VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P683/2022 & P690/2022
Permit Application no. 210248	
Catchwords
Section 149(1)(a) of the Planning and Environment Act 1987; Bass Coast Planning Scheme; General Residential Zone; Development Plan Overlay; Failure to make a decision on Development Plan; Section 79 of the Planning and Environment Act 1987; Failure to make a decision on Permit application; Subdivision; Road works; Drainage strategy; Development Contributions

P683/2022	

Applicant	
Headmac Pty Ltd	

Relevant Authority	
Bass Coast Shire Council	

Referral Authority	
West Gippsland Catchment Management Authority	

OTHER NON- PARTY	
Greg Hewett	

SUBJECT LAND 	
Lot 2 PS305409 Bass Highway INVERLOCH VIC 3996 	

DATE OF HEARING	
24 and 25 October 2022	

P690/2022	

Applicant	
Headmac Pty Ltd	

Responsible Authority	
Bass Coast Shire Council	

SUBJECT LAND	
Lot 2 PS305409 Bass Highway
INVERLOCH VIC 3996	

DATE OF HEARING	26 and 27 October 2022	
DATE OF ORDERS	29 November 2022	
CITATION	Headmac Pty Ltd v Bass Coast SC [2022] VCAT 1347	
OrderS
P683/2022
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by substituting the development plan diagram prepared by Marshall, 40013DP-A, Revision N dated 12 September 2022 for previous Revision L.
2	Pursuant to Section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998, the decision of the responsible authority is set aside and the development plan is remitted to the responsible authority for reconsideration with the following directions:
•	That the applicant provides an updated development plan to the responsible authority.
•	The development plan must comprise a diagram combined with a report.
•	The applicant must provide a revised stormwater strategy that addresses the provision of kerb and channel on the west side of Ullathornes Road.
P690/2022
3	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Marshall 	
•	Drawing numbers:	40013CMP-A, Revision K	
•	Dated:	12 September 2022	
4	Pursuant to Section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998, the decision of the responsible authority is set aside and permit application 210248 is remitted to the responsible authority for reconsideration with the following directions:
•	The applicant provides updated permit application material that reflects the changes to the development plan.

Megan Carew
Member			

APPEARANCES:		
For Headmac Pty Ltd	P Chiappi of counsel, instructed by Marshall Lawyers
He called the following witnesses:
A Pagliaro, Town Planner
H Turnbull, Traffic engineer*
N Birch, Drainage engineer*	
For Bass Coast Shire Council	T Montebello, Solicitor, Maddocks Lawyers
He called the following witness:
J Stone, Traffic engineer*
P Coombes, Drainage Engineer*	
For Referral authority	No appearance 	
For Greg Hewett	Glenn Kell, Planning Central Pty Ltd	
*The traffic and drainage witnesses produced joint conclave reports.

Information
Nature of proceedings	P683/2022 
Application for review under section 149(1)(a) of the Planning and Environment Act 1987 to review the failure of the Bass Coast Shire Council to approve the development plan under the Development Plan Overlay - Schedule 24 of the Bass Coast Planning Scheme.
P690/2022
Application for review under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit for subdivision of land within the prescribed time.	
Planning scheme	Bass Coast Planning Scheme	
Land description	The review site is located on the southwest corner of the intersection of the Bass Coast Highway and Ullathornes Road in Inverloch. It is currently used for farming purposes.
Opposite the site on the eastern side of Ullathornes Road is a low density housing area comprising 16 properties with access from Nesci Court. Land to the south and south east is generally used for or being developed for residential purposes. 
The land subject to the development plan application differs to the land subject to the permit application (the planning units are different).
The land subject to the proposed development plan is only that part of Lot 2, PS305409 that is included within the GRZ1 and DPO24 within the Inverloch settlement boundary (refer to Figures 1 and 2). 
The land subject to the permit application is all the land described as Lot 2, PS305409 being the land within the GRZ1 and the FZ (refer to Figure 1)	
Zoning	General Residential Zone- Schedule 1 (GRZ1)
Farming Zone (FZ)
Figure 1: Zoning
	
Zone and overlays	Development Plan Overlay- Schedule 24 (DPO24)
Figure 2: Extent of DPO24

Relevant scheme policies and provisions	Clauses 11, 12, 13, 14, 15 ,16, 17, 18, 19, 32.08, 35.07, 43.04, 52.02, 52.17, 52.18, 52.29, 53.01, 56, 64.03, 65 and 71.02	
Tribunal inspection	7 November 2022, unaccompanied	

Reasons
What ARE these proceedings about?
1	Inverloch is a small coastal town along the Bass Coast. The Bass Coast Planning Scheme (the scheme) seeks to ‘support the development of Inverloch as a consolidated and sustainable coastal village that optimises existing natural assets and character, and services the lifestyle and recreational needs of residents and visitors’. 
2	Settlement strategies include to ‘encourage residential growth within areas identified for this purpose in the Inverloch Strategic Framework Plan’. The strategic framework plan (Figure 3) identifies land to the east of Ullathornes Road and south of the Bass Highway as ‘Future Residential Growth’. A potential location for future convenience centre is identified on the corner of the highway and Ullathornes Road.
Figure 3: Strategic Framework Plan (Source: Bass Coast Planning Scheme)

