VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1453/2020
Permit Application no. PLN/2018/194	
CATCHWORDS	
Section 77 Planning and Environment Act 1987; Rural Conservation Zone; single dwelling; village location; extent of vegetation removal; vegetation offset; restructure overlay; bushfire assessment.	

APPLICANT	Xurban Pty Ltd	
responsible authority	Macedon Ranges Shire Council.	
Referral Authorities	Country Fire Authority.
Department of Environment Land, Water and Planning.
Western Water.
Southern Rural Water. 	
SUBJECT LAND	Lot 2 (LP205227U) Amara Road, 
MOUNT MACEDON VIC 3441.	
HEARING TYPE	Hearing 	
DATE OF HEARING	10 & 11 June 2021	
DATE OF ORDER	21 March 2022	
CITATION	Xurban Pty Ltd v Macedon Ranges SC [2022] VCAT 299	

Order

1	Pursuant to Section 127 and Schedule 1 clause 64(2) of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended to substitute for the permit application plans the following plans filed with the Tribunal:
Plans prepared by Caddick Design: Project 1570
Sheet 1 (28/4/2021), 
Dwelling Design Sheets 2-9 by UP DMG Visionary Ideas 171006_24ML (4/9/2019), 
Caddick Designs Sheet 10 – Vegetation Loss Diagram. (28/4/ 2021).
Caddick Designs/Miglic Macleod Project 3284 Sheet C100 Rev. P3 - Updated Road Alignment (9/4/2021). 
Survey Plans: Site Feature Survey – Made 2 Measure Land Surveying Drawing M2M 1484 Rev. A (8/2/2019) and Amara Road Feature Survey M2M 1539 Rev. A 2/8/2019.
2	In application number P1453/2020 the decision of the responsible authority is set aside.
3	In planning permit application number PLN/2018/194 a permit is granted and directed to be issued at Lot 2 (LP205227U) Amara Road, Mount Macedon in accordance with the endorsed plans and the conditions in Appendix A. The permit allows the use and development the land for a dwelling and the removal of native vegetation.

Frank Dawson
Member			

Permit Notes: Although my order does not include the ‘Notes’ suggested by the Council, such advisory information may be included in the permit that the Council is directed to issue.
Appearances
For applicant	Ms Joanne Lardner, counsel.
Ms Lardner called expert evidence from:
•	Mr Stephen Mueck, botanist of Biosis Pty. Ltd., and
•	Mr Rob Galbraith, arboriculturalist of Galbraith and Associates.
Observing:
•	Mr Mike Mullane, Xurban Pty. Ltd.
•	Ms Yvonne Caddick, town planner.
•	Mr Sam Honey, Caddick Design.	
For responsible authority	Mr Awais Sadiq, town planner.	
For referral authorities	Mr Glenn Cockram, Country Fire Authority/Fire Services Victoria.
Mr Tim Norden, Department of Environment, Land, Water and Planning. 
Western Water – no appearance.
Southern Rural Water– no appearance.	
Information
Description of proposal	Use of the land for the development of a single dwelling and removal of native vegetation. The proposed flat roofed double storey dwelling is contemporary in style. The proposed building steps down the natural slope of the land from west to east over a distance of approximately 26 metres with a fall of approximately 7 metres. The building footprint is set back 14.5 metres from the northern boundary, 31.4 metres from the southern boundary, 41.2 metres from the eastern boundary and 11.5 metres from the western boundary. 
Approximately 22 trees in Amara Road and 57 trees on the subject land (as depicted on the amended bushfire management plan) are proposed to be removed. Within the subject land, the extent of tree removal is based on a Bushfire Attack Level 40 (BAL 40) fire protection construction standard. The proposal avoids the removal of any large or medium trees.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Macedon Ranges Planning Scheme (MRPS).	
Zone and overlays	Rural Conservation Zone – Schedule 1 (RCZ1).
Significant Landscape Overlay – Schedule 1 (SLO1).
Environmental Significance Overlay – Schedule 5 (ESO5).
Bushfire Management Overlay (BMO).
Restructure Overlay – Schedule 10 (RO10).
Vegetation Protection Overlay – Schedule 9 (VPO9).	
Permit requirements	Clause 35.06-1 - A permit is required for a Section 2 Use – Dwelling.
Clause 35.06-5 - A permit is required for buildings and works associated with a Section 2 Use.
Clause 42.01-2 - A permit is required for buildings and works associated with accommodation which is not connected to reticulated sewerage.
Clause 42.01-2 - A permit is required to 
remove, destroy or lop any vegetation, including dead vegetation.
Clause 42.02-2 - A permit is required to remove, destroy or lop any native vegetation.
Clause 42.03-2 - A permit is required to construct a building or carry out works.
Clause 44.06-2 - A permit is required to construct a building or construct or carry out works associated w accommodation.
Clause 45.05-2 - A permit is required to construct or extend a dwelling or other building.
Clause 52.17-1 - A permit is required to remove, destroy or lop native vegetation, including dead native vegetation. 	
Land description	The land is a vacant site of 4,914 square metres located on the eastern side of Amara Road, 140 metres north of Cheniston Road in the Macedon township. It has a quadrilateral shape approximating a square. The natural terrain slopes downward from west to east with well established perimeter vegetation. Scattered trees are also present in the south-western half of the land. The north-eastern half contains a large cleared area.
The size of the land is similar to surrounding lots, some of which are larger and some smaller. Amara Road is an unsealed access lane that meanders from Cheniston Road north to the subject land. The road easement is well vegetated.
