VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P30/2021
Permit Application no. PLN/2020/174	

Applicant	Dark Matter Group Pty Ltd	

Responsible Authority	Macedon Ranges Shire Council	
SUBJECT LAND	120-122 Main Road
RIDDELLS CREEK  VIC  3431	
HEARING TYPE	Hearing	
DATE OF HEARING	23 April 2021	
DATE OF ORDER	26 April 2021	
CITATION	Dark Matter Group Pty Ltd v Macedon Ranges SC [2021] VCAT 386	

Order

1	The decision of the Responsible Authority is affirmed.
2	No modifications are made to the conditions in Permit No. PLN/2020/174 issued by the Responsible Authority on 4 November 2020.    

Christopher Harty
Member			

Appearances
For applicant	Mr David King, Solicitor from Kings Lawyers.  He called the following expert witness:
•	Mr Chris Banon, Town Planner and Civil Engineer from Banon Consultants, Planning and Engineering	
For responsible authority	Mr Yousef Taibeh, Town Planner	

Information
Description of proposal

	A two (2) lot subdivision and creation of access to a road in a Road Zone Category 1.	
Nature of proceeding	Application under section 80(1) of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Macedon Ranges Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 8 – Riddells Creek Garden Setting A Precinct, Riddells Creek Garden Setting B Precinct and Riddells Creek Modern Residential Precinct (NRZ8)
No overlays	
Permit requirements	Clause 32.09-3 to subdivide land
Clause 52.29-2 to create or alter access to a road in a Road Zone Category 1 and to subdivide land adjacent to a road in a Road Zone Category 1	
Relevant scheme policies and provisions	 Clauses 11, 15, 16, 21.04, 21.08, 21.09, 21.13, 32.09, 52.29, 53.01, 56 and 65   	
Land description	The land at 120-122 Main Road, Riddells Creek (site) is located on the north-west side of the street within an established residential area opposite the Riddells Creek Primary School and in close proximity to the township commercial area.  The site is generally flat with a relatively rectangular shape with a frontage width of 38.26 metres and a maximum depth of 74.21 metres along the south-western boundary and an overall area of 2,835 square metres.  The site contains a single storey dwelling and associated outbuildings in the southern corner of the site with significant vegetation comprising mature exotic trees to the rear of the site.
The surrounding area is residential in character with predominantly single storey detached dwellings and examples of medium density residential development and with some double storey development.    	