3	The land identified above was included within the General Residential Zone through Amendment C124, together with rural residential properties on the east side of Ullathornes Road. This confirmed the strategic intention that the location will be developed for residential purposes. 
4	Development Plan Overlay- Schedule 24 -Inverloch Growth Areas (DPO24) was applied to the land on both sides of the road at the time of the rezoning. The overlay requires that a development plan be prepared before the site can be developed. The purposes of the overlay include ‘to identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land’ It essentially seeks to ensure that planning for the DPO24 area proceeds in an orderly manner. 
5	Headmac Pty Ltd (the Applicant) is proposing the urban development of the land on the west side of Ullathornes Road. The Applicant prepared and submitted to the Bass Coast Shire Council (the Council) a development plan for approval in accordance with the provisions of the DPO24. Proceeding P683/2022 is an application for review under section 149(1)(a) of the Planning and Environment Act 1987 to review the failure of the Bass Coast Shire Council to approve the development plan under the Development Plan Overlay-Schedule 24 of the Bass Coast Planning Scheme.
6	A separate permit application was also made to the Council for the subdivision of the land, removal of native vegetation and the creation of restrictions on the title. The subdivision proposes 282 residential lots of different sizes, together with a medium density super-lot. A potential future commercial site is identified on the corner of the Bass Coast Highway and Ullathornes Road. Public open space is proposed in the form of a central parkland, together with additional encumbered open space that will primarily accommodate a retarding basin. Proceeding P690/2022 is an application for review under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit for subdivision of land within the prescribed time.
7	I must firstly consider whether the development plan is acceptable and if so, proceed to consider the permit application on its merits. If the development plan is not acceptable it follows that the permit application serves no purpose as the provisions of the DPO24 expressly prevent the grant of a permit until a development plan is approved.
What are the positions of the parties IN RESPECT TO THE DEVELOPMENT PLAN?
8	The schedule to DPO24 expressly provides for separate development plans to be prepared for the areas to the east and west of Ullathornes Road. The review site is the land contained within the DPO24 on the west side. The eastern side comprises 16 separate land parcels. A draft development plan has been prepared for the east side of Ullathornes Road (submitted to Council on 9 May 2022) and is supported by various background reports. A copy of the draft plan and reports was provided by Council at the hearing. 
9	The original development plan material submitted to the responsible authority for the review site has evolved significantly over time. Supplementary reports and material were submitted by the applicant along the way. This had led to a situation whereby some of the background reports had been updated, but some had not. Importantly, there were several different iterations of the diagram that accompanied the development plan submission.
10	At its meeting of 17 August 2022, the Council considered the submitted material and the diagram, version 40013DP-A Revision L, dated 20 July 2022. The officer’s report succinctly summarised the position of the Council as follows:
This north-western corner of Inverloch has been located within the settlement boundary for many years and zoned for residential development since amendment C124. Given the site is also included within the proposed protected settlement boundary under the Distinctive Areas and Landscapes draft Statement of Planning Policy, Council officers do not dispute the proposal to allow residential development in this section of Inverloch. Indeed, this site represents critical land supply for the town which will assist in improving housing affordability and meeting our obligations to provide sufficient land supply to meet demand under the Victorian Planning Provisions.
Furthermore, Council officers accept that detailed design of streetscapes and dwellings will be able to achieve the requirements of the Infrastructure Design Manual, Bass Coast Planning Scheme and be undertaken in accordance with any forthcoming neighbourhood character guidelines for the area, as well as any directions under the Distinctive Areas and Landscapes program.
Nevertheless, Council officers are concerned that the inadequate consideration of several issues will create legacy issues for both Council and future residents of this and surrounding areas.
Following the completion of the informal notice process on 14 April 2022, Council officers provided a position to the applicant highlighting outstanding deficiencies requiring rectification to receive a supportive officer recommendation to Council.
The outstanding issues primarily related to offsite traffic impacts and technical stormwater management details (Tribunal’s emphasis).
11	Council resolved that it would have refused to approve the development plan on the following grounds: 
•	The proposal is inconsistent with Schedule 24 to the Development Plan Overlay under the Bass Coast Planning Scheme, specifically: 
•	The applicant has not provided sufficient information to address the matters required to be addressed by DPO24 at clause 4.0 in particular. There is a lack of consideration of the off-site infrastructure that is required to service the proposed development. The development plan requires reliance on downstream drainage infrastructure that is likely to be necessarily shared with land to be developed in the balance of the DPO24. A shared infrastructure plan or similar plan or report should be prepared to guide how, in the context of the requirement at clause 3.0 of DPO24, any section 173 agreement is to address the provision of off-site infrastructure such as drainage. A shared infrastructure plan (or other similar document) should also address the improvements required to Ullathornes Road where it abuts the land the subject of the proposed development plan fairly between the land within DPO24 on both sides of the road. 
