VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P973/2020
permit application no. P19/1553
	
catchwords	
Application for review of decision to refuse to grant a planning permit.  Section 77 of the Planning and Environment Act 1987.  Mornington Peninsula Planning Scheme.  Proposal for residential village on land in a Low Density Residential Zone and subject to Design and Development Overlay and Vegetation Protection Overlay.  Question of whether an acceptable balance achieved between built form and landscape outcomes sought under the scheme.  Purposes of Low Density Residential Zone considered in respect to development outcomes.  Objectives of Design and Development Overlay and Vegetation Protection Overlay considered.  Land use conflict arising from Tyabb Airfield considered.   	
APPLICANT	Lifestyle Developments 2 Pty Ltd	
responsible authority	Mornington Peninsula Shire Council 	
Referral authorities	Department of Environment, Land, Water and Planning, VicRoads and Transport for Victoria 	
caRESPONDENTs	Country Fire Authority, Windtoy Pty Ltd, Peninsula Aero Club, Westernport Airfield Pty Ltd, Judith Pay as Director of The Old Aeroplane Company Pty Ltd, Paul Mercurio, Rolfe Summerhayes	
SUBJECT LAND	51, 59 and 67 Stuart Road and 52 and 62 Railway Road
TYABB  VIC  3913	
HEARING TYPE	Hearing 	
DATE OF HEARING	30 November 2020, 1 to 4 December 2020
7 & 8 December 2020
10 & 11 May 2021	
DATE OF ORDER	29 October 2021	
citation	Lifestyle Developments 2 Pty Ltd v Mornington Peninsula SC [2021] VCAT 1285	
Order
Amendment of permit application
1	Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, permit application P19/1553 is amended by the substitution of plans:
(a)	Masterplan Rev M 18 March 2021 and Site Plan Rev M dated 18 March 2021 prepared by MESH;
(b)	Existing Site Levels CP10 Rev C 16 October 2020 and Proposed Site Levels CP11 - CP17 Rev C 16 October 2020, all prepared by KLM Spatial;
(c)	Clubhouse Floor Plan TP201 and Clubhouse Elevations and Materials TP300 – TP301, all dated 14 October 2020 prepared by DKO; 
(d)	Landscape Masterplan L-VCAT01 Rev B, Tree Retention Plan L-VCAT02 Rev B, North-western Planting Plan L-VCAT03 Rev B, South-western Planting Plan L-VCAT04 Rev B, Eastern Planting Plan L-VCAT05 Rev B, all dated 29 March 2021, prepared by John Patrick Landscape Architects Pty Ltd.  
(e)	Lot Type Plan 17 dated September 2020 prepared by Lifestyle Communities, and
(f)	Dwelling Floorplans LTY-S4, sheets 1 to 19, Revision B, dated 14 October 2020 prepared by Lifestyle Communities.
No permit granted
2	In application P973/2020 the decision of the responsible authority is affirmed.
3	In planning permit application P19/1553 no permit is granted.

Ian Potts
Senior Member	Peter Gaschk
Member	

APPEARANCES
For Lifestyle Developments 2 Pty Ltd	Ms Susan Brennan SC with Ms Carly Robertson of counsel, instructed by Ms Ellen Tarasenko, solicitor, Herbert Smith Freehills.
Ms Brennan called the following witnesses to give expert evidence:
•	Ms Sophie Jordan, a town planner from Sophie Jordan Consulting. 
•	Mr John Patrick, a landscape architect from John Patrick Landscape Architects Pty Ltd.  
•	Mr Kevin Hazell, a town planner and bushfire planner from KH Planning Services Pty Ltd.
•	Mr Allister Polkinghorne, an aeronautical consultant from Argus Consulting Group.
•	Mr Justin Ganly, an economist from Deep End Services Pty Ltd.
•	Mr Gnanakone, traffic consultant from One Mile Grid. 
•	Mr Rob Brown, an acoustic consultant from Octave Acoustics.
Ms Meg Sweeney and Mr Chris Paranthoiene, of Lifestyle Developments attended as observers
	
For Mornington Peninsula Shire Council	Mr Luke English, solicitor, Mornington Legal. 	
For Country Fire Authority	Ms Luci Johnston (10 and 11 May 2021 only)	
For Department of Land Water and Planning 	No appearance	
For Transport for Victoria	No appearance	
For South East Water	No appearance	
For Melbourne Water	No appearance	
For Judith Pay, director the Old Aeroplane Company Pty Ltd	Ms Judy Pay in person (except 10 May 2021).  	
For Windtoy Pty Ltd	Mr Graham Hosking, director Windtoy Pty Ltd, in person (except 10 and 11 May 2021).  	
For Mr Rolfe Summerhayes	Mr Rolfe Summerhayes in person.	
For Peninsula Aero Club and Western Airport Pty Ltd 	Mr Ragu Appadurai of counsel, by direct brief of Mr Jack Lyons, town planner from Ratio and Mr Jack Vevers, President Peninsula Aero Club.  
Mr Appadurai called the following witnesses to give expert evidence:
•	Mr Barnes, a town planner from Barnes Planning Pty Ltd.
•	Mr David Lindsey, an acoustic consultant from SLR Consulting Pty Ltd.	
For Mr Paul Mecurio	No appearance	

Information
Description of proposal	A residential village is proposed for the subject land.  The village would comprise 189 dwellings, a clubhouse and outdoor recreational facilities.  
Construction of the village requires removal of existing vegetation including trees and native vegetation.  Landscaping around the perimeter and internal to the site is proposed.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mornington Peninsula Planning Scheme 	
Zone and overlays	Low Density Residential Zone (clause 32.03) (LDRZ) 
Design and Development Overlay (clause 43.02 and schedule 7) (DDO7) 
Vegetation Protection Overlay (clause 42.02 and schedule 1) (VPO1) 	
Permit requirements	Clause 32.03-1: Use of the land for a residential village. 
Clauses 32.03-4 and 43.02-2 and Schedule 7 to Clause 43.02: Buildings and works associated with a section 2 use in Clause 32.03-1.
Clause 42.02-2 and Schedule 1 to Clause 42.02: Removal of vegetation.
Clause 52.17: Removal of native vegetation.	
Relevant scheme policies and provisions	Clause 52.17 (Native vegetation). 
Clause 52.02 (Easements, restrictions and reserves).
Clauses 2.01, 02.03, 02.03-5, 02.03-8, 02.04, 11, 11.01-1L-01, 15.01-2L, 17.03-1L, 32.03, 42.02, 43.02, 52.02, 52.17, 65 and 74.01 of the Planning Policy Framework. 	
Land description	The subject land comprises of five lots, which together form a total area of approximately 10.4 hectares.
The review site has 241 metres frontage to Stuart Road (to the west) and a 161 metre frontage to Railway Road to the west. The northern boundary comprises a 257 metre common boundary with residential land along Kathleen Court and a 257 metre boundary with another low density residential lot.  The boundary to the south is two lots in a Green Wedge Zone for a total length of 514 metres.  
The land is generally flat with a fall from north-east to south-east.  A drainage line (and easement) passes from north-east corner to around the midpoint of the southern boundary. 
Each of the five lots currently contain a single dwelling and outbuildings, gardens and fenced paddocks.  There are clumps of native trees in the central portion of the site, with varying thicknesses and number of trees along lot boundary lines and along Stuart Road.  	
Aboriginal cultural heritage	The site lies within an area of cultural heritage sensitivity under the Aboriginal Heritage Regulations 2018. Approved Cultural Heritage Management Plan 16674, dated 7 November 2019 was included in the application materials.	
Tribunal inspection	On 16 December 2020, the Tribunal made an unaccompanied inspection of the site, its surrounds, Tyabb airfield and two residential villages at Bittern and Hastings.     	

Reasons
Introduction
1	Lifestyle Developments No 2 Pty Ltd (Lifestyle Developments) wishes to develop a residential village on five lots of land in Tyabb.  It applied to the Mornington Peninsula Shire Council (the Council) for a planning permit to do so.  The Council refused to grant a permit and so Lifestyle Developments has applied to the VCAT for a review of that decision under s77 of the Planning and Environment Act 1987.  
summary of our decision
2	Over the course of three months, the Tribunal heard submissions from the Council, Lifestyle Developments and respondents who oppose the proposal.  Evidence was called to address planning, acoustics, landscaping, and economic/need for the development.  Supplementary submissions and evidence were also provided by the parties on relevant bushfire provisions and Planning Scheme Amendment C279 (Am C279).  
3	We summarise the positions of the parties below.
4	The Council relies on its original grounds of refusal.  It says the amended proposal, including a small reduction in the number of dwellings and the revised landscaping along the southern boundary to address bushfire risk management requirements, remains an inappropriate design response to the site and relevant planning scheme controls that apply to the land, i.e. the Low Density Residential Zone (LDRZ), Schedule 7 of the Design and Development Overlay (DDO7) and Schedule 1 of the Vegetation Protection Overlay (VPO1).  