The land is in an area that has a rural residential character with most lots containing dwellings. 	
Tribunal inspection	The Tribunal inspected the subject land and the surrounding area.   	

Reasons

whAt is this proceeding about?
1	In July 2020, the Macedon Ranges Shire Council decided to refuse a planning application for a dwelling and vegetation removal at Lot 2, Mara Road in Macedon. The permit applicant requests the Tribunal to review the Council’s decision.
2	The application was subject to public notification to adjoining and surrounding land owners, including a notice displayed on the land, in accordance with Section 52 of the Planning and Environment Act 1987. No objections were received.
3	The application was also referred to the Department of Environment, Land, Water and Planning (DELWP), the Country Fire Authority (CFA), Western Water and Southern Rural Water authorities. 
4	Western Water and Southern Region Water offered no objection to the proposal, subject to the inclusion of permit conditions.
5	The CFA does not object to the granting of a permit, subject to the inclusion of any mandatory conditions specified in the MRPS and the endorsement of a bushfire management plan. The CFA also comments that: 
Council needs to consider an upgrade to Amara Road to allow emergency vehicle access to all properties.
6	Based on submissions provided in response to requests for further information, DELWP considered the applicant did not provide sufficient information concerning avoidance of native vegetation removal and native vegetation management and objected in its capacity as a determining referral authority. In correspondence of 3 June 2020, DELWP concludes:
The department would be happy to consider a revised application consistent with the advice provided and its request letters of 11 April 2019 and 31 March 2020.
7	Subsequent to this correspondence DELWP notes that the applicant revised the proposal to reduce the amount of native vegetation to be removed from 0.326 hectares (including three large trees) to 0.132 hectares and no large tree removal. A key element in achieving this reduction was a concurrent decision by the applicant to increase the fire protection construction standard to BAL 40, reducing the degree of native vegetation removal required to achieve defendable space around the proposed dwelling.
8	Prior to the hearing, DELWP reviewed the expert witness statements from Mr Mueck and Mr Galbraith. DELWP’s submission to the Tribunal considers these witness statements and makes a number of recommendations. I quote from the DELWP submission at some length for the reasons that DELWP is a determining referral authority and the witness statements make a significant contribution to DELWP’s decision to give support to the application:
5 Commentary on witness statements
5.1 	DELWP has now reviewed the expert witness statements prepared by the applicant for review and accepts that work compiled by Biosis is a true and accurate reflection of the impacts and this is supported by the arboricultural impact assessment provided by Axiom, when read in conjunction with the expert witness statement prepared by Galbraith.
Mueck
5.2 	Mr Mueck’s witness statement includes a response to the DELWP grounds of objection for this application; DELWP agrees with the statement made that this assessment is consistent with the design that has been modified from previous iterations.
5.3 	DELWP agrees with the commentary that the roadside impacts along Amara Road have been addressed.
Galbraith
5.4 	Mr Galbraith’s witness statement notes he has used the same methodology as previously considered, but has resulted in minor differences in the condition, size and Tree Protection Zones to the previously issued reports; DELWP agrees with this commentary.
5.5 	DELWP agrees with the recommended construction measures outlined in Mr Galbraith’s report and acknowledges that amended plans will be required for the retention of trees 110 and 124.
5.6 	DELWP has included a condition in the revised conditions … that requires construction to be in line with the recommendations of this report.
6 	DELWP position on the application
6.1 	DELWP (as previously outlined in section 1 of this submission) has previously maintained an objection to the proposal on the basis of procedural issues, as the merits of the proposal have not been tested prior to the submission of the expert witness statements and the revised information.
6.2 	Following review of the expert witness statements, as outlined in section 5 of this submission, DELWP seeks to revise its position on the proposal. A merits- and scheme provision-based assessment has been undertaken of the proposal which can now be supported.
6.3 	DELWP considers that the application in its current form now addresses the requirements of the the Guidelines for the Removal, Destruction or Lopping of Native Vegetation (DELWP 2017). Specifically the proposal has addressed the ‘avoid, minimise and offset’ criteria.
6.4	DELWP is prepared to withdraw its objection in the light of the new information that has been provided and has provided without prejudice conditions for the Tribunal’s consideration.
9	Council’s Engineering, Infrastructure and Projects Department offer no objection subject permit conditions. The engineering response noted that the applicant’s bushfire management plan “shows that access will be as per CFA access requirements which is acceptable”.
10	Council’s Environment Unit supports the original objection from DELWP, however, I have no information from Council’s submission that DELWP’s decision to now support the proposal has, in turn, changed the view of Council’s Environmental Unit. Therefore, I will assume the position of Council’s Environmental Unit remains one of objection.
11	I summarise Council’s reasons for refusing the application as follows:
•	Failure to conserve biodiversity by removing a significant amount of native vegetation and impacting landscape values.
•	Inability to “protect and enhance the existing forest mosaic in the Living Forest”.
•	Prioritise human life by not supporting a dwelling on the land.
•	Inconsistency with the Macedon Ranges and Surrounds local policy.
•	The proposal is contrary to the purpose of the RCZ.
•	The proposal is contrary to the Schedule to the RCZ by being “unable to enhance the native vegetation and biodiversity of the area due to the removal of vegetation”.
•	The proposal is not responsive to the VPO9 (Living Forest) by failing to protect native vegetation.
•	Not consistent with the BMO (strengthening community resilience to bushfire).