•	The development plan which is sought to be approved does not comprise a sufficient suite of documents in the form of a report and diagram as required by DPO24. 
12	Essentially, Council considered that there were two key issues:
•	Whether the substance of the development plan was acceptable.
•	Whether the form of the development plan was acceptable.
13	The applicant says that the matters of form and substance can be resolved. Specifically, the applicant relied on the evidence of Mr Turnbull in respect to traffic management and Ms Barich in respect of the stormwater issues. 
FORM OF THE DEVELOPMENT PLAN
14	In Jocelyn Meadows Pty Ltd v Casey CC [2004] VCAT 2627 the Tribunal noted that:
Development plans deal with many types of situations. They may guide the future subdivision of individual parcels of land in a single ownership or they may govern the strategic planning of large areas of a municipality in multiple ownership. 
It follows that a development plan may be a very different thing in different situations. 
15	I find that the guidance as to what form a development plan should take must be based on the overlay provisions themselves. Clause 43.04-4 sets out the requirements for preparation of a development plan:
The development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages.
A development plan that provides for residential subdivision in the Neighbourhood Residential Zone, General Residential Zone, Residential Growth Zone, Mixed Use Zone, Township Zone, Comprehensive Development Zone and Priority Development Zone must meet the requirements of Clause 56 as specified in the zone.
The development plan must describe:
•	The land to which the plan applies.
•	The proposed use and development of each part of the land.
•	Any other requirements specified for the plan in a schedule to this overlay.
The development plan may be amended to the satisfaction of the responsible authority.
16	The schedule to DPO24 includes more specific requirements for a development plan. It provides that:
Any development plan prepared under the provisions of this overlay must be prepared to the satisfaction of the responsible authority.
Separate development plans may be prepared for the areas to the east and to the west of Ullathornes Road.
Any approved development plan may be amended to the satisfaction of the responsible authority.
A development plan is to be a combination of a report and a diagram and must include or address the following where relevant:
17	The Council officer’s report noted that ‘the application as it currently stands is an eclectic collection of conflicting reports and plans which is not in an appropriate form to endorse under Schedule 24 of the Development Plan Overlay’. Specifically, Council submitted that DPO24 is specific that the development plan is to be a combination of a report and a diagram and the application did not include these.
18	The applicant submitted that while it doesn’t disagree that the overlay requires a report, that this does not necessarily mean that it needs to form part of the endorsed development plan, rather that it needs to be ultimately to the satisfaction of the responsible authority. The applicant noted that the Council had simply approved diagrams for other DPO areas within the municipality. 
19	The applicant says that their submission did include both a report and a diagram. The applicant relied on the report prepared by Marshal, Ref 40013 Rev 1, dated June 2021 titled ‘Development Plan Report’. The evidence of Mr Pagliaro was that the overlay sought both a report and a diagram and that the June 2021 report could serve this purpose.
20	The wording in DPO24 is identical to several other development plan overlays contained within the Bass Coast Planning Scheme including Schedules 3, 5, 22, 23 and 25. A review of relevant endorsed development plans (some as recent as June 2021) on Council’s website identifies that all of them consist of only a diagram except for the plan for DPO23 which includes a report (endorsed in 2014). 
21	While it appears that the Council has not been consistent in its approach to development plans, I find that the overlay envisages both a report and a diagram. 
The diagram
22	Prior to the hearing the applicant circulated to all parties a revised development plan diagram prepared by Marshall, 40013DP-A Revision N, dated 12 September 2022 (Figure 4). This plan differed from the Revision L plan considered in the officer’s report. 
23	Council did not object to the Tribunal relying on the amended diagram dated September 2022 and after hearing from the parties, I determined to substitute the Revision N diagram under Section 127 of the VCAT Act, so it was clear that this was the diagram before me. 
24	However, the evidence of Mr Pagliaro was that the Revision N plan was not suitable for approval and that the diagram required further amendment to address the following matters:
Having regard to the development plan, I recommended that the following changes be made:
•	The following external and internal works clearly identified on the development plan to be developer led works:
•	the shared path within the site adjacent to Ullathornes Road
•	the upgrade of the intersection of Ullathornes Road/Bass Highway
•	the local park,
•	the drainage reserve.
•	The DP to specify that any medium density lots with direct abuttal to the open spaces are to be developed with direct frontage (rear loaded) to the adjacent open space.
•	The DP to show all residential land with direct abuttal to the public open space as ‘medium density’.
•	The DP updated to show existing environmental features on the land for clarity, including all scattered trees and numbered in accordance with the Flora & Fauna/Arborist Report.
His evidence included a revised version of the diagram, Revision O at Appendix B to include the above recommendations (Figure 5).
Figure 4: Development Plan: Revision N.

