Planning and Environment Act 1987
Panel Report Yarra Ranges Planning Scheme Amendment C176yran Planning Permit Application YR-2018/358 Lot 3 Holloway Road, Wonga Park
7 February 2020
Planning and Environment Act 1987 Panel Report pursuant to section 25 of the Act Yarra Ranges Planning Scheme Amendment C176yran Planning Permit Application YR-2018/358 Lot 3 Holloway Road, Wonga Park 7 February 2020
Tim Hellsten, Chair Elissa Bell, Member
Kate Partenio, Member
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
Contents Page 1 Introduction ...... 1 1.1 The Amendment ...... 1 1.2 Planning permit application ...... 2 1.3 Subject land and context ...... 3 1.4 Background ...... 5 1.5 Authorisation ...... 5 1.6 Summary of issues raised in submissions ...... 5 1.7 Procedural issues ...... 6 1.8 The Panel’s approach ...... 10 1.9 Limitations ...... 10 2 Planning context ...... 12 2.1 Planning policy framework ...... 12 2.2 Other relevant planning strategies and policies ...... 13 2.3 Planning scheme provisions ...... 17 2.4 Ministerial Directions and Practice Notes ...... 21 3 Zones and overlays ...... 24 3.1 The issues ...... 24 3.2 Relevant practice notes, zone and overlay provisions and strategies studies ..... 24 3.3 Evidence and submissions ...... 27 3.4 Discussion ...... 28 3.5 Conclusions ...... 29 4 Brushy Creek Sewerage Treatment Plant ...... 30 4.1 The issues ...... 30 4.2 Relevant legislation, policies, strategies and studies ...... 30 4.3 Evidence and submissions ...... 32 4.4 Discussion ...... 36 4.5 Conclusions ...... 38 5 Native vegetation ...... 39 5.1 The issues ...... 39 5.2 Relevant policies, strategies and studies ...... 39 5.3 Evidence and submissions ...... 40 5.4 Discussion ...... 44 5.5 Conclusions ...... 45 6 Stormwater and stream ecology ...... 46 6.1 The issues ...... 46 6.2 Relevant policies, strategies and studies ...... 46 6.3 Evidence and submissions ...... 47 6.4 Discussion ...... 49
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
6.5 Conclusions ...... 51 7 Bushfire ...... 52 7.1 The issue ...... 52 7.2 Relevant policies, strategies and studies ...... 52 7.3 Evidence and submissions ...... 52 7.4 Discussion ...... 54 7.5 Conclusions ...... 54 8 Traffic ...... 55 8.1 The issues ...... 55 8.2 Relevant policies, strategies and studies ...... 55 8.3 Evidence and submissions ...... 55 8.4 Discussion ...... 57 8.5 Conclusions ...... 58 9 Cultural heritage and landscaping ...... 59 9.1 Aboriginal cultural heritage ...... 59 9.2 Landscape plan and trees ...... 59 9.3 Other off-subject land impacts...... 61 9.4 Conclusions ...... 61 10 Net community benefit – integrated assessment ...... 63 10.1 Key issues...... 63 10.2 Submissions and evidence ...... 63 10.3 Discussion ...... 64 10.4 Conclusion and recommendations ...... 66 10.5 Subject land future ...... 66 11 The planning permit ...... 67 11.1 Referral authority conditions ...... 67 11.2 Without prejudice permit drafting discussion ...... 68 11.3 Discussion ...... 70 11.4 Conclusions ...... 75
Appendix A Submitters to the Amendment Appendix B Parties to the Panel Hearing Appendix C Document list Appendix D Proponents Revision 4 of the Planning Permit
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
List of Tables Page Table 1 Relevant parts of Plan Melbourne ...... 13 Table 2 Referral authority roles ...... 20 Table 3 NRZ and GRZ purposes and key provisions ...... 24 Table 4 Summary of Planning Practice Note 91s application of residential zones ...... 25 Table 5 Criteria for subject land-specific variation of separation distances ...... 31
List of Figures Page Figure 1 Proposed zoning ...... 1 Figure 2 Subdivision Plan version V ...... 2 Figure 3 Subject land context – Melway Map ...... 4 Figure 4 Subject land context - Aerial photo ...... 4 Figure 5 Subdivision Plan version X ...... 8 Figure 6 Excerpt from Regional Strategy Plan showing land in the Landscape Living Buffer (LLB) ...... 16 Figure 7 Extent of ESO1 and LSIO ...... 18 Figure 8 Extent of SLO23 ...... 26 Figure 9 EPA default buffers for BCSTP ...... 33 Figure 10 BCSTP Directional buffer based on local meteorology ...... 34 Figure 11 Vegetation to be removed ...... 41
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
Glossary and abbreviations
Act Planning and Environment Act 1987 Amendment Yarra Ranges Planning Scheme Amendment C176yran BAL Bushfire Attack Level BCSTP Brushy Creek Sewerage Treatment Plant BPEM Guidelines Urban Stormwater Best Practice Environmental Management Guidelines 1999 Council Yarra Ranges Shire Council CHMP Cultural Heritage Management Plan CPRAG Chirnside Park Resident’s Action Group DBH Diameter at breast height DELWP Department of Environment, Land, Water and Planning EPA Environment Protection Authority EPBC Act Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) ESO Environmental Significance Overlay EVC Ecological Vegetation Class FFG Act Flora and Fauna Guarantee Act 1988 Housing Strategy Shire of Yarra Ranges Housing Strategy (May 2009) IRAE Industrial residual air emissions NRZ Neighbourhood Residential Zone Planning Scheme Yarra Ranges Planning Scheme PPF Planning Policy Framework Proponent Ashlyn Springs Pty Ltd Regional Strategy Plan Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan RLZ Rural Living Zone UFZ Urban Floodway Zone UGB Urban Growth Boundary YVW Yarra Valley Water
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
Overview
Amendment summary The Amendment Yarra Ranges Planning Scheme Amendment C176yran Planning Permit Planning Permit YR-2018/358 for the residential subdivision, removal of vegetation and works associated with a wetland and sediment pond Brief description Rezone the subject land from a Rural Living Zone to a combination of Neighbourhood Residential Zone (NRZ1) and Urban Floodway Zone (UFZ) and to place a Significant Landscape Overlay (SLO23) over the proposed NRZ1 area to allow the residential subdivision of the land consistent with Planning Permit YR-2018/358 Subject land Lot 3 LP403716, Holloway Road, Wonga Park The Proponent Ashlyn Springs Pty Ltd Planning Authority Yarra Ranges Shire Council Authorisation 31 October 2018 Exhibition 20 December 2018 - 8 February 2019 Submissions Number of Submissions: 55 Opposed: 47 Refer Appendix A
Panel process The Panel Tim Hellsten (Chair), Elissa Bell and Kate Partenio Directions Hearing Yarra Ranges Shire Council offices, 26 August 2019 Panel Hearing Chirnside Park Community Hub, 11, 13 18 and 20 November 2019 Montrose Town Centre, 14, 15, 19, 21 and 22 November 2019 Subject land inspections Unaccompanied, 23 and 26 August 2019 Appearances Refer Appendix B Citation Yarra Ranges PSA C176yran [2020] PPV Date of this Report 7 February 2020
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
Executive summary Yarra Ranges Planning Scheme Amendment C176yran (the Amendment) seeks to rezone a 10.22 hectare subject land at Lot 3 LP403716, Holloway Road, Wonga Park to allow a residential subdivision, creation of open space and wetlands. The Amendment has been prepared following an application by Ashlyn Springs Pty Ltd (the Proponent) for a combined amendment and permit application through section 96A of the Planning and Environment Act 1987. Specifically, the Amendment proposes to: • rezone approximately 3.186 hectares of the subject land from a Rural Living Zone to the Neighbourhood Residential Zone (NRZ1) • rezone approximately 7.030 hectares of the subject land from a Rural Living Zone to Urban Floodway Zone (UFZ) • apply the Significant Landscape Overlay (SLO23) to the portion of the subject land to be zoned NRZ1. The exhibited planning permit YR-2018/358 sought approval for “Residential subdivision, removal of vegetation and works associated with a wetland and sediment pond”. The subject land is located within the Metropolitan Urban Growth Boundary (UGB), adjacent to established residential areas in Chirnside Park and Wonga Park and close to Chirnside Park Shopping Centre and schools. It contains substantial areas of vegetation on the north side of Brushy Creek which dissects the subject land. The subject land is located to the north-west of the Brushy Creek Sewerage Treatment Plant (BCSTP). The Brushy Creek corridor has environmentally significant values and is an important tributary to the Yarra River. The Amendment generated significant interest from the local community with 51 submissions (including late submissions) and petitions received. The Amendment was supported by the EPA and conditionally supported by Melbourne Water, VicRoads and the CFA. It was not supported by Yarra Valley Water (YVW) because of the potential for odours impacts and consequential impacts on its treatment plant. The Department of Environment, Land, Water and Planning (DELWP) identified major concerns about the impacts of the proposal on native fauna and flora. The key issues raised in submissions included: • native vegetation removal and fauna impacts • traffic and access • loss of open space • overshadowing and overlooking • impacts on property values • cultural heritage impacts • flooding and waterway health • construction activity amenity impacts • impacts on the BCSTP. The Panel Hearing was conducted over nine hearing days and received extensive evidence from 11 experts in the fields of planning, fauna and flora, arboriculture, traffic, stormwater, bushfire, odour and noise. Detailed submissions were provided by Council, the Proponent, YVW and the Chirnside Park Resident Action Group. During the Hearing, multiple versions of
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 the draft planning permit and Subdivision Plan were produced in response to the evidence with the number of lots and extent of vegetation lost generally reduced although there were submissions that vegetation losses were not fully accounted for. The draft planning permit conditions were further refined during a ‘without prejudice’ permit drafting session before the conclusion of the Hearing. The Panel is of the view that the subject land’s location within the UGB, adjacency to established residential area, open space and its close proximity to commercial facilities and services make it suitable strategically for some form of urban residential development. From this perspective, the Panel considers the NRZ1 (or NRZ4 as proposed by Council in its post- exhibition changes) and the SLO23 (as proposed to be altered by Council in its post-exhibition changes) appropriate tools to apply along with the UFZ along the Brushy Creek floodplain and proposed open space and wetland areas. The Panel considers that the traffic impacts of the proposed development are acceptable and that specific issues regarding building envelope setbacks to address potential fire risks to the east and road widths can be addressed adequately through permit conditions. However, the proposed development which informs the extent of NRZ1 and SLO23 does not adequately address a number of key threshold issues relating to odour, native flora and fauna and stormwater that cannot be simply addressed by conditions without extensive further analysis and assessment. In relation to odour, the Panel considers that any benefits associated with the development do not outweigh the strategic planning prerogative to protect the operations of significant infrastructure. While the Amendment is supported by the EPA, the conflicting odour evidence and anecdotal submissions of residents does not give the Panel confidence that the potential impacts of odour on new residents or the impacts on the future operations of the BCSTP will not be detrimental. The Panel concludes: • it is possible that offensive odours from the wastewater treatment plant may be experienced by new residents during upset conditions and the proposed development may unreasonably encroach on the odour separation distance • it is important that any potential to vary the default separation distance is investigated thoroughly and determined such that future land uses on adjacent land are not unreasonably or indefinitely fettered. The issues of stormwater design, wetland treatment, native vegetation and fauna impacts and responses are complex and entwined. In relation to native vegetation and fauna impacts, the Panel considers it reasonable to expect that some form of residential development of the subject land will occur and involve the removal of some vegetation in a balanced and considered way. Some of the subject land’s vegetation comprises regrowth and is low quality with extensive weed coverage. The proposal offers the benefit of managing weeds and potentially enhancing the subject land’s vegetation values. The Panel however, heard conflicting evidence relating to the impacts associated with the loss of vegetation and associated habitat loss. There remains uncertainty about the extent of vegetation to be removed and the associated impacts of removal and subject land construction on native wildlife given some aspects of the proposal are unresolved including
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 temporary access, creek crossings and wetland development, stream diversion and stormwater management. This was also a key concern for DELWP. The Panel concludes: • the proposed extent of native vegetation removal has not been demonstrated to be appropriate or justified • the use of a secondary consent to finalise the amount of vegetation to be lost is not appropriate • the Amendment does not respond appropriately to listed flora and fauna species. The Panel heard conflicting submissions and evidence relating to the proposed use and development of the wetland, the stormwater treatment solutions and the way in which sediment retention and stream diversions would work in practice. These issues require further analysis (including the role and design objectives of the wetland) as part of a broader understanding of fauna and flora impacts and appropriate vegetation management and planting responses. They cannot be adequately dealt with through a secondary consent process or a simple permit redrafting exercise because of the complex interrealtionships and cross dependancies of these considerations. The Panel concludes: • the proposal has not demonstrated that it will appropriately manage stormwater flows from the proposed subdivision • the proposal has not demonstrated that it will appropriately provide for the protection and enhancement of the Brushy Creek environs • a 33 metre defendable space is required between the 30 metre creek corridor and any retained native vegetation areas extending from the creek corridor, and this will impact the viability of lots 17-21 and 45. The Panel considers that the additional information required to support a rezoning and residential development of the subject land will result in a significantly different proposal and that the option of keeping the matter open for this Panel’s futher consideration is not apporpiate. Accordingly, the Panel concludes that on balance the Amendment and permit is not strategically justified and will not deliver a net community benefit and should be abandoned and no permit be issued. In the event that Council wishes to pursue the Amendment to approval stage, the Panel has included some observations in Chapter 11 about how the permit conditions might be enhanced. While the Panel acknowledges the level of community concern about the proposal, the Panel considers that some form of multi lot residential development, other than rural living, is appropriate for the subject land and will assist in delivering large areas of open space and include this section of Brushy Creek in public ownership to ensure its effective management. A future rezoning and development proposal should follow: • the further work of YVW and resolution of necessary odour buffer distances • confirmation of appropriate fire management treatments at the eastern edge of the subject land with the CFA • detailed native vegetation and fauna surveys including offsubject land areas likley to be disturbed by temporary access or future path connections • ecological impact assessments of potential impacts from any temporary or permanent creek crossings, proposed wetlands, or stream diversions to deal with
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
stormwater or sewage effluent from the BCSTP, in consultation with DELWP and Melbourne Water • refining the role and design treatements of the proposed wetlands with Melbourne Water and DELWP as informed by the ecological impact assessment • resolving the approach to storwater management • resolving temporary subject land access and crossing points and treatments • a revised Subdivision Plan which takes into account the Panel’s comments and permit condition suggestions • development of draft Landscape, Vegetation and Landscape Management and Construction Management Plans.
Recommendations Based on the reasons set out in this Report, the Panel recommends: 1. That Yarra Ranges Planning Scheme Amendment C176yran be abandoned. 2. That Planning Permit YR-2018/358 for residential subdivision, removal of vegetation and works associated with a wetland and sediment pond not be issued.
Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
1 Introduction
1.1 The Amendment
(i) Amendment description The exhibited Amendment proposed a rezoning to allow a residential subdivision of 48 residential lots and open space including wetlands of the subject land at Lot 3 LP403716, Holloway Road, Wonga Park. The Amendment has been prepared following an application by Ashlyn Springs Pty Ltd (the Proponent) for a combined amendment and permit application through section 96A of the Planning and Environment Act 1987 (the Act). Specifically, the Amendment proposes to: • rezone approximately 3.186 hectares of land from a Rural Living Zone (RLZ1) to Neighbourhood Residential Zone – ‘Schedule 1 Incremental Residential Areas: Mooroolbark, Chirnside Park, Kilsyth and Lilydale’ (NRZ1) • rezone approximately 7.030 hectares of land from a Rural Living Zone to Urban Floodway Zone (UFZ) • apply Significant Landscape Overlay - Schedule 23 (SLO23) to the portion of the subject land to be zoned NRZ1. The proposed extent of NRZ1 and UFZ is shown in Figure 1. Figure 1 Proposed zoning
Source: Milner evidence (Document 26) The current RLZ restricts the opportunity to subdivide the subject land in a manner consistent with the surrounding urban context. It is anticipated that the proposed introduction of the UFZ will help protect the Brushy Creek Floodplain and the SLO23 will address ongoing management of retained vegetation within the proposed subdivision.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
1.2 Planning permit application The exhibited planning permit YR-2018/358 sought approval for “Residential subdivision, removal of vegetation and works associated with a wetland and sediment pond”. The draft Permit was accompanied by a number of documents including: • Section 96A Application Report, Urbis, 14 November 2018 which included a proposed Plan of Subdivision, version V, Reeds Consulting, 22 December 2016 (Figure 2) • Aboriginal and Historical Cultural Desktop Assessment, Terraculture, 7 March 2012 • Cultural Heritage Management Plan Number 13335, dated 05 May 2015 • Landscape concept/Framework Plan, 8 November 2018 • Section 96A Application Report, Urbis, November 2018 • Traffic and Transport Assessment, Cardno, 1 June 2016 • Flora and Fauna Assessment, Brett Lane and Associates, May 2018 • Engineering Layout Plan including preliminary drainage and survey plans, Reeds Consulting, 22/12/2016 • Subdivision Bushfire Assessment, Brett Lane and Associates, May 2018. Figure 2 Subdivision Plan version V
The proposed residential subdivision area is 3.186 hectares in area, and the proposed lots range in size from 302 to 980 square metres. The average lot size is 484 square metres.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
Vehicle access will be provided from Regency Rise, to form a T intersection approximately 30 metres east of Paula Way. The proposal is located within an established urban environment and close to the Brushy Creek floodplain. Due to its close vicinity to Brushy Creek, the subdivision is accompanied by a proposal to install a wetland, increase flood storage and sediment pond to manage flood risk and stormwater quality and introduce fill to the proposed residential area. It is proposed the areas of open space will be owned by Council and managed partly by both Council and Melbourne Water through a management plan. Through the Hearing process, additional versions of the proposed Subdivision Plan were produced and the number of lots reduced to 45 as discussed in Section 1.7.
1.3 Subject land and context The subject land is located within the Metropolitan Urban Growth Boundary (UGB) and within a landscape buffer area according to the Upper Yarra Ranges and Dandenong Ranges Regional Strategy Plan. It is located between two established residential areas in Chirnside Park and Wonga Park. Wonga Park is located near the western boundary of Yarra Ranges Shire. Th subject land is located in close vicinity to Chirnside Park Shopping Centre, Maroondah Golf Park, Hughes Park, Griff Hunt Reserve and Oxley Christian College. The nearest activity centre is Chirnside Park which is approximately 2 kilometres to the east. The subject land is approximately 233 metres from the Brushy Creek Sewerage Treatment Plant (BCSTP) which is located to the south-east and operated by Yarra Valley Water (YVW). The subject land is 10.22 hectares in size, currently undeveloped, heavily vegetated and zoned Rural Living Zone. As there is no complete boundary fence, members of the public regularly access the land via adjacent residential areas. Despite this, the land is privately owned. The subject land is separated from Holloway Road by a freehold property owned by VicRoads for the proposed northern arterial road and has a frontage to Meadowbank Avenue of approximately 40 metres. Brushy Creek enters the subject land from the southern boundary and meanders in a north-westerly direction to the northern boundary (adjoining Pezzimenti Reserve). The subject land slopes up from the creek to the north-eastern corner. The subject land has the following zoning interfaces: • developed NRZ1 to the north and west. This is generally of conventional density. • Special Use Zone – Schedule 4 to the east which is occupied by Oxley Christian College • a parcel of land zoned Public Use Zone – Schedule 1 to the south, across Holloway Road, which is for service and utilities and extends over the BCSTP • a further residential area to the southwest across Holloway Road. The context of the subject land is shown in Figures 3 and 4.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
Figure 3 Subject land context – Melway Map
Source: Dunstan evidence (Melway) Figure 4 Subject land context - Aerial photo
Source: Council’s Part A submission
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
1.4 Background In 2006, a combined rezoning and subdivision application was lodged, and refused at a Council meeting due to Council’s concerns about vegetation loss. The residential subdivision was reduced from 4.02 hectares to 3.29 hectares and the drainage reserve area increased in area for a new application lodged in 2009. This resulted in further changes in 2011, however the proposal was still unsuccessful. The Applicant noted that since 2011, the circumstances surrounding management of Brushy Creek have been discussed with Melbourne Water and significant design work has been undertaken to address the implications of the subdivision and to improve the impacts of stormwater on Brushy Creek. The proposed subdivision area has been further reduced to 3.186 hectares. A significant amount of off-subject land native vegetation is to be preserved and protected to provide offsets for the proposal.
1.5 Authorisation The authorisation provided by DELWP to Council was subject to conditions relating to amending documentation in various ways. The authorisation letter noted that: Since the amendment is not in accordance with the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan, an amendment to the regional strategy plan will be required prior to approval of C176yran – should Council progress the amendment and submit for approval. The Panel sought clarification from Council about this process and was advised the Yarra Ranges Planning Scheme must be consistent with the Regional Strategy Plan and so amendment to the Regional Strategy Plan must take place prior to the approval of C176yran – should that proceed. This process is set out in Part 3A of the Planning and Environment Act 1987. In practice, Council advised that DELWP would prepare the necessary amendment for the Minister for Planning to take to Parliament. In terms of the scope of change required, policy would remain unchanged, but mapping would need to be updated to reflect the proposed zoning. Council and the Proponent considered that such a change consistent with the Amendment was largely procedural and would likely occur at the time of Ministerial approval. The Regional Strategy Plan is discussed in more detail in Chapter 2.
1.6 Summary of issues raised in submissions Council received a total of 55 submissions (which included 4 late submissions one of which was from YVW. Of these, 45 stated some degree of objection and 42 were from local residents including a petition with 334 signatories. Key concerns raised in written submissions were: • native vegetation removal and potential impacts to existing fauna • increased traffic movements, street parking demand and issues with the proposed access • loss of current use of the land for open space and opportunity to use it for a recreational reserve • potential impacts on existing housing through overshadowing and overlooking • potential for development to cause a reduction in neighbouring property value
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
• potential impact on location as a significant Aboriginal place • potential for flooding and impact on waterway health • construction impacts including noise, dust and increased traffic • concern the subject land address was misleading. A number of residents did not oppose the Amendment entirely however, sought to increase the minimum lot size and prevent double-storey dwellings. The EPA submitted (submission 23) that further assessment be undertaken to account for the separation distance required from the BCSTP. This was subsequently undertaken by the Proponent. Yarra Valley Water (YVW) was concerned the proposed development would encroach on the separation distance. Several residents raised this as a key concern at the Hearing. DELWP’s submission (submission 26) addressed bushfire and environmental aspects. It sought a lower density rezoning due to the environmental values of the subject land, its proximity to Brushy Creek and the habitat connection it provides. Further information was required for the Department to fully consider the application for vegetation removal. DELWP advised the Brushy Creek should be protected by a 30-metre buffer zone consistent with Clause 14.02-1S and that any proposed setbacks to achieve the appropriate BAL should be outside this buffer. Additional further information was also requested. The CFA (submission 27) requested new or modified permit conditions to deal with vegetation maintenance in the 20-metre-wide maintenance buffer, extension of the buffer to adjoin lots 8 and 48 and the provision of fire hydrants. VicRoads’ submission (submission 33) identified the subject land’s southern boundary adjoins freehold VicRoads land set aside for a future northern arterial route. It submitted the proposed rezoning and access arrangements during construction were unlikely to affect these plans. A licence agreement would be required between VicRoads and the permit holder to enable temporary access via Holloway Road during construction and a permit condition to this effect was required. VicRoads did not otherwise object to the Amendment. Melbourne Water’s submission (submission 14) identified three permit conditions relating to the filling of lots, flood storage and flow conveyance which were included in Council’s proposed post-exhibition draft Permit changes.