•	Contrary to the decision guideline of the RO in terms of protecting and enhancing the natural environment and the character of the area including the retention of vegetation and fauna habitats.
•	By removing native vegetation the proposal does not comply with the requirement to first avoid and then minimise loss of native vegetation on the subject land and in Amara Road.
•	The proposal is inconsistent with Clause 53.02 (Bushfire Planning) in terms of increasing risk to life and property due to bushfire.
12	Ms Lardner, for the permit applicant, submits the development of a dwelling on the subject land is “entirely consistent with the manner in which surrounding parcels of land are used and developed”. Ms Lardner calls and relies on evidence from Mr Mueck and Mr Galbraith in relation to the extent and significance of the proposed native vegetation removal. 
13	The evidence of Mr Mueck and Mr Galbraith is the only evidence before the Tribunal in this matter.
14	Ms Lardner also draws attention to the fact that there are no objectors and that all four referral authorities offer no objection to the proposal subject to conditions that are acceptable to the permit applicant. 
15	At paragraph 87 of the submission for the permit applicant, Mr Lardner  submits “that there is simply no sound basis (sic) for Council’s opposition to the proposal”. 
16	During the hearing of this matter, Ms Lardner informed the Tribunal that following discussions with Mr Cockram of the CFA, the permit applicant agreed to construct the proposed dwelling to meet the bushfire attack level  requirements of BAL 40. The parties agreed that this change will require a revised plan to:
•	Reference tree numbers on the development plan to be consistent with the arborist report.
•	Show consequential changes to the bushfire management plan and the draft permit conditions.
17	The parties agree that the change to BAL 40 will achieve an alignment between the defendable space and the landscape proposal regarding tree retention, noting that construction to BAL40 does not change the defendable space, but allows for ‘management’ of retained trees within the defendable space area (which is 50 metres or to the nearest boundary, whichever is the lesser). 
18	I decided to issue an interim order on 29 June 2021 setting an administrative mention for 7 July 2021. The purpose of the order being to provide the parties with the opportunity to comment on the following documents circulated to the parties:
•	Amended Bushfire Management Plan prepared by Caddick Design (v.4) dated 23/6/2021.
•	Further submission prepared by Mr Glenn Cockram, Fire Safety Co-ordinator, Country Fire Authority (CFA), requested by the Tribunal and received on 15/6/2021.
•	Draft conditions with ‘tracked change’ comments prepared by the responsible authority and the permit applicant, received on 17/6/2021.
19	The second part of my interim order states that:
2	Following receipt of any comments in accordance with Order 1 and the inspection of the subject land, the Tribunal will determine the matter ‘on the papers’.
key issues
20	On review of all of the submissions and evidence, I consider there are two key issues for determination in this proceeding:
•	Is the extent and type of native vegetation to be removed to enable the construction of the proposed dwelling acceptable? 
•	Does the bushfire attack protection afforded by BAL 40 construction and the associated defendable space ameliorate the bushfire risk to an acceptable degree?
21	I highlight the above issues for the following reasons:
a)	I must assess the proposal for native vegetation removal against the purpose and decision guidelines of the RCZ. 

b)	The proposal to construct the dwelling to the BAL 40 standard has implications for dwelling construction and vegetation management. 

22	It is also the case that bushfire risk remains a reason for Council’s refusal of the application. This is confirmed in Council’s response to the further submission prepared by Mr Cockram on behalf of  the CFA following circulation of the revised documents required in the Tribunal’s order of 29 June 2021. 
23	In his response on behalf of the Council, Mr Sadiq submits:
Responsible Authority has no further comments in relation to the CFA submission. Responsible Authority still maintains its position that allowing a dwelling on this site (regardless of BAL rating) will pose a risk to human life and property.
24	In relation to the location of the proposed dwelling, I note the whole Macedon township is in the RCZ. Amara Road is in the south-east part of the town and as mentioned earlier, the size of the subject land is consistent with surrounding lots. Most, if not all, of the lots in this part of the RCZ have been developed with dwellings. I find it also relevant to note that the subject land is included in the Restructure Overlay (RO10). The overlay covers an extensive area, including the whole Macedon township. The RO10 restructure plan is an incorporated document in the MRPS. Lot 2 LP205227 in Amara Road (the subject land) is listed to be suitable for a dwelling.
25	Putting aside the key issues of native vegetation removal and bushfire safety and taking into consideration;
•	the relatively small size of the subject land,
•	its position within the Macedon township, and
•	the proximity to Cheniston and Mount Macedon Road, 
I find that the subject land is a suitable location for a dwelling. 
26	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Macedon Ranges Planning Scheme, I have decided to set aside the Council decision and grant a permit.  My reasons follow. 
native vegetation protection
27	The proposal to remove native vegetation from the subject land relates to the dwelling site and the surrounding area of bushfire defendable space. Removal of native vegetation requires assessment under the relevant provisions of the RCZ, the VPO and the SLO. 
28	The ESO2 must also be considered both in terms of the impact on the soil of native vegetation removal and any consequent effect on regional water catchments. The applicant has submitted a land capability assessment that identifies the nearest waterway to be approximately 150 metres to the east of the subject land. The land capability assessment prepared by Eco Vision Australia advises that:
The site allows for the installation of a secondary wastewater treatment system (either a sand filter or Aerated Wastewater Treatment System with the LAA for treated wastewater being sized at 381m2 using a water balance as the most limiting factor.