5	The Council maintains that Am C279 was policy neutral and does not affect or detract from its reasons for not supporting the proposal.
6	The respondents support the council’s grounds of refusal.  Peninsula Aero Club and Westernport Airfield (PAC), Windtoy Pty Ltd (Windtoy) and Ms Judy Pay (of The Old Aeroplane Company) submit that the intensity of the proposed use and development of the site is inconsistent with state and local settlement policy, and the provisions of the LDRZ and DDO7.  They say the scale and scope of vegetation removal on the review site is inappropriate.  Their main contention is about the conflict that they say would arise from such an intensive housing development close to the airfield.  PAC submitting that:
… the introduction of the proposed use and development would be entirely incompatible with the protection of the “…ongoing operation…” of Tyabb airport contemplated in cl 18.04-1S of the Mornington Peninsula Planning Scheme (scheme).  
7	They rely on the planning and acoustic evidence of Mr Barnes (planning) and Mr Lindsey (acoustics) to support their contentions.  
8	PAC, similar to the Council, maintains that Am C279 was policy neutral.  
9	Lifestyle Developments says that its proposal delivers a balanced and acceptable response to the zone and overlay controls applying to the land and delivery of affordable and diversified housing in the Mornington Peninsula.  Lifestyle Developments relies on the expert witness evidence it has called and its submissions to support its position. 
10	It submits that Am C279 was not policy neutral.  It says the:
…. emphasis within the policy framework has shifted away from specifically guiding how low density residential land is to be managed and developed, and is now focussed on making the most of town centres and encouraging greater housing diversity.
11	To support its contentions about housing diversity outcomes, Lifestyle Developments submits that:
•	The Planning Scheme continues to direct development and growth to the defined townships and settlements.  
•	The Planning Scheme no longer stipulates any clear policy guidance regarding maintaining a pool of rural residential or low density land but does support housing diversity in established areas within township boundaries. 
•	The Planning Scheme provides no built form guidance directly relevant to the application and no guidance as to the interaction with the Tyabb Airfield.  
12	In this amended planning policy framework, Lifestyle Developments submits the proposed development responds in an efficient and appropriate manner to the context of the review site and the planning policy settings. 
13	We have considered these, and all other submissions, evidence and materials provided by the parties.  This includes the additional submissions and evidence in response to our interim orders and the amended plans, the response to Am C279, supporting material and documents from experts called by the parties, aerial photos, site photographs and our inspection of the review site, its surrounds and other nearby established residential villages developed by Lifestyle Developments.  
14	Having done so we have determined to affirm the decision of the Council and direct that no permit issue.  While we acknowledge the benefits said to arise from this proposal for affordable, diversified housing, we find the proposed design response would result in an inappropriate intensity of housing development that is not supported through the combined purposes and objectives of the LDRZ, DDO7 and VPO1 that apply to the land.  
15	Our reasons below set out why we have reached this conclusion.  
background matters
16	Before addressing the determinative matters, we have identified in this proceeding, we first set out what is proposed and the town planning context established through the required planning permissions.  
Background to the plans now before the Tribunal
17	We have substituted amended plans as the application plans in this proceeding.  The amended plans are a combination of amended plans prepared prior to the hearing commencing in 2020 and further amendments prepared in response to bushfire risk matters raised during the proceeding conducted over November and December 2020.  
18	The bushfire risk matters arose because the subject land is in a designated Bushfire Prone Area (BPA).  State planning policy at clause 13.02-1S which addresses bushfire planning, applies to all planning and decision making under the Planning and Environment Act 1987 that relates to land that falls within three specified categories.  One category is land within a BPA.  
19	Bushfire risk considerations also arise from the general decision guidelines and decision guidelines of DDO7.  
20	The original permit application plans had been informally referred to the Country Fire Authority (CFA) during the Council’s consideration of the permit application.  The CFA did not object to the grant of a planning permit subject to conditions being included in a permit.  However, a set of amending plans circulated prior to the hearing commencing in November 2020 had not been provided to the CFA.  When the plans were provided, the CFA raised several concerns.   
21	Consequently, and to enable the Tribunal to receive advice from the CFA in respect to the amended plans, we directed that the CFA be joined as a party and provide a formal response to the amended plans.  Subsequent to that order and further procedural steps, Lifestyle Developments circulated further amendments to the application plans in accordance with directions we made in March 2021.  
22	The consequence of these events is that the proposal now before us has been amended from that which the Council refused planning permission in 2020.  The proposal, as now amended, comprises:
•	Use and development of a residential village over five lots, each of which has an area of approximately 2.07ha (thereby equating to a land area of approximately 10.35ha). 
•	Clearing of vegetation, including native vegetation, across the central area of the land, with retention of vegetation around the periphery and the creation of bushfire defendable space along the southern boundary. 
•	Provision for 189 dwellings and associated facilities within a residential village.
23	A general layout of the proposal is shown in Figure 1 below.  

Figure 1 – Site Master Plan
24	The various components of the proposal are summarised as follows:
Accommodation
•	The 189 dwellings would vary in design and size, ranging from one bedroom to three bedrooms.  These would be distributed across the north-west, west and east sectors of the subject land.
•	Dwellings would be located on parcels of approximately 122m2 to 227m2 in size.  Future residents would select a dwelling design and layout that is part dependant on the size and orientation of a parcel.  The land parcel on which a dwelling would be located would be leased to the resident for a term of 99 years.  The resident would purchase and own the dwelling.
•	The plans indicate that each dwelling would typically have a 3.5 metre front setback. Secluded private open space areas for each dwelling would vary from 11m2 up to 50m2, with most options having an area of around 30m2, rear setbacks of 1.5 metres to 3.5 metres and one side setback of less than 1 metre.  A small number of parcels are designated for semi-detached dwellings.  Site coverage on each parcel would range from 60% to 75% with many designs having a 67% coverage level.  
•	Dwelling designs would present a pitched steel roof, double fronted building form, clad in replica weatherboard with a side carport enclosed by a panel lift door.  Muted tone colour finishes are proposed.  
Clubhouse facilities
•	A single storey clubhouse would be located between the accommodation sectors setback some 50 metres from the southern boundary.  
•	The clubhouse would contain communal facilities and administration offices for staff.  Communal facilities would include dining and lounge areas, a kitchen, toilets, an activities room, cinema, gym and pool.  Outdoor facilities would include barbeques, seating, bowls and croquet grounds, a pickle ball court and communal garden.  
•	The clubhouse would have a modern, sweeping crescent form, with a roof rising from 4 metres above ground level to a peak height of 7.2 metres. The perimeter outer walls would be finished largely in exposed, smoke grey brick, with substantive glazed finished facing toward the central courtyard and outdoor facilities.    
•	Visitor car parking would be provided at two locations around the perimeter of the clubhouse.  
Landscaping  
•	Existing internal vegetation would be largely cleared except for a small number of selected native trees.  Cleared vegetation includes three native vegetation patches across the five existing properties and one native vegetation/habitat patch associated with a farm dam.    
•	Vegetation corridors would be provided along the western (Stuart Road) perimeter (12 metres wide) and southern perimeter (varying from 10 to 16 metres wide) with existing vegetation to be retained unless it is identified as a weed species.  To supplement retained vegetation, a mix of native woodland tree, lower story shrub and ground cover species are proposed for planting within these corridors.  
•	Along the southern boundary, a further landscaped corridor to provide bushfire defendable space (varying from 16 metres to 40 metres width), containing individual native tree species is proposed within a grassed setting.  The trees would be spaced to avoid touching canopies to comply with defendable space requirements specified by the CFA.  No buildings are proposed within this defendable space.  
•	Inside the western perimeter corridor would be a further grassed informal park corridor containing retained trees.  
•	Other prominent landscaping elements include four pocket parks (two of which would retain existing trees) and three rain garden areas.  
•	Perimeter planting of trees and shrubs are proposed along the northern interfaces to the adjoining General Residential Zone (GRZ) and remaining LDRZ lot to the north-east.  
•	Individual dwellings would have small ornamental front gardens and one tree per rear secluded private open space area.  
Layout, access and drainage
•	The overall site coverage of building forms and internal roads is indicated on the plans to be 46.7%.  The proposed permeability is 53.3%.  
•	Olivers Creek, which is a part formalised drain with overflow swale passing through the site, would be re-aligned to run along the northern perimeter of the subject land before turning and being directed centrally through the site to discharge at the present southern boundary drainage discharge point.  An existing dam, currently fed in part by overflow along the Olivers Creek drain swale and in part acting as a detention system within this drainage line, would be filled in.  
•	Land levels would be subject to cut and fill across the site, save for small areas where trees are to be retained in accordance with the filed plans.  Drainage from the north and west lots would be directed to the re-aligned Olivers Creek drain, and from the eastern portion of the site substantively toward the southern east boundary (generally following the present-day drainage direction).  
•	The primary vehicle access would be from Stuart Road.  Secondary emergency access would be provided off Railway Road, adjacent maintenance area and sheds.  