1.7 Procedural issues There were a number of procedural matters raised at the Directions Hearing or during the Hearing which are outlined below.
(i) Changes by Council to the Amendment The Council report of 23 July 2019 which considered submissions and referred them to a panel contained a number of recommended post-exhibition changes to the Amendment. It proposed to amend the residential zone to be applied from NRZ1 to Neighbourhood Residential Zone – ‘Schedule 4: Cloverlea Estate (Former Chirnside Park Golf Course Subject land)’ (NRZ4). This would remove a permit trigger existing in the NRZ1 for a single dwelling
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 on a lot of less than 500 square metres and replace it with a standard trigger for a single dwelling on a lot of less than 300 square metres. In addition, Council proposed to amend the draft planning permit to include conditions to: • require “all native vegetation offsets to be obtained off-subject land and existing retained vegetation to be weeded and restored to the satisfaction of the responsible authority” • ensure plans and construction of the wetland and associated restoration of the stream banks is carried out to the satisfaction of Melbourne Water • require an amended landscape plan showing revised areas of removed and retained vegetation • modify the building envelopes on Lots 19 and 20 to ensure compliance with Clause 13.02 (Bushfire), and on Lots 18 to 21 to provide defendable space. Council revised the draft planning permit to improve layout, legibility and accuracy and circulated it to all parties with its Part A submission (Document 20). Subsequent versions of the draft planning permit were provided the Proponent during and after the Hearing in response to evidence and submissions (Documents 53, 64, 103 and 107). The Proponent prepared a final version of the draft planning permit (Document 107 and Appendix D) following a ‘without prejudice’ permit drafting session on the last day of the Hearing. This is discussed in more detail in Chapter 11.
(ii) Exhibited version of the subdivision The Proponent advised the Panel that version W of the Subdivision Plan should have been exhibited with the Amendment instead of the exhibited version V. Compared to the exhibited version, version W: • provided a 2.5 metre shared path on the east side of the entry road (adjacent to lots 1 to 8) and other associated changes • increased the associated road reserve width by an extra 1 metre to a total of 16 metres, based on Council’s requirements • narrowed Lots 31, 34, 9, 10 and 11 by 1 metre. As the above changes were minor, Council considered that further notification of the Amendment was not required. All parties were, however, notified of this update by email on Friday 6 September 2019, as directed by the Panel. A revised Subdivision Plan version X (31 October 2019) was provided by the Proponent and circulated to all parties before the commencement of the Hearing. Compared to version W, version X (Figure 5): • includes a total of 45 lots reduced from 48 • includes a conservation reserve on the southeast corner of the entry, retaining several trees on this lot • retains 31 trees within the subdivision area including 26 significant tress and modifies the building envelopes to allow for those trees • retains the same overall area of subdivision with lots 1-8 being unchanged and lots 9 onwards having slight changes in response to retained trees.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
Figure 5 Subdivision Plan version X
(iii) Agencies invited to attend Hearing Following the Directions Hearing, the Panel invited VicRoads, EPA Victoria, DELWP, Melbourne Water and the CFA to make submissions at the Hearing should they wish to do so. Except for Melbourne Water, all of the above agencies took up the invitation and the Panel appreciated this. Melbourne Water provided Council with a further submission identifying 23 permit conditions on the 25 October 2019 which was circulated to parties on the 6 November 2019 (Document 34). DELWP provided a final submission on the last day of the Hearing which was circulated to all parties (Document 97).
(iv) Request to adjourn Hearing Prior to the Directions Hearing, the Panel received a request from the Proponent to postpone the Hearing from the originally scheduled date of late September to 11 November 2019 to allow extra time to resolve two key issues. The Proponent sought to resolve the issue of the buffer from the Brushy Creek Sewerage Treatment Plant through investigations by GHD and discussions with the EPA and YVW. In addition, targeted surveys for the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (EPBC Act) listed round-leaf pomaderris species were scheduled for October.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
While Council wanted the process to be as expedient as possible, it was also keen to view the GHD report prior to the Hearing and endorsed the need for further notification to submitters of the Hearing process. Considering all of the factors, the Panel agreed to an adjournment until Monday 11 November 2019.
(v) Yarra Valley Water submission Between the Directions and Panel Hearing, there was some confusion as to whether YVW (operator of the BCSTP) had made a formal submission to the Amendment. It had attended the Directions Hearing and had been recognised as a party, however Council and the Proponent could not locate a submission. The Environment Protection Authority originally notified YVW of the Amendment. The Panel was advised that Yarra Valley Water had contacted Council with respect to the Amendment on 22 February 2019 but due to the informal nature of the communication, Council had not recorded this as a submission. Council subsequently received, accepted and referred to the Panel a submission from YVW which outlined its main concern being potential encroachment into their separation distance from sensitive land uses. YVW confirmed on Day 1 of the Hearing that requests made by the Proponent for additional information necessary to assess the BCSTP had been fulfilled by YVW and no items were outstanding. The Panel concurs with Council’s comment that the initial submission was not in the nature of what would ordinarily be provided by a referral authority and suggests YVW consider how it acts in this role in future to avoid confusion.
(vi) Additional evidence on behalf of Proponent The Panel directed all parties to provide a list of their expert witnesses and fields of expertise by 20 September 2019. The Proponent advised it would call experts in odour, native flora and fauna, traffic, bushfire and planning. In addition, the Proponent advised “that depending on whether matters relevant to hydrological engineering remain in contention, the proponent may additionally call an expert witness in this field.” On 29 October 2019, the Proponent advised the Panel it would call three additional experts being in the fields of stormwater management, arboriculture and acoustics. The Panel advised all parties that it was prepared to accept this additional evidence on the basis that the Proponent had previously indicated it might provide further evidence, the evidence would be circulated at the same time as all other evidence, the evidence related to issues raised in submissions for which it would be of use to the Panel, and the Proponent would not be provided extra time to present its case at the Hearing. No further submissions were made in relation to this decision either in correspondence prior to the Hearing or on Day 1 of the Hearing where it was again mentioned as a preliminary matter.
(vii) Providing the EPA with opportunity to comment regarding submissions on odour A number of residents made oral submissions at the Hearing that they had previously experienced odour impacts from the BCSTP. Some residents indicated they had made attempts to report these events to Council, the EPA or YVW. In other cases, residents did not
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 know until recently the likely source of the odour or the responsible authority. A local newspaper article from 2006 was also tabled which reported odour being smelt by residents, comments were recorded from Council identifying the BCSTP as the likely source with YVW being the operator. YVW was recorded as reporting a mechanical failure being the cause of the odour and that normal conditions should return in around a week. As the EPA had already made submissions on the basis that no complaints had been made, a resident requested the EPA be provided an opportunity to respond to these submissions. The Panel provided the EPA with copies of relevant submissions and afforded the opportunity for the EPA to respond in writing. No further submissions were invited on this issue. The EPA provided its response to all parties on 6 December 2019 (Document 106).
(viii) Declarations At the Hearing, Ms Bell declared she previously worked for a consulting firm who had engaged Mr Antonopoulos of SLR between 2006 and 2008 to provide specialist noise advice and she was the consultant responsible for managing this work. Ms Bell declared she had not worked with or been in contact with Mr Antonopoulos since this time and no issues were raised by this declaration.
1.8 The Panel’s approach The Panel has assessed the Amendment against the principles of net community benefit and sustainable development, as set out in Clause 71.02-3 (Integrated decision making) of the Planning Scheme. The Panel considered all written submissions made in response to the exhibition of the Amendment, observations from subject land visits, and submissions, evidence and other material presented to it during the Hearing. It has reviewed a large volume of material, and has had to be selective in referring to the more relevant or determinative material in the Report. All submissions and materials have been considered by the Panel in reaching its conclusions, regardless of whether they are specifically mentioned in the Report. This Report deals with the issues under the following headings: • Planning context • Zones and overlays • Brushy Creek Sewerage Treatment Plant • Native vegetation • Stormwater and stream ecology • Bushfire • Traffic • Other issues • Net community benefit – integrated assessment • The planning permit.
1.9 Limitations Several submissions identified potential impacts on property prices. Such impacts are not relevant when preparing or assessing planning scheme amendments or considering planning
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 permit applications. This is due in part to the purposes of the Planning and Environment Act 1987 which seek to balance the present and future interests of all Victorians, as well as the difficulty in isolating potential impacts from the amendment from the many other factors and circumstances which influence property prices. A number of submitters raised concerns the advertised subject land address was misleading and may have caused otherwise interested parties to not make a submission. The Panel agrees with Council that the address of the subject land is a factual matter and was correctly advertised. The Panel is comfortable with Council’s approach to notification based on the subject land address and location and does not discuss this matter further in this report. Some submissions either explicitly or implicitly raised concern that public land was being developed and/or there was a missed opportunity for the land to be used purely for public purposes. The land is privately owned and the Panel does not know of any previous or current proposals by local or state government bodies to purchase the property. It is outside the remit of the Panel to recommend a public body purchase the land for public purposes.
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2 Planning context
2.1 Planning policy framework Victorian planning objectives Council originally submitted the Amendment will assist in implementing State policy objectives set out in section 4 of the Act by creating appropriately zoned land for future residential use and providing a separately zoned area for the conservation of the natural resources and management of flood risk of the Brushy Creek. Clause 11 (Settlement) Council submitted the Amendment supports Clause 11 by: • providing for “a mix of lot sizes, open space linkages and improvements to the public open space along waterways” • improving the function of the floodplain including through enhanced water quality and biodiversity, improved landscape amenity and by providing for appropriate solar access within the subdivision pattern. Clause 12 (Environmental and landscape values) Council submitted the Amendment achieves Clause 12 by: • generally retaining established or significant plants and trees on the subject land. • accounting for fire preventative vegetation management and direct vegetation clearance in the calculation of native vegetation offsets. • providing for well-designed residential development with connections between future residents and nature including the view lines, creak habitats and native vegetation. Clause 13 (Environmental risks and amenity) Council submitted the Amendment appropriately responds to Clause 13 by: • Preventing inappropriate development within the Brushy Creek catchment by rezoning land subject to flooding as Urban Floodway Zone. • Addressing fire risk by ensuring open space is proportioned to achieve a BAL 12.5 for the residential properties. Clause 15 (Built Environment and Heritage) Council submitted the Amendment is consistent with Clause 15 by: • Proposing zones which appropriately respond to the subject lands’ context (being within an existing residential zone) and natural characteristics (including the Brushy Creek floodplain). • Consolidating an existing urban area through subdivision within the Urban Growth Boundary. Clause 18 (Transport) Council submitted the proximity of the proposed residential zoning to existing transport links ensured the Amendment was consistent with Clause 18.
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Clause 19 (Infrastructure) Council submitted the Amendment complies with directions of Clause 19 by providing adequate infrastructure for the subject land with good access and integration with the surrounding road and bus network. Clause 21 (the Municipal Strategic Statement) Council submitted the Amendment is consistent with the Municipal Strategic Statement which: • Requires vegetation protection and preservation of environmental values as identified in the Regional Strategy Plan 1996 at Clause 21.01 • Supports infill in sustainable locations (Clause 21.04) • Supports consolidation of townships (Clause 21.05) • Seeks to ensure that subdivision responds to physical, environmental and visual characteristics of the subject land and surrounding area (Clause 21.08). Council submitted that the Amendment strikes the right balance between providing new infill development and protecting environmental features. It does this by identifying an appropriate portion to be rezoned for residential purposes based on the location of existing native vegetation and an aim to retain most of it. The remaining two-thirds of the subject land is to be rezoned Urban Floodway to preserve native vegetation from further residential development. In addition, appropriate native vegetation offsets will be provided to account for losses in the subdivision area.
2.2 Other relevant planning strategies and policies (i) Plan Melbourne Plan Melbourne 2017-2050 sets out strategic directions to guide Melbourne’s development to 2050, to ensure it becomes more sustainable, productive and liveable as its population approaches 8 million. It is accompanied by a separate implementation plan that is regularly updated and refreshed every five years. Plan Melbourne is structured around seven Outcomes, which set out the aims of the plan. The Outcomes are supported by Directions and Policies, which outline how the Outcomes will be achieved. Outcomes that are particularly relevant to the Amendment are set out in Table 1. Table 1 Relevant parts of Plan Melbourne Outcome Directions and policies Outcome 2 – Melbourne - Assists with maintaining a permanent urban growth boundary by provides housing choice in providing modest level of dwellings within the UGB locations close to jobs and - Whilst it does not contribute to the achievement of a 20-minute services neighbourhood, the Amendment acknowledges this policy by being suitably restrained in the dwelling yield Outcome 4 – Melbourne is a - Create more great public places across Melbourne distinctive and liveable city with - Protect and enhance the metropolitan water’s edge parklands quality design and amenity - Respect and protect Melbourne’s Aboriginal cultural heritage
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Outcome Directions and policies Outcome 5 – Melbourne is a - Create neighbourhoods that support safe communities and city of inclusive, vibrant and healthy lifestyles healthy neighbourhoods - Improve neighbourhoods to enable walking and cycling as part of daily life Outcome 6 – Melbourne is a - Reduce the likelihood and consequences of natural hazard sustainable and resilient city events and adapt to climate change - Protect water, drainage and sewage assets - Protect and restore natural habitats - Protect and enhance the health of urban waterways
(ii) Vision 2020 By Design (May 2008) Vision 2020 by Design provides a built environment framework for Yarra Ranges consisting of guidance for the design, siting and style of new development to ensure visual amenity of the Shire is enhanced. The report identifies nine distinct urban and rural area types providing guidelines for each. Guidance is also provided for a range of specific development types and landscape areas. The document places the subject land outside the ‘Rural Landscape types’.
(iii) Shire of Yarra Ranges Housing Strategy (May 2009) The Housing Strategy provides Council’s long-term plan to manage future housing growth to ensure it best meets community needs. It is also intended to play an important role in implementing the aspirations of Vision 2020. The strategy acknowledges that housing design and location within landscape defines neighbourhood character. The Shire contains both urban and rural communities with around seventy per cent of the population living in urban areas occupying approximately three per cent of its landmass. Trends expected include an ageing population, further decline in household size creating increased housing demand and demand for alternate housing to cater for the ageing and disabled. It is this changing demographic and household shape which is anticipated to push demand as opposed to significant population growth. Demand will be for housing stock that is suitable for smaller families, lone residents and the ageing population. Land supply for housing in the Shire is restricted by the Urban Growth Boundary and the limited greenfield subject lands within it. The vision for the strategy is for housing “to meet the range of individual needs and contribute to attractive, vibrant and safe neighbourhoods while minimising environmental impacts”. Four themes are identified to achieve this: • Sustainable local communities • Sustainable housing design • Diversity and choice • Affordable housing. While the subject land is shown in ‘Map 2 Chirnside Park’ as being immediately south of an existing residential area which is identified for restricted change (‘Restricted Change Precinct’), no guidance is provided for it.
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The Housing Strategy identifies that: In the ‘Restricted Change’ and ‘Least Change’ Precincts the minimum lot size in new subdivisions will be 500m2 and 1000m2 respectively. Housing developments not proposing subdivision but comprising 2 or more houses on a lot will be expected to meet these housing density targets. Typically, additional housing opportunities outside of the activity centres will be confined to large lots that are suitable for further subdivision, redevelopment or some other form of housing. … They will also provide opportunities for some limited housing development in established residential areas that is respectful of existing neighbourhood character. … Additional planning provisions will be introduced on the land currently in a Residential 1 or Low Density Residential Zone to protect neighbourhood character such as vegetation protection, limits on height and/or subject land coverage.
(iv) Upper Yarra Valley & Dandenong Ranges Regional Strategy Plan The Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan was prepared in 1982. Its status has been enshrined in the planning system through the Planning and Environment Act 1987 which prevents any planning scheme amendments which are inconsistent with the Regional Strategy Plan from being approved (section 46F) and provides that approval by both Houses of Parliament is required before an amendment to the regional strategy plan can take effect (sections 46C-D). The Regional Strategy Plan applies to all land within the Shire of Yarra Ranges and is intended to ensure ‘planning in the region continues to protect the special character and features of the region’. The Plan further requires for authorities to ensure that ‘incremental effects of individual changes to land uses and developments achieve, or do not prejudice, the primary purposes and policies of the policy areas within which they occur’. Council advised that the Regional Strategy Plan is managed by DELWP whose authorisation flagged the need to update the Regional Strategy Plan before the Amendment could be approved. Map 4 of the Regional Strategy Plan (excerpt included in Figure 6) identifies the subject land as being in the ‘Landscape Living Buffer’, with adjoining residential areas identified as ‘Township’ and the school subject land to the east as ‘Rural 1’.
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Figure 6 Excerpt from Regional Strategy Plan showing land in the Landscape Living Buffer (LLB)
The Regional Strategy Plan identifies that landscape living areas are considered to either already be used for residential and hobby farming activities or to provide a buffer between urban areas and rural land. Low density residential land use is preferred for these areas. For landscape living buffer areas, average lot sizes of 2 hectares are preferred with a minimum lot size of 1 hectare and a maximum lot size of 3 hectares. Township areas are considered to be urban in character and include all land shown in the Municipality being within the UGB. It is noted that the subject land is located within the UGB but is not currently identified as being within a township policy area. The Regional Strategy Plan requires subdivision to provide the following: • Each lot will contain a development envelope which: wholly contains a slope less than 20 per cent; is not affected by a floodplain management area, and can reasonably and safely be used for controlled and limited development, taking into account the risk of land instability. • Each lot is able to be connected to reticulated sewerage facilities, or where reticulated sewerage is not available, is capable of accommodating a satisfactory method of wastewater treatment and effluent disposal, which will ensure that the effluent can be contained within the curtilage of the lot (in compliance with requirements of the relevant State Environment Protection Policy). • Significant natural features, such as watercourses, fern gullies, rock outcrops and remnant native vegetation, will be protected in the design and development of any subdivision. • A satisfactory program for the preservation and planting of native vegetation is incorporated in any new subdivision proposal, to ensure that development is not detrimental to the landscape character of the area. • The subdivision is carried out in a manner which protects residential neighbourhoods from through or heavy vehicular traffic. Council submitted that some parts of the landscape living buffer include established urban (residential zoned) properties and that changes to the UGB had overtaken the Regional
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Strategy Plan. Council considered that the inclusion of the subject land within the UGB was a “more accurate representation of the real nature of the land and its strategic future”. Council identified that while an amendment would be needed to the Regional Strategy Plan it noted that Schedule 8 to the Plan (Register of Amendment to the Regional Strategy Plan) identifies a proposed amendment (Upper Yarra Valley And Dandenong Ranges Regional Strategy Plan Amendment No. 117) to identify the subject land as a ‘Township A policy area’ has been prepared but not approved.
(v) Yarra Ranges Localised Planning Statement Localised planning statements have been prepared to protect and enhance valued attributes of identified distinctive areas and landscapes (Clause 11.03-5S). Localised planning statements have the status of State policy and are required to be considered when preparing relevant planning scheme amendments by State planning policy and Ministerial Direction No. 17. The purpose of the Yarra Ranges Localised Planning Statement is to identify the unique attributes of the Yarra Ranges and underpin State and Local planning policy for the region. The Yarra Ranges Localised Planning Statement sets out the values and vision for the region and the regional objectives and policies which need to be achieved through the development of planning scheme policies and provisions. The eight key areas of the planning statement are: settlement; environment; landscape and heritage; economic development; recreation and open space; community safety; community infrastructure; and public works/utilities. Key objectives and policies with respect to settlement include to direct growth within the existing settlement boundaries (UGB), ensure that planning appropriately considers environmental constraints, distinctive township character and has appropriate access to services. Support is also required to increase densities within the UGB appropriate to the role of the locality. Council submitted that the Amendment supports the Yarra Ranges Localised Planning Statement (Clause 11.03-6S) because: • it provides for additional development to support increased densities within the UGB recognising the role of the suburb and taking into account environmental and development constraints • responds to environmental and landscape consideration to achieve a net community benefit.
2.3 Planning scheme provisions A common zone and overlay purpose is to implement the Municipal Planning Strategy and the Planning Policy Framework.
(i) Zones The land is in the Rural Living Zone (RLZ). The purposes of the Zone include: • To provide for residential use in a rural environment. • To provide for agricultural land uses which do not adversely affect the amenity of surrounding land uses. • To protect and enhance the natural resources, biodiversity and landscape and heritage values of the area.
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• To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision. Council considered this zone is no longer appropriate as it restricts the opportunity to subdivide in a manner consistent with the surrounding area and current policy in relation to residential development. The RLZ1 has a minimum lot size of 1 hectare and an average lot size of 2 hectares. The NRZ is considered the most appropriate zone. In addition, the application of the UFZ is considered appropriate to protect the Brushy Creek Floodplain. Chapter 3 of the Report identifies the purposes and provisions of the NRZ1, NRZ4 and UFZ.
(ii) Overlays Schedule 1 to the Environmental Significance Overlay (ESO1) and the LSIO apply to sections of the subject land as identified in Figure 7. Figure 7 Extent of ESO1 and LSIO
The purposes of the ESO include: To identify areas where the development of land may be affected by environmental constraints. To ensure that development is compatible with identified environmental values. A permit is required to construct a building, carry out works, construct fences, bicycle pathways and trails, subdivide land and remove vegetation. The Subdivision Plan proposes to introduce fill to the lots above the area currently subject to inundation, offset by increasing the flood storage capacity through the proposed wetland area. ESO1 relates to identified subject lands of botanical and zoological significance and specifically lists Brushy Creek (B27, Z22) as being of botanical and zoological significance. The statement of environmental significance is: The Shire contains extensive areas of remnant bushland which are an intrinsic part of the Shire’s unique landscape and environmental character. Subject lands of botanical and zoological significance also play an important role in contributing to the ecological processes and biodiversity of the region by forming core habitat areas within a complex network of wildlife corridors along roadsides and watercourses. Development within and around these subject lands needs to be appropriately managed to ensure the long term protection and sustainability of these ecological processes.
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These subject lands have been identified following detailed assessment of their botanical and zoological significance in studies carried out as part of previous reviews of the Regional Strategy Plan and planning schemes in the Shire. The environmental objectives to be achieved are: Ensure the long-term protection of the wildlife habitat and other conservation values of subject lands of botanical and zoological significance. Recognise the importance of subject lands of botanical and zoological significance as core habitat areas. Ensure that the habitat value of the subject lands is not diminished by the incremental removal of remnant vegetation or inappropriate development. Protect the natural resources and maintain the ecological processes and genetic diversity of the region. Ensure that any new development is sensitively designed and subject land to reinforce the existing environmental characteristics of the area. The purpose of the Land Subject to Inundation Overlay includes: • To identify land in a flood storage or flood fringe area affected by the 1 in 100 year flood or any other area determined by the floodplain management authority. • To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity. • To reflect any declaration under Division 4 of Part 10 of the Water Act, 1989 where a declaration has been made. • To protect water quality in accordance with the provisions of relevant State Environment Protection Policies, particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria). • To ensure that development maintains or improves river and wetland health, waterway protection and flood plain health. A permit is required for buildings and works and for subdivision. The Amendment aims to retain these overlays and apply the existing SLO23 to address the management of remnant vegetation in the residential subdivision. The purposes and provisions of SLO23 are discussed in Chapter 3.
