lot B (4.49 hectares to the east of the easement adjacent to Station Street). The application was supported by a Clause 56 assessment by ProUrban dated 24 September 2019. 
123	In terms of the two lot subdivision, Mr Cicero submitted on behalf of the applicant that permission was neither sought nor required for the removal of native vegetation in connection with this subdivision. 
124	The responsible authority considered that the land was potentially suitable for subdivision but considered that the issues of consequential removal of native vegetation and the new Public Road had not been suitably resolved.  It submitted that it was necessary to depict the northern road reserve to be vested in Council in the plan of subdivision under the section 173 agreement and that this was a shortcoming of the current proposal.  
125	On further reflection, Mr Cicero responded that the obligation at the stage of subdivision was to provide for the reservation of the road.  However, in the applicant’s view, the obligation to construct the road arose in association with the development of the land.  Therefore, the applicant advised it would consent to a permit condition requiring the plan to be submitted for endorsement to include the road reserve at a width directed by the Tribunal. 
126	The Tribunal agrees with this approach in principle.  However, one significant shortcoming is that it appears that there is no relevant exemption from the need for permission for at least subdivision under the provisions of ESO6, and this permission was not sought for the two lot subdivision.  In the Tribunal’s opinion, on registration of the plan of subdivision, by operation of the Subdivision Act 1988, part of the land within ESO6 containing the road reserve would automatically vest in Council as a road and no longer remain within title to the land.  It is for precisely this reason that relevant decision guidelines need to be taken into account for subdivision as well as development under the ESO6 or the opportunity will be lost.  
127	The Tribunal does not accept the applicant’s submission that it need not turn its mind to the potential for removal of native vegetation as a consequence of the subdivision including the road reserve since these matters would be considered in a future development application.  
128	The Tribunal agrees with the applicant that it is inevitable that most, if not all, vegetation at least within the future road reserve should be considered lost. Once the land has vested in Council as a road reserve, all native vegetation in that reserve could potentially be removed without planning permission under the exemption relating to either roadworks or works on behalf of a municipal council in Clauses 62.02-2 or 62.02-1 of the Planning Scheme.  
129	Ms Thompson explained in evidence for Council that “development of 1 or both parcels will clearly impact ecosystems, species and genetic diversity.  The change of ownership of either parcel would greatly reduce the ability for retention of native vegetation and habitat”.  The Tribunal agrees that this potential also needs to be considered in the context of the subdivision application.   This approach is consistent with Clause 65.02 which calls on a decision maker to consider “the existing use and possible future development of the land and nearby land” in a subdivision application. 
130	Aside from the consequential vegetation removal that may result from the subdivision (for which permission has not been sought), the applicant has not persuaded the Tribunal that the subdivision is for a sound planning purpose or that it would advance the objectives of the zone.   In reality, this is difficult to establish in the absence of an accompanying development application.   
131	For these reasons, this decision of the responsible authority is affirmed.  
Conclusion
132	For the reasons given above, the decision of the responsible authority to refuse to grant both permits is affirmed. No permits are granted.
133	However, the Tribunal supports the reduction of the new northern road reserve required by the section 173 agreement to 26.3 metres and has set aside the decision of the responsible authority to refuse such consent.  

Dalia Cook
Presiding Member		Kate Partenio
Member