Town planning context
Controlling provisions – the LDRZ and overlays
25	The subject land comprises of five lots that are subject to the LDRZ, DDO7 and VPO1.  
26	Planning permissions for the use of the land for a residential village is required under the LDRZ.  Planning permissions are required for the development of the land and works under the LDRZ and DDO7 and for the removal of vegetation under VPO1.  Planning permission is also required under clause 52.17 of the planning scheme for the removal, lopping or destruction of native vegetation and under clause 52.02 to remove, vary or create an easement.  The latter relates to drainage, which is relatively uncontroversial in this application, though a matter raised by some respondents to the application for review.  
27	Drainage is not a matter we consider to be determinative of this application and except for some observations made later in these reasons, we do not intend to respond to those matters in detail in these reasons.
28	We also do not intend to set out all the purposes of the controlling provisions or their respective decision guidelines.  These were variously referred to during the proceedings and comprehensively covered in the planning evidence.  For present purposes we summarise the key points and matters raised in response to these provisions of the planning scheme.
Zoning
29	The purposes of the LDRZ are:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.
30	As we will come to, these purposes and the intended outcomes of the LDRZ being applied to the subject land have been hotly contested in this application.  
31	The decision guidelines of the LDRZ call for a consideration of clause 65, the Municipal Planning Strategy (MPS) and the Planning Policy Framework (PPF).  Other guidelines fall within the confines of a subdivision application, which we agree with the applicant, is not a permission that is sought or before us.  
32	For present purposes, under clause 65, a number of matters are on point in this proceeding.  These we summarise as follows:
•	The purposes of the zone and overlays along with any matter required to be considered under these controlling provisions.
•	Orderly planning of the area. 
•	The effect on the environment and amenity of the area. 
•	Consideration of the extent, character, destruction of native vegetation, along with opportunities for protection, planting or regeneration. 
•	The degree of flood and fire hazards and management of the land to minimise those hazards.
Overlays
33	The head clause of the DDO establishes that a purpose of this overlay is to identify areas which: 
…are affected by specific requirements relating to the design and built form of new development.  
[Our emphasis]
34	Schedule 7 to the DDO is titled ‘Low Density – Environmental’.  Clause 42.02-1 of the DDO states that:
A schedule to this overlay must contain a statement of the design objectives to be achieved for the area affected by the schedule.  
35	The design objectives for schedule 7, i.e., the specified design and built form requirements for the subject land, include the following matters that we find to be relevant to this application:  
•	To ensure that the design of low density subdivision and housing is responsive to the environment, landform, site conditions and character of areas. These are areas, generally on the periphery of townships, where more intensive settlement would adversely affect environmental features including streamlines, wetlands and bushland habitat areas or where other land use factors, including proximity to extractive industry sites, require a limited population density.
•	To prevent the overdevelopment of sensitive areas resulting in environmental and landscape degradation.
•	To ensure that development densities are compatible with the environmental and infrastructure capacities of the area, including the capacity of local streets, drainage systems and sewerage systems. Where reticulated sewerage is not available, particular consideration must be given to the ability to contain all waste water onsite and the impact of development on ground water conditions. Particular attention must be given to the impact of development on streamlines, water ways and wetlands and to avoiding the development of land susceptible to stream erosion or flooding.
•	To recognise areas where substantial vegetation cover is a dominant environmental and landscape feature, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space.
•	To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared view lines where reasonable and practical.
[Our emphasis added]
36	We consider the question of the acceptability of the design response to these objectives is significant in our assessment of the proposal.  
37	Along with these objectives, the decision guidelines of DDO7 direct attention to the additional matters of whether the design of development has had ‘adequate regard to fire risk and includes appropriate fire protection measures’.  
38	The DDO7 also sets out general and mandatory requirements.  
39	The mandatory requirements pertain to the connection of dwellings to reticulated sewerage and drainage.  The proposal includes reticulated sewerage and drainage, along with a realignment of the open reach of the Olivers Creek drain.  These requirements were not ventilated as an issue in the hearing, notwithstanding some grounds from respondents raised concerns about drainage.  In any event, we are satisfied that these are matters that are not determinative of our decision.  
40	In respect to the general requirements, we first observe that DDO7 sets out under the heading of ‘permit required’:
An application to construct a building or construct or carry out works should meet the General requirements of this schedule except where it has been demonstrated to the satisfaction of the responsible authority, that compliance is unreasonable or unnecessary and no loss of amenity will result.
41	We understand from the above that general requirements are not mandatory, allowing the Responsible Authority (and now the Tribunal) to exercise qualified discretion in the application of these requirements.  The qualification is that any such exercise of discretion does not result in the loss of amenity.  Again, we are satisfied this interpretation was not in contention between the parties.  
42	A question that arises from the manner of this wording however, is whose amenity is the responsible authority required to consider?  Given the nature of the general requirements, we consider that this will depend on which of the general requirements is not being met.
VPO1
43	Relevant purposes under the VPO include the following:
•	To protect areas of significant vegetation.
•	To ensure that development minimises loss of vegetation.
•	To preserve existing trees and other vegetation.
44	Schedule 1 (Township Vegetation) to the VPO includes the following Statement under clause 1.0 that is relevant to the proposal:
In these areas, the impression is of buildings within a landscape rather than that of landscaping around buildings. This balance between natural or introduced vegetation and built form contributes substantially to local character. Vegetation in these areas also serves important environmental functions in providing areas of habitat and habitat corridors, assisting soil stability, reducing the intensity of stormwater runoff and limiting the erosion and siltation of streamlines.
[Our emphasis added]   
45	Relevant objectives under Clause 2.0 of the Schedule include:
•	To ensure that subdivision and development proposals have proper regard to the landscape character of township areas.
•	To ensure that new development has proper regard for the established landscape, streetscape and development pattern in terms of being consistent with the existing balance between vegetation and building form in the local area and contributing to the landscape character of the area.
46	Our analysis of the proposal against the zoning and overlay purposes and objectives above, is explained later in our reasons.
The planning policy framework and Planning Scheme Amendment C279
47	Before we could finalise our decision, the planning scheme was subject to Am C279.  In summary, this amendment replaced the Municipal Strategic Statement (MSS) at Clause 21 and Local Planning Policies at Clause 22 with a MPS at clause 02 and local policies in the PPF.  Some local policy was translated into selected (local) schedules to zones, overlays, particular provisions, general provisions, and operational provisions.  We have noted these changes in our Information Section above. 
48	Am C279 did not amend the LDRZ (and its schedule) or the applicable overlays.  
49	In response to Am C279, we gave leave for parties to make additional submissions.  We confirm here that our decision is based on the amended planning scheme, a consideration of the further submissions and supplementary evidence and our analysis of these submissions and the amended planning scheme.  
50	The Council submits that Am C279 was ‘policy neutral’, updating and streamlining policy content as part of Stage 3 of the ‘Smart Planning Rules and Policy Program’ reform to Victoria’s planning system.  It is of the view that the amendment has had ‘no significant implications for this matter’.  The Council relies on a recital of various points in the Explanatory Report for the Amendment (Explanatory Report) to highlight that the intended effect of the amendments is, amongst other outcomes:
•	to relocate content to the appropriate theme-based clauses in the MPS, PPF or relevant local schedules, without changing the intended effect of the original clauses; 
•	to clarify and improve the style, format, language or grammatical form of content without changing the intended effect of the original clauses; and
•	to be ‘primarily’ administrative in nature and ‘generally’ policy neutral.  
51	As stated in the Explanatory Note with the amendment, we acknowledge the stated intention of Am C279 is ‘primarily’ administrative and generally intended to be policy neutral.  However, we also note the qualified nature of these intents in the Explanatory Report.  We should not be taken to be critical of the qualified terms used in the Explanatory Report.  We recognise that the qualifications may mean we should be aware of unintended consequences of the amendment.  Similarly, we observe that the Explanatory Report also states that the amendment is intended to:
•	remove repetitive content; 
•	remove or updates content; and
•	‘deletes or adjusts’ content that may have conflicted with State planning policy of the Victorian Planning Provisions (VPPs).
52	Thus we have found it is necessary to consider what changes have been made to content which had been relied on previously, and now may have been removed, rather than incorporated in a policy neutral manner.  
53	The Council’s submission has helpfully tabulated where policy content it referred to in its primary submission now can be found under the amended scheme.  
54	We first note that this table refers to the ‘Schedule to Clause 74.01 (Application of Zones Overlay and Provisions)’.  We wish to make it clear that we have not considered this schedule to clause 74.01.  Clause 74.01 sets out that:
The schedule to this clause must include a general explanation of the relationship between the Municipal Planning Strategy, the objectives and strategies in Clauses 10 to 19 and the controls on the use and development of land in this planning scheme.
However, it goes on to state:
A responsible authority must not take into account the schedule to this clause when it makes a decision under this planning scheme.