(iii) Other provisions Relevant provisions for the planning permit include: • Various particular provisions including: - Public Open Space Contribution and Subdivision (Clause 52.01) - Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan (Clause 53.01) - Native Vegetation (Clause 52.17) - Residential Subdivision (Clause 56) • Clause 65 of the Planning Scheme which states: Because a permit can be granted does not imply that a permit should or will be granted. The Responsible Authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause. Clause 65.01 requires the Responsible Authority to consider, as appropriate: - the Planning Policy Framework
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- the purpose and decision guidelines of the zones and overlays that apply - the orderly planning of the area - the effect on the amenity of the area - factors likely to cause or contribute to land degradation, salinity or reduce water quality - the extent and character of native vegetation, the likelihood of its destruction, and whether it can be protected, planted or allowed to regenerate - the degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard - comments and decisions of referral authorities. • Clause 65.02 (Decision Guidelines – approval of an application to subdivide land) which includes a number of considerations for the assessment of applications for subdivision. • Clause 71.02-3 of the Planning Scheme which requires a responsible authority to take an integrated approach, and to balance competing objectives in favour of net community benefit and sustainable development.
(iv) Referral authorities Clauses 66.01 (Subdivision referrals) and 66.02 (Use and Development referrals) set out the role of different agencies as either Determining or Recommending referral authorities. Determining referral authority conditions must be applied to planning permits by the responsible authority. A responsible authority must consider the recommending referral authority’s advice but is not obliged to refuse the application or to include any recommended conditions. The referral authority agency roles relevant to the planning permit are summarised in Table 2. Table 2 Referral authority roles Referral Authority Referral Authority role Yarra Valley Water Subdivision - Determining EPA Nil CFA Subdivision – Determining VicRoads (Roads Corporation) Nil DELWP Removal of vegetation - Recommending SPI Electricity Subdivision - Determining Multinet Gas Subdivision - Determining Melbourne Water Subdivision – Determining Application in UFZ and LSIO - Determining
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2.4 Ministerial Directions and Practice Notes
(i) Ministerial Directions The Explanatory Report discusses how the Amendment meets the relevant requirements of Ministerial Direction 11 (Strategic Assessment of Amendments) and that discussion is not repeated here. Ministerial Direction 9 – Metropolitan Strategy (Plan Melbourne 2017-2050: Metropolitan Planning Strategy) Council submitted the Amendment complies with Ministerial Directions 9 by: • remaining within the existing UGB (Policy 2.1.1) • including shared and connecting paths through the subject land (Policy 5.2.1) • providing good quality open space (Policy 5.4.1 and 6.4.2) • including a dedicated water treatment wetland (Policies 6.3.2, 6.3.3 and 6.5.2) • retaining substantial areas of native vegetation (Policy 6.5.1). Ministerial Direction 17 – Localised Planning Statements Council submitted the Amendment complies with Ministerial Direction 17 which requires consistency with the Yarra Ranges Localised Planning Statement by: • providing for additional residential development within the UGB at an appropriate scale and character (6.1 Settlement principles) • providing for retention and maintenance of existing vegetation and extensive open space (6.2 Environment: Vegetation and Habitat, Waterway and Landscape Policies) • adequately addressing fire risk by providing appropriate defendable space and flood risk by designing a water treatment wetland with additional flood storage capacity (6.6 Community Safety Policies).
(ii) Planning Practice Notes The Explanatory Report discusses how the Amendment meets the relevant requirements of Planning Practice Note 46: Strategic Assessment Guidelines, August 2018 and that discussion is not repeated here. Planning Practice Note 7: Vegetation Protection in Urban Areas (PPN07) The Practice Note provides guidance on assessing the significance of vegetation in urban areas and providing measures to protect significant vegetation through the planning scheme. The PPN identifies four overlays which may be used for vegetation protection as follows: • Vegetation Protection Overlay – does not include requirements for buildings and works or subdivision and so is only appropriate where these are not important considerations. • Environmental Significance Overlay – when there are environmental constraints on development such as a coastal or riparian habitat and may be used where vegetation protection is part of a wider objective to protect the environmental significance of the area.
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• Significant Landscape Overlay – function is to identify and conserve the character of a significant landscape. Vegetation to be protected is primarily of aesthetic or visual importance contributing to the character of the area. • Heritage Overlay – for vegetation of historic significance. In addition to applying the above overlays, PPN07 suggests use of the Good Design Guide or section 173 agreements. Planning Practice Note 12: Applying the Flood Provisions in Planning Schemes (PPN12) This Practice Note provides guidance on applying flood provisions in planning schemes. It identifies four types of flood provisions available each being commensurate with potential flood risk: • Urban Floodway Zone – for high flood risk areas, it prohibits most uses and development. • Floodway Overlay – suitable for where there is less need for control over land use, and the focus is more on control of development. These areas convey active flood flows but with a lesser flood risk than in an UFZ. • Land Subject to Inundation – identifies land with a lower or yet to be confirmed risk of flooding. Is a permit trigger for buildings and works but does not prohibit either use or development. • Special Building Overlay – applies to stormwater flooding in urban areas only. PPN12 also sets out roles and responsibilities for statutory authorities with respect to flooding. Planning Practice Note 40: Using the residential subdivision provisions Clause 56 – Residential subdivision (PPN40) Clause 56 of the planning scheme sets out the planning requirements for residential subdivision. These provisions express the Neighbourhood Principles contained in ‘Melbourne 2030 Planning for Sustainable Growth’ and aim to achieve residential subdivision design that provides attractive, safe, liveable and sustainable neighbourhoods. Clause 56 identifies four classes of subdivision depending on the number of lots to be created and provides commiserate objectives and standards for each class of subdivision. PPN40 provides information about: • How Clause 56 operates • The objectives to be met for each class of subdivision • The subdivision subject land and context description • The subdivision design response • The transitional arrangements. Planning Practice Note 39: Using the integrated water management provisions of Clause 56 – Residential subdivision (PPN39) Clause 56 of the Planning Scheme includes sustainable water management requirements for subdivisions. Clause 56.07 (Integrated Water Management) includes four water objectives being to: • reduce the use of drinking water
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• providing for reused and recycled water to be used as a substitute of drinking water for non-drinking purposes • provide an adequate and environmentally friendly wastewater system • ensure appropriate management of stormwater. PPN39 provides technical information and guidance to support the achievement of these objectives. With respect to management of urban run-off, the PPN recognises that urban run- off can be a significant generator of stormwater pollutants and identifies the need to protect receiving waters and the environment. Planning Practice Note 78: Applying the Residential Zones (PPN78) The Application Report includes an assessment of the proposal against criteria established by PPN78 and considers NRZ to be an appropriate fit for the land to be subdivided for residential use. The Panel notes PPN78 was removed after the introduction of revised residential zones on 27 March 2017 by Amendment VC110 and that a new Planning Practice Note 91 Using the residential zones was introduced in December 2019. Planning Practice Note 91 provides guidance in the application of the new residential zones including the General Residential Zone and NRZ. PPN78 does not apply to the RLZ which is not a residential zone.
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3 Zones and overlays
3.1 The issues The issues are: • whether the proposed NRZ1 and UFZ are appropriate and justified • whether NRZ4 should replace NRZ1 • whether SLO23 should be applied.
3.2 Relevant practice notes, zone and overlay provisions and strategies studies
(i) Neighbourhood and General Residential Zones Table 3 identifies the primary zone purposes and key provisions of the NRZ and the GRZ. Table 3 NRZ and GRZ purposes and key provisions Residential Zone Purpose Key provisions General To encourage development that respects the Neighbourhood character objectives Residential Zone neighbourhood character of the area can be identified in a schedule To encourage a diversity of housing types No minimum lot size and housing growth particularly in locations Minimum garden areas identified. offering good access to services and A schedule can vary Clause 54 and 55 transport standards To allow educational, recreational, religious, Building height limit of 11m and 3 community and a limited range of other non- storeys (or other height identified in residential uses to serve local community a schedule) needs in appropriate locations Neighbourhood To recognise areas of predominantly single Neighbourhood character objectives Residential Zone and double storey residential development can be identified in a schedule To manage and ensure that development A schedule can identify a minimum respects the identified neighbourhood lot size character, heritage, environmental or Minimum garden areas identified landscape characteristics A schedule can vary Clause 54 and 55 To allow educational, recreational, religious, standards community and a limited range of other non- Building height limit of 9m and 2 residential uses to serve local community storeys (or other height identified in needs in appropriate locations a schedule)
Council’s post-exhibition changes propose to apply the NRZ4 in place of NRZ1 to minimise the number of permits required for dwellings on a lot less than 500 square metres. The only differences between the two schedules are that: • NRZ4 does not have a minimum lot size permit requirement for the construction or extension of a dwelling or fence, while NRZ1 has a 500 square metre requirement. • NRZ4 allows for a maximum height of 10 metres where particular slope conditions exist.
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The GRZ1, NRZ1 and NRZ4 schedules do not identify neighbourhood character objectives or any variations to Clause 54 and 55 standards. The same minimum garden areas apply in the GRZ1, NRZ1 and NRZ4. It is noted the name of NRZ4 would need to be expanded to include the relevant subject land or other locational descriptor. In its closing submission, Council proposed the words “and Lot 3 Holloway Road Wonga Park” be added.
(ii) Planning Practice Note 91 Using the residential zones (PPN91) Table 4 summarises the Practice Note’s guidance regarding the application of the NRZ and GRZ. Table 4 Summary of Planning Practice Note 91s application of residential zones Residential Zone Role and application General Residential Zone Applied to areas where housing development of three storeys exists or is planned for in locations offering good access to services and transport Neighbourhood Residential Applied to areas where there is no anticipated change to the Zone predominantly single and double storey character. Also to areas that have been identified as having specific neighbourhood, heritage, environmental or landscape character values that distinguish the land from other parts of the municipality or surrounding area.
(iii) Urban Floodway Zone PPN12 states that: The UFZ is a restrictive provision that prohibits most uses and development. It is designed to be applied to urban environments where there is a high potential flood risk and only low intensity uses and development (such as recreation) are suitable. In contrast, the LSIO is used for both urban and rural environments to identify land with a lower potential flood risk or as an interim measure, areas where accurate flood mapping to identify the floodway is yet to be carried out. The LSIO only requires a permit for buildings and works and does not prohibit either use or development. states that the ‘Design Flood Event’ which is generally considered to be a 100 year flood event is usually the basis for determining the flood prone area. This needs to be identified in order to introduce flood provisions into the planning scheme.
(iv) Significance Landscape Overlay The Amendment proposes to apply the SLO23 to the portion of the subject land proposed to be NRZ. SLO23 extends over the adjoining NRZ land in Wonga Park and Chirnside Park as shown in Figure 8. The purpose of the SLO includes: • To identify significant landscapes. • To conserve and enhance the character of significant landscapes.
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Figure 8 Extent of SLO23
A permit is required to construct a building, fence and carry out works and remove vegetation specified in a schedule. SLO23 identifies the following ‘Statement of nature and key elements of landscape’: The landscape significance of the following areas is attributed to the quality of environment, its setting and relationship to the broader landscapes some of which have National Trust classification. Classified landscapes in these areas include: The Silvan Agricultural Area and the Upper Yarra and Environs. The visual effect of large trees both native and exotic makes a significant contribution to the neighbourhood character of these areas. All the following areas share varying sized blocks allowing development to integrate within its surrounding landscape and providing views between dwellings. Vegetation and buildings in streamside areas play a significant role in the broader catchment and should address the principles of ecologically sustainable development for the Upper Yarra River Catchment. Chirnside Park Chirnside Park was originally a grazing area and is set against a rural backdrop of surrounding hills and paddocks. Housing was developed primarily in the 1970’s and as a result, many mature trees of both native and exotic species exist within its established gardens and contribute significantly to the character of the area. SLO3 requires a planning permit to remove, destroy or lop any substantial tree. A substantial tree is defined as “having a diameter at breast height (DBH) greater than 0.26 metres at 1.3 metres above the ground. (Equivalent to 0.8 metres circumference).” Some exemptions apply including for overhanging branches and the base of trees within 2 metres of a building. Council’s post-exhibition changes proposed to amend Section 1.0 ‘Statement of nature and key elements of landscape’ in the proposed Significant Landscape Overlay 23. In its closing submission Council proposed to change the ‘Chirnside Park’ heading to “Chirnside Park/Wonga Park” and the replace “Chirnside Park was” with “These areas were” in the landscape description of that area.
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3.3 Evidence and submissions
(i) Neighbourhood Residential Zone The application of the NRZ1 (and its replacement with NRZ4) was supported by the Proponent, Melbourne Water and the planning evidence of Mr Milner. Mr Milner’s evidence included an overview of the subject land’s locational attributes and considered it an isolated remnant rural living parcel which was remote from other non-urban land outside the UGB. He considered the proposal a small infill refinement, adjunct to an established residential area and the application of the NRZ consistent with its use at adjacent residential areas in both Yarra Ranges and Maroondah City Councils. He considered the proposed zoning arrangements represented a refinement of the boundary between the urban area and creek corridor. Council agreed with this position and considered that the subject land’s RLZ designation was a left-over anomaly. In response to questions from the Panel, Council indicated that the subject land was not identified as a strategic RLZ area and represented an infill opportunity. While not designated as a strategic housing opportunity Council considered the application of the NRZ to a portion of the subject land was consistent with the Housing Strategy. The submission of CPRAG, while not supporting the Amendment, did not specifically oppose the use of the NRZ1, but considered its area should be contracted following more detailed examination of stormwater, fauna and flora impacts and a redesign of the subdivision proposal. The submission considered there was no strategic imperative in local planning policy or Council’s Housing Strategy to accommodate residential development on the subject land. A number of resident submitters abutting the northern boundary of the subject land identified concerns about the residential rezoning resulting in a loss of a treed aspect and allowing development close to their homes with potential issues of overshadowing and overlooking, building density and bulk. Council and the Proponent identified that the application of NRZ4 instead of NRZ1 would avoid the administrative burden of considering multiple planning permit applications on lots less than 500 square metres. The Proponent submitted that Clause 54 provided appropriate amenity protection and would be applied when building permits were considered for each lot. Some resident submitters did not support the zone change as it meant that there was less control over the development of buildings on smaller lots.
(ii) Urban Floodway Zone The application of the UFZ was supported by the Proponent, Melbourne Water and the evidence of Mr Milner. Council considered its application was consistent with the zone purpose and Planning Practice Note 12. The submission of CPRAG considered that the proposed wetland and open space areas should be included in the Public Conservation Recreation Zone in recognition of the conservation significance of the existing watercourse and floodplain.
(iii) Significant Landscape Overlay The application of SLO23 to the portion of the subject land to be rezoned NRZ1 was supported by the Proponent, Melbourne Water and the evidence of Mr Milner. No submission opposed
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 its application, although resident submissions and CPRAG questioned whether the proposal was consistent with its objectives. Council considered that its proposed changes to SLO23 were not substantive, instead submitting they were reasonably required to clarify the land to which the controls would apply. The Proponent supported the changes proposed by Council.
3.4 Discussion
(i) Neighbourhood Residential Zone The Panel considers that time and events have overtaken the Regional Strategy Plan and that the subject land is no longer appropriately designated for rural living purposes. The existing RLZ would allow a small number of lots to be created however this would fragment the land and make future opportunities to manage the Brushy Creek environs in a coordinated way difficult and any open space outcome unlikely. The Panel agrees with the submission of Council and the evidence of Mr Milner that the subject land’s location within the UGB and other locational attributes appropriately identify the subject land as providing infill opportunities (where subject land constraints can be appropriately responded to). The Panel considers that the application of the NRZ to a portion of the subject land is appropriate and recognises its spatial relationship with the adjoining residential areas to the north and ensures a consistent housing scale outcome. This outcome is consistent with the Planning Policy Framework and the Housing Strategy particularly when setting aside almost two-thirds of the subject land for open space and wetland uses. The Panel has no particular issue with interchanging the NRZ1 with the NRZ4 as proposed in Council’s post-exhibition changes. The only key difference is the removal of the trigger to obtain a planning permit for a dwelling on a lot less than 500 square metres. The principle of reducing the need for permits and therefore costs is a focus of recent planning reforms and considered appropriate in this instance as the lots are not fronting existing established streetscapes and neither NRZ schedule identifies character objectives. While the NRZ allows for schedules to modify certain ResCode standards which might address some of the resident concerns about building form, rear setbacks and overlooking, neither the NRZ1 or NRZ4 do. It is not appropriate for the Panel to identify changes to these schedules to nominate particular Standard outcomes for this subject land when they don’t apply across all other nearby NRZ areas. The Panel notes that the relatively small building envelopes will result in single dwelling outcomes. The Panel considers the provisions of the NRZ along with SLO23 and Clause 54 (at planning permit or building permit stage) will provide for appropriate built form outcomes, without further constraining design responses and protect amenity in a consistent manner. The Panel considers that supporting the application of the NRZ to a portion of the subject land does not undermine the Regional Strategy Plan. The Panel acknowledges that the Regional Strategy Plan would need to be amended before the Amendment could be approved, however such a change appears to already be anticipated as discussed in section 2.2 of this Report.
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(ii) Urban Floodway Zone The Panel considers that the primary function of the area to be set aside for the proposed wetlands and open space is for creek and floodplain management rather than open space which is a secondary benefit. It does not support the alternate zoning proposed by CPRAG. The Panel considers the application of the UFZ is strategically justified and consistent with the purpose of the zone and Planning Practice Note 12 and assists in the management of flooding along the Brushy Creek corridor and reflects the proposed low intensity uses of this portion of the subject land (wetlands, flood storage and open space).
(iii) Significant Landscape Overlay The Panel considers that the application of SLO23 to the portion of the subject land to be developed for residential purposes is consistent with its broader application over adjacent residential areas. The subject land displays the landscape character and elements identified in the Overlay and contributes to the residential landscape and the Brushy Creek environs. The application of the SLO23 will assist in the management of trees not removed to accommodate the subdivision. The changes to SLO23 proposed by Council are logical minor changes which do not change the intent of the exhibited Overlay’s application but assist in the interpretation and application of the control.
3.5 Conclusions The Panel concludes: • NRZ4, in tandem with SLO23 (as proposed to be amended in Council’s post-exhibition changes), are the appropriate planning tools to apply to the subject land to facilitate a residential development proposal. • UFZ is the appropriate zone to apply to the Brushy Creek floodplain. • NRZ4 and SLO23 should only be applied if the other issues in the following chapters of this Report can be addressed and the proposal can achieve a net community benefit.
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4 Brushy Creek Sewerage Treatment Plant
4.1 The issues The issues are whether: • potential acoustic or odour emissions from the existing BCSTP would unreasonably impact on new residents • removing vegetation would increase amenity issues currently being experienced by existing residents to the north of the proposed development • proposed rezoning unreasonably encroaches on the odour separation distance for the wastewater treatment plant.
4.2 Relevant legislation, policies, strategies and studies The following legislation, polices and strategies are relevant when considering the above issues: • Planning and Environment Act 1987 section 4(e) of which sets as a key objective of planning: • To protect public utilities and other assets to enable the orderly provision and co- ordination of public utilities and other facilities for the benefit of the community. • Water Act 1989 which governs the operation of YVW as a water corporation. • Clause 13 of the Planning Scheme which identifies that planning should aim to avoid or minimise amenity conflicts and has specific objectives to control noise effects (Clause 13.05-1S) and protect and improve air quality (Clause 13.06-1S). Clause 13.06-1S includes as a strategy to “ensure, wherever possible, that there is suitable separation between land uses that reduce air amenity and sensitive land uses”. • Policy documents considered relevant to Clause 13 include: - State Environment Protection Policy (Air Quality Management) - Recommended Buffer Distances for Industrial Residual Air Emissions (Environment Protection Authority, 1990) – the latest version being EPA Publication 1518, March 2013 (“EPA Publication 1518”) - State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 - Interim Guidelines for Control of Noise from Industry in Country Victoria (Environment Protection Authority 1989). • Clause 19.03-3S sets an objective for an integrated water management approach and includes the strategy to ”Protect significant water, sewerage and drainage assets from encroaching sensitive and incompatible uses”. Clause 53.10 of the Planning Scheme specifies buffer distances for identified industrial uses. No distances are specified for wastewater treatment plants under the existing or proposed Clause 53.10. The proposed changes to Clause 13 include updating reference to the EPA publication 1518 from the 1989 version to 2013. The Panel has used the latest version for its assessment as referred to by both expert witnesses and the EPA. The purpose of EPA Publication 1518 is to provide “recommended minimum separation distances between odour-or dust-emitting industrial land uses and sensitive land uses”. A key
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 aim of the guideline is to “prevent new sensitive land uses from impacting on existing industrial land uses”. Importantly, routine emissions are required to be managed on-subject land. In this case, it is a licence condition that offensive odours are not discharged beyond the subject land’s boundaries. The separation distances provided in the policy recognises that even with best practice management, facilities are not always guaranteed to achieve this goal and that unintended emissions known as ‘industrial residual air emissions’ or ‘IRAE’ are still possible. The distances provided, are therefore aimed at avoiding the consequences of IRAEs. Example causes of IRAEs include equipment failure, accidents or unusual weather conditions – all of which are commonly referred to as ‘upset conditions’. The policy sets minimum or “default” separation distances for specific industries and provides a procedure for where a variation of this distance is sought. The procedure sets the onus for establishing a different separation distance on the agent of change. In this case, the onus is on the Proponent. Table 4 of the guideline provides criteria for subject land-specific variation and is set out below in Table 5. Table 5 Criteria for subject land-specific variation of separation distances Criteria Explanation Transitioning of the industry Existing industry has formally indicated that it will transition out of an area and over a specified timeframe. Plant equipment and operation The industrial plant and equipment have an exceptionally high standard of emission control technology. Environmental risk assessment An environmental risk assessment of IRAEs has been completed that demonstrates a variation is justified. Size of the plant The plant is significantly smaller or larger than comparable industries. Topography or meteorology There are exceptional topographic or meteorological characteristics which will affect dispersion of IRAEs. Likelihood of IRAEs Particular IRAEs are either highly likely or highly unlikely to occur.
Clause 66.01 sets out referral authorities for the purpose of subdivision referrals. In accordance with this, YVW, as the relevant sewerage authority, is a determining referral authority. The Panel notes the intent of this is in relation to the provision of sewerage services and not directly related to its interests in protecting its asset from unreasonable encroachment by sensitive uses. The SEPP (Air Quality Management) specifies the EPA is responsible for employing statutory and non-statutory instruments and measures in implementing the policy including protocols for separation distances and land use planning.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
4.3 Evidence and submissions 4.3.1 Noise The EPA’s initial assessment of the project identified a noise assessment was required to assess potential noise impacts to future residents from the wastewater treatment plant. The Proponent called expert evidence on acoustic engineering from Mr Antonopoulos of SLR. Mr Antonopoulos conducted noise logging and attended noise measurements close to the wastewater treatment plant and in the existing residential area. He measured levels at the nearest existing residential receivers to the north, northwest and in a location considered representative of the proposed closest receiver based on the subdivision plan. At all locations, there was minimal noise impact and likely full compliance with the relevant criteria for day and night. Mr Antonopoulos concluded “that there is no significant noise impact and low risk of non-compliance with noise regulations at the subject development due to existing industrial operations in the area”. The EPA’s review of the noise evidence (Document 57) supported the methodology applied and its conclusions and submitted no further permit conditions to manage noise were not required. 4.3.2 Odour
(i) Removal of vegetation YVW’s initial submission referred to a number of activities regularly undertaken to minimise potential odour risks including the “maintenance of tree canopy around the subject land”. Several residents (11, 12, 18, 35, 38 and 61) were concerned that the removal of trees and vegetation to the south of the subject land would potentially increase odour impacts on residents to the north. Detailed research had been undertaken by several residents including presenting articles from around the world illustrating the use of vegetation to filter air emissions and demonstrating the effectiveness of specific tree species. Mr Sutton called expert evidence on odour from Mr Asimakis of GHD. In cross-examination, Mr Asimakis opined that existing trees could assist in mixing the wind, roughing it up and diluting potential odours from the south. Further that if the trees were to be removed that could potentially increase the chance of odour occurring. Ms Porritt called expert evidence on odour from Ms Freeman of Jacobs. Ms Freeman’s evidence did not comment about the role of tree buffers for odour management.