Figure 5: Changes to Development Plan, Town Planning Evidence, Revision O

25	I find that the final form that the diagram may take is in part a question of substance. While I do not generally disagree with the changes recommended by Mr Pagliaro, this results in too much information for it all to be included on the single diagram and appropriately interpreted. For example, the trees need to be understood in terms of the arborist report. To what extent does this need to be detailed diagrammatically or in the development plan? How does this information inform the layout of the development plan or a future planning application? 
26	I would require further amendment to the development plan diagram to address matters of substance that I have set out below such as the extent of works required to Ullathornes Road. 
27	The role of the development plan is to guide future planning permit applications. A development plan is not a planning permit. The level of detail required for a planning permit application is far greater. The purpose of a development plan is to guide the future development of the area, the ‘form and conditions of future uses and development’ as set out in the purposes of the overlay. It should be a clear and concise document that is capable of being read and understood without the need to refer extensively to background documents. 
The report
28	If I accept that the July 2022 report submitted with the original development plan material was a report ‘in combination’ as required by DPO24, it has not been updated. The applicant accepted that it would require amendment before it was in a form suitable for endorsement. The ‘development plan report’ also references a range of background documents that have also not been updated. My consideration was not assisted by this fact.
29	The parties differed in their assessments of the extent of amendment required to the development plan report. Each party submitted during the proceeding a marked-up version to address updated matters. There was some discussion at the hearing as to the appropriate extent of material to be included within the report and whether the background documents needed to be included. 
30	It is not the role of this Tribunal to re-draft the report, nor to list by section and paragraph the changes required.
31	In ID-FLK Gisborne Pty Ltd v Macedon Ranges SC (Red Dot) [2019] VCAT 1336 the Tribunal discussed its role in considering a development plan:
57	Given its power to vary the Council’s decision about a Development Plan, or set aside the decision and substitute a new decision, VCAT may endorse a Development Plan subject to conditions about the amendments or variations required to the plan before its endorsement. In this sense, the conditions are ‘conditions precedent’ to VCAT being satisfied about the Development Plan. They are therefore of a different character to conditions commonly placed on planning permits, which are ‘conditions subsequent’ to the issue of the permit and relate to its implementation or operation, and which may therefore rely on the specific condition-making power in s 62 of the PE Act.
58	If there are significant changes to be made to a Development Plan as part of its endorsement through the VCAT review process there may be a case for VCAT to require a further version of the Development Plan to be provided (incorporating such changes) prior to VCAT making a final order under s149 of the PE Act that it is ‘satisfied’ with the plan. There is then greater certainty about the Development Plan with which VCAT is satisfied. 
32	In this case, I find that the extent of changes required are too extensive to be listed as ‘conditions precedent’ or to be addressed through an interim order. However, there is a third option of remittal of both applications to the Council. I am confident that a suitable final form of development plan could be expediently dealt with by the responsible authority with the benefit of my findings on the matters of substance set out below. 
THE SUBSTANCE OF THE DEVELOPMENT PLAN
33	Council was critical that the development plan diagram and the permit application plans were so closely aligned. However, I find that this is not unusual, particularly in circumstances where a development plan must ‘meet the requirements of Clause 56 as specified in the zone’. In such circumstances there needs to be an understanding at the time of the drafting of the development plan as to the potential future subdivision or development requirements.
34	The schedule to the overlay specifically sets out the requirements for a development plan, together with decision guidelines. The requirements include:
A development plan is to be a combination of a report and a diagram and must include or address the following where relevant:
General
•	A site description, detailing the site conditions including its topography.
•	Indicative staging of the subdivision.
•	Subdivision and road layouts that integrate with and facilitate access to the surrounding areas.
•	Safe and efficient pedestrian links to surrounding areas.
Infrastructure
•	Access to new residential areas.
•	Transport connections including main internal road layouts and connections to existing road networks.
•	Identification of servicing constraints and opportunities.
Open Space
•	Provision of useable public open space (as required) which:
•	Is in accordance with Clause 56.05-2 of the Bass Coast Planning Scheme.
•	Is clearly visible and accessible to residents within the site and from surrounding areas, providing a safe and convenient area to serve the recreational needs of future residents.
•	Is located with any natural features that may exist on the site including creeks, rivers and existing vegetation.
•	Does not provide for lots backing onto the public open space reserve and roads (where appropriate).
Environment
•	Identification of areas not suitable for development.
•	Identification of environmental issues, opportunities and constraints (including native vegetation).
•	Protection of significant vegetation.
•	Identification of the overland flow paths north of Nesci Court.
Development
•	An average density of 13-15 dwellings per hectare to maximise residential yield.
•	Identification of any areas suitable for medium density housing.
•	Identification of the location of a site for a local convenience centre.
In addition to the decision guidelines within the DPO and at Clause 65.01 (approval of an application or plan), the schedule requires consideration of the view of the Department of Environment, Land, Water and Planning.
35	In terms of the substance of the development plan the parties agreed that the diagram:
•	Adequately describes the site and its conditions including contours to demonstrate topography.
•	Showed indicative staging of subdivision.
•	Generally adopted an internal subdivision and road layout that integrates with and facilitates access to the surrounding areas. 
•	Shows the opportunity for safe and efficient pedestrian links to surrounding areas.
•	Provides a suitable size and location for un-encumbered public open space located to protect a stand of remnant vegetation.
•	Identifies areas not suitable for development including the retarding basin and areas affected by bushfire risk.
•	Includes a medium density housing area.
•	Identifies a commercial site in the location specified in the strategic framework plan.
•	The views of DELWP had been considered.
36	The key areas of dispute relate to the provision of infrastructure relating to the development, specifically drainage and transport and matters of detailed design.
PROVISION OF Infrastructure
37	The parties agreed that the development plan should identify the required provision of infrastructure internal to the review site and any external works required that are reasonably related to or required to service the proposed development plan area. In addition, the parties accepted that some consideration was required at the development plan phase as to the timing of provision.
38	It was clear that the Revision N diagram on its own does not do this. The Revision O diagram identifies only the works to the intersection of Ullathornes Road and the Bass Coast Highway. The June 2021 report included as an appendix ‘servicing plan’, but this was based on a far earlier version of the diagram.
39	There are main external public infrastructure works for which the Council is seeking included within the development plan including:
•	Drainage works.
•	The upgrade of Ullathornes Road. 
•	The upgrade of the Bass Coast Highway intersection (as required by the Head, Transport for Victoria.
There was agreement between the parties that these infrastructure matters would necessarily need to consider land beyond the review site.
Submission of Greg Hewett 
40	Mr Hewett is the owner of several properties within Nesci Court. The land is also part of the DPO24, located on the eastern side of Ullathornes Road. 
41	At the Practice Day hearing on 1 August 2022 the Tribunal considered and refused a request by Greg Hewett to be joined to the proceedings. In the remarks accompanying the order the Tribunal noted that:
9	Whilst adjoining landowners may have an interest in the outcome of the approval of development plans, the use of a DPO by council has essentially removed any such rights.  The council is informed by the views of adjoining owners and it can represent those views to the Tribunal in due course.   
10	It is the responsibility of council to ensure the coordinated development in an area subject to a DPO and not for individual landowners to seek outcomes that best suit their property interests.
11	On that basis, I refuse to join Greg Hewett.
42	By email dated 17 October the representative for Mr Hewett circulated a submission to the proceedings and indicated that they would be seeking ‘leave to make a short oral submission at the forthcoming hearing’. Mr Kell submitted that:
We confirm that our client does not seek to become a party to these proceedings or ask any questions of the expert witnesses. Rather, our client would like to be provided an opportunity to expand on these written submissions at the hearing and answer any questions from the Tribunal.
43	No party to either proceeding objected to my hearing from Mr Hewett to inform myself as to what was occurring on the eastern side of the road. Pursuant to Section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal may inform itself on any matter as it sees fit. I stand in the shoes of the responsible authority in considering the applications before me. I determined that it would be of assistance to me to allow the representative of Mr Hewett to make a brief submission confined to matters pertaining to the eastern side of Ullathornes Road relating to drainage and traffic. 
ULLATHORNES ROAD UPGRADE
44	The traffic engineers agreed that an upgrade to Ullathornes Road would be required for the ultimate urban development of the area comprising:
•	Kerb and channel (SM2 rollover type) along the western side of the road.
•	Kerb and channel on the eastern side for approximately 15m north and 5m south of the access points to the review site.
•	The provision of a splitter island on the central access road to the subdivision (like the treatment at Royal Parade to the south).
•	A shared pathway for the western side of the road within the boundary of the review site to accommodate the existing native vegetation along the road.
•	The additional land for the shared pathway to be vested within the road reservation through the subdivision. 
•	The retention of the existing open drain system.
•	The remaining eastern side of the road would then form the responsibility of the eastern part of the DPO24 area, including kerb and channel and a shared pathway.
The design is illustrated in Figure 6:
45	The applicant agreed that these works would form part of its contributions and should be referenced in the development plan either on the diagram or in the report. Council supported the implementation of the kerb and channel and shared pathway as proposed by the applicant (putting aside the matter of drainage discussed below). 
Figure 6: Ullathornes Road layout