55	A similar requirement therefore applies to the Tribunal when exercising the jurisdiction of a responsible authority.  
56	The applicant says there are some policy implications arising from the amendment, including:
•	The Planning Scheme continues to direct development and growth to the defined townships and settlements.
•	The Planning Scheme no longer stipulates any clear policy guidance regarding maintaining a pool of rural residential or low density land but does support housing diversity in established areas within township boundaries.
•	The Planning Scheme provides no built form guidance directly relevant to the application and no guidance as to the interaction with the Tyabb Airfield.
57	We have had regard to these submissions and based our decision on the current planning scheme provisions as they apply to the site.  This includes the additional references to the translation of the local planning policy into the MPS or local provisions of the SPPF.  
58	In respect to the latter and the effect of Am C279, we agree with much that Lifestyle Developments says about the changes to the policy framework.  On a detailed review of the amendments, many repetitive and sometimes competing policy elements have been removed, including some policy provisions linked to the application of the LDRZ and DDO7.  That said we do not conclude that this leads to a diminution of the purposes or objectives of the LDRZ, DDO7 and VPO1.    
What are the key issues?
59	As we have summarised earlier, a range of grounds have been pursued by the parties in opposition or support of the proposed residential village.  This includes the compatibility of residential village with the nearby Tyabb Airfield as pursued by PAC and other users or operators at the airfield.  Other non-party respondents have raised concerns about drainage and increased traffic along Stuart Road and congestion at the intersection with Tyabb Road.  More particularly, the applicant has directed our attention to planning provisions about affordable housing and housing diversity to meet demographic demands and led evidence to support its position that its proposal would achieve positive policy outcomes in respect to these matters.  
60	We have considered all these matters or grounds, but none dissuade us from the view that the primary and threshold issue in this proceeding centres on the acceptability of the proposed development’s design response with the purposes of the LDRZ, combined with the objectives of DDO7 and the objectives of the VPO1. This design response includes the built form response, the intensity of the built form across the landscape/site area and the vegetated landscape character response, as viewed within and from outside the subject land.  
61	In approaching our task of assessing this proposal, we accept that there are clear and unambiguous policy outcomes to provide for housing choice and variety to support an aging population and a range of evolving demographic needs.  We also accept that economic drivers are relevant and a necessary element of commercial viability in providing for housing choice.  Yield or numbers of dwellings would be a determinator of whether a residential village would be viable and serve its purpose of lower cost/affordable housing.  The applicant led detailed evidence and demographic analysis from Mr Ganly in this regard.  In considering this evidence however, our focus must necessarily be on demand and need as relevant planning factors.  
62	We accept much of Mr Ganly’s evidence as it relates to the Mornington Peninsula Shire on these matters.  We accept that his evidence demonstrates there is demand within a relevant catchment around Tyabb for affordable housing that meets the needs of an aging population.  While a residential village is being proposed, Mr Ganley’s evidence, the various commentary in Ms Jordan’s evidence and Lifestyle Villages submissions, demonstrates that this proposal would largely be aimed toward supporting older persons seeking housing under a range of financial circumstances.    
63	While we have given weight to such outcomes, there remains a fundamental aspect of this proposal that cannot be set aside.  This is that the proposed residential village would be located on land subject to the LDRZ.  The purpose of the zone is for low density outcomes, including for a residential development.  Under this zone, it is therefore incumbent on us to assess whether the proposal achieves an acceptable land use and development as measured against this purpose.  For reasons that we will explain, what has been determinative here is the form of the development rather than the use.  
64	In addition to the application of the LDRZ to this land, development (and not the use) is subject to the controlling provisions of the DDO7 and VPO1.  These are development and vegetation/landscape controls, whose purposes we discuss later.  
65	So, while there is no disputing that a residential village is a permissible use under the LDRZ and that land use cannot be at issue under the DDO7 or VPO1, it is our view, the acceptability of the application before us turns on a threshold issue of whether the form and character of the development, including its physical layout, presentation of built form to the public and private realms, landscape character and overall intensity of development, responds appropriately to the combined application of the LDRZ, DDO7 and VPO1.  
analysis of the design response
The purpose of the LDRZ
66	The outcome sought under the LDRZ was hotly contested in this proceeding.  
67	As we noted above, and unlike other residential zones in the planning scheme, the LDRZ has but two purposes.  These are stated in clause 32.03:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework; and
•	To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.
68	We acknowledge supplementary submissions from the applicant, that some former local policy provisions linked with low density development expectations in the LRDZ have been removed from the planning policy framework.  However that does not diminish intent of the expressed words in the second purpose that this is a zone to provide for ‘low density residential development’.  It is a clear and unambiguous expression of the purpose of the zone.  As per the Practitioners Guide to Victorian Planning Provisions:
Zones are the primary tool for guiding the fair and orderly use and development of land.
69	That we give substantive weight to such an outcome under this zone is perhaps most readily demonstrated by the fact that the LDRZ is the only residential zone in the scheme that seeks to limit the form of residential use in this way.  Such an outcome is further reinforced by clauses 32.03-1 and 32.03-2, wherein no more than two dwellings on a lot are permissible.  
70	Similarly, residential aged care facilities and rooming houses, which are conditionally section 1 uses under other residential zones are section 2 permit required uses under a LDRZ.  No other residential zone seeks to limits residential uses in this way.  
71	We are mindful that under the LDRZ, other accommodation uses are not limited by any reference to ‘accommodation unit’ numbers or scale, but we return to the fact that the expressed purpose of the LDRZ is for low-density residential development.  Thus while other forms of accommodation or residential development are permitted, albeit as section 2 uses, weight must be given to this clear expression otherwise it would be no different to other residential zones.  That this zone may result in different residential outcomes compared to other zones is in our view consistent with the structure of the planning scheme provisions and the different zones available to a planning authority to apply such zones to achieve planning policy outcomes as expressed in the scheme.  
72	We observe that the expressed purpose of the LDRZ is not unusual when compared to the other residential zones.  When stripped of design or character purposes, these other residential zones under this scheme are directed to:
•	Providing for a range of residential, commercial, industrial and other uses in the Mixed Use Zone, including higher density housing and facilitating development and redevelopment of same.
•	Allowing ‘educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations’ in the General and Neighbourhood Residential Zones.
•	Encouraging diversity of housing types and housing growth in the General Residential Zone. 
•	To recognise areas of predominantly single or double storey development in the Neighbourhood Residential Zone.
73	Each zone is thus a tool that has been used by the Mornington Peninsula Council, acting as the planning authority, to strategically support various residential outcomes, as well as the provision of complementary non-residential land uses.  
74	When viewed under this wider strategic planning prism, we think the position of the Council, the respondents, and the evidence of Mr Barnes about the application of the LDRZ to this land has traction.  In applying such a zone to the land, it is incumbent on the responsible authority to consider that while policy exists to support diversification of housing types, the application of the LDRZ to this land should be taken to be an expression of intent by the planning authority to designate that this land will provide for lower density development as part of the wider scheme of providing for a mix of housing type and choice.  To do otherwise would call into serious question the role of the zone in controlling residential development density, undermine strategic land use decision making by the planning authority and potentially render the application of such a zone to land to be meaningless.
75	Such reasoning must not be taken to mean that a residential village could never be considered on such land.  Clearly the LDRZ provides for such a use to occur, subject to the grant of a permit.  However, because a permit can be granted doesn’t mean one will.  The acceptability of the land use rests with how it responds to the purpose of the zone, which in this case is whether the proposed use will provide a (residential development) response that is low-density.  
76	We consider that references made by Mr Barnes in his evidence to Planning Practice Note 91 (PN91) supports this interpretative approach.  As his evidence stated, PN91 provides guidance on the appropriate application of residential zones to land, identify that:
A choice about which residential zone to apply will always need to be made. This choice must be based on the strategic outcomes being sought by the MPS and PPF.
The ‘test’ is whether the residential zone implements the relevant strategic framework plan or residential development framework plan identified in the MPS.
The right residential zone will reflect the true development capacity of the land. If land is impacted by special attributes or physical constraints that are identified in the MPS and PPF, then a residential zone should be applied that aligns with these attributes or constraints.
[Our emphasis]
77	To a great degree the policy debate that surrounded the evidence of Mr Barnes and Ms Jordan has sought to take us behind the reasons why the planning authority applied the LDRZ to the subject land.  We resist this approach.  We must take the zone as it is and apply its purposes, which for the reasons we have articulated above, are clear in the intent of providing for land for low-density residential development.  
78	Further we do not discount the policy drivers for diversified and affordable housing.  However, such policy must be read in the context of the purposes of the zone.  In the case of Lendlease Primelife Limited v Greater Dandenong CC referred to in Lifestyle Developments’ submissions, consideration of such policy was given in the context of a site subject to the GRZ, where it was noted that there is an express purpose for housing diversity and increased housing density in existing urban area.  No such express purpose applies here.