29	The proposed location of the treatment area is in a cleared area within the site, occupying a relatively small portion of the land. Taking into consideration the distance to the waterway (more than 150 metres) and the proposal to locate the waste treatment facility on cleared land, I find the response to ESO5 is acceptable.
30	In relation to native vegetation removal, Mr Galbraith’s evidence identifies seven large trees within Lot 2 (the subject land) and the Amara Road reserve. All of these trees are to remain. 
31	Amara Road is proposed to be upgraded to a gravelled access, which requires some realignment. Mr Galbraith notes there will be little change to the western side of the road particularly the existing drain that Mr Galbraith recommends should not be deepened to avoid impacting tree roots. The eastern side of the road will require the formation of a road shoulder, battered down to the east. Mr Galbraith observes that the depth and slope of the proposed batter is relatively low. The batter will encroach on the tree protection zones (TPZ) of five trees on the eastern side of the road.

32	It is Mr Galbraith’s opinion that:
The use of fill as a batter will have virtually no impact on the viability of the trees, despite the batter being technically regarded as an encroachment into their tree protection zones according to the AS4970:2009. The reason for this is that the area of fill within the TPZs is too small to limit gaseous exchange to and from the root zones or to significantly alter soil moisture content of the root zones.
33	Mr Galbraith refers to two trees in Amara Road that the plans indicate are to be removed. He provides the opinion that removal is not necessary and I note this view is supported by Ms Lardner in her submission. The retention of the above two trees and details of the protection of other trees to be retained are included in the most recent version of the draft permit conditions.
34	Within the subject land, Mr Galbraith notes that a significant proportion of the site is cleared land. He notes two large trees; a large and old Manna Gum in the northern part of the site and a similar tree located to the north-east of the proposed dwelling. Both of these trees have a high habitat value due to hollows created by limbs dropping over time. Concerning the remainder of the site, Mr Galbraith states:
The other trees within the site occur within close clumps and are of generally thin trunked trees, dominated roughly equally by Manna Gums and wattles.
35	At page 8 of his evidence, Mr Mueck provides an overview of the Macedon area, a description of land use and the current condition of the subject land. In the following extracts from his evidence, I have removed the references to photographs.
36	Mr Mueck’s description of the landscape context notes:
The study area is on the eastern margin of the township of Mount Macedon. It supports remnant native vegetation that is broadly contiguous with other areas of native vegetation on private land to the north, which is also contiguous with native vegetation within the Macedon Regional Park. As such the vegetation present in the study area is not part of a habitat corridor but is a marginal contributor to a broader core area of native vegetation (i.e. a remnant area of native vegetation greater than 50 hectares in size).
37	In describing the land use, Mr Mueck says:
The vegetation and fauna habitat throughout the study area has been modified by past land uses which have included disturbance from clearing associated with the historical development for agriculture and residential development and associated weed invasion. However, the study area still supports areas of native vegetation to the extent where patches of native vegetation (DELWP 2017) are still present or have otherwise regenerated since being disturbed (Okologie Consulting 2019 and S. Mueck personal observations).
38	In describing the current condition of the subject land, Mr Mueck observes:
The remnant native vegetation of Lot 2 Amara Road includes scattered mature large trees generally surrounded by young regrowth trees. Areas of young regrowth include relatively high densities of small trees and a high proportion of these trees will die naturally as they are outcompeted for space by the most vigorous individuals.
Open treeless areas are typically dominated by introduced grasses and herbaceous species and are classified as predominantly introduced vegetation.
Both Lot 2 and the road reserve support a high cover of environmental weeds including a number of noxious species and species otherwise considered high threat weeds.
39	Mr Mueck’s description accords with my observations of the subject land and the surrounding area during my inspection.
40	In his conclusion at page 15 of his evidence, Mr Mueck notes that the overall impact of the proposed development would impact 0.132 hectares of native vegetation. In terms of the offset required for the loss of native vegetation, Mr Mueck explains:
This would be offset by the provision of 0.084 General Habitat Units (GHU) within the Port Phillip and Westernport Catchment Management Authority (CMA) with a minimum strategic biodiversity value score (SBVS) of 0.400.
This impact to native vegetation is not considered a significant impact to biodiversity at the State, bioregional or municipal levels.
41	Mr Mueck describes negotiations that have occurred with DELWP regarding tree retention during the design process and the advice from Mr Galbraith in relation to potential impacts on large trees.
42	Mr Mueck gives the opinion that:
The process of avoiding impacts to native vegetation, minimising impacts where possible through considered design and the provision of the prescribed offset, implements the requirements of the Guidelines to avoid, minimise and offset impacts to native vegetation.
43	In considering the expert opinions of Mr Galbraith and Mr Mueck, I find it significant that DELWP accepts the assessment and opinions of Mr Mueck and Mr Galbraith. As I have noted earlier in my reasons, the witness statements make a significant contribution to DELWP’s decision to give support to the application.
44	In the context of the RCZ and taking together the protection of the ‘forest mosaic’ in Schedule 1, the assessment of the significance of the vegetation to be removed in context of protecting the ‘living forest’ vision in VPO9 and the natural landmark protection decision guidelines of SLO1, I make the following observations concerning the proposed removal of native vegetation:
•	The amended plans, in conjunction with the recommendations of Mr Galbraith, indicate that 22 trees will be removed in Amara Road and 57 trees will be removed on the subject land. None of these trees are large or medium sized trees. Based on my observations, I concur with Mr Galbraith’s assessment that the trees to be removed are ‘closely spaced thin trunked trees’.