46	Mr Kell noted that the designs for the development of Nesci Court do not include access to Ullathornes Road other than at Nesci Court, with lots to front an internal road network. While this may be the case, this does not consider the additional traffic generated from the development that will use Ullathornes Road. 
47	Mr Kell also submitted that an equal responsibility for Ullathornes Road upgrade was not justified given the yield differential on each side of the road. I have found that the contribution of the western side is appropriate. The design for the western side is not dependent on the works on the east side of the road as the kerb and channel sections adjacent to the site entries will be constructed. It will be a matter for the eastern development plan to justify whether an alternative design solution is acceptable. 
Emergency stopping
48	Mr Stone in evidence considered that there should be some consideration for emergency stopping or parking bays along Ullthornes Road that are designed to take into account the rural drainage constraints. 
49	Mr Turnbull considered that the width of the road would be such that emergency stopping could be accommodated. Mr Turnbull had also included an layout option for the eastern side of the road that may accommodate this.
50	I find that this is a matter that could be considered at the detailed design stage for the western side and that the development plan could simply require consideration of this need in any permit application.
Crossing Ullathornes Road
51	The Revision N diagram identifies a ‘possible future 2.5m shared path’ and crossing of Ullathornes Road from the southern side of the main access road to the subdivision, across Ullathornes Road and south along the eastern side of the road to Nesci Court.
52	Mr Kell submitted that any shared path for the eastern side should commence on the south side of Nesci Court and provide for a road crossing in that location which will provide improved access to the existing bus.
53	The traffic experts agreed that the shared path which is proposed to run along the south side of the central access road within the subdivision should continue across Ullathornes Road on the south side of the intersection. The crossing should be immediately adjacent to the central access road to minimise the length of the break in the vegetation and disruption of the table drain. This crossing would be expected to link to the shared path on the east side of Ullathornes Road which would be provided as part of the development of that land. They agreed that this did not need to extend to the bus stop, noting that a pedestrian connection would need to be established on the eastern side in the future and this may require additional land if the road layout option above is adopted. 
54	The applicant submitted that to require a crossing further south, closer to the bus bay, would potentially require further removal of native vegetation along the road reservation and was not warranted given the role of the bus bay.
55	I find that the development plan should be amended to reflect the position of the traffic engineers. I consider that a crossing at the main entry is appropriate as it will serve the majority of the estate.
DRAINAGE STRATEGY
56	At the time of the rezoning of the land in Amendment C124, Council engaged consultants Engeny to prepare an assessment of potential drainage requirements. The brief for the Ayr Creek Drainage Investigation Feb 2013 Engeny included ‘providing advice on managing the increased flows should planning amendment C124 proceed and the area around Nesci Court and to the north west of Nesci Court be rezoned from low density residential and farmland to residential’.
57	The drainage strategy identified that there would be a need for a retarding basin on the west side of Ullathornes Road to retard peak flows back to pre-development levels to ensure that any flooding issues downstream are not made worse by the development in the upper portion of the catchment. The report found that:
The proposed rezoning in amendment C124 has been considered and a proposed retarding basin/wetland on the west side of Ullathornes Road opposite Nesci Court has been sized to treat the runoff from redevelopment upstream of Ullathornes Road and to control peak flows. Engeny proposes a retarding basin / wetland. The wetland has been sized to achieve Best Practice Targets for nutrient and sediment removal. The basin also retards peak flows up to the 100 year ARI event back to existing conditions flows. The estimated area required for the wetland/retarding basin is approximately 1.0 ha.
58	The report then considered the flows from the retarding basin into the Nesci Court drainage system. The report found that:
If the area around Nesci Court is redeveloped as part of planning scheme amendment C124 then local stormwater treatment will be required (this could include swales and/or raingardens). The main drain from Nesci Court would need to be remodelled if the area is redeveloped, to be either a widened and enhanced waterway or a pipe and road or floodway depending on a number of factors.
59	The subsequent Ayr Creek Reserve Management Plan 2016 seeks to apply a whole of system approach to the reserve. The management plan notes that ‘further subdivision and urban development around the reserve will require careful planning to ensure the drainage and stormwater management requirements are balance with the need to protect environmental values within the reserve’.
60	The management plan sought to ‘ensure that subdivision development within Nesci Court includes appropriate storm water management, which may include provision of retarding basin, vegetated swale drains, water tanks, rain gardens, and/or wetland to retain flows at rural rate of flow’.
61	The original development plan submitted to Council proposed that the land drain to the south with a small retarding basin located in the south east corner of the review site. However, due to capacity constraints within this southern catchment, this solution was not considered suitable. 
62	A revised stormwater management strategy (Incitus, Version 2, 28 January 2022) was subsequently prepared that more closely reflected the discussion set out in the Engeny report, including the provision of a large retarding basin and outfall to Nesci Court through to the Ayr Creek. This strategy was supported by the catchment management authority. The retarding basin is now shown on the development plan diagram Revisions N and O, but the outfall location under Ullathornes Road is not. The strategy showed that there would be a reduction in the peak flows to Ullathornes Road / Nesci Court.
63	The evidence of Ms Barich updated the January 2022 hydrologic modelling. The results of the revised hydrologic modelling still indicate a reduction in the peak flows at Ullathornes Road / Nesci Court and in Ayr Creek downstream of Nesci Court due to the development of the site with the inclusion of on-site retardation (refer to Figure 7).

Figure 7: A comparison of existing and post development 1AEP flood hazard results (Evidence of Ms Barich).
 
64	Her evidence did not look to design a system for the ultimate development of the DPO24 area. Rather her evidence was that:
It is my opinion that the development of Toorak Park Estate should not have to provide any additional drainage infrastructure for the post development flows of the entire DPO24 area. The development of the site is meeting its requirements for best practice stormwater management in accordance with Clause 53.18 of the Victorian Planning Provisions. The site is providing on-site treatment to best practice and retardation to predevelopment flow magnitudes.
The hydraulic modelling has demonstrated that the development of this site is not contributing to any additional flooding downstream but is showing a marginal reduction in the existing downstream flooding.
It should not be the requirement of this development to fix the existing downstream flooding issue, or to provide drainage infrastructure for other landowners to develop without any financial contribution from those landowners.
It is my experience that when an upgrade to drainage works is required due to development, they are funded by drainage contributions collected from all relevant landowners, not merely Headmac Pty Ltd.
65	I note that the development plan report still relates to the 2021 drainage strategy which drained to the south and does not reflect the proposed approach now before me.
66	Council considered that the strategy did not provide sufficient detail for Council to be satisfied that the proposal would manage its downstream effects. Council submitted that the stormwater strategy needed to address the ultimate development of the whole of the DPO24 land. Council appointed Mr Coombes to review the stormwater strategy in this context.
67	Mr Coombes proposes an ultimate scenario for all of the land within DPO24. The stormwater strategy is based on a minor/major drainage strategy where 20% AEP flows are conveyed by pipe drainage and flows between 20% and 1% AEP are conveyed in road reserves or open space.
68	Mr Coombes provided an overall approach that is shown in Figure 8:
•	The retarding basin (with provision for emergency flow) was appropriate.
•	That the outlet to Ullathornes Road will need to be designed to accommodate the road level. The detail of the outfall arrangements will need to consider the constraints of the topography of the development, an invert level of 19.0 m AHD at the Ullathornes Road culvert, the road surface level of about 20.2 m AHD and the outlet level of 16m AHD at Ayr Creek. 
•	Piped drainage on the north side of the outlet along Ullathornes Road on the west side of the road (about a 450mm pipe) replacing the existing table drain.
•	Piped drainage to the south of the outlet along Ullathornes Road connecting to the existing 300mm pipe network to the south replacing the existing table drain. 
•	Some stormwater runoff may flow towards the established drainage networks within Ullathornes Road near the southern boundary of the development.
•	There would be no need for piped drainage on the east side of Ullathornes Road as flows are minor in this direction.
•	There is a need for the works within Nesci Court to accommodate a 1.2m diameter pipe to connect to the creek outlet. 
•	Overland flows from the north of Nesci Court to be accommodated in the drainage design for that side of the road.
•	Additional works would be required downstream within the Creek.
69	He considered the proposed eastern side of Ullathornes Road and estimated a maximum of 140 residential allotments. He considered the Stormwater Management Strategy for this development (Engeny 2021) which proposes the provision of a 675mm pipe in Nesci Court to convey the 20% AEP peak flows, with the remaining flows as surface flows in the major drainage strategy. Mr Coombes disagreed with the Engeny recommendations and preferred that a larger diameter pipe (1.2m) accommodate all the flows. He considered that the hazard criteria (depth times velocity) of 1.58 m2/s for full flows in the Nesci Court table drain are unacceptable and a minor/major drainage system will be required for an urban development.
Figure 8: Coombe’s drainage strategy