79	In addressing the question whether the proposal is an acceptable land use and development within the LDRZ, the applicant submitted that:
A residential village is an alternative form of accommodation that is a permissible land use within the LDRZ, provided it meets the requirements of the zone. As the proposal will be connected to reticulated sewerage and does not require additional subdivision the proposed development is permissible within the zone.
It is important to acknowledge that some permissible land uses within the zone necessarily occupy a larger footprint with a greater site coverage and intensity of development than single dwellings on 0.2ha lots. Other examples include residential aged care, student accommodation, retirement villages, social housing, community care accommodation, motels, conference centres and other accommodation uses which do not involve subdivision to facilitate the sale of individual dwellings.
80	We agree with such submissions in so far as they address the notion of a ‘land use’.  As we have set out above, it is clear that those who have drafted the scheme have contemplated a range of land uses that may occur in this residential zone, just as they can in other residential zones.  
81	We also accept that subdivision provisions are not before us as no permission is being sought for such a development outcome.  Nevertheless, in understanding what is the intent or the meaning of ‘low density residential development’ we think it is informative to observe that under the LDRZ (at least at this location) the maximum number of dwellings under the minimum subdivision lot size would be 2 dwellings per 0.2ha, or around 100 dwellings. To us however such a quantitative analysis is not necessary or needs to be relied on.  
82	The clear purpose of the zone is expressed within clause 32.03 and can be broken down into its functional operation as follows:
•	To provide for low-density residential development on lots.
•	If those lots cannot be serviced by reticulated sewerage, the lots must be capable of treating and retaining all wastewater arising from the residential development.  To achieve such a capacity may mean that the lot sizes may need to be larger than the permissible minimum or otherwise be limited to only one dwelling rather than two.
83	The applicant submits that this purpose should not be read this way. Lifestyle Developments says the purpose must be read as a whole. 
84	Ms Jordan’s evidence is that:
It is not … a zone that directs, as part of its purpose, that residential development should display a particular scale or setting nor is there an enshrined approach to landscape management. In essence it is a zone that seeks to limit density in order to address the limitations on essential services that may be available within the area.  
85	We do not accept these submissions or the evidence.  
86	We find that the purpose reads as one that is conditional.  That condition relates to servicing for wastewater disposal.  If the lots can be serviced by reticulated sewerage the purpose distils to the provision of low density residential development on lots.  It doesn’t mean that the low density outcome being sought under the purpose is set aside.  Indeed, when read as such, it weighs favourably toward the applicant’s case, in that the provision of sewerage likely means more residential development can be contemplated as opposed to land where onsite wastewater treatment and retention is required and is likely to limit the intensity of development.  
87	However, such a casting of the purpose does not detract us from the fact that as land zoned LDRZ, one of its principal purposes is for low-density residential development.  The purpose seeks to limit the density of residential development.  It must be low density, i.e. less than that contemplated under other residential zone.  To be otherwise would mean the LDRZ has no distinct separate purpose from other residential zones. 
88	Further, we note that this purpose is not for a low density of dwellings.  In our view that would be a further restriction that is not intended.  Clearly what is contemplated is ‘residential development’ which can take many forms, including a residential village. The purpose reflects the broad swathe of section 1 and 2 uses.  We therefore do not dispute that a residential village use cannot be contemplated here.  However, such a use must respond to the expressed purpose of being low-density as a development outcome.  
89	Lifestyle Developments submits that:
It is important to acknowledge that some permissible land uses within the [LDRZ] necessarily occupy a larger footprint with a greater site coverage and intensity of development than single dwellings on 0.2ha lots. Other examples include residential aged care, student accommodation, retirement villages, social housing, community care accommodation, motels, conference centres and other accommodation uses which do not involve subdivision to facilitate the sale of individual dwellings.
90	We do not dispute that larger footprints may be expected for such land uses.  However, we find that in the context of the planning controls that apply to this site, a focus still remains on the purpose and character outcomes being sought.  This is acknowledged by Lifestyle Developments when it stated:
… it is of particular importance that the proposal facilitates a transition between the typical character associated with [the conventional residential development to the north and GWZ land to the south], and respects and maintains the landscape character currently evident on the Site,…
91	What is in dispute therefore is the physical form and presentation of the use, i.e. its intensity as expressed through its built form and how this reads in the landscape.  The purpose of the LDRZ leads us to conclude that the building form should respond to or acknowledge the low-density outcomes sought under the zone and respond acceptably to this purpose.  We consider the combined application of the DDO7, together with (but to a lesser degree) the application of the VPO1, reinforce such an outcome.
The design response to the LDRZ and Overlays
92	Apart from a reference to the decision guidelines of clause 65 and the (now) SPS and related planning policy framework the decision guidelines of the LDRZ provide limited guidance about development outcomes in this application.  
93	Relevantly, clause 65 directs attention to the purposes of the LDRZ.  We rely on our reasons above to adopt the position that a low-density residential development outcome is sought under these purposes.  
94	We agree with Lifestyle Developments that most of the decision guidelines are directed to subdivision of land which is not before us.  
95	Other relevant matters under clause 65 invite us to consider a broader view that incorporates the overlays and other provisions of the scheme, orderly planning, the effects on the environment, human health and amenity of the area, stormwater quality impacts, impacts on native vegetation and flood and fire hazards.   
96	The proposal has been supported by the preparation of assessments about native vegetation and biodiversity impacts, stormwater and drainage, and aquatic ecological impacts.  We are satisfied that the assessment of these matters and the associated design response have not identified or resulted in outcomes that would give us reason to refuse planning permission. 
97	We are also satisfied that the bushfire hazard has now been satisfactorily addressed.  Our reasons for reaching this conclusion are set out later.  
98	We also recognise that the issues raised by the respondents associated with the Tyabb airfield raise what is in effect a reverse amenity issue.  The substance of their collective grounds is that their various aircraft operations and related activities may be stifled or reduced as a response to an increase in and exposure of more residents to noise.  We will address these grounds later in our reasons.  
99	What follows from the above is that the threshold issue of the design response to the site’s planning setting focusses our attention on the combined development outcomes sought under the LDRZ, DDO7 and VPO1.  
100	The design objectives of DDO7 include, amongst other outcomes, ensuring the design of low density housing is responsive to the environment, landform, site conditions and character of the area.  This objective goes on to describe that:
These are areas [subject to DDO7], generally on the periphery of townships, where more intensive settlement would adversely affect environmental features including streamlines, wetlands and bushland habitat areas or where other land use factors, including proximity to extractive industry sites, require a limited population density.
101	We have noted previously that during the hearing there was debate about whether the scheme or underpinning strategies adopted by the Council supported the proposition that the DDO7 was applied to peripheral township locations to moderate development intensities.  We find the answer lies in the terms of the ‘explanatory objective’ we have cited above.  It establishes that the DDO7 is applied to areas that ‘generally’ lie on the periphery of towns and where environmental features would be adversely affected by more intensive settlement.  This of course raises the question of what is meant by the comparative reference ‘more intensive settlement’.  We think that the answer to that question is answered by the fact that the land is subject to the LDRZ rather than another residential zone on the periphery of Tyabb.  Therefore, we conclude what is sought is to be less intensive settlement than would be found in other residential zoned areas of the town.  
102	Other design objectives in the DDO7 similarly seek to limit development densities in response to environmental, landscape or infrastructure features or constraints, for example objectives to:
…prevent the overdevelopment of sensitive areas resulting in environmental and landscape degradation.
…ensure that development densities are compatible with the environmental and infrastructure capacities of the area, including the capacity of local streets, drainage systems and sewerage systems.  
103	As we have noted above, in respect to infrastructure, drainage and biodiversity impacts, we do not consider or find that this land is constrained by such features.  Accordingly, some wider breadth can be given to how intensely developed the land could be as compared to land subject to such constraints.  
104	Given our position that there are no unacceptable environmental, drainage, infrastructure or biodiversity impacts, and but for the issues of the proximity of the land to the Tyabb airfield, the remaining objectives of relevance focus on landscape and character impacts.  
105	The above DDO7 objectives refer to these landscape and character elements as does the following specific objective:
To recognise areas where substantial vegetation cover is a dominant environmental and landscape feature, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space.
[Our emphasis]
106	We note the wording of this objective.  The DDO7 seeks to recognise areas where substantial vegetation cover is a dominant landscape feature by ensuring site areas are large enough to accommodate buildings and the desired landscape response.  This raises the question that if an area does not contain dominant substantial vegetation cover, is the same design response required?  
107	We believe this question is addressed through the further DDO7 objective below:
To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared view lines where reasonable and practical.
108	When these two objectives are read together, along with the other landscape objectives, it can be seen that before assessing the design response, it is first necessary to establish:
•	What is the established streetscape and development pattern in the terms set out in the objective?
•	Is this an area where substantial vegetation cover is a dominant environmental or landscape feature? 
•	What is the landscape like and will the form of the proposed development degrade the landscape?
109	Without citing all the detail, the decision guidelines of DDO7 set out matters that reflect the above objective-based questions. Our assessment of this proposal has therefor been guided by these objectives and the associated decision guidelines. 