•	The retention of large and medium trees indicates there will be minimal effect on the retention of the ‘forest mosaic’, noting that the landscape character of the residential landuse in the surrounding area results in a ‘patchwork’ of open spaces interspersed with native and exotic vegetation. 
•	The subject land is not in an exposed or ‘dominant’ position and is not prominent in the Macedon landscape.
•	The subject land is relatively small in the context of the RCZ and the area of native vegetation to be removed (0.132 hectares) is modest.
•	The requirement for a comprehensive and on-going land management plan for the subject land will achieve a significant improvement in the management of native vegetation and habitat on the site relative to the present condition.
45	I concur with the opinions of Mr Mueck and Mr Galbraith regarding the extent and significance of the proposed vegetation removal and find the location and amount of native vegetation to be removed is acceptable in the context of the local landscape quality and the future management of the land.
bushfire protection
46	The decision to construct the proposed dwelling to BAL40 is significant in the context of retaining native vegetation on the site. In this regard, I find the proposed dwelling is acceptable in the RCZ.
47	With regard to bushfire safety, and taking into consideration the location of the land within an area where residential development is prominent, I find the combination of BAL 40 construction and the associated defendable space, managed in accordance with the permit conditions and CFA guidelines, provides an acceptable degree of bushfire protection. 
conditions
48	In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.
49	The permit conditions reflect the changes resulting from the amended plans and the comments from the parties in response to the amended bushfire management plan that responds to the change to a BAL 40 construction standard. 
50	The permit conditions are comprehensive, reflecting the complexity of issues that need to be addressed to achieve an appropriate response to the purpose of the RCZ and the ‘companion’ environmental overlays.  
conclusion
51	For the reason given above, the decision of the responsible authority is set aside. A permit is granted and directed to be issued in accordance with the endorsed plans and the conditions contained in Appendix A.

Frank Dawson
Member			

Appendix A 

Permit Application No:	PLN/2018/194	
Land:	Lot 2 (LP205227U) Amara Road, Mount Macedon.	
What the permit allows	
•	Use and development of the land for a dwelling and removal of native vegetation in accordance with the endorsed plans.	

Conditions:
1	Before the commencement of development, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of this permit.  The plans must be generally in accordance with the plans submitted with the application but modified to show:
(a)	Full details of cut and fill.
(b)	Location of water tank on site plan in accordance with Bushfire Management Plan.
(c)	Plans in accordance with Condition 19 and 20 of this permit.
(d)	An amended Bushfire Management to show clearly:
i	Construction Standard of BAL 40.
ii	Defendable space for a distance of 50 metres or to the property boundary, whichever is the lesser distance from the outer edge of the building.
•	Any variations sought to the standard vegetation management requirements specified in Table 6 to Clause 53.02-5.
•	This must include as a minimum the numbering of all trees to be retained and reference that these trees are excluded from the canopy separation requirements
•	The canopy of any new trees (planted or self-seeded) must be separated by at least five (5) metres.
iii	Firefighting water supply as per Table 4 to Clause 53.02-5.
iv	Access as per Table 5 to Clause 53.02-5.
(e)	Amended Land Management Plan in accordance with Condition 2 of this permit.
All to the satisfaction of the Responsible Authority.
2	Before the development commences, amended Land Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the Land Management Plan will be endorsed and will then form part of this permit.  Land Management Plan must be generally in accordance with the plan submitted with the application but modified to show:
(a)	A table of actions summarising the environmental works and actions to be conducted for the 1st year and up to a 10 year period. Additionally, another table of actions must be included post the 10 year period to ensure that works are undertaken in perpetuity, on a yearly basis.    
(b)	Incorporation of wildlife friendly fencing without electric fencing to enable native animals to enter the patch of native vegetation. 
(c)	Wildlife Friendly Fencing is to be erected around remnant vegetation and scattered trees where appropriate. This will allow native animals to migrate throughout the property. The following guidelines are for Wildlife Friendly fencing and should be incorporated in the Land Management Plan: 
i	For a fence that allows animals to pass underneath, leave a minimum of 40 cm between the ground and the bottom wire
ii	When appropriate, choose a plain high-tensile fencing wire. If this is tensioned correctly, this fencing material can contain most stock. 
iii	Where possible, keep the fence low with a maximum height of 1.2 metres. The will allow larger animals such as kangaroos to easily pass over the top. 
iv	Consider retrofitting your existing fence with reflective materials such as C.DS, aluminium plant tags or white wire. Place these items on the top wire to make it easier for wildlife to see and avoid collision with fencing. 
v	Retrofitting existing fencing with wildlife gates. Locate gates and openings where wildlife regularly pass through.  
(d)	Details in relation to revegetation works and the inclusion of these works in the action plan.
(e)	Any changes to the Land Management Plan as a result of the amended Bushfire Management Plan. 
3	The layout of the use and development on the endorsed plans must not be altered without the written consent of the Responsible Authority.
4	Before the development commences, the owner/s of the lot must enter into an agreement with the Responsible Authority in accordance with Section 173 of the Planning and Environment Act 1987.  The agreement must provide for:
(a)	The owner of the land must implement all the recommendations and requirements of the Land Management Plan endorsed under Planning Permit PLN/2018/194 on an ongoing basis to the satisfaction of the Responsible Authority, unless otherwise agreed in writing with the Responsible Authority.
(b)	Application must be made to the Registrar of Titles to register the Section 173 Agreement on the title to the land under Section 181 of the same Act prior to the commencement of the development.