(ii) Reduction in separation distance Using EPA Guidelines and the current and future equivalent population for the BCSTP as provided by YVW, both odour experts calculated the current and future (2051) default buffer distances to be 401 and 470 metres, respectively (refer to Figure 9).
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Figure 9 EPA default buffers for BCSTP
Source: Asimakis evidence Figure 5.1 The evidence of Mr Asimakis identified that the default separation distance could be reduced based on two methodologies. The first method is to alter it directionally based on local meteorology. This would adjust the default buffer based on the dispersive ability of the atmosphere which is determined using local meteorological data and dispersion modelling. The default buffer (which has equal radii in all directions) is then adjusted to take account for directions of good and poor dispersion prevailing conditions. The buffer is retracted for directions of good dispersions and extended for directions of poor dispersion. Using the first method, the default buffers are extended greatest to the south of the BCSTP to a distance of 857 metres for the 401 metre buffer. To the north-northwest the same buffer is retracted to 106 metres. As shown in Figure 10, adjusting the default buffer in such a way means the 401 metre buffer does not extend to the subject land and the 470 metre buffer only marginally extends to the subject land, by approximately 12 metres. The second method takes the nearest existing residential receiver in the direction of the prevailing wind and applies this distance in the direction of the subject land. This resulted in a separation distance of approximately 209 metres which could also be met, with the subject land being approximately 233 metres from the activity boundary. For both of these methods, Mr Asimakis relied upon the following criteria being met in accordance with Table 4 of EPA publication 1518:
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
• Plant and equipment • Environment risk assessment • Topography and meteorology • Likelihood of IRAEs. In each case, he found the requisite conditions were met such that a subject land-specific variation to the default separation distance was deemed appropriate. Figure 10 BCSTP Directional buffer based on local meteorology
Source: Asimakis evidence Figure 9.2 The EPA supported the evidence of Mr Asimakis and stated that “it is expected that under normal conditions, from time to time there may be offsubject land odour impacts, but these would not be frequent or severe enough to require EPA to object to the proposal”. In summary, Ms Freeman gave evidence that there were currently too many unknowns and further monitoring was required before a subject land-specific variation could be determined appropriate. In relation to the Table 4 criteria, Ms Freeman disagreed that the plant and equipment were of such a high standard that the likelihood of IRAEs was low, instead giving evidence that what existed on the subject land was more in the realms of “standard emission control” that would be “typical” of any regular plant. Regarding the appropriate meteorological data to be used, Mr Asimakis preferred the closer Mooroolbark weather station data whereas Ms Freeman preferred the Coldstream station which was further away from the subject land, but in her evidence of more comparable topography to the subject land context. This difference of opinion resulted in very different
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 outcomes for determining whether a variation to the default separation distance could be supported. Another key difference of opinion related to records of complaints. Mr Asimakis stated there had been none to date. This was supported by records provided by YVW. No formal complaints were recorded by EPA, Yarra Ranges or Maroondah Councils. However, Ms Freeman gave evidence that in recent months, YVW had become aware that residents to the north of the subject land had been experiencing odour without reporting it and they were keen to understand this first. A number of resident submitters described the type of smell present, the weather conditions which seemed to accompany such smells and either reasons why complaints may not have previously been made or anecdotes of making inquiries with Council or the YVW which for one reason or another were not formally recorded. A copy of a local newspaper report from 2006 was also tabled (Document 87) which outlined an upset condition which resulted in complaints to YVW and Council to which both agencies had responded and provided comment to the newspaper. Despite this, no formal records were logged and YVW admitted they had no satisfactory answer to this but recognised internal improvements would be made. Relying on the evidence of Mr Asimakis, which had the support of the EPA, the Proponent submitted it was appropriate to vary the separation distance. YVW submitted the uncertainty was enough such that they did not want to risk “putting itself in a position where it is constrained in meeting its obligations”. Those obligations included providing reliable sewerage services, not causing odour pollution and meeting the needs of the existing community. YVW submitted that the proposed Amendment and planning permit should be abandoned. YVW considered that it would need at least to the end of July 2020 to undertake summer monitoring, analysis, modelling and consultation necessary to inform a more definitive position. Mr Asimakis identified intermittent faults with the BCSTP’s programmable logic controller as a potential source of upset conditions. Noting this was scheduled to be upgraded in early 2021, Mr Asimakis considered that the subsequent risk of odour emanating from a failure of the programmable logic controller would be eliminated. Council initially supported Mr Asimakis’ evidence, relying on the expertise and support of the EPA for its position. In closing, Council recognised merit in both expert testimonies and advised it was less clear on outcomes regarding this issue. Council undertook an exercise of reviewing its internal complaint logs and concluded that no records of complaints was fair and legitimate evidence of the situation however submitted this is “not the final word” on the issue and “shouldn’t be treated as such”. Having considered odour experiences shared by community members, Council reflected these “suggest not upset events but failures in the normal day to day operations” which could be quite different in cause and character “from the upset events for which the separation distances are required”. Council recognised both the agent of change principle and the authority of the EPA in these matters, stating that if the EPA prefers one expert to another, that was a significant factor. Council, however, identified a final consideration being recent experience with the odour impact of the former Coldstream green waste treatment facility where “best efforts to address
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 and negate odour impacts in advance were unsuccessful”. In light of this, Council advised that it would be hesitant to support something which could lead to such difficult outcomes again. In response to residents reporting complaints, the EPA’s response (Document 106) identified its role in land use planning of using a risk-based approach to advocate for the prevention of future land use conflict. EPA’s response confirmed that: EPA Publication 1518 assumes that even with best practice and controls, there will always be unintended emissions (dust and odour) either through upset conditions and/or associated with certain industries that are ‘open’ to the environment, such as wastewater treatment plants. It is extremely difficult to confirm that there would be no offsite land impacts associated with a land use of this type. EPA advised that it preferred to directly receive, investigate and respond to complaints in an appropriate timeframe rather than respond to them through the Planning Panel process is not the appropriate avenue. In relation to the plant itself, EPA confirmed its senior odour engineer’s (Mr Bydder) advice and subject land observations that observed no odours and acknowledged: That is not to say that on rare occasions they may be issues at the subject land that would generate off-subject land odour but if the subject land is running routinely, well maintained and kept up to date this should not occur at high frequency. [Panel’s emphasis]
4.4 Discussion 4.4.1 Noise The Panel is satisfied that the evidence of Mr Antonopoulos applied an appropriate methodology to assess the potential impacts on the amenity of future residents from potential external noise sources as confirmed by the EPA. The Panel is satisfied there are no significant noise impacts that require changes to the subdivision proposal or particular permit conditions. 4.4.2 Odour
(i) Removal of vegetation The Panel is satisfied that vegetation, in particular trees may have some role to play in filtering air and reducing potential odour impacts. There was no evidence provided to assist the Panel in determining the extent to which existing trees reduce potential odour impacts or the extent to which this may be hampered by potential vegetation removal on the subject land. The Panel notes the majority of vegetation to the south of the subject land will be retained and that YVW appears to maintain its own tree canopy around the subject land to reduce potential impacts.
(ii) Reduction in separation distance The Panel recognises the importance of utilities for orderly planning and to protect existing utilities from urban encroachment. The BCSTP is a key utility in the area which plays an important role for the immediate area but also wider catchment diverting waste sludge from YVW’s Lilydale and Upper Yarra sewage treatment plants to Melbourne Water’s eastern
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 treatment plant via the Brushy Creek subject land. Given the high strategic importance of this subject land in servicing nearby areas, the Panel agrees with YVW that a cautionary approach is warranted. The Panel accepts that EPA Publication 1518 sets out a process by which default separation distances can be varied and lays the responsibility of establishing such on the ‘agent of change’. In this case, the Proponent is the agent of change. Despite this, the Panel notes the risk of upset conditions causing odour complaints would lie squarely with YVW. In its assessment, the EPA provided that no mitigation would be provided and upon questioning from the Panel clarified, this is because it is very hard (and impractical) to mitigate potential odour impacts from such events. Council’s own experience with the former Coldstream green waste treatment facility provides a pertinent example. The Panel accepts there were no previous formal complaints recorded but also accepts the experiences shared by residents which indicate the absence of such records does not provide a complete picture of existing conditions. If residents to the north are indicating they are currently experiencing odour at different times of day/year, these would likely be due to normal operating and not ‘upset’ conditions as YVW advised that the last upset was in 2015. If normal operating conditions are providing offensive odours already then this is concerning, noting such odours would be covered by the current licence condition, and an indication that the subject land may be exposed in an upset condition. The Panel is concerned the submissions of residents, YVW and to some extent, Council indicate complaints records may not be accurate for all agencies and there appears to be no integration between agencies to record ‘complaints’ which are redirected to the responsible authority. Such circumstances make the Panel hesitant to rely upon the models of Mr Asimakis to insist a variation to the default separation distance is appropriate and can be relied upon to protect future residents of the proposed development. The Panel accepts that such an outcome would unfairly place risk on YVW that its viability may be threatened. The Proponent submitted that Ms Freeman had not engaged with the EPA during her assessment, nor had she contacted Mr Asimakis. The Panel accepts Ms Freeman can engage the EPA when she is ready and suggests the burden should have been on the Proponent to effectively engage with YVW from the start to ensure they supported the modelling methods of Mr Asimakis and could work collaboratively with the Proponent. A key intent of EPA Publication 1518 is to “prevent land adjacent to industry from being underutilised”. The Panel supports this intent and believes it a worthwhile exercise for YVW to continue its investigations to support potential refinement of the default separation distance, and for this investigation to be undertaken in consultation with the Council, Proponent and the EPA. Depending on the outcome of further work, the Panel suggests Council may consider applying the Environmental Significance Overlay in line with any separation distance for future clarity in planning decisions.
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4.5 Conclusions The Panel concludes: • It is very unlikely that acoustic emissions from the wastewater treatment plant would impact on new residents. • It is possible that vegetation removal could affect the transmission of potential odours from the wastewater treatment plant however the extent to which this could materialise is unknown. • It is possible that new residents may experience offensive odours from the wastewater treatment plant during upset conditions and the proposed development may unreasonably encroach on the odour separation distance. • Any potential to vary the default separation distance should be investigated thoroughly to determine that future land uses on adjacent land are not unreasonably or indefinitely fettered.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020
5 Native vegetation
5.1 The issues The issues are whether: • it is appropriate and justified to remove the proposed native vegetation • the proposal appropriately responds to potential significant flora and fauna.
5.2 Relevant policies, strategies and studies The following legislation, polices and strategies are relevant to consideration of the above issues: • Clauses 12.01-1S – Biodiversity which has the objective “to assist the protection and conservation of Victoria’s biodiversity”. This state policy aims to ensure decision making considers impacts of land use and development on biodiversity including cumulative impacts, habitat fragmentation and the spread of invasive species. Relevant policy documents include Protecting Victoria’s Environment – Biodiversity 2037 (DELWP, 2017). • Clause 14.02-1S Catchment Planning and Management the objective of which is “to assist the protection and restoration of catchments, water bodies, groundwater, and the marine environment”. Relevant strategies include: • Retain natural drainage corridors with vegetated buffer zones at least 30 metres wide along each side of a waterway to: o maintain the natural drainage function, stream habitat and wildlife corridors and landscape values, o minimise erosion of stream banks and verges, and o reduce polluted surface runoff from adjacent land uses. • Clause 22.05 Vegetation Protection – which states “the retention and rehabilitation of remnant vegetation is fundamental to retaining the vast range of wildlife habitats throughout the Shire.” Objectives include protecting the “viability of all remnant vegetation, whether in a bushland, rural, green wedge or urban environment”. Specific application requirements for removal of vegetation are set out including for land in an ESO. For vegetation within wetland areas or adjoining watercourses or which forms part of a wildlife corridor the policy requires for it to be demonstrated net ecological gain will be achieved. • Clause 21.09 Environmental Objectives, Strategies and Implementation which includes as a key issue that “The Shire’s prime objective is protection and enhancement of its rich biodiversity”. • Clause 52.17 Native Vegetation which aims to ensure no net loss to biodiversity as a result of native vegetation removal. This is to be achieved by implementing the three-step approach of Avoid, Minimise and Offset as set out in the Clause and in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP, 2017). The Guidelines apply to both the removal of vegetation under Clause 52.17 and when preparing a planning scheme amendment (where relevant).
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• The Assessor’s handbook, Applications to remove, destroy or lop native vegetation (DELWP, 2018) • Environmental Significance Overlay – Schedule 1 (as mentioned in Chapter 3) – the statement of significance acknowledges: • The Shire contains extensive areas of remnant bushland which are an intrinsic part of the Shire’s unique landscape and environmental character. • Subject lands of botanical and zoological significance also play an important role in contributing to the ecological processes and biodiversity of the region by forming core habitat areas within a complex network of wildlife corridors along roadsides and watercourses. Development within and around these subject lands needs to be appropriately managed to ensure the long term protection and sustainability of these ecological processes. • Key environmental objectives to be achieved under this overlay are to: • Ensure the long term protection of the wildlife habitat and other conservation values of subject lands of botanical and zoological significance. • Recognise the importance of subject lands of biological and zoological significance as core habitat areas. • Ensure that the habitat value of the subject lands is not diminished by the incremental removal of remnant vegetation or inappropriate development. • Protect the natural resources and maintain the ecological processes and genetic diversity of the region. • Ensure that any new development is sensitively designed and subject land to reinforce the existing environmental characteristics of the area. The Decision Guidelines for this ESO1 require the comments of DELWP to be considered prior to making a decision. DELWP is a recommending referral authority under Clause 66.02-2 for the vegetation removal as proposed by the planning permit.
5.3 Evidence and submissions 5.3.1 Is the removal of native vegetation appropriate? Mr Sutton called expert evidence on flora and fauna from Mr Lane of Nature Advisory. Mr Lane’s evidence summarised the impacts and offsets required as 3.049 hectares of native vegetation from patches (including eight large trees in patches) to be removed requiring 1.462 general habitat units to compensate this loss. He gave evidence such offsets could be achieved through third-party offsets and a report of available credits was appended to his statement. The potential impacts are shown in Figure 11. Mr Lindsay called expert evidence on ecological matters from Ms Kelsall of Yasmin Kelsall. Ms Kelsall in her evidence agreed with many aspects of Mr Lane’s evidence. Key differences in relation to native vegetation calculations were: • the identification of a ‘new’ wetland identified as Aquatic Herbland Ecological Vegetation Class (EVC) which had not been accounted for • an area mapped by Mr Lane as Swampy Riparian wetland which Ms Kelsall would classify as Tall Marsh (0.2 ha) • several aspects of the project footprint missing from calculations such as: - full extent of proposed constructed wetland, floodway compensation area and infrastructure on the west side of the creek
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- proposed stormwater sediment pond on the east side of the creek and any associated infrastructure (drains, pipes etc) - appropriate buffers for construction of all wetlands, infrastructure, shared paths etc. Figure 11 Vegetation to be removed
Source: Lane evidence, Figure 1 In response to questioning From Mr Lindsay and the Panel, further unknowns were identified including the construction access road from Holloway Road and associated creek crossing. In relation to the Aquatic Herbland, Ms Kelsall’s primary recommendation was for avoidance based on its important hydrological and ecological functions. In response to questioning, Ms Kelsall gave evidence she was unable to give a threshold value of losses which would be ‘acceptable’ for the subject land. Mr Lane acknowledged there were a few unknowns remaining with respect to the project footprint and suggested a potential maximum amount of vegetation to be cleared may be indicated in the permit with allowance for details to be finalised through a secondary consent. Following Panel’s request, Mr Lane provided a ‘worst case scenario’ report outlining the potential maximum amount of vegetation to be cleared (Document 73). Mr Lane gave evidence the ‘new’ wetland was likely regrowth of less than 10 years old which would be exempt from requiring a permit. The Proponent explained that much of the vegetation to the northern side of the subject land had been previously cleared and comprised considerable areas of regrowth. Mr Lane’s worst case scenario included: • increasing construction impact for shared path from 2.5 to 4.5 metres • impacts from the constructed wetland to the west
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• impacts from a 4-metre-wide temporary construction road • impacts to Aquatic Herbland area (despite his evidence it would be exempt). This scenario totalled 3.438 hectares of native vegetation from patches to be removed requiring 1.714 general habitat units with a minimum strategic biodiversity value of 0.545 and at least nine large trees. In closing, the Proponent acknowledged that some vegetation losses may still not have been accounted for in the worst-case scenario (such as the full extent of the flood compensation works), but it was submitted it was at the permit-holder’s risk should the final footprint end up requiring more losses than granted. The Panel heard from a number of residents (submitters 11, 18 and 38) with respect to the significant value of vegetation to be lost in terms of biodiversity and public amenity values. Further detail is provided in section 5.3.2. Mr Lindsay on behalf of the CPRAG submitted the use of a secondary consent to determine the final amount of vegetation to be removed would offend the principle of orderly planning. DELWP submitted (Document 97) that the removal of native vegetation proposed was not in accordance with the relevant Guidelines as it did not adequately address all permit application requirements, specifically: • A Native Vegetation Removal Report must be submitted detailing the full extent of losses – not a scenario report. There was still uncertainty if final mapping accurately reflected the total construction footprints. • The mapped vegetation should include the Aquatic Herbland identified by Ms Kelsall as the regrowth exemption referred to did not apply. • A 30-metre waterway buffer was not achieved along the Brushy Creek. DELWP submitted a waterway buffer is incompatible with a defendable space zone and there should be no overlap. • The vegetation to be removed was of high Strategic Biodiversity Value indicating the high value the vegetation contributes to the State’s Biodiversity. • In accordance with the Assessor’s handbook indirect impacts such as changes to hydrology, stormwater runoff, compaction and excavation should also be accounted for in the offset target. Despite significant hydrological changes proposed, the application did not demonstrate how the proposal will avoid any indirect impacts to retained vegetation. • That in the context of the potential significant amount of vegetation to be lost and its high value, the proposal had failed to sufficiently demonstrate the application of the avoid and minimise principles, instead relying upon offsets which are deemed a last resort. DELWP recommended the retention of the naturally occurring wetland that had been identified. In conclusion, DELWP submitted the subdivision ought be reduced extensively to allow for the protection of key identified attributes. Council was originally comfortable with the findings of Mr Lane, however this was predicated in part on the belief the proposal would provide significant overall benefits. In closing, Council expressed concern regarding the newly identified Aquatic Herbland, stating that “this type of
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 environment would be hard to compensate for through offsets” and that this fact had been reinforced by DELWP’s submission. 5.3.2 Does the proposal respond appropriately to significant flora and fauna species? The Flora and Fauna Assessment included results of a brief survey and desktop searches for the EPBC Act listed species using the Protected Matters Search Tool and the Victorian Biodiversity Atlas. Results were as follows: • potential habitat for 10 EPBC listed flora species, none being identified during surveys including targeted surveys undertaken for the round-leaf pomaderris • potential habitat for 22 EPBC listed fauna species, with five of these considered likely to or having the potential to occur on subject land following more detailed analysis. Potential impacts to the five listed fauna species were considered minimal due mostly to the likely infrequent use of the subject land, ability to relocate (fly away) and large extent of alternate habitat available. Listed species under the Flora and Fauna Guarantee Act 1988 (FFG Act) were only considered for public land being the road reserve and none were identified. Mr Lane gave evidence consideration of listed species beyond the EPBC Act and the FFG Act for public land was not required for a permit to remove native vegetation and that the work undertaken by the Proponent was entirely consistent with Clause 52.17. Ms Kelsall found that Mr Lane’s approach differs from the standard approach encouraged by planning authorities and relevant referral agencies to consider listed species under the FFG Act and relevant advisory lists such as the DELWP Advisory List. In this case, due to the ESO, Ms Kelsall considered a broader appraisal of State and Regionally listed species was warranted. Detailed submissions from residents included accounts of the vast array of species identified at the subject land including many photos and evidence of research undertaken to identify species recorded and confirm sightings from public authorities. For example, Melbourne Water had confirmed to Mr Whitehead (submitter 11) that platypus inhabit Brushy Creek and Melbourne Museum had assisted Ms Ruhnau (submitter 34) in identifying a number of species from her photographs. These submissions highlighted the importance of biodiversity and the contributions each species makes to the whole. They also identified the great importance of the environment to the wellbeing of nearby residents. DELWP submitted that the application was incompatible with ESO1 as the environmental values present had not been adequately considered. DELWP highlighted the need for the responsible authority to consider “the significance of any remnant vegetation that may be affected by the proposal, in terms of its rarity, variety or as habitat for wildlife”. DELWP recommended a more detailed fauna survey be undertaken to fully understand fauna likely to be present and potential impacts. Council initially submitted it was satisfied the loss of habitat was acceptable given the degraded state of the vegetation from significant weed infestation and the “overall benefit gained through the development of the water treatment wetland and the rehabilitation of retained vegetation” (Document 38). In closing, Council was complimentary of the detail provided in objector’s submissions, in particular the submission of Ms Ruhnau (Document 85)
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 which Mr Hanson for Council considered to be of an expert witness statement standard. The issue being the timing of that information meant Council could not adequately consider or respond to it. Having said that, Mr Hansen accepted and agreed with the DELWP submission which recommended the rezoning was incompatible with ESO1 which was intended to protect the environmental values of the subject land.
5.4 Discussion 5.4.1 Is the removal of native vegetation appropriate? The Planning Scheme and guidelines set out a policy by which native vegetation can be removed at one location and offset at another. The Panel agrees with DELWP’s submission that the current application does not adequately address the permit application requirements for the reasons it has stated. The Panel does not consider it appropriate to use a secondary consent to finalise the amount of vegetation to be lost when there are so many interrelated factors that are uncertain, and the acceptability of native vegetation removal is a threshold issue for the acceptability of the proposal. The Panel accepts that the Proponent has identified, in its view, the more significant vegetation lies in the south and that most of this is to be retained. Beyond this however the proposal does not provide a very sophisticated response to the avoid and minimise steps of the native vegetation framework. The Panel considers the high value nature of the biodiversity on the subject land warrants a higher degree of consideration. Having said this, the Panel considers there is capacity to remove some vegetation on the subject land to facilitate a better outcome for the land provided the appropriate avoid, minimise steps are taken to the satisfaction of DELWP. 5.4.2 Does the proposal respond appropriately to significant flora and fauna species? The Panel considers the Proponent has taken a rather restricted view of policy by only considering EPBC-listed species. Whilst permits under the FFG Act are only required for public land it is common practice for biodiversity assessments to also consider State or Regionally significant listed species and in this case, it is warranted due to the Planning Scheme’s recognition that Brushy Creek provides an important habitat and wildlife corridor. The Panel notes the vast number of additional species identified as occurring by residents and considers such information could inform further work by the Proponent to investigate the significance and extent of potential impacts and potential need for further management measures or permit conditions if those impacts are deemed acceptable. Without further understanding of potential listed species present, the permit cannot appropriately respond through conditions dealing with potential preclearance surveys, translocation or relocation plans. The Panel did not hear any evidence to suggest that these options would be successful for all species such as the less mobile burrowing crayfish and frog species. Valuable time could also be wasted looking for species unlikely to be present.