110	We turn next to the VPO1.  
111	The purposes of the VPO at head clause 43.02 include, amongst others:
To protect areas of significant vegetation.
To ensure that development minimises loss of vegetation.
To preserve existing trees and other vegetation.
To recognise vegetation protection areas as locations of special significance, natural beauty, interest and importance.
To maintain and enhance habitat and habitat corridors for indigenous fauna.
To encourage the regeneration of native vegetation.
112	The application of the VPO to the subject land is thus taken to signal that the area may contain important vegetation conditions which should be taken into account in a development proposal so that these purposes are achieved or responded to in an acceptable manner.  While we recognise that the VPO relates only to permissions to remove vegetation and not the construction of the buildings, it nevertheless adds to the discourse about the impact on landscape character and hence the acceptability of the development.  
113	Schedule 1 to the VPO1 sets out the following statements about why the vegetation on this land is flagged as significant and worthy of such purposes.  It states that amongst other matters:
•	The vegetation in this area forms a substantial cover that is the dominant visual and environmental feature rather than built form.
•	The vegetation supports a landscape character outcome where the impression is one of buildings within a landscape rather than landscape around buildings.
•	Vegetation serves important environmental functions such as habitat, stabilising soil and contributing to stormwater quality outcomes. 
114	Again, it is appropriate to note at this point that the maintenance of vegetation’s environmental functions sought under this overlay are not in issue.  It the first two matters that are our focus.  
115	The statement of the nature and significance of the vegetation therefore indicates to us that vegetation is of a height, distribution and density that buildings are framed by and sit within the vegetation rather than being dominate over vegetation.  There is therefore a strong element of how the built form integrates into the landscape enlivened by this objective of the overlay.  
116	What is in issue under the VPO1 therefore is the design response and impact on the character elements, primarily one of how built form will be perceived within the vegetated character of the landscape.  Thus similar to our analysis of the DDO7, the relevant objectives to be achieved under the VPO1 give us cause to consider:
•	Whether the present vegetation cover is the dominant visual and environmental feature of the subject land as suggested by the statement of significance.
•	Whether the proposal has had proper regard to and responded acceptably to the landscape character of this part of Tyabb.
•	Whether the proposal has had proper regard to and responded acceptably to ‘the established landscape, streetscape and development pattern in terms of being consistent with the existing balance between vegetation and building form in the local area and contributing to the landscape character of the area’.
•	Whether the proposed landscape plan’s replanting provides for ‘the long term maintenance of landscape and environmental values within’ Tyabb.
117	To these objectives we add the relevant decision guidelines that directs attention to: 
•	The extent to which removal of vegetation – or in this instance its management in the landscape – is necessary to achieve proper fire management as may be guided by a relevant fire prevention authority.
•	The benefit of conditions requiring planting, replanting and other treatment of the land, having regard to the relationship between buildings and the landscape.
118	What we say follows from the various design response threads referred to above, amount to the following outcomes being sought by the scheme:
•	A density of building form across the subject land that is responsive to the site conditions and character of the area.
•	A response that maintains areas where substantial vegetation cover is a dominant environmental and landscape feature.
•	More widely, a response to the vegetative and landscape character of the land falling within the DDO7 and VPO1, through the mix and presentation of vegetation and built form that maintains the identified character of the area.
119	It can be seen from this analysis of the controlling provisions of the scheme that apply to the site, the substantive issues distil to how the built form and landscape elements respond to the overlay purposes and overall purpose of the LDRZ.  
120	It is these elements that we now address.  
Assessment of the built form and landscape response.  
121	Our starting point is to consider the existing landscape character of the subject land.  As can be discerned from various material tabled in the hearing and aided by our site inspection, we find that the subject land’s character is made up of a number of elements as was aptly described in Mr Patrick’s landscape evidence.  
122	Along Stuart Road, the landscape is dominated by roadside and boundary vegetation that screens much of the public realm views across the land until the land at No 51.  As such there is limited views of existing built form on the land until No 51 is reached.  At No 51 the vegetation is thinner (or absent) and there is clear view of the buildings at this location.  Albeit the buildings are deeply set back and remain framed by surrounding vegetation.  
123	Railway Road has a more open character allowing views into and across the review site.  Built form occupying the subject land and the northern LDRZ lot are more visible elements in this vista.  The overall character is one of open aspects that encompass a mix of tree shelter belts along boundaries, scattered thickets, scattered trees and open paddocks.  Buildings are generally dispersed and sit within this setting.  
124	Along the southern boundary of the subject land are views into the adjoining Green Wedge Zone (GWZ) land.  Here, views are gained through interspersed plantings of tree belts and occasional thicker groupings of trees.  There is limited built form and vegetation is the dominant element in the landscape. 
125	The land to the south has a similar landscape character to the subject land.  There is in fact little to distinguish the character between the LDRZ and GWZ land. 
126	Internally, the character is one of open pastured paddocks with a mix of dispersed trees, shelter belts or boundary trees and thickets of volunteer native trees and shrubs.  
127	Other than at No 67 Stuart Road, buildings are not enveloped by vegetation.  Rather we find the overall character is one of dispersed building forms framed by vegetation around and above it.  The departure from this general character is found at the dwelling and outbuildings at No 67 Stuart Street.  Here the buildings are secondary to thick surrounds of middle and upper story tree canopies that is dominant from most perspectives.
128	As noted in Mr Patrick’s evidence, the site is ‘remarkably level’ and as such there are no vantage points within the site that afford elevated or notable views that require particular reference. 
129	Lifestyle Developments submits that the proposed development responds ‘exceedingly well’ to this landscape character and setting because:
•	the height of the buildings proposed will ensure they sit within the tree canopy and will not be a dominant feature in the landscape;
•	the proposal is not an overdevelopment of a sensitive area such that it results in environmental or landscape degradation;
•	The site area is of sufficient size such that the proposal can provide substantial new areas for new trees, additional landscaping and green open space; and
•	The proposal has proper regard to the established streetscape and development patterns in terms of height, scale and siting.
130	We agree that the building scale is acceptable in terms of its height.  We also accept that there has been provision made for new areas of tree plantings and other soft landscape elements.  However, we find that the built form and landscape design response focusses too heavily on the landscape character elements around the boundary or perimeter of the site, while consolidating and inserting a high degree of built form within it.  
131	We have been urged by the applicant to not take a bird’s eye view of the development but rather what it will look like from the ground.  We accept that this is appropriate: to consider how the buildings and landscape will look to the eye of those passing by the site.  But as a development within a large area of a LDRZ and subject to the two overlays, it is equally relevant to consider how the development will be perceived internally.  
132	In adopting such perspectives, we accept that the boundary plantings along the southern and western boundaries will reflect the present character and go some way to enveloping the development in vegetation when viewed from outside the property, i.e. from the public realm.  It is our expectation that the depth and mix of planted vegetation, along with retained vegetation will help filter views of the built form from the southern and western boundaries as per the evidence of Mr Patrick.  As such, we are satisfied the vegetation would be the dominant element in these vistas consistent with outcomes sought by the two overlays.
133	Mr Patrick’s evidence is that the landscape design has also responded to DDO7 by providing for revegetation throughout the site.  We find such a characterisation to be over generous when it comes to the internal landscaping being proposed.  
134	We say this, noting that what is proposed is several small pocket parks and ornamental front gardens with street trees that would provide scattered canopies over building forms.  This level of internal planting within the dwelling parcels and streetscapes will do little to help filter or screen internal views of the dwellings or clubhouse building.  We accept that the nominated tree species may grow to a canopy height and breadth to extend over these buildings much as the present-day vegetation does for some of the existing building forms.  However, what is lacking is a mix of building and vegetation settings that is respectful of the present internal landscape character that we have described earlier.  This is due in no small part to the tighter layout of the dwellings.   
135	Mr Patrick describes the grouping of dwellings as clusters.  Ms Jordan considers the layout to be a responsive balance.  We disagree.  The layout presents as three precincts but there is little open space or vegetation between them to break up the massing of built form in the landscape.  Further, even within each precinct, we find there is little space or openness to be found between the dwellings or even groups of dwellings.  
136	As we have set out earlier, the housing parcels would typically provide each dwelling with a 3.5 metre front setback in which to provide an ornamental like garden.  Secluded private open space areas vary, but most dwellings would have an area of around 30sqm where one canopy tree is proposed. Side and rear setbacks would range between 1 metre to 3.5 metres.  We find the layout of dwellings reflects the nearby more suburban forms found in other residential zones of Tyabb.  
137	We are not persuaded by submissions from Lifestyle Development that as the proposal does not seek to subdivide land and the proposal is a permit required use under the LDRZ, one should have different expectations on the low density residential development focus specified in the LDRZ and supported by the DDO7.  As we have set out above, we conclude that the permissible use must still respond to the purpose for low density residential outcomes under which this proposal falls.  That is not to say that the density must fall into line with subdivision expectations on a numerical basis.  A design response must however reflect and respond to this low density purpose and the outcomes sought under the DDO7 and VPO1 that reinforce a low density development outcome.  
would there be an unacceptable land use conflict between the residential village and Tyabb airfield?