(c)	The owner/s must pay all costs (including Council’s costs) associated with the preparation, execution, registration and (if later sought) cancellation of the Section 173 Agreement.
5	The development and use hereby permitted must be managed so that the amenity of the area is not detrimentally affected, through the:
(a)	Transport of materials, good or commodities to or from the land;
(b)	Appearance of any building, works or materials;
(c)	Emissions of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
(d)	Presence of vermin;
to the satisfaction of Responsible Authority. 
MRSC Engineering 
6	Prior to the commencement of works, an “Asset Protection Permit” must be obtained from Council for any of the following circumstances:
(a)	Entering a building site by means of a motor vehicle having a gross weight exceeding two tonnes.
(b)	Occupying a road for works.
(c)	Connecting any land to a stormwater drain.
(d)	Opening, altering or repairing a road.
(e)	Opening, altering or repairing a drain.
(f)	Accessing a building site from a point other than a crossover.
7	Prior to the commencement of use, the access driveway to the dwelling must be constructed to meet the following requirements to the satisfaction of the Responsible Authority:
(a)	The driveway, including any culvert crossings, must be constructed to a standard so that it is accessible in all weather conditions and be capable of accommodating a vehicle of 15 tonnes for the trafficable road width.
(b)	The driveway must have a minimum trafficable width of 3.5 metres, be clear of encroachments 4 metres vertically and have no obstructions within 0.5 metres either side of the formed width of the driveway.
(c)	Curves must have a minimum radius of 10 metres.
(d)	The average grade must be no more than 1 in 7 with a maximum of no more than 1 in 5 for no more than 50 metres.
(e)	Dips must have no more than a 1 in 8 entry and exit angle.
8	Prior to the commencement of use, potable water supply with a storage capacity of at least 10,000 litres must be provided to the dwelling for domestic use and firefighting purposes to the satisfaction of the Responsible Authority.
9	Storm water run-off from all buildings and paved areas must be dissipated as normal un-concentrated overland flow clear of all buildings and property boundaries.
10	No polluted and/or sediment laden run-off is to be discharged directly or indirectly into drains or watercourses. Soil erosion control measures must be employed throughout the subdivision works in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) to the satisfaction of the Responsible Authority.
11	The applicant/owner shall restrict sediment discharges from any construction sites within the property in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995).
MRSC Health 
12	Prior to the occupation, the new dwelling shall be fitted with a package wastewater treatment plant or a system equivalent to the 20/30 standard for BOD and Suspended Solids. The septic tank system shall be designed in accordance with the land capability assessment produced by Eco Vision Australia with report no: 54GO18 Version 1.4 dated August 6, 2018 and shall be approved, operated, maintained and replaced where necessary to the satisfaction of Council’s Environmental Health Officer.  
A separate permit must be obtained from Council's Environmental Health Department prior to its installation.
MRSC Environment Unit 
13	Before works start, the permit holder must advise all persons undertaking the vegetation removal works on site of all permit conditions pertaining to native vegetation protection.
14	Only vegetation identified for removal on the endorsed site plans is to be removed or disturbed. No other vegetation (including trees, shrubs, grasses and herbs) shall be removed, damaged, destroyed, felled, loped or uprooted unless with the prior written consent of the Responsible Authority. 
15	All construction and maintenance equipment, earth moving equipment and associated machinery must be made free of soil, seed and plant material before being taken to the works site and again before being removed from the works site to the satisfaction of the Responsible Authority. This is to help prevent the spread of noxious weeds listed under the Catchment and Land Protection Act 1994.  
16	A suitably qualified Level 5 arborist must supervise or undertake all approved tree removal works. 
17	Before the commencement of works, the following conditions must be met and approved by the responsible authority:
Tree Protection Conditions
18	These conditions assume the tree numbering system as per the two Arborist Reports by Axiom Trees, the earlier of which is dated 29/8/2019 concerning the trees within and bordering Lot 2, and the latter of which is dated 28/4/2019 concerning the trees lining Amara Road. The Tree Protection Zones (TPZs) as calculated according to the Australian Standard 4970:2009 for each tree are those as listed in the Axiom reports with the following exceptions:
Tree	Species				TPZ(metres)   	No.	Indigenous (I)		
2   	Eucalyptus viminalis I	TPZ 5.6          	Manna Gum
27  	Euc. viminalis I			TPZ 12.6
88  	Euc. viminalis I			TPZ 15
110  	Euc. viminalis I			TPZ 8.2
124  	Euc. viminalis I			TPZ 7.2
125  	Eucalyptus radiata 		TPZ 7.8       	Narrow leaved Peppermint
127  	Euc. viminalis I			TPZ 14.5
Tree Protection During the Amara Road Upgrade
19	A revised Vegetation Loss Diagram must be drawn up with Trees 110 and 124 to be shown to be protected and retained, along with all the other trees shown to be retained on Sheet 10 of 10 of the Amended plans dated 28/April/21.
20	The Project Arborist must clearly mark and identify the trees proposed to be removed as shown on the stamped Vegetation Loss Diagram.
21	When removing the trees, care must be taken to avoid damaging any trees to be retained. 
22	Where within the TPZs of trees 110, 124, 125, 126 and 127, the easterly batter of the upgraded road must consist of washed blue gravel or scoria of > 20mm diameter or something similar and porous as approved by the road engineers.