70	There was agreement between the experts on many aspects of the drainage scheme including the area of land required for the retarding basin and the location of the basin on the review site. The experts were generally satisfied that the basin would retard stormwater to pre-development levels and that the outflow would possibly result in a slight improvement to existing flows downstream. Water quality was also considered to be acceptably managed.
71	Mr Coombes acknowledged that in a situation where the Toorak Park Estate is developed ahead of the Nesci Court development, stormwater will discharge via a peri-urban environment to Ayr Creek. However, he considered that the ultimate development of the DPO24 area will require the full provision of the piped drainage. What is in dispute is whether it is acceptable that the drainage within Ullathornes Road and along Nesci Court remain at a rural standard with the development of the review site. There is also a question as the funding arrangements for such works and who is responsible for construction and when. 
72	Mr Coombes was asked by Council to provide an indicative schedule of apportionment which he did. His evidence was that the basis for the apportionment could be varied based on a variety of methods. For example he used a 50/50 basis for Ullathornes Road because of frontage, but a likely future development yield for the Nesci Court drainage. Council accepted that the applicant should not be responsible for all the costs of the ultimate drainage solution. 
73	In a situation where there is no development contributions plan overly or infrastructure funding plan requirements, I find that the responsibility and cost of any works needs to be clearly defined. The permit requirements of Clause 3.0 of the schedule to DPO24 require:
•	Prior to the commencement of any development, the owners of the land must enter into an agreement with the responsible authority pursuant to section 173 of the Planning and Environment Act 1987. The Agreement must make provision for contributions to be made by the owners towards the provision of on-site and off-site infrastructure (including the provision of land and/or the payment of financial levies), required as a consequence of the intended use and development of the land.
74	Council suggests that it may be possible using Section 173 Agreements to apportion costs with one developer to be refunded for works. The applicant submitted that no permit conditions or agreement could assure the developer of the west side of the road would be reimbursed for works undertaken that are to the benefit of the east side.
75	I was not persuaded by the approach proposed by Council. While this may be possible, the approach is very problematic. There is no clear legal mechanism to provide for the cross funding and the approach would rely on Council taking an active role to ensure permits are fair. Alternatively, a Section 173 agreement would need to be voluntarily entered into between all parties (both east and west areas). Council also has other tools available to it such as a Special rate and Special charge scheme.
76	It is also important to note that the provision of contributions must be required as a consequence of the intended use and development of the land. The question of nexus has been central to my consideration.
Ullathornes Road
77	With the agreement to provide for kerb and channel on the western side of Ullathornes Road, it would normally be efficient to provide for any piped minor drainage under the kerb at the same time. This would future proof the road construction. However, the applicant submitted that there was insufficient space to provide piped drainage and if required this may impact on the roadside native vegetation to be retained along the road corridor which has habitat value for threatened fauna species.
78	I am not persuaded that there is insufficient room to provide the piped drainage as part of the road works. However, having inspected the site I am satisfied that the development plan can rely on the existing rural drainage along Ullathornes Road because:
•	There is no direct access proposed to residential lots (this should be made clear in the development plan).
•	The retarding basin will abut the road for a considerable portion.
•	The provision of piped drainage may impact on the retention of native vegetation to be protected.
79	However, I am not satisfied that the strategy prepared by Ms Barich has addressed the agreement of the parties to the provision of kerb and channel along the western side of Ullathornes Road. The strategy would be required to be updated to explain how this would work (ie: breaks to allow flow to the existing drain) and how the major flows can be safely accommodated within the road reserve without causing downstream impacts and factored into the development plan.
Nesci Court
80	The experts agreed that the current rural drains within Nesci Court overflow onto the road and into private property in major events. This was considered acceptable in the context of the existing rural residential development of the area (although not ideal). Mr Coombes expressed concern that the capacity of the Nesci Court drain is presently exceeded for 1% AEP events and that there was unacceptable hazard criteria for lesser events. 
81	Having inspected the site, I agree with Mr Coombes that ultimately, when all the DPO24 land is developed, Nesci Court will require upgrading to its road and drainage infrastructure. 
82	However, I have difficulty requiring these upgrade works to occur as part of the development of the western side of the road where the works provided by the applicant are acknowledged to likely improve results and the existing situation is considered appropriate for the current rural residential form. No worsening of Ayr Creek and Nesci Court flows is proposed. There is in my view insufficient nexus.
OVERALL Conclusions on drainage
83	The stormwater drainage strategy outlined by Ms Barich is at a broad level, but I find that this is acceptable at the development plan phase. The strategy should be revised to assess the impact of the agreed kerb and channel in Ullathornes Road before approval.
84	The development plan diagram should indicate the location of the retarding basin outfall and that no residential lots should gain access from the road reserve. The report should explain the stormwater management strategy for the land.
85	There were some areas of the strategy identified by Mr Coombes where further detail was required (such as the outfall of the retarding basin) but I am satisfied that these matters can be addressed as part of the detailed stormwater design that will be required as part of the planning permit application and permit conditions. 
BASS COAST HIGHWAY INTERSECTION
86	The development plan was referred to the Head, Transport for Victoria. The head sought the upgrade of the Bass Coast Highway intersection to include an improved right hand turn facility and potentially, a formal left hand turn lane.
87	The two traffic witnesses agreed at the conclave that an upgraded channelised right hand turn facility was required but that the left-hand turn facility was not warranted. The applicant was satisfied that the requirements for the highway should be included on any development plan, but that flexibility be included for final design to be addressed through further consultation with Transport for Victoria. The evidence of Mr Pagliaro was that these works should be identified on the development plan as ‘to the satisfaction of the Head, Transport for Victoria.
88	In terms of timing of the intersection upgrade, the two witnesses agreed that the intersection works would not be required until approximately half the lots in the estate were developed (about Stage 8). This is a matter that could be included within a servicing or infrastructure plan forming part of the development plan report or alternatively as part of a future planning permit.
OTHER DEVELOPMENT PLAN MATTERS
Internal Road Layout
89	The parties generally agreed that the road, cycling and pedestrian links within the site are acceptable. The evidence of the two traffic engineers was that the indicative internal road layout would be appropriate. I am satisfied that the internal road layout is acceptable and consistent with Clause 56.
90	There was some discussion about the southern link shown as an extended driveway in the south west corner of the development court. The adjoining subdivision has a dead end in this location with a small reserve (Reserve 1 on PS846194). A similar reserve is shown on the development plan. I find that this link should clearly provide for public access and the ‘extended driveway’ be a public road that will allow the two reserves to function as a future pedestrian link.
Shared pathways
91	There is a shared pathway proposed along Ullathornes Road. This stops at the southern side of the commercial site. The evidence of Mr Turnbull was that this should be continued to the highway. I find that it is appropriate that the development plan show this extending to the Bass Coast Highway. The pathway should also connect to the southern footpath at the southern end of the site’s abuttal to Ullathornes Road and this should be specified in the development plan.
92	I note that the changes to the development plan diagram recommended by Mr Pagliaro do not indicate that this pathway is to be provided at the cost of the developer nor explain that it is to be vested in Council as part of the road reservation. This should be specified in the development plan.
Commercial site