138	The case against the proposal by PAC and the other airfield operators resists undue intensification of the residential use on the subject land due to the potential land use conflicts they say can arise from the present and future operations of the Tyabb airfield.  It also follows from our reasons for not permitting this application, that some form of residential village development may be acceptable and hence there remains potential for an increase in residential use of the subject land.  
139	Further, we note that the first of the DDO7 design objectives to ensure a low density design of housing is response to, amongst other matters, the fact that the overlay applies to land where:
…other land use factors, including proximity to extractive industry sites, require a limited population density.
140	Accordingly, we consider it appropriate to set out our findings in respect to the land use conflict issues as raised by PAC and the other airfield operators.  
141	The above reference to ‘land use factors’ in the objective led to a contest between the PAC and Lifestyle Developments about whether the proximity of the Tyabb airfield was a reason, or part of the reason, for the application of DDO7 to the subject land.  
142	As a starting point, we acknowledge the submissions made about the history of the Tyabb airfield.  While we do so with an understanding that its development and use has not been without controversy, such controversies are not for us to resolve in this proceeding.  We take the presence of the airfield, its operations and those of others associated with the airfield as conditions that set a context for the proposed land use on the subject land.  
143	Submissions have been made and planning evidence given about the level of recognition and protection that may be afforded to the airfield under the scheme.  We agree with the evidence that there is no explicit policy position about the Tyabb Airfield.  However, we do not find that this leaves PAC’s and the other airfield operators’ case with no planning policy support.  
144	Clause 18.04-1S requires planning and responsible authorities to:
To strengthen the role of Victoria’s airports and airfields within the state's economic and transport infrastructure, facilitate their siting and expansion and protect their ongoing operation.  
145	Under this policy, consideration is to be given to National Airports Safeguarding Framework [(as agreed by Commonwealth, State and Territory Ministers at the meeting of the Standing Council on Transport and Infrastructure on 18 May 2012) - herein referred to as the NASF.  The application of the NASF was the subject of evidence in this proceeding and we return to its application in this matter shortly.  
146	The strategic directions set out in the scheme acknowledges the presence of the Tyabb airfield viz:
The Tyabb airfield has been in operation for many years providing recreational flying.
147	We read such a reference in the context of an outline of the wider transport networks and systems to be an acknowledgement of its presence.  We note however, as identified by Lifestyle Developments, there is no expressed strategic support under the Council’s strategic directions for Transport nor is it identified on the strategic framework plan.
148	We also note some debate about the status or characterisation as an airfield as opposed to a landing ground per its description in the planning permit under which the PAC operates.  Similarly, there was some debate about the application of the NASF, given its reference to ‘airports’.  The term ‘airport’ is a defined land use under the scheme.  The terms ‘airfield’ and ‘landing ground’ are not and we have applied their common meanings. 
149	While not necessarily having the benefit of express strategic support under the SPS, Tyabb airfield nevertheless benefits from wider policy to protect what is clearly an established airfield and regard should be had to the NASF.  To be clear on this latter point about the application of the NASF, while it too refers to ‘airports’ and ‘airfields’, we note that in the principles of the NASF and throughout the document it also refers to ‘large airports’, ‘small airports’, ‘general aviation airports’ and ‘aviation activity’.  We have considered the acoustic evidence having these various terms in mind and their applicability to the Tyabb situation, as an airfield that operates general aviation services and supports a range of related aviation activities.  
150	Finally, in returning to the above objective of DDO7 we observe that it reflects policy at clause 13.07-1S to protect community amenity while facilitating appropriate commercial or other uses with potential off-site amenity impacts.  In this instance DDO7 seeks a development proposal to respond to such an existing use, reflecting its application to land on the periphery of town where such uses are likely to be encountered.  
151	We note that the reference to ‘other land use factors’ is not an exclusive reference only to the proximity of an extractive industry site.  We understand the refence to be an example of a land use where land use conflicts may arise if more than a ‘limited population’ exists in the area.  We take reference to a ‘limited population’ to mean a population consistent with low density residential development of the land.    
152	When read in conjunction with policy at clauses 18.04-1S and 13.07-1S, we consider the proximity of the Tyabb airfield to be a land use where potential for conflicts could arise, principally by way of noise, and therefore a relevant matter to consider under the objectives of DDO7.  
153	The PAC and other airfield related respondents say that the assessment of noise impacts that accompanied the permit application has failed to account for potential amenity impacts arising from the airfield’s operations.  Most notably, it says, the outdoor or external amenity of future residents in the residential village.  It is their concern that complaints of noise from the residents could lead to limits being placed on the airfield’s operations.  The nature of the operations that are said to be sources of noise include ground-based activities as well as airborne aircraft movements.  
154	PAC submissions have outlined a history of the airfield’s development and difficulties it says have arisen due to residential development being allowed near the airfield, as well as from complaints from residents from further afield.  Its operations include ‘fly neighbourly’ operations which include applying specific circuit flying patterns to minimise noise emissions on residential areas.  Notwithstanding these practices it is submitted that operations nevertheless can be a source of noise that may affect future residents of this proposal. These include:
•	Aircraft during the take phase of operations from the north-south runway;
•	Overflight of the airfield before descending to circuit height;
•	Certain sectors of the circuit pattern that aircraft fly, which is to the east side of Tyabb, that means aircraft pass around the subject land.  
•	Ground based operation of aircraft engines at high power for maintenance purposes and as part of procedures for pre-flight checks.
155	We accept Mr Brown’s assessment about the limited, if any, impact ground-based noises may have from maintenance activities.  We say this as the areas of such activity are generally located in front of hangers or maintenance ground run-ups would occur at the engine run-up bay located near the designated PAC clubhouse run-up apron area.  These are areas shielded from direct transmission of noise to the subject land by a number of intervening buildings.  
156	We therefore do not consider these sources of ground operation noises further.
157	Having considered the evidence and submissions about aircraft operations, the relevant source of noise amenity impacts appear to us arise from aircraft operations in the air, principally from aircraft departing the airfield, when engines are operated at high or full power, as well as from aircraft in the circuit pattern around Tyabb.  Approach and landing, generally being at lower power settings, are in our view, of lesser impact, adequately dealt with by focussing on the circuit patter impacts.  
158	Figure 2 below, taken from a package of material tendered by PAC, sets out the relationship between flight circuit patterns, the subject land, and the wider area of Tyabb.  The inner red line denotes the circuit for general light aircraft of the type typically operating into and out of Tyabb.  The outer line denotes the circuit pattern for heavier/faster aircraft some of which do operate (under certain limitations) from Tyabb airfield.  

Figure 2 – Circuit pattern for Tyabb Airfield
159	Aircraft entering or departing these circuits are understood to sometimes pass overhead or diagonally overhead of the subject land.  
160	Monitoring of aircraft noise operations by Mr Brown has identified that peak aircraft noise levels range between 41dB to 72dB.  He notes that of the 149 aircraft noise events he monitored, only one was above 70dB.  The logarithmic average was 61dB.  These events were monitored at No 59 Stuart Road.  While PAC’s cross examination of Mr Brown sort to cast doubt on the appropriateness of this location, we accept that the monitoring when considered in conjunction with that conducted from the attended site monitoring at No 51 Stuart Road, is an acceptable indicator of noise levels that might be perceived due to aircraft movement events from and into the airfield and from flights in the circuit pattern. 
161	We agree however that such monitoring is not sufficient to consider the full exposure and acceptability of the land use proposed near the airport.  Policy directs attention to the NASF.  The NASF is a broad ranging document addressing noise issues from internal airport terminal operations through to general aviation airfields such as Tyabb.  One purpose of the NASF is to guide local governments on how to manage intrusion of aircraft noise.  Seven principles are advanced to safeguard ‘airports and communities from inappropriate on and off-airport developments’.  Of these ‘Principle 4’, which deals with land use planning processes, is particularly relevant.  This principle seeks to achieve an ‘appropriate balance’ between ‘social, economic and environmental needs of communities and the effective use of land on and around airports’.  Amongst other considerations, Principle 4 sets out the following guidance for established airports and adjoining noise sensitive land use zones, such as applies here:
In harmonising land use planning requirements, Governments will take into account that noise sensitive development proposed in zoning where it is currently permitted may be treated differently to such development in an area currently zoned for non-noise sensitive purposes.
162	We take from this principle that being treated differently, may mean not the ideal outcome being achieved, but rather a balanced outcome to acceptably meet the needs of airport operations and the sensitive uses. 
163	Principle 6 of the NASF directs the application of a comprehensive suite or noise measures in strategic and statutory planning. This principle is based on a recognition of noise impacts and wide range of disturbance that occur on individuals, notwithstanding the metrics that may be used to assess such impacts.  Guideline A provides details about such measures.  