23	Where there is risk of the battered slope engulfing the trunks of any of these trees, a retaining wall must be constructed opposite the trees and at least a metre from the trunks. The retaining wall must be a post and rail type construction so that there is no excavation for strip footings. The post holes must be dug by hand or hydro excavated to a depth of at least 800mm under supervision of the Project Arborist. Where roots of > 50mm thickness are encountered, such roots must be left unharmed, the holes backfilled and new sites for post holes found which do not have such roots wherever possible.
24	Apart from removal of any sediment, the drain on the west side of the road where within TPZs of trees to be retained must not be excavated. Wherever the drain is to cross the road, ensure that there is no excavation within the TPZs of the trees.
25	Any drains or services must not encroach into more than 10% of the TPZ areas of the trees to be retained, unless:
i	It has been shown by non-root destructive exploratory trenching under the supervision of the project arborist that the root loss associated with the insertion will have no adverse impact on the safe useful life expectancy of the tree. A report with photographs of the exploratory trenching showing all the encountered roots must be supplied.
ii	inserted in a non-root destructive manner such as by horizontal boring below the root zone, or by hand digging or hydro excavation under the supervision of the Project Arborist.
iii	The services are located in or near to the middle of the road
Tree Protection During Dwelling and Driveway Construction
26	The Project Arborist must mark and clearly identify the trees proposed to be removed as shown on the stamped Vegetation Loss Diagram.
27	When removing the trees, care must be taken to avoid damaging any trees to be retained. 
Driveway  
28	When constructing the drive there must be no excavation of the top 100mm of soil within the 5.6m radial TPZ of Tree 2.
29	When constructing the drive opposite Tree 88, it must be constructed at or above grade with no excavation of the top 100mm of soil where any construction is closer than 10.5m from the trunk centre.
(a)	Alternatively, if the driveway is to be closer and it has been shown by non-root destructive exploratory trenching under the supervision of the project arborist that the root loss associated with any site cut for the drive will have no adverse impact on the safe useful life expectancy of the tree, then excavation can occur closer to the trunk as determined according to the exploratory trenching. A report with photographs of the exploratory trenching showing all the encountered roots must be supplied to the Responsible Authority, should this alternative be followed.
30	Ensure there is no excavation, level reductions or severe soil compaction within the TPZs of the trees to be retained and protected. 
31	Except with the written consent of the department, within the area of native vegetation to be retained and any native vegetation protection fencing, the following is prohibited:
(a)	vehicular or pedestrian access;
(b)	trenching or soil excavation;
(c)	storage or dumping of any soils, materials, equipment, vehicles, machinery or waste products;
(d)	construction of entry and exit pits for underground services; or
(e)	any other actions or activities that may result in adverse impacts to retained native vegetation.
32	The total area of native vegetation permitted to be removed is 0.132 hectares, all comprised of patch(s) of native vegetation. To offset the removal of 0.132 hectares of native vegetation the permit holder must secure a native vegetation offset(s) that meets all the following:
(a)	A general offset of 0.084 general habitat units located within the Port Phillip and Westernport Catchment Management Authority boundary or Macedon Ranges Shire Council municipal district;
(b)	Have a Strategic Biodiversity Value score of at least 0.500.
(c)	Must be in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP, 2017).
33	Before any native vegetation is removed, evidence that the required offset for the project has been secured must be provided to the satisfaction of the responsible authority. This evidence must be:
(a)	An established first party offset site. This must include:
i	a security agreement signed by both parties, and
ii	a management plan detailing the 10-year management actions and ongoing management of the site;
to the satisfaction of the Department of Environment, Land, Water and Planning and approved by the Responsible Authority.
(b)	Every year, for ten years, after the responsible authority has approved the offset management plan, the applicant must provide notification of the management actions undertaken towards implementing the offset management plan, to the department. An offset site condition statement, including photographs must be included in this notification;
and/or
(c)	Credit extract(s) allocated to meet the requirements of the permit from the Native Vegetation Credit Register.
A copy of the offset evidence must be endorsed by the responsible authority and form part of this permit.
Department of Environment, Land, Water and Planning 
Amended Plans
34	Prior to any native vegetation removal works, amended site plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority in consultation with DELWP Loddon Mallee Region. When approved, the plans will be endorsed and will form part of this permit. The plans must include:
(a)	All areas of native vegetation to be retained, including the tree protection zones.
Construction management plan
35	Before any works start, including removal of native vegetation, a Site/Construction Environmental Management Plan (S/CEMP) to the satisfaction of DELWP Loddon Mallee Region must be submitted and approved by the responsible authority. When approved, the S/CEMP will be endorsed and will form part of this permit.
The S/CEMP must include but not necessarily be limited to the following:
(a)	Measures to be implemented to protect native vegetation and other biodiversity values being retained on site and on land directly adjoining the site, during and post construction works including during translocation works.
(b)	Any recommendations made in the Arboricultural Impact Assessment (Axiom 2019,2020, and Galbraith, 2021).
(c)	A specific construction management plan component outlining construction techniques and methodology.
(d)	Identification of all stockpile, storage, parking and machinery storage locations and management requirements for these. These need to be located within the identified facility development area.
(e)	Sediment control, erosion, and drainage management to be implemented on site, to ensure no sediment or sediment laden runoff enters waterways, wetlands or moves off site in accordance with EPA document Construction Techniques for Sediment Pollution Control No.275 1991.
(f)	Weed control and management on site, including vehicle hygiene measures, during construction phase and post construction.
(g)	Measures to mitigate any detrimental impacts on the native vegetation being retained or on adjoining land.