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Obtaining a zoological report as a part of the construction management plan as proposed by the Proponent in its proposed permit condition variations (discussed in Chapter 11) is considered to be too late in the process.
5.5 Conclusions The Panel concludes: • The proposed extent of native vegetation removal has not been demonstrated to be appropriate or justified. • The use of a secondary consent to finalise the amount of vegetation to be lost is not appropriate. • The Amendment does not respond appropriately to listed flora and fauna species.
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6 Stormwater and stream ecology
6.1 The issues The issues are whether the proposal: • appropriately manages stormwater flows from the proposed subdivision • appropriately provides for the protection and enhancement of the Brushy Creek environs.
6.2 Relevant policies, strategies and studies • Clause 12.03-1S River corridors, waterways, lakes and wetland which calls up Melbourne Water’s Health Waterways Strategy (2013), the current version of which is 2018. • Clause 14.02-1S Catchment Planning and Management. Relevant strategies include: • Undertake measures to minimise the quantity and retard the flow of stormwater from developed areas. • Require appropriate measures to filter sediment and wastes from stormwater prior to its discharge into waterways, including the preservation of floodplain or other land for wetlands and retention basins. • Require appropriate measures to restrict sediment discharges from construction subject lands. • Ensure that development at or near waterways provide for the protection and enhancement of the environmental qualities of waterways and their instream uses. • Ensure land use and development minimises nutrient contributions to water bodies and the potential for the development of algal blooms. • Relevant policy documents include Urban Stormwater – Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999). • Clause 19.03-3S Integrated Water Management • Clause 44.04 Land Subject to Inundation Overlay • Clause 53.18 Stormwater Management in Urban Development the objective of which is “to ensure that stormwater in urban development, including retention and reuse, is managed to mitigate the impacts of stormwater on the environment, property and public safety, and to provide cooling, local habitat and amenity benefits”. Relevant objectives for subdivision (53.18-4) and buildings at works (53.18-5) include: • to minimise increases in stormwater and protect the environmental values and physical characteristics of receiving waters from degradation by stormwater. • to encourage stormwater management that maximises the retention and reuse of stormwater. • to encourage stormwater management that contributes to cooling, local habitat improvements and provision of attractive and enjoyable spaces. • The above objectives are repeated in the stormwater management objectives at Clause 56.07-4 Integrated Water Management • State of Environment Protection Policy (Waters).
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6.3 Evidence and submissions 6.3.1 Stormwater flows Mr Sutton called expert evidence on stormwater management from Nina Barich of Incitus. Ms Barich reviewed the Reeds modelling and gave evidence that the development would meet best practice stormwater management. She gave evidence the wetland would treat flows from the larger catchment, the development and effluent discharge from the BCSTP such that reduction targets for all key pollutants would be exceeded. Ms Barich considered that the increase in total stormwater outflow from the development’s increased imperviousness would be negligible (0.02 per cent) due to relatively small contribution the development would make to the Brushy Creek catchment. In terms of maximising retention and reuse of stormwater, Ms Barich identified that, although there was no specific mention of reuse, Victorian Building Authority requirements for a minimum six-star standard would mean a “strong probability” of rainwater tanks being adopted by around half of new homeowners. Mr Lindsay called expert evidence on stormwater and stream ecology from Associate Professor Walsh. Mr Walsh opined that “the constant nutrient-rich effluent from the wastewater treatment plant is not the primary degrader of the creek” as compared to the “growing impact of urban stormwater runoff”. In this context, Mr Walsh considered the primary purpose of the wetland is to treat effluent discharge from the BCSTP (base flow). The primary treatment proposed for stormwater was a sediment pond on the east side of the creek. In this manner the wetland could be said to “offset” nutrient inputs from stormwater. Mr Walsh considered the wetland would be ineffective in treating stormwater as this will occur during peak flows when overtopping would occur. For pollutants that did enter the wetland, loads would be reduced by less than 2 per cent. He said that in order to successfully treat stormwater as well, the wetland would need to be redesigned to increase retention time which would require a bigger area of wetland. He stated that insufficient retention times had been the cause of failure for many of Melbourne Water’s wetlands. Mr Walsh considered the proposed weir would result in complete diversion of the creek flows in dry weather and it was unlikely this would be deemed suitable by Melbourne Water. Mr Walsh acknowledged that the outcomes he was advocating for were beyond the requirements of the Urban Stormwater Best Practice Environmental Management Guidelines 1999 (BPEM Guidelines) which he viewed as insufficient. The outcomes required by the BPEM Guidelines could potentially be achieved by the current wetland and engineering solutions however he considered it would be unnecessarily complicated to do so. More simply, the outcomes could be met with a moderately sized infiltration area on the eastern side of the creek or by including stormwater harvesting and smaller infiltration areas throughout the development. In relation to the uptake of rainwater tanks, Mr Walsh considered more serious harvesting would be required to make a real difference.
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Mr Walsh was reasonably happy with the proposed wording of the Melbourne Water permit conditions, however his main concerns remained that the proposed wetland design would not meet them. In response to Mr Walsh’s evidence, Ms Barich provided a supplementary statement (Document 95) which demonstrated that Mr Walsh’s concerns could be addressed through appropriate engineering solutions including piping discharge from the sediment pond directly to the wetland, designing the diversion weir such that some dry weather flows would pass over if deemed necessary by an ecologist, adjusting the retention time and so on. Ms Barich disagreed that previous Melbourne Water wetlands had failed due to having retention times of less than 72 hours, instead giving evidence that the reason for failure was that detention time far exceeded 72 hours and the chosen vegetation had not been able to sustain such extended inundation depths. Ms Barich considered that the key reason assets were failing was because Melbourne Water operates a Quality Assurance system, relying upon consultants to assure satisfactory design as opposed to a Quality Control system which would include rigorous oversight from Melbourne Water itself. In closing, the Proponent submitted the relevant framework is the BPEM Guidelines and the critical consideration for the Panel is that Melbourne Water is supportive subject to appropriate conditions which have been included in the permit and which Mr Walsh conceded were appropriate. The Proponent considered Melbourne Water to be best placed to assess detailed design for its catchment and that this design detail was best worked out through further plans to be prepared as a permit condition. YVW submitted that all discharges to the stream were within their licence conditions and once discharged to the stream were no longer of their concern, therefore they were unable to assist the Panel in understanding the importance of the wetland. Ms Barich provided a Summary of Drainage Analysis by Reeds Consulting which appended correspondence received from Melbourne Water dating back from 2005. In 2006 correspondence, Melbourne Water identifies that “this development presents an opportunity for net environmental gain to be achieved by way of complementing Melbourne Water’s intention to construct a wetland system on the southwestern side of Brushy Creek”. It identified that the wetland’s purpose is “to treat effluent discharge from the existing Yarra Valley’s sewerage treatment plant located just south of the subject land”. The subsequent nitrogen removal and improvement of downstream stream flow was seen as “very favourable” as it was “consistent with the objectives and targets outlined in the Port Phillip and Western Port Regional Catchment Strategy 2004-2009”. In light of Mr Walsh’s evidence, Council’s closing submission indicated it was now uncertain as to the potential water quality benefits to be achieved by the wetland. Council advised that such was the perceived importance of the wetland, it was proposed to require a section 173 Agreement to ensure its construction prior to subdivision. In terms of weighing individual factors for a net community benefit assessment, Council submitted that the potential water quality benefits were fundamental to its support of the Amendment such that “if this substantial component of overall benefit were to be effectively removed, it could shift Council’s view on the net outcome of the proposal”.
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6.3.2 Protection and enhancement of Brushy Creek environs Mr Lane’s evidence was limited to native vegetation removal and a targeted flora and fauna assessment for EPBC-listed species. Ms Kelsall raised concern with the diversion of the creek between the inlet and outlet for the wetland. She recommended that the wetland be moved south to ensure nutrients were captured as early as possible. Ms Kelsall stated that the proposed wetland has the potential to become a wetland environment with important habitat values depending on final landscaping and design. Although she stated it was hard to prescribe such design features at this stage, important aspects may include varying depths allowing for some areas to dry out providing varying habitat. Ms Kelsall added that there would be potential to provide enhanced habitat for some species identified on the Victorian Biodiversity Atlas but not all, due to the different requirements of each species. As the predominant remnant vegetation type is Swampy Riparian Woodland, which includes swamp gums, tall shrubs and is quite a closed system – this would be hard to replicate in what looks to be a big open wetland. Further, such ecological objectives might be inconsistent with desired objectives for public open space. Ms Barich gave evidence that an engineering solution could be employed if it were deemed necessary for some environmental flows to be maintained after the diversion of flows from the BCSTP. DELWP’s submission (Document 97) recommended the retention of the existing wetland. In its ‘without prejudice’ conditions, DELWP recommended requiring the proposed wetland to replicate natural wetlands that occur within the Swampy Riparian EVCs. In order to achieve the minimum 30 metre buffer distance from the creek, DELWP recommended that the NRZ dwellings achieve a higher BAL rating to reduce the 33 metre defendable space buffer. Residents included mention of potential fauna species in the creek including frogs, platypus, burrowing crayfish and eastern long-necked turtle (Ms Ruhnau, Mr Bish and Mr Whitehead). Mr Wharton (submitter 3) provided photos (Document 89) identifying the state of Brushy Creek under flood conditions that he considered could be exacerbated by the development. In closing, Council was less convinced of the merits of the proposed wetland to achieve improved stream quality and restoration of native vegetation. Council advised such perceived benefits had been “fundamental to the original justification of the amendment” and submitted that if “this substantial component of overall benefit were to be effectively removed, it could shift Council’s view on the net outcome of the proposal…such was the importance of the benefit of the wetland.”
6.4 Discussion 6.4.1 Stormwater flows The policy framework sets quantity, flow and water quality as key attributes of stormwater to be mitigated. The wetland achieves two things. Firstly, flood compensation work (excavation) is required to balance the amount of fill used for the proposed subdivision. Secondly, there is, or at least at
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 some stage, was, seen to be great benefit in reducing the amount of nitrogen in the effluent discharged to the creek from the nearby wastewater treatment plant. The Panel notes there is no evidence to indicate the current discharge is outside of YVW licenced discharge conditions. Once discharged, the water becomes the responsibility of Melbourne Water who were not present at the Hearing. The most extensive indication of the potential benefit of the wetland in terms of treating effluent provided to the Panel was found in correspondence from Melbourne Water dated 20 April 2006. At this stage, the perceived benefit was based on then current policy of Western Port Regional Catchment Strategy 2004-2009. A review of this strategy identified a key relevant target being to “reduce average annual nitrogen levels entering Port Phillip Bay by 1000 tonnes by 2006” and the idea of offsetting new nitrogen inputs by reducing inputs from elsewhere. This strategy has since been superseded. The 2013 Health Waterways Strategy also identified reducing nitrogen loads by a further 10 tonnes towards the Port Phillip Bay water quality target. In the latest 2018 strategy, it was reported this target had been exceeded. The current Healthy Waterways Strategy identifies seven key challenges to waterways, with urban stormwater and climate change being identified as the most important. In terms of stormwater the key pressure is defined as increase in impervious surfaces draining directly to waterways reducing infiltration and affecting the waterway in two ways: “rapid runoff in wet conditions, and lack of soil moisture during dry conditions”. The five remaining threats of less significance are: pollution (including licenced discharge from treated effluent), litter, vegetation clearing, interference with natural water flows and invasive species. Mr Walsh gave a narrative which indicated previous thinking was that nitrogen was the key enemy and the current policies are mistakenly aimed at this. The Panel, however, considers the current policy framework when read together identifies urban stormwater as the key threat and therefore encourages actions beyond merely reducing nitrogen to improve water quality. Therefore, it questions the benefit of the constructed wetland to treat effluent above alternate infrastructure designed primarily to address impacts from stormwater. In relation to the BPEM Guidelines, the Panel is aware the EPA is currently developing new guidance to reflect current scientific knowledge, public consultation for which is anticipated to begin in 2020. The Panel can only address the application based on policy today. The Panel disagrees with the Proponent’s submission that they are only required to address the BPEM Guidelines. The Panel disagrees with Mr Walsh’s evidence that what he is advocating is beyond the BPEM Guidelines. The BPEM Guidelines recognise they are needed to deal with both the quantity and quality of stormwater (section 1.2). Section 2.3 of the BPEM Guidelines provides stormwater performance objectives which can be determined by monitoring, modelling or adopting the generic values in Table 2.1. These values are known as the ‘current best practice performance objectives’. The BPEM Guidelines outline that application of the generic values are the least preferable but recognise that they are also the most practical. Ms Barich’s evidence provides the proposed development will exceed these generic values (either directly from stormwater or offset from treating effluent from the wastewater treatment plant). The BPEM Guidelines are not however limited to those targets. The BPEM Guidelines also sets out a number of
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 other tools to provide stormwater quality benefits that can be used and combined in different contexts. These tools include development of stormwater management plans, incorporation of stormwater objectives into the planning system (planning policy, use of zones, overlays or permit conditions) and use of water sensitive urban design which seeks to “minimise the extent of impervious surfaces and mitigate changes to the natural water balance through on- subject land reuse of the waters as well as through temporary storage”. The Panel accepts Mr Walsh’s evidence that relying upon the uptake of individual rainwater tanks to achieve retention of stormwater is unsatisfactory. The Panel considers that current planning policy provides significant support for facilitating on-subject land infiltration, retention and re-use of stormwater which has not been satisfactorily addressed by the proposal. The Panel considers that, based on the evidence provided, the proposal will not contribute significantly to the flooding activity experienced in Brushy Creek during storm events, although it is critical that the overall wetland and open space area be designed to allow the movement of flood waters. 6.4.2 Protection and enhancement of Brushy Creek environs The Panel accepts that excavation works will be necessary to offset the fill required for the subdivision. In terms of the wetland, it is less clear what the key objectives for this infrastructure is and therefore difficult to assess whether the proposal will achieve these objectives. Melbourne Water’s submission does not clarify its vision for the wetlands. DELWP’s without prejudice’ conditions suggested it should replicate natural wetlands that occur within Swampy Riparian EVC’s. The Panel accepts there are engineering solutions which could be applied to the current wetland design to achieve different objectives however, it is unclear what is required at this stage as the objectives are unknown. Broadly speaking, the wetland could be used to achieve both water quality and ecological objectives, these may however be in conflict with each other or public open space objectives. Part of what was missing was an understanding of the habitat currently provided by the creek and potential species within it. There is at least anecdotal evidence to support the existence of platypus, crayfish, eel and turtles. An understanding of the habitat provided and potential impacts from the proposed stream diversion, wetland construction and temporary creek crossing is required to ensure impacts can be appropriately avoided, mitigated, managed and offset and to ensure maximum benefits are achieved through the constructed wetland. The Panel understands that Council used the perceived benefits to be provided by the wetland to balance the significant impacts of the proposal on native vegetation in its assessment of the proposal providing a net community benefit. Without a more thorough understanding of the benefits, the Panel is unable to afford much weight to the possible benefits of the wetland.
6.5 Conclusions The Panel concludes: • The proposal has not demonstrated that it will appropriately manage stormwater flows from the proposed subdivision. • The proposal has not demonstrated that it will appropriately provide for the protection and enhancement of the Brushy Creek environs.
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7 Bushfire
7.1 The issue The issue is whether the proposal: • can achieve appropriate outcomes in terms of protection of life from bushfire.
7.2 Relevant policies, strategies and studies 13.02-1S Bushfire planning provides that: This policy must be applied to all planning and decision making under the Planning and Environment Act 1987 relating to land that is: • Within a designated bushfire prone area; • Subject to a Bushfire Management Overlay; or • Proposed to be used or developed in a way that may create a bushfire hazard. Strategies include: • Protection of human life by prioritising human life over all other policy consideration, directing population growth to low risk location and consideration of bushfire risk during planning stages. • Bushfire hazard identification and assessment by considering local and regional landscape conditions (potentially up to 75 kilometres from the subject land). • Settlement planning including not approving any strategic planning document, local planning policy, or planning scheme amendment that will result in the introduction or intensification of development in an area that has, or will on completion have, more than a BAL-12.5 rating under AS 3959-2009 Construction of Buildings in Bushfire-prone Areas (Standards Australia, 2009).
7.3 Evidence and submissions The CFA submitted that the subject land is designated a bushfire prone area and a 33 metre defendable space is supported between the creek bank vegetation and the residential dwellings to achieve a BAL-12.5 for the proposed properties. It submitted that the defendable space must extend to the eastern property boundary to pick up lot 8 and be clear of the defined vegetated creek corridor. To help avoid vegetation creep from the creek corridor into the defendable space, CFA requested that the edge of the defendable space be clearly and visibly marked with a fence or bollards. Within the defendable space, the CFA identified that tree canopies must be 5 metres apart and the use of wood chips for mulching is not supported. In addition to the fire risk from the creek environment, the CFA requested that consideration be given to the risk of grass fires from the Oxley College site to the immediate east. Whilst it noted that it appears that the risk of grass fires is currently effectively managed by Oxley College, it was concerned that there was no guarantee that such management practices would continue into the future. It submitted that an unmanaged grassland with a building setback
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 of 2 metres may result in the dwellings having a BAL-FZ. A BAL-40 could be achieved with a 6 metre setback, whilst a 9 metre setback would achieve a BAL-29, mitigating some of the risk. The Proponent called bushfire expert evidence from Mr Allan of Terramatrix. Mr Allan noted that the subject land is a designated Bushfire Prone Area (BPA), but it is not subject to a Bushfire Management Overlay (BMO). He also noted that Clause 71.02-3 of the Planning Scheme requires that, in bushfire affected areas, the protection of human life must be prioritised over other policy considerations. Mr Allan advised that a bushfire risk assessment in Clause 13.02-1S of the Planning Scheme requires consideration of bushfire risks emanating from well beyond the subject land. In addition, AS 3959-2018 Construction of buildings in bushfire prone areas requires an assessment of the vegetation and topography up to 100 metre around a building when determining a BAL construction standard. Mr Allan advised that a 33 metre defendable space was required to the west and south of the dwellings, including Lot 8. In respect to Oxley College Mr Allan considered that that subject land posed a low threat of bushfire, based on its current management, with aerial photography indicating a history of regular slashing which should keep grass below 100 millimetres. He noted that Oxley College is not designated as a BPA except where the BPA covering the subject land and the Public Use Zoned land to the south overlaps into Oxley College. He argued that the overlap on the College subject land is a response to the risk of bushfire emanating from bushland to the College’s south and west not from the College subject land itself. Mr Allan advised that the metal fencing along the rear boundary of lots 3-8 proposed in draft condition 1d would provide a suitable radiant heat shield in the event of a grass fire. On questioning from the Panel, he added that the metal fence should continue south 33 metres, for the distance of the defendable space. Council in its closing advised that it was not prepared to recommend against the advice of the CFA in relation to the fire risk emanating from Oxley College. DELWP submitted that the provision of a 33 metre defendable space in the location proposed was not supported due to the impact on native vegetation and that the land to be rezoned NRZ should be reduced or an alternative zoning requiring a lower BAL level should be considered. Alternatively, a permit condition should require a BAL of 29 or 40 to reduce the required defendable space buffer. The loss of native vegetation is discussed in Chapter 5. Mr Lane noted that the defendable space crosses into the 30 metre creek buffer corridor. He advised that the modification of vegetation within these overlap areas is not considered to disrupt the natural flow of the creek or impede the movement of the common urban-adapted wildlife using the creek corridor. Ms Kelsall, in her evidence noted that the defendable space requires: • grass must be short cropped and maintained during the declared fire danger period • all leaves and vegetation debris must be removed at regular intervals during the declared fire danger period • shrubs must not be located under the canopy of trees
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• individual and clumps of shrubs must not exceed 5 square metres in area and must be separated by at least 5 metres • the canopy of trees must be separated by at least 5 metres • there must be a clearance of at least 2 metres between the lowest tree branches and ground level. She considered that, due to the above controls changing the natural environment, the defendable space is inconsistent with the requirements of a creek buffer.
7.4 Discussion The Panel accepts that the appropriate distance for the defendable space is 33 metres clear of the creek buffer corridor and any sections of retained native vegetation extending from the creek corridor. However, the plans provided by Mr Lane in Document 65 show that the proposed defendable space overlaps with the 30 metre creek corridor sought to be vegetated consistent with Clause 14.02-1S of the Planning Scheme. The Panel considers that the defendable space is not consistent with the purpose of a creek buffer. Providing the defendable space clear of the creek buffer corridor will affect the viability of development of lots 17, 18, 19, 20, 21 and 45. In relation to Oxley College, the Panel agrees with the concerns of the CFA in relation to the potential for a grass fire to spread along the Oxley College subject land into the residential lots. Such a grass fire may for example originate from ember attack from the bushfire prone land into the Oxley College subject land and this is in the Panel’s opinion the reason for the overlap into the Oxley College subject land. Whilst the College appears to maintain the grassland, there can be no guarantee that the grass will at all times be kept below 100 millimetres now and into the future. Whilst a non-combustible fence may mitigate some risk, the Panel has insufficient material to allow it to determine if a BAL12.5 environment, as recommended in Clause 13.02-1S, could be met for lots 3-8 on the basis of a higher threat assessment than that determined by Mr Lane, noting that this was not an option put before the CFA. A combination of the proposed non-combustible fencing and a greater rear setback may assist in achieving this aim.
7.5 Conclusions The Panel concludes: • A 33 metre defendable space is required between the 30 metre creek corridor and any retained native vegetation areas extending from the creek corridor, and this will impact the viability of lots 17-21 and 45. • The threat of grass fire on the Oxley College subject land is considered to be a potential risk to the residential development area and the building setbacks may need to be increased to ensure that a BAL12.5 environment can be provided. This could be addressed by a permit condition with the CFA input.
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8 Traffic
8.1 The issues The issues are whether the proposal: • will result in unreasonable traffic impact on the surrounding road network • should include adequate road pavement width.
8.2 Relevant policies, strategies and studies Clause 56.06-7 of the Planning Scheme contains the following Neighbourhood street network detail objective: To design and construct street carriageways and verges so that the street geometry and traffic speeds provide an accessible and safe neighbourhood street system for all users. Standard C20 states that, among other things: The design of streets and roads should: • Meet the requirements of Table C1. Where the widths of access lanes, access places, and access streets do not comply with the requirements of Table C1, the requirements of the relevant fire authority and roads authority must be met. Where the widths of connector streets do not comply with the requirements of Table C1, the requirements of the relevant public transport authority must be met. Table C1 sets out standard road cross-sections based on traffic volume projections. Note 1 to the table defines the traffic volumes in the table as follows: Indicative maximum traffic volume for 24-hour period. These volumes depend upon location. Generation rates may vary between existing and newly developing areas.