Reasons

1	This is an application brought by Dark Matter Group Pty Ltd (applicant) to review a condition imposed by Macedon Ranges Shire Council (Council) on a permit for a two (2) lot subdivision and creation of access to a road in a Road Zone Category 1 (RDZ1) at 120-122 Main Road, Riddells Creek (site).
2	Condition 8 on that permit is in dispute and it requires the payment of a 5% open space contribution. Condition 8 reads:
Prior to the issuing of the Statement of Compliance for subdivision, the owner must pay to Council a 5% cash-in-lieu open space contribution in respect to all of the land in the subdivision pursuant to Section 18 of the Subdivision Act 1988.
3	Reasons for this decision were given orally at the conclusion of the hearing and this summary is provided containing the reasons for the decision.
4	I have been provided with a detailed description of the review site and its environs, the proposal, the planning scheme provisions and applicable policies.  It is not necessary for me to repeat that material other than to record that:
•	The site is located in a residential area comprising a mix of single storey detached dwellings but with medium density housing comprising predominantly single storey-built form becoming an increasingly evident part of the character of the area.  There are also some examples of double storey-built form in the area.
•	The review site comprises a generally regular shaped area of 2,835 square metres which has been granted permit PLN2020/174 to subdivide the site into two (2) lots comprising Lot 1 of 1,626 square metres and containing an existing single storey dwelling and Lot 2 with an area of 1,209 square metres which is vacant.  Lot 2 is proposed to have slightly over half of its rear portion set aside as a building exclusion zone.  Both lots contain large mature trees in the rear areas and the building exclusion zone on Lot 2 will protect those trees on that proposed lot.
•	The site is located very well in terms of its proximity to public transport and community services.
5	The site is in the Neighbourhood Residential Zone Schedule 8 (NRZ8) which identifies the site within the Riddells Creek Garden Setting A Precinct.  There are no overlays affecting the site.
6	Both the NRZ8 and Clause 21.13-5 relating to Riddells Creek identify the township accommodating moderate growth and facilitating incremental infill development subject to respecting neighbourhood character.
7	The applicant contends that the condition requiring an open space contribution is exempt by way of Clause 53.01-1 where it is a proposal for a two (2) lot subdivision and Council considers that each lot is unlikely to be further subdivided.
8	Council is of the opinion that the lots are not unlikely to be further subdivided whilst the applicant contends that it is unlikely that the lots would be further subdivided.
9	Both Council and the applicant have provided me with previous decisions of the Tribunal as to the appropriate test when considering this type of matter and I will not go into detailed reference to them other than to say I have given them consideration.
10	The applicant called expert evidence from Mr Chris Banon, a planning and engineering expert to support their contention that the lots are unlikely to be further subdivided because of a combination of physical constraints and policy framework which would make further subdivision improbable.
11	These constraints relate to:
•	The presence of the existing dwelling on Lot 1 and its close proximity to the proposed north-eastern side boundary of that lot, which would make it difficult to allow an access to any newly proposed rear lot in the form of a battle axe subdivision design.
•	The size of the building exclusion zone on Lot 2 which constrains the area available to the front of that lot for any built form due to a narrow frontage width and possible necessity for two-storey built form which would be at odds with the single storey and detached dwelling streetscape character.
•	The presence of a sewer easement traversing both lots from side to side.
•	The existing mature trees which contribute the character of the neighbourhood.
12	The applicant and Mr Banon considered that despite the policy intent of encouraging moderate infill residential development in Riddells Creek, the policy framework around protecting neighbourhood character would make further subdivision of the lots unlikely and hence the requirement for an open space contribution exempt.
13	Council considered the lots are not unlikely to be further subdivided given the policy of encouraging moderate infill development, the lack of protection for trees and the lack of protection for demolition of the existing dwelling from Lot 1 under the Macedon Ranges Planning Scheme.
14	Having regard to all these arguments, the lots are not unlikely to be further subdivided.
15	I find the site is in the NRZ8 where there are no limits on lot size, and which supports moderate or incremental infill development with the proviso of respecting neighbourhood character.  This does not mean preservation.  Although single storey and detached built form are referred to in policy, it must be remembered that policy is not regulation and is not to be applied in a mandatory sense.
16	Any response to neighbourhood character is subject to design.  
17	Trees on Lot 2 have been protected through a restriction on the lot via a Section 173 Agreement.  The trees on Lot 1 are not offered the same level of protection.  There is no control preventing the removal of these trees now.  
18	The requirements under Clause 22.05 relating to battle axe lots are only applied to subdivision and do not apply to subdivision of existing medium density residential development.
19	These policies guide rather than limit the exercise of discretion. 
20	The policies relating to neighbourhood character are part of the mix of what is to be assessed and are to be assessed based on achieving acceptable, not perfect outcomes for net community benefit and sustainable development.  The site is located within close proximity to transport and community facilities, the streetscape is wide and contains street trees which assist to soften new built form that may involve double storey formats, and which the Tribunal has acknowledged is appropriate in residential contexts alongside single storey residential built form.
21	I find that it is not unlikely that Lot 1 can be further subdivided given the context of the absence of overlays that provide protection of vegetation or their contribution to neighbourhood character and that Lot 2 can be further subdivided where the protection of vegetation at the rear can support further development at the front of that lot.
22	For the above reasons I direct that the Permit is not modified, and Condition 8 remains in place.    

Christopher Harty
Member