(h)	A Wildlife Management Plan including specifications for native fauna identification, monitoring, protection, salvage, and relocation measures to be implemented during removal of native vegetation, in particular removal of large hollow bearing trees, and the construction works phase. Any native fauna salvage, handling or relocation must be conducted by a licenced native fauna handler.
(i)	The person/s responsible for implementation and compliance of each aspect of the S/CEMP. The permit holder must advise all persons undertaking the vegetation removal works on site of all permit conditions pertaining to native vegetation protection.
(j)	All persons undertaking works on site must be fully briefed on all aspects and requirements of the endorsed S/CEMP. All works constructed or carried out must be in accordance with the endorsed S/CEMP, to the satisfaction of the responsible authority.
(k)	Tree trimming operations must be undertaken using the three-cut method as described in Australian Standard for Pruning Amenity Trees (AS 4373—2007). Use of an excavator, backhoe, bulldozer blade or loader to trim branches of trees is not permitted.
(l)	Any pruning to the canopy of any tree to be retained is to be undertaken by a qualified arborist to Australian Standard – Pruning of Amenity Trees AS4373-1996. Any pruning of the root system of any tree to be retained is to be done by hand by a qualified arborist.
Protection of native vegetation to be retained
36	Except with the written consent of the department, within the area of native vegetation to be retained and any tree protection zone associated with the permitted use and/or development, the following is prohibited:
(a)	vehicular or pedestrian access;
(b)	trenching or soil excavation;
(c)	storage or dumping of any soils, materials, equipment, vehicles, machinery or waste products;
(d)	construction of entry and exit pits for underground services; or
(e)	any other actions or activities that may result in adverse impacts to retained native vegetation.
Native vegetation offsets
37	To offset the removal of 0.132 hectares of native vegetation the permit holder must secure a native vegetation offset(s) that meets all the following:
•	A general offset of 0.084 general habitat units located within the Port Phillip and Westernport Catchment Management Authority boundary or Macedon Ranges Shire Council municipal district;
•	have a Strategic Biodiversity Value score of at least 0.400;
•	must be in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP, 2017).
Offset Evidence
38	Before any native vegetation is removed, evidence that the required offset for the project has been secured must be provided to the satisfaction of the responsible authority. This evidence must be an established first party offset site. This must include:
(a)	A security agreement signed by both parties, and
(b)	a management plan detailing the 10-year management actions and ongoing management of the site to the satisfaction of the Department of Environment, Land, Water and Planning and approved by the Responsible Authority.
(c)	Every year, for ten years, after the responsible authority has approved the offset management plan, the applicant must provide notification of the management actions undertaken towards implementing the offset management plan, to the department. An offset site condition statement, including photographs must be included in this notification and/or credit extract(s) allocated to meet the requirements of the permit from the Native Vegetation Credit Register.
A copy of the offset evidence must be endorsed by the responsible authority and form part of this permit.
39	Within 30 days of endorsement of the offset evidence by the responsible authority, the permit holder must provide a copy of the endorsed offset evidence to the Department of Environment, Land, Water and Planning at loddonmallee.planning@delwp.vic.gov.au.
Western Water Conditions
40	A wastewater treatment system that produces wastewater to a minimum standard of 20/30 (BOD/suspended solids) shall be installed to the satisfaction of the Council's Environmental Health Officer and Western Water to treat all sullage and sewage waste on site.
41	Wastewater is to be dispersed to the satisfaction of Council's Environmental Health Officer and Western Water using methods that will prevent waste and treated waste from discharging from the property at all times.
42	The effluent system must be maintained by a suitably qualified person in accordance with the manufacturer's specifications and EPA requirements.
43	The owner shall carry out such works including replacing effluent treatment, storage pumping and disposal systems within the time specified to do so by the Council's Environmental Health Officer or Western Water to cease and prevent waste and treated waste from discharging from the property.
44	If the wastewater program proves to be unsustainable, the land holder must immediately rectify the sewerage disposal system.
45	The owner shall have the wastewater treatment system desludged at least once every three years.
46	The effluent disposal field must be protected by being isolated from any building, driveway, livestock, vehicles or permanent recreational area that could render it unavailable in the future and should be planted with suitable grasses that will aid in moisture removal.
47	Any existing or proposed shed must not be used for the purposes of accommodation or contain facilities that result in the discharge of wastewater.
48	Sediment Pollution Controls shall be employed during construction and maintained until the disturbed area has been regenerated.
49	Stormwater is to be managed in a way to minimise risk to erosion of the surrounding land. No stormwater should be allowed to move into the effluent disposal field.
50	Low volume water fittings such as water efficient showerheads, dual flush toilets and tap aerators are to be fitted to all water fixtures.
Country Fire Authority Conditions
51	The Bushfire Management Plan (Drawing No:11, Project 1570 prepared by Caddick Designs, dated 23/6/2021) must be endorsed to form part of the permit and must not be altered unless otherwise agreed in writing by the CFA and the Responsible Authority.
52	The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed
Southern Rural Water Condition
53	Sediment control measures outlined in the EPA’s publication No. 275, Sediment Pollution control, shall be employed during works and maintained until the disturbed area has been appropriately finished or revegetated
Permit Expiry
54	This permit will expire if one of the following circumstances applies:
(a)	The development is not commenced within 2 years of the date of this permit.
(b)	The development is not completed within 4 years of the date of this permit.
(c)	The use is not commenced within 2 years of the completion of the development.
55	In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.
- End of conditions -