8.3 Evidence and submissions 8.3.1 Traffic impact on the surrounding roads The submissions from nearby residents expressed concern regarding the impact of increased traffic along Regency Rise, Meadowbank Avenue and Billanook Way generated by the proposed subdivision. They advised that existing parking along the roads, particularly around a drop off point for Oxley College on Billanook Way, causes congestion and safety concerns now which would worsen with any increase in traffic. Whilst there was some discern regarding the existing traffic volumes, it was generally found by all parties that Meadowbank Avenue carries less than 1000 vehicles each day, Regency Rise carries less than 2000 vehicles each day, whilst the volume of traffic on Billanook Way near Old Melbourne Road exceeds 3000 vehicles each day near Old Melbourne Road. The Proponent called expert evidence on traffic from Ms Dunstan of Traffix Group. She noted that the three existing streets providing access to the subject land are all local roads in Council’s Register of Public Roads.
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Ms Dunstan noted that Regency Rise has a 6.65 metre carriageway and would meet the definition under Clause 56 of an Access Street Level 1 with an ‘environmental’ capacity of 1000-2000 vehicles each day. Meadowbank Avenue also has a 6.65 metre carriageway along most of its length but widens towards Billanook Way to 7.5 metres, with that width commensurate with an Access Street Level 2 with an indicative environmental capacity of between 2,000-3,000 vehicles each day. Billanook Way has a carriageway width varying between 7.5 and 7.8 metres which would also place it in the Access Street Level 2 category, however Ms Dunstan noted that its use as a bus route would elevate its status above an access street to a collector road function. Ms Dunstan estimated that the subdivision would conservatively generate up to 480 vehicles per day, based on 10 trips each lot per day, with 25 per cent of traffic travelling through Regency Rise to the west and 75 per cent through Meadowbank Avenue to the east. She determined that the road network had sufficient capacity to accommodate the increase in traffic with only Billanook Way continuing to exceed its environmental capacity. Ms Dunstan advised that exceeding the environmental limit was acceptable providing the intersection capacity was adequate, noting that the area does not have a formal collector road and the road contains a bus route. To this end, her report included the results of intersection analysis that indicates the intersection of Kimberley Drive/Billanook Way would operate with a Level of Service B (very good) post development. She noted that it was open to the Council to implement parking controls if needed to improve flows. Council supported Ms Dunstan’s conclusion in respect to traffic impacts, based on a first principles assessment of the intersection capacity and concluded that the traffic impact on the external network was acceptable. Mr Holland, on behalf of the CPRAG, presented his own projection of the future traffic volumes in the area (Document 79). He considered that the traffic volume data from 2009 to 2018 had shown approximately a 30 per cent increase in this residential area and that given the average vehicle registration increase of Victoria is 2.6 per cent annually he opined that a 10 year analysis should include a 26 per cent increase in traffic flows. On this basis, he concluded that Billanook Way would exceed 4,200 vehicles per day and Regency Rise would exceed 2000 vehicles each day without the development. Mr Holland also considered that Regency Rise would be best classified as an Access Place with a capacity of 1000 vehicles each day as a 6.7 metre wide pavement does not allow parking on both sides of the road, unless parking is staggered. Mr Bish advised that a review of the Victorian Planning Authority’s Precinct Structure Plan notes suggests that Billanook Way would be classified as an Access Street Level 1 with a capacity of 2000 vehicles each day given the lack of indented parking. 8.3.2 Adequacy of the road pavement width The CFA submitted that the road pavement width should be either 5.5 metres or 7.3 metres rather than the proposed 6.7 metres to ensure that clear guidance is given as to whether cars can park opposite land each other and still provide adequate space for an emergency vehicle to pass. The Council submitted that 6.7 metres was acceptable noting that it provides some
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 additional flexibility over a 5.5 metre pavement width and accommodates the necessary widening around the bends for larger vehicles. The local submitters also expressed a concern that parking may overspill the subject land. Ms Dunstan advised that the road width is sufficient to provide for one on street parking space for every two lots.
8.4 Discussion 8.4.1 Traffic impact on the surrounding roads There is often debate around the applicability of the volumes cited in Table C1 of Clause 56. The use of the Table however, is not mandatory, and just one way deemed to satisfy the Neighbourhood street network detail objective. The volumes in the Table are only indicative target maximum volumes and not a hard limit, as identified in the note to the Table. The volumes are based on amenity factors rather than physical capacities, hence the term ‘environmental capacity’ used by Ms Dunstan. In this respect, the Panel agrees with Ms Dunstan and Council that the intersection capacity is a better descriptor of the physical capacity of a road. Notwithstanding this, the Clause is not applicable to the existing road network, although it is a guide. Similarly, the PSP notes1 are for use in greenfield subdivisions and state that the volumes shown are typical and indicative only and the cross-sections are only one way of meeting Clause 56. In relation to Mr Holland’s estimate of future growth in traffic, the Panel does not consider that a growth factor based on vehicle registrations in Victoria is reasonable. Growth in registration is due to a number of factors, including population growth and is not considered a good predictor of household traffic generation. Population growth is also linked to housing growth and in some respect adding such a growth factor on top of the development traffic is potentially a double counting. In terms of growth in local traffic over the last 10 years, the Panel notes the Traffix Group advice in Document 16 that in 2009 the local area was generating traffic at 7.45 trips per household each day. The growth in the last 10 years would see that rate now sit conservatively around 9.6 trips per household, assuming no change in dwelling numbers nor any impact of arterial through traffic or external traffic generated by Oxley College. This trip rate change is reflected in the submissions from the local residents that identified that the area has matured with many children now coming of age and driving cars. Relevantly, the rate now reflects that recommended by Ms Dunstan for the area for design purposes, noting that the standard design rate of 10 trips per dwelling is based on surveys of established neighbourhoods. Accordingly, the Panel does not find any justification to apply a further growth rate to base traffic flows. While acknowledging existing concerns about safety and congestion due to parked cars, particularly around the Oxley College entry, the Panel does not consider that this level of parking and congestion is unusual in a local environment. Indeed, the impact of on-street
1 PSP notes - Roads V2 “Our Roads: Connecting People”
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 parking requiring some cars to yield to on-coming traffic assists in lowering speeds and improving safety. Council, as the road manager, has within its responsibility and powers the ability to improve the regulation of the road to improve safety and accessibility if needed, regardless of this proposal. That it has not yet implemented any significant amount of parking control in the area indicates that the issues are tolerable and manageable. In any event, these are existing issues and the Panel accepts Council’s submission that the estimated increase in traffic will not have a significant impact on the existing road network, and other pre-existing issues can be dealt with under other processes. 8.4.2 Adequacy of the road pavement width Based on its traffic volume of 480 vehicles per day the proposed internal road within the subdivision is appropriately classified as an Access Place under Table C1, being a minor street providing local residential access with shared traffic, pedestrian and recreation use, but with pedestrian priority. Such a road would generally be provided with a 5.5 metre carriageway. However, the swept path diagrams in Appendix C of Ms Dunstan’s evidence show that a pavement of at least 6.7 metres is required for a large rigid vehicle to negotiate the bends in the road as it loops through the subject land. Indeed, the diagram show that cars would need to park well clear of the bends as well as the section outside lots 1 to 3 to ensure adequate road space is available for trucks, noting it is otherwise not illegal to park on a bend providing three metres of pavement width is still available. Whilst adequate parking would still be available, such reliance on parking control signs to manage parking is considered to be a poor design outcome. The Panel agrees with the CFA that a 6.7 metre width can, as the local submitters identified, lead to the potential for cars to park on both sides of the road and illegally block access for emergency services and other large vehicles. The use of either a 5.5 metre pavement or a 7.3 metre pavement combined with increased radii on the bends would address these design issues. This is discussed further in Chapter 11.
8.5 Conclusions The Panel concludes: • The traffic impact is acceptable. • The road design should be modified to provide either a 5.5 metre pavement or a 7.3 metre pavement with increased radii on the bends to avoid the use of parking control signs.
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9 Cultural heritage and landscaping
9.1 Aboriginal cultural heritage
(i) The issue The issue is whether the Amendment appropriately responds to matters of Aboriginal cultural heritage.
(ii) Evidence and discussion Both Mr Bish and Mr Whitehead raised concerns that matters of cultural heritage may not be fully addressed advising that Brushy Creek was a significant location for the local Aborigines as evidenced by the nearby monument stone for William Barak. Mr Whitehead included in his presentation (Document 91) a photo of a tree on the land that may be a “Scarred Tree”. Cultural Heritage Management Plan Number 13335 (CHMP), dated 05 May 2015, has been prepared for the subject land, in accordance with the Victorian Aboriginal Heritage Act 2006, and approved by the Wurundjeri Tribe Land & Compensation Cultural Heritage Council. The CHMP did not identify any evidence of scarred trees, however the Panel notes that not all of the subject land was accessible to survey due to the dense undergrowth in some areas. The CHMP includes three inspections by representatives of the Wurundjeri Council, including a first inspection prior to initial activity and a second inspection that must occur during initial ground stripping (for both residential construction and bridge construction). These required inspections along with cultural awareness training of construction staff, also required under the CHMP, provide confidence to the Panel that the planning scheme objective to ensure the protection and conservation of places of Aboriginal cultural heritage significance will be met. Mr Whitehead suggested acknowledgement of the cultural heritage values of Brushy Creek for example in the naming of streets. While this might be one of a number of potential acknowledgements, this is a detail that the Panel cannot comment on and will be the subject of existing naming conventions and discussions, if appropriate, between Council, the Proponent and the Wurundjeri Tribe Land & Compensation Cultural Heritage Council.
(iii) Finding The Panel is satisfied that the CHMP satisfies the objective of Clause 15.03-2S of the Planning Scheme.
9.2 Landscape plan and trees
(i) The issues The issues are whether the Amendment appropriately provides for: • landscaping, including the retention of significant trees • an adequate landscape maintenance period • a shared path increasing the connectivity of the local path network.
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(ii) Evidence and submissions The Amendment proposes to introduce Significant Landscape Overlay 23 (SLO23) over the residential subdivision area, with the exhibition material advising that this is proposed “to address ongoing management of retained vegetation within the proposed subdivision in a manner consistent with planning controls for vegetation in the surrounding residential area, which has similar coverage of mature vegetation”. SLO23 states that a permit is required to remove, destroy or lop any substantial tree. A substantial tree is defined as having a diameter at breast height (DBH) greater than 26 centimetres. The Amendment was exhibited with a landscape plan prepared by Landsite in November 2018. The Proponent did not seek to update this plan in response to changes in the Subdivision Plan versions or the defendable space requirements, nor did it lead any specific landscape evidence, relying on the arboriculture evidence provided by Mr Waters. The resident submitters concern about the loss of trees on the subject land, providing a graph showing that Yarra Ranges has experienced almost a 5 per cent loss of tree cover since 2014 (Document 88). Ms Mishra (submitter 18) raised a particular concern about the loss of the significant street tree on Regency Rise to create the new entry road. The resident submitters, as well as Ms Kelsall, criticised the 24 month landscape maintenance period, seeking the development of a 10 year management plan, to ensure an on-going commitment by the ultimate public land owners. The residents also sought reassurance that a shared path connection would be provided across Brushy Creek providing a connection into Wonga Park and the path network near Holloway Road. The arboriculture evidence of Mr Waters included a survey of all ‘significant trees’. He noted that in the absence of a definition of a significant tree he took guidance on the relevant EVC classes for a large tree, deeming that a 50 centimetre DBH trunk diameter was an appropriate benchmark. Of the 96 trees on the subject land he inspected, 29 met this diameter, predominantly Swamp Gum species. Version X of the Subdivision Plan was prepared to increase the significant tree retention, with the roadway construction requiring the removal of trees (numbers 40, 41, 42 and 76). The first three of these trees are located just east of the bend in the proposed road outside lot 21, whilst tree number 76 is shown on the Subdivision Plan version X as being retained on the verge outside lot 12. Mr Waters noted that version X of the Subdivision Plan reduced lot numbers, enlarged some lots, reduced the size of several building envelopes and provided a reserve to enable the retention of almost all of the significant trees to be retained on subject land and most of their tree protection zones. Version X of the Subdivision Plan also shows the provision of some new 60 street trees. Council and the Proponent noted that significant changes to the landscape plan are envisaged and a detailed permit condition is proposed to accomplish this, including a permit condition requiring a replacement planting ratio of 8:1, comprising of predominantly indigenous trees and shrubs. VicRoads advised that whilst it was prepared to allow a temporary construction access through its land along the subject land’s southern boundary, that land was for a future arterial
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 road and residential vehicular access would not be permitted. Accordingly, the subdivision access must come from its Regency Rise abuttal.
(iii) Discussion and finding The Panel accepts that the purpose of applying the SLO to the subject land is to protect the retained substantial trees on the subject land, and any future substantial trees that may be added. Notwithstanding this, the Panel would have been assisted by a clearer reconciliation of the proposed tree retention and loss from the 50 centimetre DBH substantial tree diameter identified by Mr Waters and the lesser 26 centimetre DBH that applies in SLO23. Nevertheless, the Panel is generally satisfied that the version X of the Subdivision Plan and the proposed permit conditions achieves an appropriate balance of tree retention and replacement. The Panel has some sympathy for the loss of the large tree on Regency Rise, but accepts that this loss is necessary to provide vehicle access to the subject land even if this rezoning does not proceed. The Panel sees some value in the consideration of a longer landscape plan maintenance period given the extent of subject land weeds and the vegetation protection required and replanting proposed. This is discussed further in Chapter 11 in relation to proposed permit conditions. In relation to the shared path, such a path network is shown on the exhibited landscape plan and proposed to be picked up in the development plan as a condition 1 requirement.
9.3 Other off-subject land impacts The residents, and in particular Ms Mishra, raised concerns regarding noise and dust during construction as well as the impact of light spill from cars exiting the subdivision onto Regency Rise at night when developed. The Panel finds that the draft permit contains reasonable conditions in relation to the control of dust and noise during construction of the subdivision. It is beyond the scope of the planning permit to provide controls regarding the management of future building works on the lots. While the Panel is sympathetic to the impact of headlights on Ms Mishra’s property, as with all intersections, such impacts are a matter for the individual property owner to manage and as noted earlier, the provision of an entrance at this location is both appropriate and necessary for any development scenario on this land.
9.4 Conclusions The Panel concludes: • The Amendment appropriately responds to matters of Aboriginal cultural heritage. • The proposed land management plan should consider a 10 year horizon, with the Proponent responsible for maintenance for 24 months following the issue of a statement of compliance for the subdivision. • The proposed conditions relating to the landscape plan and tree retention are generally acceptable.
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• The draft permit provides appropriate conditions to minimise off-subject land impacts of noise and dust during construction.
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10 Net community benefit – integrated assessment
10.1 Key issues The key issues are: • whether the proposal create a net community benefit • whether the Amendment strategically justified and should the planning permit be issued. Both the planning objectives for Victoria contained in the Act and Clause 71.02-3 seek decision makers to address aspects of economic, environmental and social wellbeing affected by land use and development. Clause 71.02-3 seeks to: …integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. Planning Practice Note 46: Strategic Assessment Guidelines identifies that: The normal way of assessing the social and economic effects of an amendment is to consider whether or not the amendment results in a net community benefit.
10.2 Submissions and evidence Mr Milner’s evidence considered that the proposal provided a rare opportunity to provide a positive policy and public contribution through: • securing public ownership and access of land, providing a missing link • passive open space benefits including implementing hike and trail strategies and removing hazards • conserving and enhancing biodiversity and environmental values including the creek and through weed removal • reducing bushfire risk • improving the performance of the floodplain and water quality • providing housing choice and opportunity close to services and facilities. Mr Milner identified that strategic and planning cautions that needed to be addressed satisfactorily were the roles and values of Brushy Creek, proximity to the BCSTP, managing flooding and water quality. Overall, he considered a net community benefit would be achieved through the Amendment and permit. The Proponent submitted that, in addition to those points identified by Mr Milner, the proposal would provide a community benefit by fully offsetting native vegetation removal, retaining and revegetating large areas of the subject land (including the largest, most intact and highest quality native vegetation) and weed removal. It submitted that the Planning Scheme does not require an ideal outcome but rather an acceptable outcome having regard to relevant matters. The Proponent considered that not supporting the proposal would retain the subject land in private ownership and develop it for a handful of large lots and dwellings, locking it away from public use and enjoyment. CPRAG submitted that planning policy placed a high significance on retaining and protecting natural assets and such a proposal required a high and rigorous degree of precaution to be
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 applied to decisions affecting biodiversity and hydrological assets. It submitted that it was arguable whether the residential or wetland components of the project created a positive community benefit. Regardless, it considered that the loss of high-value native vegetation (which was not being offset on the subject land) would impact a significant biodiversity corridor, result in the potential loss of an existing wetland and adversely impact on endangered or vulnerable EVCs. These impacts it submitted, along with floodplain and stormwater impacts, would not provide a net community benefit or sustainable outcome, nor produce an acceptable outcome in its current form. Council’s submitted that it is impossible to cease development just because the natural environment will be affected and that urban development will happen in the Municipality and “it will have an impact on the natural environment and residents, this cannot be avoided”. It added that it was required to consider the degree of impact and whether that level of impact was reasonable. In some instances (such as traffic) it was able to draw the line between undesirable impacts and unacceptable ones, however the competing evidence and submissions around native vegetation, stormwater and odour created a position where it was unable to fully support the proposal without further information.
10.3 Discussion The Panel agrees with the Proponent that a reasonably acceptable outcome is required, where the positive benefits on balance outweigh the negative impacts. It does not need to be an ideal outcome. The Panel considers that the Amendment and proposal (as amended) provides some policy and wider community benefits. As identified in Chapter 3, the Panel considers there is sound strategic policy for supporting residential development adjacent to an existing residential area and one that has access to infrastructure and a broad range of services and facilities where subject land constraints can be reasonably managed. One of the significant benefits of the proposal is securing a large portion of the subject land, including the section of the Brushy Creek corridor, within public ownership to provide floodplain, wetland and open space benefits for the wider community. While the Panel heard there is no current strategy in place advocating for a pedestrian open space linkage or trail through this section of the Brushy Creek corridor, the opportunity to connect to existing open space to the north is readily apparent. Such an outcome is unlikely to be achieved within the current zoning given the limited scope for subdivision. The construction of the wetland has the potential to improve the quality of water discharged from the BCSTP into Brushy Creek. However as identified in Chapter 6, without a clear understanding of its role, function and design from Melbourne Water and the conflicting evidence, it is difficult to quantify this benefit. As identified in Chapter 11, the complex relationship between stormwater, native vegetation and fauna and flooding is difficult to reconcile through permit conditions without a fuller understanding of the issues. As identified in Chapter 7, the proposal will offer some additional protection to existing residents to the north from fire, although there remain some fire risk issues unresolved
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 including the relationship between the creek corridor and defendable space and fire risks from the east. For the Panel, the Amendment and proposal raise three threshold issues which have not been satisfactorily resolved and are likely to shift the balance to one where a net community benefit has not been demonstrated – odour, creek environs and zoological and vegetation impacts. As identified in Chapter 4 the Panel is concerned that the proposal may have odour impacts on new residents and significantly have an impact on the operations of the BCSTP. The protection of public assets from encroaching sensitive and incompatible uses is a key planning objective of the Act and of Clause 19.03-3S (Integrated water management). The Panel notes that the EPA does not object to the proposal and considers that the risk of odour impacts from upset conditions to be low. However, the Panel considers that the inconsistent evidence about odour impacts and the opposition of YVW requires it to err on the side of caution and give greater weight to the protection of a significant community asset over other strategic considerations. The submission of CPRAG articulated the significance of Brushy Creek to the wider Yarra River catchment environs and to achieving the objectives of State water policy (as identified in Chapter 6). As identified in Chapters 5 and 6 there was uncertainty about the impacts of the development on Brushy Creek and its ecology. The proposal has appropriately limited the area of residential development to the north-east corner of the subject land, retains a large proportion of the larger trees and proposes to manage subject land weeds. It is acceptable practice for a planning permit to be conditional on revised plans and documents requiring more detailed technical inputs to the satisfaction of the responsible authority. This approach however assumes a level of confidence about the achievement of permit condition outcomes. In this instance, the Proponent has not sufficiently demonstrated that the proposal has managed the interrelated impacts of stormwater and native vegetation removal in an integrated manner. This includes for example, how stormwater can be diverted to the wetland without impacting stream flows and creek ecology, how the creek corridor and defendable spaces areas work together to achieve different landscape and habitat outcomes and how the floodplain and wetland elements work together. The result of this uncertainty is a draft permit with a large number of conditions endeavouring to manage these impacts through a series of different plans (secondary consents). The Panel does not consider that these conditions can adequately address these issues through a secondary consent process without additional assessment and a more integrated approach to the subject land in a manner which responds to the Planning Policy Framework. In the absence of these issues being satisfactorily resolved the Panel is of the view that the proposal does not create a net environmental benefit and by extension does not deliver a community benefit that outweighs the proposal’s negative aspects. The Panel is not satisfied that the permit and Subdivision Plan proposal can be further amended to adequately resolve the threshold issues. While there is a level of strategic support for the proposed rezoning, the boundary between zones reflects the residential development area and modified flood plain. The Panel considers that the two elements cannot be separated
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 enabling the Amendment to be supported without a resolved planning permit. The Panel does not consider that an option of leaving the Hearing open for an amended proposal to come forward is appropriate in this instance as it would likely be a very different proposal requiring new referrals and re-exhibition and an extended period of time to undertake the necessary assessments.
10.4 Conclusion and recommendations The Panel concludes: • The Amendment and permit in their current form will not result in a net community benefit. • The Amendment is not strategically justified and the planning permit should not be issued. The Panel recommends: That Yarra Ranges Planning Scheme Amendment C176yran be abandoned. That Planning Permit YR-2018/358 for residential subdivision, removal of vegetation and works associated with a wetland and sediment pond not be issued.
10.5 Subject land future The Panel heard from Council and the Proponent that the current proposal, in various forms, has been in the planning stages for over 10 years. The Hearing demonstrated that a ‘do nothing’ scenario is not a positive outcome for the land. It will not achieve coordinated management of the creek corridor, provide large areas of public open space and connectivity, will not provide an incentive for weed and vegetation management or enable the subject land to make a more useful contribution to the Municipality’s housing strategy and housing diversity. While the Panel does not support the proposal in its current form, it considers that a level of subject land development should be possible (and anticipated) if the identified threshold issues can be managed. This includes: • resolving odour buffer issues with Yarra Valley Water and EPA • detailed native vegetation and fauna surveys including offsubject land areas likely to be disturbed by temporary access or future path connections • developing integrated stormwater, wetland, vegetation management and landscape plans in response to the detailed native vegetation and fauna surveys • undertaking ecological impact assessments of potential impacts from any temporary or permanent creek crossings, proposed wetlands, or stream diversions to deal with stormwater or sewage effluent from the BCSTP, in consultation with DELWP and Melbourne Water • confirmation of appropriate fire management treatments at the eastern edge of the subject land and defendable space vegetation treatments with the CFA • considering the additional permit changes suggested in Chapter 11.
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11 The planning permit
The Panel considers the Amendment is not strategically justified and the permit should not be issued. However, the Panel provides further comment on the draft planning permit should that recommendation not be adopted or if a subsequent proposal comes forward for the subject land.