93	The Inverloch Design Framework Final Report (CPG Australia Pty Ltd, 2011) is identified as a background document in the DPO24. This framework identified the corner of the Bass Coast Highway and Ullthornes Road for a future service centre/ convenience outlet ‘with a total retail floorspace of 60sqm’ This is also reflected within the strategic framework plan in the scheme.
94	A ‘commercial site’ is shown on the development plan with a potential access point onto Ullathornes Road. The current zoning of the land and lack of approved access to the Bass Coast Highway will necessarily limit the potential for commercial development of this site. I am satisfied that it should not be limited to a ‘local convenience centre’ within the development plan. 
95	Council suggested that the commercial site could be moved to a location that is also more integrated with the residential development to which the convenience centre serves. I disagree with this. The commercial site is appropriately located as envisaged in the strategic framework plan. 
96	The development plan should identify that the interface between commercial site and nearby residential as sensitive interface either diagrammatically or in the report. 
Relationship to remnant land in the Farming Zone
97	The balance of the land, outside of the DP is 15ha. This land is within the Farming Zone. The plan has provided a bushfire buffer to this land with an abutting road. However, there is no consideration within the development plan and this could be included within the report or shown diagrammatically. Council suggested that this could include comment on the type of fencing, treatment of the road abuttal and access for agricultural machinery.
Bushfire considerations
98	The Bushfire Development Report, June 2021 is based on a very different layout to what is now before me, although appears that the CFA had considered a later version of the development plan diagram in its referral response. I am satisfied that the development plan diagram shows the required bushfire buffer distances, although key criteria such as future requirements for managing these areas could be explained in the report as suggested by Council. Matters of detail will need to be addressed as part of the permit application (see discussion below).
Adequate and useable public open space
99	Council accepts that the area of unencumbered public open space area is appropriate as shown on the development plan. Council suggested that a link could be considered to the retarding basin area. This was supported by the evidence of Mr Pagliaro. I find that the development plan should suggest a future pedestrian link between the two areas of open space.
Native Vegetation and Flora and Fauna
100	The proposed changes to the development plan diagram in the evidence of Mr Pagliaro now identify the location of existing vegetation within the site and along Ullathornes Road. However, the importance of the roadside vegetation along the highway is not shown. The development plan does not provide any guidance or objectives that would assist an assessment of a future planning permit application under Clause 52.17. This could be briefly addressed in the updated report.
101	The Flora and Fauna Assessment submitted with the application details that the proposed development of the Subject Land has the potential to impact on the Southern Brown Bandicoot and Satin Flycatcher. The report identifies that measures may need to be implemented to protect the habitat value of the road side vegetation and suggests works to provide bandicoot crossings. I am satisfied that the location of the works can be detailed at the planning permit stage, but agree with Council that the development plan report should provide some objectives to be met.
FINDINGS ON Permit application
102	As I have set out above, the development plan is not presently in a form that would allow for its final approval. It is necessary for the changes I have identified above to be included and for the accompanying report to be updated. I am satisfied that these matters can be addressed through remittal to the Council.
103	It follows from the above that the permit application should also be remitted to the responsible authority as a permit cannot be granted without an approved development plan and any permit granted must be generally in accordance with the approved development plan. To assist the parties going forward, I briefly address the matters raised in respect to the permit application at the proceeding. 
Planning Scheme requirements
104	The permit application includes permissions under the following planning scheme provisions:
•	Clause 32.08-3 for subdivision in the GRZ1
•	Clause 35.07-3 for subdivision in the Farming Zone
•	Clause 52.02 for creation of restrictions
•	Clause 52.17 for native vegetation removal
•	Clause 52.29-2 to subdivide land adjacent to a road in a Transport Zone 2.
105	Pursuant to Clause 64.03 relating to subdivision of land in more than one zone, a permit may be granted even if one of the lots does not comply with the minimum lot size requirements of the Farming Zone.
106	Clause 3.0 of the DPO24 Schedule states that the following conditions and/or requirements apply to permits (where appropriate and relevant):
•	A town planning report outlining how the proposal responds to the Municipal Planning Strategy and Planning Policy Framework, and other relevant sections of the Bass Coast Planning Scheme including Clause 56.
•	A report outlining how the proposed development is consistent with the requirements of this schedule.
•	A stormwater management plan detailing how stormwater will be collected, treated and re-used within the development, with particular emphasis on minimising impacts on Anderson Inlet, and the removal of sediment, litter and other wastes from stormwater prior to discharging from the site.
•	A flora and fauna report for the site prepared by a suitably qualified expert, which includes, but is not limited to; the identification of vegetation on the site (including species), its current health, its significance in the local, regional, state and national context, measures required to protect significant vegetation, and the identification of any vegetation to be removed.
•	Building envelopes on lots that contain significant vegetation.
•	A Cultural Heritage and Archaeological Assessment for the site.
•	A Traffic Impact Assessment and Management Plan for the proposed development prepared by a suitably qualified person.
•	Details of the availability and connection to relevant services, including provision for the connection to reticulated gas services.
•	Any other matters as deemed appropriated by the responsible authority, which the planning permit should take account of based on the specific characteristics of the land.
107	Except for a permit granted before a development plan has been approved in accordance with Clause 2.0 of the schedule or unless otherwise agreed by the responsible authority, a permit must provide for the following matters:
•	Prior to the commencement of any development, the owners of the land must enter into an agreement with the responsible authority pursuant to section 173 of the Planning and Environment Act 1987. The Agreement must make provision for contributions to be made by the owners towards the provision of on-site and off-site infrastructure (including the provision of land and/or the payment of financial levies), required as a consequence of the intended use and development of the land.
•	Offsets for native vegetation, where relevant, which will be required to be determined to the satisfaction of the Department of Environment, Land, Water and Planning.
•	Preparation of an Environment Management Plan for both the construction and operational phases prior to the commencement of works.
•	Preparation of a Landscape Plan that shows the location, size and species of existing vegetation, vegetation to be retained, removed or lopped and new planting on road reserves and open space areas.
•	Preparation and approval of a Construction Management Plan prior to the commencement of any works.
•	Detailed civil construction plans for drainage, vehicle and pedestrian access and car parking.
•	All electricity supplies for the development to be provided underground.
•	Preparation and approval of detailed civil construction plans for drainage, vehicle and pedestrian access and car parking.
•	Street lighting to be designed and provided.
108	The last version of the subdivision plan considered by the Council at its meeting of 17 August 2022 was plan 40013CMP-A Revision I, dated 12 July 2022). 
109	To accompany the amended development plan substituted in the proceeding (Revision N), the applicant also circulated an amended permit application plan, Revision K on 12 September 2022. Having heard from all parties in the proceeding I determined to substitute this plan for that previously before Council in the permit application (Figure 9).
110	The evidence of Mr Pagliaro was that;
Having regard to the subdivision plan, I recommend that the following changes be made:
•	An indicative lot yield is nominated to the MD superlot to demonstrate that the subdivision will continue to achieve an overall density of 13-15 dwellings per net developable hectare in accordance with the requirements of the DP.
Appendix B of his evidence included an amended version of the plan, Revision L.
111	The material for the permit application will need to be updated to reflect the changes arising out of the development plan. The permit will need to address the implementation of the high level detail of the stormwater strategy within the development plan. Sufficient provision will need to be made for functional design of the various components such as the retarding basin in conditions. The permit will also need to address the staging and timing of drainage and road works.