164	Here, the evidence, facts and circumstances of this application lead us to conclude that the application of NASF is further guided under Guideline A by the following factors:
•	There are no ANEF contours developed or applied formally to Tyabb.
•	The proposal is a new development for a noise sensitive use within a residential area.
•	Consideration of safety aspects and whether the development is desirable having regard to other planning outcomes being achieved, such as meeting urban consolidation targets (per Guideline III, [27]).
•	Consideration of whether the development can be undertaken to physically reduce noise impacts and a disclosure process for future residents, including the extent of disclosure as set out under Guideline A-III at paragraph 29.
•	The measures for airports without Aircraft Noise Exposure Forecast (ANEF) information.  
165	It cannot be contested that there is no approved ANEF for Tyabb airfield.  This is a matter of fact.  The measures that apply under Guideline A of the NASF for Tyabb airfield therefore comprise of the following considerations:
•	The general considerations of flight paths, the activity undertaken at the airport and number above contours (if available);
•	A zone of influence within 5 kilometres of the Tyabb airfield;
•	The approaches adopted under paragraph 17 of Guideline A, i.e.:
o	noise–sensitive development be avoided where ultimate capacity or long range noise modelling for the airport indicates either:
•	20 or more daily events greater than 70 dB(A);
•	50 or more daily events of greater than 65 dB(A); or
•	100 events or more daily events of greater than 60 dB(A).
o	likely night time movements and their impact on residents’ sleeping patterns.
166	As well as detailing his own assessment of the activity at Tyabb, Mr Brown’s evidence includes and refers to studies the Tyabb Airfield Noise Model Report (the noise modelling report) and Tyabb Airfield Noise Measurement Survey completed by another consultant on behalf of the Council.  The former includes an assessment of a possible ANEF to be adopted for the airfield as well as calculation of the number of events above noise level contours (‘N’ contours) referred to above in Guideline A.  
167	We recognise that these studies do not carry the same weight of evidence as those of the expert evidence before us.  Nonetheless, the reports generally confirm the type and extent of activities at Tyabb that Mr Brown relies on and has assessed.  The noise modelling report also allows us to compare the noise impacts monitored by Mr Brown against noise assessments for aviation activities in 2018 and as projected for the future (noting that the latter were based on flying activity determined in consultation with the PAC).  
168	In this respect the noise modelling reports provides ‘N’ contours for 70dB(A), 65dB(A) and 60dB(A) based on 2018 data of aircraft movements.  These contours generally align with Mr Brown’s noise monitoring results, when from 149 noise events, his monitoring recorded one event above 70dB(A) and a logarithmic average of 61dB(A).  
169	Projected 2038 activity in the noise modelling report was based on an assumed 1% growth in activity year on year; a condition which PAC indicates is cautious given its current level of activity is not expected to grow.  The modelling of this activity indicates all of the subject land would be subjected to 20 events or more of 60dB(A), as would most of Tyabb, and would lie between the N65 10 and 20 event contours and between the N70 20 to 5 event contours.  
170	Thus, based on reasonably indicative estimates of current and future activity, the subject land would not fall within the number of noise event adopted in the NASF (and as set out above) to be unacceptable for noise-sensitive uses.  
171	As a training airfield, it is not surprising that the noise modelling report identifies a high level of circuit flying activity.  In 2018, some 9,578 movements out of a total of 19,576 were reported as local circuits.  The remaining activity in 2018 was reported as some 4,999 arrivals and 4,999 departures.  As can be appreciated from Figure 2 above, such circuits would expose the subject land to noise as aircraft take off and fly the circuit pattern.  The following figure, taken from the noise modelling report demonstrates an indicative noise footprint for the number of events over 60dB(A) arising from such activity (based on the 2018 activity data).

Figure 3: Reproduced Figure 4 from Tyabb Airfield Noise Modelling report, 2019.

172	Key points we observe from such an analysis is that:
•	Most of the subject site lies between the N60 20 event and N60 10 events contours.  
•	A portion of the subject site lies within the N60 20 event area contour.
•	The conditions the review site is subject to is little different to other residential areas of Tyabb or indeed the wider area proximate to the circuit area.   
173	These outcomes are consistent with Mr Lindsay’s modelling of one-off departure events for runway 34 based on aircraft types based at Tyabb, i.e. there is no on-site exposure above 70dB(A) and generally the noise level, unabated across the site may range between 60 and 70dB(A).  However, we can give Mr Lindsay’s modelling little more weight than this, given one-off event modelling is not a factor relevant to the NASF approach referenced in the VPP’s.  
174	Further, as noted by Mr Brown, the N65-50 event contour is reported in the modelling report as not extending beyond the runway and the N60-100 event does not register at all (due to the average number of movements not exceeding 100).  In respect to night flight activity, Mr Brown’s evidence and the noise modelling report reports that apart from medical emergency flights, there is limited night movements at Tyabb airfield as part of its fly neighbourly practices.  
175	Taking this and other data about the noise levels, we conclude that Mr Brown’s evidence about the noise impacts is credible and appropriately cautious and addresses the key criteria under the appropriate NASF guideline.  
176	While noting that it meets the guidance, Mr Brown nonetheless recommends acoustic sealing treatments of dwellings that might be exposed to more than 30 events of 70 – 75dB(A) in line with the recommendations of the AS2021 - Acoustics – Aircraft Noise Intrusion – Building Siting and Construction (AS2021).  We think this approach is appropriate given his analysis is a one off, the N contours are based on average flight activity and the indicated propensity for higher numbers of flight activity over weekends that may mean some exposure to noise above 70dB(A).  
177	For the same reasons, we conclude that his recommendation for a disclosure process for potential future residents about the airfield and its associated noise along with an internal process for residents to complain to the site management, to be appropriate and in line with the NASF guidance.  
178	For these reasons we do not conclude that the proximity of the subject land to Tyabb airfield results in a land use conflict that would give us reason to refuse this application.  
Other issues
Environmental considerations 
179	We have stated a number of times within these reasons that we have been satisfied about environmental considerations that impact the site.  We consider these have been appropriately considered and addressed.  These include drainage, stormwater management, biodiversity and habitat impacts, water quality associated with the Oliver Creek and environs, assessing and addressing existing significant vegetation and/or adding to native vegetation planting on the site.
180	We also note these were matters that were not expressly pursued in hearing, though we note the grounds of some respondents raised them in statements of grounds.  
Traffic
181	Concerns were also raised about traffic generation, and the safety and operation of the intersection of Stuart Road with Tyabb Road.
182	Various technical expert assessments accompanied the permit application while amended plans were prepared addressing these matters.  The applicant was also prepared to accept conditions from the road authority for additional traffic control works.  We have considered these assessments, plans and conditions and been satisfied that the traffic concerns raised by some respondents had been acceptably addressed.  
Bushfire considerations
183	We have also referred to the fact that a constraint on the development of the subject land is the response to the bushfire hazard.  The subject land is located in a bushfire prone area and as such is subject to policy to protect human life above all other policy considerations.  The VPO1 also requires that management of this risk be considered in vegetation management  outcomes.
184	The CFA has attended this proceeding and set out that the bushfire hazard arises from the southerly interface with the GWZ land and fire runs from this direction.  It was satisfied that the amended landscape response had generally responded to this hazard, though some finer points about access for fire crews was raised.  
185	Given our decision and our reasons outlined above we need not address these points of contention.  We do consider it appropriate as future guidance however, to record that we are generally satisfied that the landscape design along the southern boundary responded acceptably to the CFA recommendations.  In arriving at this conclusion, we have given weight to the degree of landscape management that would occur under a residential village management regime.  We consider, as we set out above, that the necessary dispersing of canopy trees and lower storey vegetation within the defendable space was adequately accounted for without compromising the vegetated landscape outcomes sought under the scheme for this boundary interface.  
Integrated decision making
186	The respective parties referred us to various VCAT decisions that we have considered as part of our assessment and decision.  We do not intend, nor is it necessary in our view, to provide a precis of these decisions here.  
187	However, we note in Steller Lifestyle Pty Ltd v Mornington Peninsula SC, SM Bennett provided a useful discussion on net community benefit and applying the purposes of the LDRZ and design objectives of DDO7, to a retirement village proposal at 162-182 Woolleys Road, Bittern.  We accept the proposed development before SM Bennett was a different use to the proposed development before us and therefore attracted specific land use provisions under the Planning Scheme.  Nevertheless, we are satisfied our findings in this matter, are generally consistent with the planning principles expressed by SM Bennett throughout his decision, but most notably in respect to integrate decision making and net community benefit that can be drawn from paragraphs 118 to 122 of that decision.
Conclusion
188	Having considered the submissions and evidence of the parties on this matter, we find the proposed development does not achieve a satisfactory response to the low density housing outcome sought by the application of the LDRZ, DDO7 and VPO1 to the review site.  
189	Accordingly we direct that the decision of the Responsible Authority be affirmed and that no permit is granted.

Ian Potts
Senior Member	Peter Gaschk
Member