11.1 Referral authority conditions While VicRoads (Roads Corporation) has no referral authority status for this application Council appropriately referred it to VicRoads. VicRoads identified that the subject land (Lot 2 Holloway Road) abutted the future Northern Arterial Route. While not objecting to the permit, it noted that condition 44 of the exhibited draft permit proposed construction vehicle access via Holloway Road but that this would only be feasible if VicRoads was prepared to enter into an access license agreement. The submission sought the inclusion of a condition to this effect. Council included the requested condition as a permit note. At the hearing VicRoads submitted (Document 43) that an alternatively worded condition be added instead: Prior to the permit holder being granted access to Lot 2 on PS403716J, Roads Corporation land (reference L50490), a formal license will be required to be entered between the permit holder and the Roads Corporation under Section 88 of the Transport Integration Act 2010 (Vic). Melbourne Water’s initial conditions and notes were included in the exhibited draft permit. Supplementary conditions were submitted by Melbourne Water dated 25 October 2019 (Document 34). The CFA submission identified that the subject land was within a designated bushfire prone area and required conditions: • for a 20 metre wide maintenance buffer • extending the buffer to the southern boundaries of lots 8 and 48 • extending the building envelopes from 2.0 metres to 6.0-9.0 metres to meet either BAL-40 or BAL-29 for lots 3 – 8 • deleting exhibited permit conditions 58 and 59 • for fire hydrants condition. CFA’s submission to the Hearing (Document 4) sought: • a landscape and management plan to ensure revegetation and open space landscaping does not increase fire risk and ensures ongoing maintenance of the defendable space area • installation of a visible defendable space boundary; extension of the defendable space maintenance buffer to adjoin lot 8 • a review the building envelopes of lots 17-20 to ensure the defendable space is achieved following the definition of the creek line corridor • to increase the rear building envelope setbacks of lots 3-8 • to ensure the minimum width of internal roads is maintained to allow fire vehicle access.
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DELWP’s original submission sought further information in relation to native vegetation impacts and advised if that information was not provided that it objected to the issue of a permit. DELWP’s final submission (Document 97) did not support the Amendment and suggested a reduction in development area, avoiding large trees and remnant vegetation and the identified wetland and not having the defendable space and 30 metre waterway buffers overlap. The submission included ‘without prejudice’ conditions relating to the recording and management of offsets, a Section 173 Agreement to protect retained vegetation, and to design the wetland to replicate natural wetlands that occur in Swampy Riparian EVCs. The EPA did not object to the proposal and did not nominate permit conditions. Original conditions from YVW were included in the exhibited draft planning permit however at the Hearing it did not provide any ‘without prejudice’ conditions, instead maintaining the permit should not issue. Conditions from YVW (relating to reticulated water and sewerage connection), Multinet Gas and SPI Electricity were included in the exhibited draft planning permit.
11.2 Without prejudice permit drafting discussion Following the closing submissions of Council and the Proponent, a ‘without prejudice’ discussion was had with the parties in relation to the exhibited draft permit conditions and subsequent iterations of it provided during the Hearing. The parties present which included Council, the Proponent, CPRAG and other resident submitters, identified a range of proposed changes to draft permit version 3 (Document 103), many of which were based on the evidence provided during the Hearing. The Panel identified a number of without prejudice preliminary suggestions. YVW did not participate in these discussions. DELWP did not participate in these discussions but did submit ‘without prejudice’ conditions with its final submission (Document 97). As directed by the Panel, the Proponent provided a tracked changes version of the permit (Revision 4 Document 107) which accommodated the changes supported by it, Council and CPRAG and noted the CPRAG and resident submitter suggested changes it did not support. Conditions proposed by DELWP were not fully accounted for in this document given they were received late in proceedings. The Panel has included a ‘clean’ tracked changes version of the Proponents revision 4 of the permit (with key changes highlighted in blue underline from the exhibited version) in Appendix D as a basis for its further comments. Deletions from the exhibited version including renumbering (unless specifically identified) and comments are not shown in the Appendix D version for ease of readability. For clarity, this does not represent the Panel’s preferred view but provides a starting point for the minimum changes suggested by Panel as outlined in Section 11.3 if Council was to consider approving the Amendment and permit. As opposed to the exhibited draft permit, Revision 4 (contained in Appendix D) includes in summary: • a reworded permit description • an expanded series of requirements for amended plans including: - defining the creek corridor
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- boundary fence details for the rear of lots 3-8 and other lots adjoining the reserves - detailed vegetation and removal plan - survey plan details - any changes required by Melbourne Water conditions • additional permit expiry provisions • provision of larger Tree Protection Zones and vegetation protection measures (condition 6)2 • requiring certain plans to be prepared before the Plan of Subdivision certification rather than the later statement of compliance stage of subdivision (conditions 8 and 10) • additional requirements in the amended landscape condition (condition 10) to: - provide for consultation with Melbourne Water and CFA in its development - amend the defendable space measurement to 33 metres - detail reserve fencing treatments - provide for tree planting to have regard for EVC species present - detail understorey vegetation to provide native fauna habitat - provide for the relocation of dead hollow bearing trees - providing for mulching to meet CFA requirements - visibly mark defendable space areas. • updating the native vegetation offset calculation in condition 14 to 3.48 hectares in response to the additional worst case scenarios identified by Mr Lane and deleting previous offset conditions identified in the exhibited draft permit (conditions 16-18) • inclusion of a Land Management Plan which provides for weed management and tree planting and maintenance for a 24 month period • amending the Construction Management Plan condition 39 to: - include all requirements of the approved CMP - include a plan prepared by a zoologist to manage displaced or affected native wildlife - include additional details for the temporary creek crossing • revised conditions of Melbourne Water (conditions 55-79) and VicRoads (included in condition 39) • revised CFA hydrant conditions (conditions 49-51). Revision 4 of the permit does not include the following changes sought by the CFA, DELWP, CPRAG (Document 104) or other resident submitters: • amending plans in condition 1 to limit development to lots 1-4 and 32-45 and the conservation reserve and minimum lot sizes of 600 square metres • deleting or amending condition 2 to limit endorsed plan changes to “minor corrections or adjustments” • inclusion of restrictions on the Section 173 Agreement (condition 3) to provide for single storey built form, single dwellings and 20 metre setback from the adjoining properties to the north in Regency Drive
2 All condition references in Section 11.2 of this Report refer to the conditions of revision 4 of the permit included in Appendix D.
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• identifying 9 rather than 8 large trees in condition 14(c) • provide for a 10 year maintenance period for all landscaping and weed management (conditions 12 and 16) • expand condition 16 to include a range of additional requirements • amending condition 37 replacing the words “In lieu of” with “In addition to” relating to demonstrating compliance with the stormwater quality standards of Clause 56.07- 4 as well as Clause 53.18 and SEPP (Waters) in Clause 34 • amending Melbourne Water condition 63 • inserting new conditions relating to a Works on Waterway license and for stormwater and water quality to meet the provisions of ESO2 • proposed CFA condition for additional building envelopes setbacks of the eastern boundaries for lots 3-8 • proposed DELWP condition 2 to specify the total area of native vegetation to be removed and its make up from patches, large and small trees • proposed DELWP conditions 5 and 7 to require a copy of offset evidence to be endorsed and provided to DELWP and allowing the reconciliation of offset requirements within 6 months of permitted clearing • proposed DELWP condition 9 to require dwellings achieve BAL rating of 29 or BAL40, reducing need for 33 metre defendable space • proposed DELWP condition 10 to include a section 173 agreement to protect vegetation to be retained on subject land • proposed DELWP condition 11 to ensure the stormwater treatment wetland is established prior to removal of the existing wetland and that the new wetland include areas to replicate wetlands that occur within Swampy Riparian EVCs • proposed DELWP permit notes referring to obligations under the Wildlife Act 1975 • other conditions sought by DELWP had been incorporated to an extent however precise wording had not been adopted and some reconciliation of the proposed wording would be beneficial.
11.3 Discussion Council’s Part A submission provided a helpful summary of the permit triggers, application requirements and referral requirements for the Project under the Planning Scheme. It also provided a summary of referral authority comments and responses, and a chronology of the Permit Application. The Panel has been assisted by these in its deliberations. The Panel has taken into account the permit considerations identified in section 2.3 of this Report. The number of conditions included in the draft planning permit are a pointer to the complexity of the proposal and the need to manage the complex interactions between vegetation and habitat protection and its ongoing management and reestablishment (during and after subdivision and works construction), weed management, stormwater flows and water quality and protection from fire. The Panel thanks the parties for the way in which they engaged in the ‘without prejudice’ permit drafting conditions. The Panel considers that these discussions went some way to establishing conditions that, if the permit were issued, would provide for more appropriate subject land management outcomes than the exhibited version.
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The Panel does not support the issue of a permit, however it has provided observations and comments on Revision 4 of the draft Planning Permit and version X of the Subdivision Plan that Council should consider if it supports the Amendment and the issue of the permit.
(i) Structure of the permit While some attempt was made with revision 4 to consolidate related conditions the draft permit: • remains difficult to navigate without headings • still lacks structure and order as several documents inform each other without regard to the hierarchy or order of plans • contains duplication or inconsistencies (and therefore uncertainties in interpretation or enforcement for the responsible authority and land owner) of what is sought by Melbourne Water for example and other conditions relating to landscaping, open space and stormwater management. The Panel considers that further detailed flora and fauna analysis is required to inform a more subject land responsive proposal which in turn informs the development of a Land Management Plan (including a Vegetation and Wildlife Management Plan and Landscape Plan) which further informs a stormwater design and Construction Management Plan. If a permit were to issue based on revision 4 Council should: • include all the conditions requiring provision of additional plans towards the front of the permit (after condition 1 or 2) with headings • follow a review of Conditions 1, 6, 10, 14, 16 and 39 to integrate like or related content to add clarity to the hierarchy of conditions, their interrelationship, requirements and to remove unnecessary duplication • follow discussions with Melbourne Water to enhance integration or cross referencing and ensure consistency of their conditions with those relating to stormwater, landscaping and vegetation protection outcomes and requirements in conditions 1, 10, 16, 36, 37 and 39. The Panel considers that the permit would benefit from headings being included for conditions relating to roads and footpaths, stormwater and open space.
(ii) Creek corridor Ideally the creek buffer corridor and the defendable space areas should not overlap as the landscaping and habitat objectives are in some situations at odds with each other. This is not always possible to achieve in an urbanised environment and call for a pragmatic approach to see if landscaping treatments can be achieved that not only provide creek buffer enhancement and protection but can be managed in a way that also achieve defendable space requirements. The Panel considers that the permit conditions as redrafted do allow for these details to be worked out through detailed design in consultation with Council, Melbourne Water, DELWP and the CFA. The Panel considers however, that the proposed road way and associated hard infrastructure (kerbs and channel and footpaths) should be located outside the 30 metre wide waterway buffer given the established values and strategic significance of Brushy Creek. Condition 1 could be appropriately amended to refer to the 4 metre wide creek corridor and the 30 metre creek corridor buffer on either side of the creek.
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The Panel considers that the permit requires additional conditions to manage the potential ecological impacts of creek crossings and the impacts of the wetlands and any stream diversions. Specifically: • A condition requiring an ecological impact assessment of potential impacts from any proposed temporary or permanent creek crossings to be undertaken prior to any works in consultation with DELWP and Melbourne Water and to the satisfaction of the responsible authority. Such an assessment should include both terrestrial and stream ecology, as relevant, and should result in an appropriate management plan to be approved and form part of the permit. The Panel notes Melbourne Water condition 69 specifies that any creek crossing is to be subject of a separate application to Melbourne Water. The purpose of an additional condition is to ensure potential ecological impacts are accounted for. • A condition requiring an ecological impact assessment should be undertaken to inform and assess detailed design of any proposed wetlands or stream diversions to deal with stormwater, or sewage effluent from the BCSTP. DELWP, Melbourne Water and the responsible authority would also need to be involved in the approval of such an assessment and the ultimate design. The Panel notes a number of Melbourne Water conditions currently deal with the wetland but not from an ecological perspective and with no input from DELWP. The Panel further notes DELWP’s desire for the proposed wetland to mimic environs of Swampy Riparian EVCs and to be established in time to allow fauna displaced by works to relocate to the new wetland. An ecological impact assessment would be an important precursor to this.
(iii) Vegetation removal and management The Panel considers there is value in undertaking a more detailed vegetation survey as part of finalising the vegetation offset calculations in Condition 14. The Panel is not confident that Mr Lane’s worst case scenario is the absolute number given the alignment of the pedestrian path southern connections, the temporary access road and creek crossing have not been fully determined (and may have some habitat loss including from their Holloway Road access connection points). Amending condition 14 to allow a final survey once all vegetation impacts are understood to the satisfaction of DELWP with a separate requirement for equivalent offsets to be secured to the satisfaction of the responsible authority would address the Panel’s and DELWP’s concerns with approving a scenario approach. The Panel, based on Mr Water’s evidence, considers that the fencing of the Vegetation Protection Zones (Condition 6b) should not refer to a single treatment type as proposed but would be enhanced by referring to Australian Standard (AS4970-2009) as well as the Flora and Fauna Assessment. The Panel supports conditions 12 and 16 identifying a 24 month maintenance of landscaping by the Proponent (after which time it becomes the responsibility of the land manager either Council or Melbourne Water). Ultimately, the proposal provides for the balance of the land and the road network to be transferred into public ownership and it is beyond the scope of a permit to beholden public land managers with such a commitment, nor is it reasonable to put such an onus on the permit holder.
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The Panel however, does see some merit in the preparation of a 10 year management plan as this will help guide initial and future land holders on how to achieve the objectives of the land management plan. For example, particular management measures may be required to manage potential impacts to aquatic fauna from the potential creek crossing, creek diversion to the wetland and to ensure maximum benefits are achieved through the constructed wetland. Without knowing the specific species to be protected however it is impossible assess the impacts or to ensure the appropriate mitigation and management measures. It is suggested that the Land Management Plan (Condition 16) should include before the words ‘The Plan shall show’ the words “The Plan should include a 10 year management framework”. Such a timeline provides a more holistic approach and context for the work to be undertaken within the 24 month maintenance period by the Proponent and will guide the longer term management activities of future land managers.
(iv) Fauna The Panel considers that the rezoning and issue of a planning permit for a more responsive development proposal on this subject land requires a detailed fauna assessment to understand the fauna values of the subject land. However, the permit could be enhanced by a Condition 1 amended plans requirement for a detailed fauna assessment to be undertaken. Such an assessment should be undertaken in consultation with DELWP and would feed into both the final plan and subsequent zoologist report required by the construction management plan. This would assist in potentially developing a response which further reduces vegetation loss and minimises the need for species relocation. The Panel considers that Condition 39(q)(i) relating to the Construction Management Plan’s requirement for a zoologist plan could be further enhanced by amending it to “A desktop assessment and survey (including review of the information and evidence provided to the Panel for Amendment C107 to the Yarra Ranges Planning Scheme) to determine species of native wildlife likely to be impacted.”
(v) Fire management Council should consider the amended plan condition requiring the extension of the maintenance buffer adjacent to lot 8. While the Panel understands the potential fire risks to lots 3-8 emanating from the Oxley College subject land is low it is not convinced based on CFAs submission that non-combustible fence alone will be sufficient to achieve a 12.5 BAL rating. The Panel would encourage the Proponent and Council to undertake further consultation with the CFA to determine an appropriate management technique or building envelope setback. Condition 10(p) was amended to delete the type of mulch to be used in future landscaping given concerns from CFA about the combustibility of certain mulch types. Mr Waters identified that non organic materials were also appropriate to use in landscaping situations. The issue for the CFA was not the type of mulch originally identified but the use of it at all defendable space areas. The Panel suggests that the condition could be amended to restrict mulching to materials and locations determined in consultation with the CFA.
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(vi) Traffic The Panel considers there is capacity to design a street network that does require the removal of large trees 40, 41 and 42. The Panel also suggests that internal road design be modified to provide for either a 5.5 metre or a 7.3 metre pavement width with increased radii at the bends as discussed in Chapter 8. This requirement could be included in Condition 1.
(vii) DELWP submission Council should consider incorporating DELWP’s proposed conditions 2, 5, 7, 10 and 11 in the permit in appropriate locations. Council should avoid applying DELWP’s condition 9. DELWPs proposed condition 6 relates to first party offsets which is not applicable in this case. DELWPs proposed conditions 1, 3, 4 and 8 are partly addressed in existing conditions (respectively 39(ii), 14, 15 and 39) but an exercise of reviewing and consolidating the wording would be beneficial. Council should not apply DELWPs suggested Note 1 which merely duplicates an existing statutory obligation. Note 2 parts (a) to (c) are largely incorporated in condition 6 (c) and the Panel considers this a better location for requirements dealing with tree protection zones. Proposed Note 2(d) which addresses the potential issue of fill impacting on the tree protection zone of retained trees has not been addressed in the conditions and should be. Condition 6 of the draft permit is the logical place for this.
(viii) CPRAG and resident submissions The Panel considers that further analysis is required to refine a development response and does not support an arbitrary restriction of building area as suggested. The Panel does not agree with the removal or modification of Condition 2 to limit amendments to the endorsed plans relating to lots and trees to mirror corrections or adjustments only. The Panel considers that this is a standard and necessary condition and that its proposed limitation is unreasonable. The condition allows a range of amendments to plans in response to particular on-subject land outcomes or other issues that arise and require Council as the responsible authority to consider those changes as appropriate and consistent with the Act. Council should avoid the inclusion of restrictions on lots relating to rear setbacks, building height or density. The Panel considers that the relatively small size of building envelopes will limit the likelihood of more than one dwelling on a lot. The Panel considers the NRZ and provisions of Clause 54 will provide an appropriate level of control on built form and for the consideration of amenity impacts. Council should avoid including a requirement in Condition 10 to seek the views of residents in the selection of species in the landscape plan. This is not considered necessary or appropriate in a permit condition. Both Council and the Proponent are still however able to informally consult with the community engage if they choose to do so. The range of additions proposed for condition 16 are broadly implicit in the draft permit. The Panel considers the wording of Condition 37 appropriate and reasonable. The Panel does not support amending a determining referral authority condition without considering the view of that authority to understand the impacts of such as change. The Panel considers it
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11.4 Conclusions The Panel concludes that in the event of the Amendment being supported and a permit is to be issued that it should be based on revision 4 as contained in Appendix D of this report but further revised based on its suggestions contained in section 11.3 of this Report relating to: • the structure of the permit • the creek corridor • vegetation removal and management • fauna • fire management • traffic.