Figure 9: Permit application plan Revision K.

Specific matters raised in relation to the permit application 
Small lots
112	Council submitted that the lots that are less than 300m2 should be provided with building envelopes. The evidence of Mr Pagliaro supported this. I find that this would be consistent with the requirements of Clause 56. Alternatively, the lots could be simply identified as medium density housing super-lots on the development plan and treated as such in the permit application. 
113	Some of these small lots are shown abutting the northern end of the retarding basin. Council suggested the provision of ‘paper’ roads to these and similar lots to provide for pedestrian access. The applicant agreed that this was a good outcome.
114	Council flagged that the sediment basin for the retarding basin was located close to these lots. The evidence of Ms Barich is that a minimum 10m separation is required. This should be provided for in the permit application.
Side boundaries to Ullathornes Road
115	Council identified that there are a number of allotments that will have side boundaries to Ullthornes Road and the shared pathway. Council was concerned that this could lead to a poor urban design outcome. The applicant submitted that this would be acceptable given the short distances and width of the shared pathway. I find that the permit application should address this matter, for example through building envelopes and fencing restrictions for these lots.
Open space
116	Council submitted that the future design and infrastructure provision for the public open space areas was not set out in the permit application. It is understood that Council seeks the provision of a children’s playground within the park. I am satisfied that this can be addressed through permit conditions.
Extent of Native Vegetation Removal
117	Council submitted that the proposal had not justified the extent of vegetation removal proposed and identified a number of trees that it considered worthy of retention. These included trees 9, 10, 11, 23, 24, 35, 36 and 41. I note that the referral comments from DEWLP was not satisfied that sufficient information had been provided to allow a full assessment of the permit application under Clause 52.17 and sought additional details about the trees to be retained and protection measures. 
118	The applicant agreed that additional trees could potentially be retained in the permit application including trees 9 and 10 within the retarding basin and tree 41 within the medium density housing super-lot. In addition, the permit applicant noted that tree 36 was already shown as retained. The applicant submitted that the remaining trees were within the future road alignments or on lots. The applicant also noted that the land would be subject to extensive earthworks to achieve the drainage strategy and ensure land drained to the retarding basin.
119	Subject to a revised calculation and incorporating the additional trees to be retained, I am satisfied that native vegetation has been acceptably protected.
Flora and fauna
120	The parties agree that fauna sensitive culvert designs are required to the new roads to Ullathornes Road. These should be detailed in the permit application material. In addition the permit conditions should include the recommended pre-clearance surveys. 
Bushfire
121	The proposed subdivision layout includes responsibility for maintaining the 33m bushfire setback from the Bass Coast Highway within the frontages of proposed lots. The Council says that there is insufficient information about these lots. The applicant submits that there is sufficient room for dwellings on these lots and that the setbacks can be acceptably managed.
122	While I accept that there is sufficient room to accommodate a building envelope towards the rear of the lots, I find that these should be shown on the plans. In addition, the ongoing requirements for the maintenance of this buffer should be set out in a restriction or agreement applying to these lots including fencing requirements. The latter would also apply to the western facing lots fronting the Farming Zone. 
123	The CFA sought consideration of hazard prevention in the south-west corner of the site where the land abuts grassland. I am satisfied that this is appropriately treated given the subdivision approved to the south and the minimal abuttal.
DECISION
124	For the reasons given above, the decision of the responsible authority in each application for review is set aside and the matters remitted for reconsideration.

Megan Carew
Member