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Appendix A Submitters to the Amendment
No. Submitter No. Submitter 1 Shirley Pitts 28 Steph and John Brown 2 Andrew Twining 29 Michael Bradshaw 3 John Wharton 30 Dennis Birt 4 Ryan Lillis 31 Peter Girgis 5 Life Ministry Centre Ltd 32 Petition 6 Flavio Tur 33 VicRoads 7 Jeanette Benzing 34 Heidi Ruhnau 8 Maroondah City Council 35 Rohan Mishra 9 Milton Miller 36 Kerrie Edwards 10 Rebecca Lubanski 37 Janet Haberle 11 Paul Whitehead 38 Paul Canning 12 Stacey Luke 39 Robert Gebbing 13 Andrew Mangan 40 Robert Daly 14 Melbourne Water 41 Tom Hewitt 15 Travis Brown 42 Gregory Brown 16 Karen O’Shea 43 Meera Mishra 17 Melissa Tee 44 Bohus Dubaj 18 Priya Mishra 45 Trevor & Carol Cornell 19 Sudhir Mishra 46 Melissa Tee 20 Craig Cornish 47 Angeline Murphy 21 Amy Pemberton 48 Donna McPherson 22 Rachel Lothering 49 Dave Faraday 23 EPA 50 Andrew Dent 24 Colleen and John Wharton 51 Kade Taylor 25 Janice Hordem 52 Gail Ferrari 26 DELWP – Forest, Fire and Regions 53 Brian Nickless 27 CFA (North East Region) 54 The Village School 55 Yarra Valley Water
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Appendix B Parties to the Panel Hearing
Submitter Represented by Yarra Ranges Shire Council Kris Hansen DELWP Marc Boxer CFA Tammy Garrett EPA Trish Brice Yarra Valley Water Sarah Porritt, barrister, instructed by Maddocks and assisted by Maria Marshall and Thy Nguyen of Maddocks, who called the following expert evidence: - Odour emissions from Tracy Freeman of Jacobs VicRoads Kugan Kuganesan Ashlyn Springs Pty Ltd Nick Sutton of Planning & Property Partners, who called the following expert evidence: - Planning from Robert Milner of David Lock Associates - Traffic from Charmaine Dunstan of Traffix Group - Bushfire from Hamish Allan of Terramatrix - Native flora and fauna from Brett Lane of Nature Advisory - Odour emissions from Michael Asimakis of GHD - Stormwater Management from Nina Barich of Incitus - Arboriculture from Glenn Waters of Glenn Waters Arboriculture - Acoustics from Jim Antonopoulos of SLR CPRAG Bruce Lindsay and Virginia Trescowthick of Environmental Justice Australia, instructed by Shane Holland, who called the following expert evidence: - Ecology from Yasmin Kelsall - Stormwater and stream ecology from Associate Professor Chris Walsh Shane Holland, Philip Bish, Heidi Ruhnau, Tracey Bish, Stacey Luke, John Wharton & Priya Mishra Warren May Paul Whitehead
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Appendix C Document list
No. Date Description Provided by 1 21/08/2019 Letter from Proponent to Panel regarding proposed Nick Sutton, hearing dates Planning & Property Partners, on behalf of the Proponent (Proponent) 2 30/08/2019 Invitation to complete a request to be heard form to Planning Panels present at Panel Hearing, to submitters from Planning Victoria Alerts 3 30/08/2019 Letters to CFA, DELWP, EPA, VicRoads and Melbourne Planning Panels Water, inviting them to attend hearing Victoria 4 30/08/2019 Panel Directions Planning Panels Victoria 5 19/9/2019 Late submissions referred by Council after close of Kris Hansen, Yarra submissions Ranges Shire Council (Council) 6 10/10/2019 Email from Council to Panel regarding traffic level Council measurements 7 14/10/2019 Email response from Proponent regarding traffic Proponent survey data 8 23/10/2019 Letter from Nick Sutton regarding Yarra Valley Water Proponent 9 24/10/2019 Email from Panel to Yarra Valley Water and Council Planning Panels Victoria 10 25/10/2019 Email from Proponent with: Proponent a) Odour Assessment Report prepared by GHD, dated August 2019 (‘GHD Report’) b) Targeted Flora Survey prepared by Brett Lane of Nature Advisory, dated October 2019 (‘Flora Report’) 11 28/10/2019 Email from Proponent with Traffic Survey Data Proponent Summary prepared by Traffix Group 12 29/10/2019 Letter with attachments responding to Panel’s Thy Nguyen, directions regarding Yarra Valley Water’s submission Maddocks, on and attachments. behalf of Yarra Valley Water 13 29/10/2019 Letter from Proponent advising they propose to call 3 Proponent additional experts
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No. Date Description Provided by 14 29/10/2019 Response to Proponent’s request for information Maddocks on behalf of Yarra Valley Water 15 31/10/2019 Applicant cover letter enclosing traffic survey data Proponent 16 31/10/2019 Applicant traffic survey data, Traffix Group Proponent 17 31/10/2019 Expert witness statement – Associate Professor Bruce Lindsay, Christopher Walsh Environmental Justice Australia, representing Chirnside Park Residents Action Group (CPRAG) 18 31/10/2019 Expert witness statement – Yasmin Kelsall Environmental Justice Australia 19 1/11/2019 Council’s Chirnside Village traffic survey data Council (Austraffic) 20 1/11/2019 Council Part A submission and attachments Council 21 1/11/2019 Expert witness statement and appendices - Tracy Maria Marshall of Freeman Maddocks on behalf of Yarra Valley Water 22 1/11/2019 Expert witness statement – Michael Asimakis Proponent 23 1/11/2019 Expert witness statement – Brett Lane Proponent 24 1/11/2019 Expert witness statement – Charmaine Dunstan Proponent 25 1/11/2019 Expert witness statement – Hamish Allan Proponent 26 1/11/2019 Expert witness statement – Robert Milner Proponent 27 1/11/2019 Expert witness statement – Nina Barich Proponent 28 1/11/2019 Expert witness statement – Glenn Waters Proponent 29 1/11/2019 Expert witness statement – Jim Antonopoulos Proponent 30 4/11/2019 Email from Council regarding Glenn Waters expert Council witness statement makes reference to a revised subdivision plan (X) 31 6/11/2019 Email to Proponent requesting that Mr Brett Lane is CPRAG called on 14 November 2019 32 6/11/2019 Email from Proponent with attached plan by Reeds Proponent Consulting (version X, dated 31/10/2019) referred to in Mr Water’s evidence
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No. Date Description Provided by 33 6/11/2019 Email from Council forwarding email from Yarra Valley Council Water regarding EPA 34 6/11/2019 Melbourne Water response Melbourne Water 35 7/11/2019 Proponent letter to Tracy Freeman requesting odour Proponent modelling input files 36 8/11/2019 Email from Proponent attaching: Proponent a) Without prejudice draft permit conditions b) Proposed subdivision plan version X 37 11/11/2019 Upper Yarra Valley & Dandenong Ranges Regional Council Strategy Plan Amendment No. 121, with maps 38 11/11/2019 Council Part B submission Council 39 11/11/2019 Maps showing location of submitters and aerial Council photos of subject land and surrounds plus Clauses 14.02-1S and 56.06-8 40 11/11/2019 CFA Submission to the Panel Tammy Garrett of CFA 41 11/11/2019 EPA submission to the Panel Trish Brice of the EPA 42 13/11/2019 Map showing Urban Growth Boundary Council 43 13/11/2019 VicRoads submission to the Panel Kugan Kuganesan of VicRoads 44 13/11/2019 Table of comparison of referral authority conditions Council incorporated into Council’s draft permit conditions 45 13/11/2019 Submission on behalf of Yarra Valley Water Sarah Porritt, Barrister representing Yarra Valley Water 46 13/11/2019 Victoria Government Gazette No. S 240 Friday 21 Yarra Valley Water December 2001: Environment Protection Act 1970 - State Environment Protection Policy (Air Quality Management) 47 13/11/2019 EPA Publication 1518 March 2013 Yarra Valley Water 48 13/11/2019 Topographical maps and graphs Yarra Valley Water 49 13/11/2019 Chirnside Park customer notes (redacted) Yarra Valley Water 50 13/11/2019 Benalla Waste Treatment Plant Panel report (Benalla Yarra Valley Water C31) 51 13/11/2019 Wodonga C54 Panel report Yarra Valley Water 52 13/11/2019 Title for 2A Holloway Road, Wonga Park VicRoads
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No. Date Description Provided by 53 14/11/2019 Proponent’s draft planning permit Revision 1 Proponent 54 14/11/2019 BAL Assessment Map version X(a), replaces map 5 in Mr Allan of expert evidence Terramatrix 55 14/11/2019 Extract of AS 3959-2009 pages 21-24 CPRAG 56 14/11/2019 Extract of Assessor’s handbook Applications to CPRAG remove, destroy or lop native vegetation, pages 41-43 57 15/11/2019 EPA response to Panel’s request for further EPA information 58 15/11/2019 Billanook Way traffic count data Council 59 15/11/2019 Notification list of agencies Council 60 15/11/2019 Cardno traffic report 2009 Council 61 15/11/2019 Presentation to the Panel by Mr Asimakis Proponent 62 15/11/2019 Paper titled “Integrating Separation Distances with Proponent Dispersion modelling” by Paul Clarey and Tim Pollock, undated 63 15/11/19 “Odour dispersion modelling of meat chicken farms: Yarra Valley Water Comparison of Aermod, Ausplume and Calpuff models”, October 2014 Australian Government RIRDC Publication no. 14/102 - Exec summary and pages 1, 20 and 21 64 18/11/19 Proponent’s draft permit conditions Revision 2 Proponent 65 18/11/19 Letter from Nature Advisory to Planning Property Proponent Partners dated 17 November 2019 66 18/11/19 “Generic guidance and optimum model settings for the Yarra Valley Water CALPUFF modelling system…”, March 2011, Prepared for the NSW Office of Environment and Heritage 67 18/11/19 Extract of Housing Strategy, pages 1-12 & 16, May CPRAG 2009, Shire of Yarra Ranges 68 18/11/19 Proponent’s submission to the Panel Proponent 69 18/11/19 Supplementary expert report from Professor Walsh CPRAG 70 18/11/19 Recreation and Open Space Plan Strategic Framework Proponent 2013 – 2023, Yarra Ranges Council 71 18/11/19 EPA Publication 1550, dated October 2013 Yarra Valley Water 72 18/11/19 EPA Publication 1550 Rev 3, dated September 2014 Yarra Valley Water 73 19/11/19 Further information on tree removal by Nature Proponent Advisory dated 18/11/19
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No. Date Description Provided by 74 19/11/19 Update to Map 2 on page 13 in Ms Kelsall’s witness CPRAG statement 75 19/11/19 Ms Kelsall’s presentation to the Panel CPRAG 76 19/11/19 Guidelines for the removal, destruction or lopping of CPRAG native vegetation, Department of Environment, Land, Water and Planning, December 2017 77 19/11/19 Professor Walsh’s presentation to the Panel CPRAG 78 19/11/19 Chirnside Park Residents Action Group Submission CPRAG folder 79 19/11/19 Submission by Mr Holland on behalf of CPRAG Mr Holland on behalf of CPRAG. 80 20/11/19 Supplementary submission from Mr Lindsay for CPRAG CPRAG 81 20/11/19 Email from Prof Walsh containing regarding CPRAG Melbourne Water’s Wetland Design Guidelines 82 20/11/19 Submission by Mr Bish on behalf of CPRAG Philip Bish on behalf of CPRAG. 83 20/11/19 Book titled “Lot 3 Holloway Road A Bushy Oasis on CPRAG Brushy Creek”, by Mr Philip Bish 84 20/11/19 Opening remarks for CPRAG submissions Mr Lindsay on behalf of CPRAG 85 20/11/19 Submission by Ms Ruhnau titled Heidi Ruhnau: Heidi Ruhnau on Personal Perspective 2019 behalf of CPRAG 86 20/11/19 Submission by Ms Bish on behalf of CPRAG Tracey Bish on behalf of CPRAG. 87 20/11/19 Newspaper article from Leader Newspaper 13 CPRAG November 2006 88 20/11/19 Submission by Ms Luke on behalf of CPRAG Stacey Luke on behalf of CPRAG 89 21/11/19 Submission by Mr Wharton on behalf of CPRAG John Wharton on behalf of CPRAG 90 21/11/19 Submission by Mr May Warren May 91 21/11/19 Submission by Mr Whitehead Paul Whitehead 92 21/11/19 Submission addendum by Mr Whitehead Paul Whitehead 93 21/11/19 Submission by Ms Mishra on behalf of CPRAG Priya Mishra on behalf of CPRAG 94 22/11/19 Letter from Melbourne Water to Reeds Consulting Proponent 21/11/19
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No. Date Description Provided by 95 22/11/19 Supplementary evidence statement from Ms Barich Proponent 96 22/11/19 Email from Melbourne Water regarding platypus in Paul Whitehead Brushy creek, dated 4/11/19 97 22/11/19 Department of Environment Land Water and Planning DELWP (DELWP) submission to the Panel 98 22/11/19 Yarra Valley Water email to Warren May dated Yarra Valley Water 28/11/19 99 22/11/19 Email from the Panel to the EPA dated 22/11/19, Planning Panels inviting a response to the local objector submissions Victoria on odour 100 22/11/19 Closing Submission from Council Council 101 22/11/19 Council’s suggested changes to NRZ Schedule 4 Council 102 22/11/19 Proponent’s closing submission Proponent 103 22/11/19 Proponent’s Revision 3 draft conditions Proponent 104 22/11/19 CPRAG recommended permit conditions Mr Lindsay on behalf CPRAG 105 25/11/19 Email from the Panel to the EPA dated 25/11/19, Planning Panels attaching additional submissions to those included in Victoria Document 99 106 6/12/19 Response from EPA on submission material EPA 107 6/12/19 Proponent’s Revision 4 of draft planning permit Proponent
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Appendix D Proponent’s Revision 4 of the Planning Permit (Document 107) Blue underlined text highlight changes made by the Proponent to the exhibited version. Deleted content from the exhibited Planning Permit, nor any changes to condition numbering are not shown unless where specifically identified to preserve document flow.
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Permit No.: YR-2018/358
Planning Scheme: Yarra Ranges PLANNING Responsible Authority: Yarra Ranges Shire Council PERMIT GRANTED UNDER SECTION 96 I OF THE PLANNING AND ENVIRONMENT ACT 1987
ADDRESS OF THE LAND: Lot 3 LP403716, Holloway Road, Wonga Park Residential subdivision, removal of vegetation, THE PERMIT ALLOWS: buildings and works
THE FOLLOWING CONDITIONS APPLY TO THIS PERMIT:
1. Prior to the commencement of the use and/or development, including the removal of any trees or other vegetation, amended plans (2 copies) must be submitted to and approved by the Responsible Authority. When approved the plan(s) will be endorsed and form part of the permit. The plan(s) must be drawn to scale, with dimensions, and be generally in accordance with the plan by Reeds Consulting (Ref 20493, Version X, dated 31/10/2019 but modified to show: a. Construction of a 2.5m shared path connecting the north boundary of the subject land at Pezzimenti Reserve with the south boundary at Holloway Rd and with the northern boundary at Regency Rise via a path within the road reserve adjacent to proposed Lots 1 to 8, generally in accordance with Overall Concept Plan by Reeds Consulting. b. Detailed plan of subdivision, confirming dimensions of all lots, building envelopes, road reserves and open space. c. A defined creek corridor, 4m wide on either side of Brushy Creek. d. The eastern boundary fence of Lots 3 – 8 and the eastern boundary fence for the extent of the 33m defendable space area identified to be constructed of non- combustible materials. e. The common boundaries of lots where they immediately abut the reserve (i.e. lots 45 and 8 respectively) fenced with a 1.8 metre high non-combustible fence. f. Detailed vegetation removal and retention plan separately identifying all trees to be removed and retained as well as other vegetation, including defendable space of 33 metres as measured from the building envelopes to the west, south-west and south of the subdivision. g. Detailed survey plan showing the existing and proposed surface levels to Australian Height Datum (AHD). h. Any changes required as a result of Melbourne Water’s requirements contained at conditions 55-79 of this Permit.
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2. The layout and subject land dimensions of the proposed subdivision, and trees shown for retention and removal, as shown on the endorsed plan(s) must not be altered or modified unless agreed to by the Responsible Authority.
3. This permit will expire if one of the following circumstances applies: a. The Plan of Subdivision is not started within two (2) years of the date of this permit, as evidenced by the plan of subdivision being certified by the Council within that timeframe; or b. The registration of the subdivision is not completed within five (5) years of the date of certification. c. The development is not started within three years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within six months afterwards. d. The development is not completed within five years of the date of this permit. A request may be made to Responsible Authority to extend the time to complete a development or a stage of the development if: • The request for an extension is made within 12 months of the permit expiry; and • The development or stage has lawfully commenced before the permit expiry. The Responsible Authority may extend the two year period if a request is made in writing before the permit expires, or within six (6) months afterwards.
4. Condition renumbered
5. Prior to a Statement of Compliance being issued for each stage, an agreement under Section 173 of the Planning and Environment Act 1987 must be entered into between the owner of the subject land and the Responsible Authority requiring: a. All dwellings, including garages and outbuildings, must be constructed within the building envelope as shown on the approved plan of subdivision. b. Owners of lots which share a retaining wall on the common boundary with another lot must equally share responsibility to provide access, maintenance and repairs to the retaining wall. c. The agreement to apply to the lots affected under points a) and b) above. This Agreement is to be prepared at the owner's expense and will be recorded on the folio of the register relating to the subject land. The owners agree to pay on demand all costs and expenses of, and incidental to, the execution and recording of this Agreement.
6. Prior to the commencement of any buildings and/or works or removal of vegetation approved by this permit, vegetation protection fencing must be erected for the duration of the construction of buildings and works around all vegetation to be retained as per the Flora and Fauna Assessment by Nature Advisory (Report No. 6178 (6.5) October 2019) and arborist report (Arboricultural Statement of Evidence – Lot 3, PS403716J – Holloway Road, Wonga Park by Glenn Waters (31 October 2019) ) to define a Vegetation Protection Zone (VPZ) to the satisfaction of the Responsible Authority. All VPZ’s must comply with the following:
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a. The fencing must be maintained and remain in place until all buildings and or/or works approved by this Permit are completed; and b. The fencing must be constructed of 1.8 metre star pickets and brightly coloured plastic meshing to a minimum distance in accordance with the dimensions provided in the Flora and Fauna Assessment by Nature Advisory (Report No. 6178 (6.5) October 2019); and c. No vehicular or pedestrian access, excavation, placement of fill, storage of materials or soil disturbance of any kind are to occur within the vegetation protection zones during construction, except under the supervision of a suitably qualified project arborist. Council is to be advised of events when under the supervision of the project arborist, and d. Once erected the vegetation protection fencing may only be moved or otherwise altered during construction under the supervision of a suitably qualified project arborist or with the written consent of the Responsible Authority, and e. The vegetation protection measures must not extend beyond the subject land boundaries except into roadside reserve or nature strip areas. They must not prevent the use of an existing road, footpath or accessway, and f. Approved excavation works are to be conducted by hand or other non- destructive methods within the Tree Protection Zone(s). If roots are encountered, the roots are to remain exposed and the project arborist is to determine if the tree requires removal (subject to approval by the Responsible Authority) or if it can be safely retained. Any roots that require cutting must be cut clearly with a saw or secateurs. The approved works within the Tree Protection Zone(s) must be supervised by the project arborist.
7. Condition renumbered
8. Prior to the issue of the first Certified Plan, detailed designs of the public open space areas must be submitted to and approved by the Responsible Authority. This plan must be prepared in consultation with Council's Recreation and Active Living Department (or its equivalent within the organisation), to the satisfaction of the Responsible Authority.
9. The public open space areas, as shown on the approved plans, must be constructed and completed or bonded to the satisfaction of the Responsible Authority, prior to a Statement of Compliance being issued or by such date as is approved by the Responsible Authority in writing.
10. Prior to the issue of the first Certified Plan, an amended Landscape Plan for plantings within the public open space areas and road reserves in accordance with Council's Landscape Guidelines must be submitted to the Responsible Authority for approval. Prior to approving the Landscape Plan, the views of the CFA and Melbourne Water respectively must be sought. The Landscape Plan must be to the satisfaction of Council. It must be amended to show: a. A minimum of 3 street tree species along each internal road in a mixed order, with no road sections showing a monoculture of species. A minimum of 50% of street trees species for each given internal road must be native or indigenous to the area.
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Yarra Ranges Planning Scheme Amendment C176yran and Planning Permit Application YR-2018/358 Panel Report 7 February 2020 b. Defendable space of 33 metres as measured from the building envelopes to the west, south-west and south of the subdivision. c. Any changes required as a result of Melbourne Water’s requirements contained at conditions 55-79 of this Permit. d. Condition renumbered e. The boundary between the reserve land and all roads fenced with 1.4 metre dome topped treated pine bollards set 600 mm into the ground and spaced at 1.4 metre centres. The fence must be provided with one vehicular gateway of minimum 3 metre width closed by a lockable chain. All fencing must be to the satisfaction of the Responsible Authority and at the cost of the developer. f. A schedule of all proposed trees, shrubs/small trees and ground cover. This must include a replacement planting ratio of 8:1, comprising of predominantly indigenous trees and shrubs, having regard to the relevant ecological vegetation classes present on the land. g. The location of each species to be planted and the location of all areas to be covered by grass, lawn or other surface material. h. Nomination of appropriate understorey vegetation to encourage native fauna habitat. i. The location or relocation of dead trees, including hollow bearing trees, to encourage native fauna habitat. j. Paving, retaining walls, fence design details and other landscape works. k. Adequate instruction on the Landscape Plan for the protection of existing vegetation to be retained during construction. l. The geographical location of all plant species proposed in the Plant Schedule on the Landscape Plan. m. All batters steeper than 1:4 to be planted out. n. Ground level of the public reserves to have appropriate gradients for maintenance purposes. o. The botanical name, common name, quantity, average size at maturity and intended pot size for each plant species in the Plant Schedule of the Landscape Plan. p. A note on the Landscape Plan specifying that all planted areas will be mulched to a minimum 75 mm thickness, unless such mulching is opposed by the CFA q. A 24 month maintenance plan with notes on appropriate weed control, irrigation, mulch replenishment, dead plant replacement and pruning to ensure the successful establishment, and on-going health, of new planting. r. New lawn areas on the Landscape Plan being established with seed from a non- invasive grass species. Appropriate grass species include Queensland Blue- grass (Dicantheum sericeum), Red-leg Grass (Bothriocholoa macra), Weeping Grass (Microlaena stipoides), Creeping Bent Grass (Agrostis stolonifera), Clustered Wallaby Grass (Danthonia racemosa), Kentucky Blue-grass (Poa pratensis), Tall Fescue (Festuca arundinacea). s. Any timber edging around lawn areas or garden beds not utilising Jarrah, Red Gum or Native (White) Cypress Pine (Callitris columellaris) unless it can be demonstrated that they are a recycled product. Acceptable products include
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treated pine, recycled plastic, moulded concrete, plantation grown Sugar Gum, brick edging or local stone. t. Removal of Dietes species from the Plant Schedule of the Landscape Plan due to its listed status as an environmental weed, and replacement with an appropriate indigenous species such as Long Leaf Purple Flag (Patersonia occidentalis) or Butterfly Flag (Diplarrena moraea). u. Visible marking of the edge of the defendable space area within the reserve through the use of fencing, bollards, signage or other suitable means. New planting must be maintained or replaced as appropriate. When approved the landscape plan will be endorsed to form part of this permit.
11. The landscape works as shown on the endorsed plan must be carried out prior to issue of a Statement of Compliance. With written consent of the Responsible Authority landscaping may be deferred to the first planting season (May to September) following the completion of the permitted buildings and/or works.
12. The landscaping must be maintained in accordance with the approved Landscape Plan for a period of 24 months from the date landscaping is completed to the satisfaction of the Responsible Authority.
13. Prior to a Statement of Compliance being issued, a landscaping maintenance bond to the value of at least 200% of the cost of the maintenance works required by condition 12 must be submitted to the Responsible Authority. The bond will be released once the requirements of condition 12 have been completed to the satisfaction of the Responsible Authority.
14. To offset the removal of up to 3.48ha of native vegetation the permit holder must secure a native vegetation offset, in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP 2017) (‘the Guidelines’) as specified below: A general offset to the satisfaction of the responsible Authority that meets the requirements of the Guidelines: a. Located within the Port Philip and Westernport CMA boundary or within the Yarra Ranges Council municipal district b. With a minimum strategic biodiversity score of at least 0.548 c. The offsets secured must provide protection of at least 8 Large Trees
15. Before any native vegetation is removed evidence that the required offset has been secured must be provided to the satisfaction of the Responsible Authority. This evidence must include: • credit extract(s) allocated to the permit from the Native Vegetation Credit Register
16. Prior to commencement of works or removal of vegetation a Land Management Plan covering all retained vegetation shall be prepared to the satisfaction of the responsible authority and Melbourne Water and submitted to the responsible authority for approval. The plan shall show: a. Reduction of woody weeds to no more than 1% ground coverage; b. Reduction of all other weeds to no more than 10% ground coverage; and
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c. Replanting with appropriate indigenous species. This restored vegetation shall be maintained for a period of 24 months from the date that these works are completed, to the satisfaction of the Responsible Authority. Prior to a Statement of Compliance being issued, the actions required by the approved Land Management Plan, save for the 24 month maintenance period, are to be carried out to the satisfaction of the responsible authority.
17. Condition renumbered
18. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas services to each residential lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time.
19. All existing and proposed easements and subject lands for existing or required utility services and roads on the land must be set aside in the Plan of Subdivision submitted for certification in favour of the relevant authority for which the easement or subject land is to be created.
20. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
21. The owner of the land must enter into an agreement with: a. a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time; and b. a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
22. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from: a. a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and b. a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
23. Prior to the occupation of the permitted development all roads must be fully constructed, including drainage, kerb and channel to a width of 6.7 metres between the inverts of kerbs to the satisfaction of the Responsible Authority.
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24. Prior to a Statement of Compliance being issued, an intersection treatment of a T- deviation type is to be constructed at the intersection of the main subdivision road and Regency Rise/Meadowbank Ave, to the satisfaction of the Responsible Authority.
25. Prior to a Statement of Compliance being issued a concrete vehicle crossing must be constructed for each lot and relevant reserve(s) and Council assets, including the nature strip, reinstated to the satisfaction of the Responsible Authority.
26. Prior to a Statement of Compliance being issued, concrete footpaths and shared paths must be constructed in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.
27. Prior to the occupation of the permitted development piped drainage must be constructed to drain all impervious areas incorporating Water Sensitive Urban Design elements to the satisfaction of the Responsible Authority.
28. Prior to the commencement of road and drainage works, as required by this permit, engineering construction plans showing all road, carparking, access ways, final earthworks including retaining walls, and/or drainage, together with a processing fee to the value of 0.75% of the estimated cost of these works, must be submitted to, and approved by, the Responsible Authority. Civil works must then be constructed in accordance with these approved engineering plans.
29. Prior to the commencement of any preliminary bulk earthworks (shaping etc), as required by this permit, the engineering construction plans specific to these works must be submitted to the satisfaction of the Responsible Authority.
30. Prior to the issue of a Statement of Compliance being issued, an inspection/surveillance fee to the value of 2.5% of the estimated cost of all Council works, must be paid to the Responsible Authority.
31. Prior to a Statement of Compliance being issued for each stage, a maintenance bond to the value of 5% of the estimated cost of all Council works, must be submitted to the Responsible Authority
32. Prior to a Statement of Compliance being issued, advice must be received from the relevant Electricity Supply Authority that the developer has agreed to fund the installation of street lighting at the intersection of the subdivision road and Meadowbank Avenue to the satisfaction of the Responsible Authority.
33. The Council works as required by this permit must be maintained in good condition and repair by the developer for a period of three months from the date of practical completion of each stage to the satisfaction of the Responsible Authority.
34. Prior to an Off Maintenance inspection and subsequent return of the maintenance bond, As Constructed plans of all Council works, together with a video survey record the full length of all Council piped drainage, must be submitted to, and approved by, the Responsible Authority.
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35. Prior to a Statement of Compliance being issued, the construction of all non-Council civil works, including retaining walls, within the lots and internal/external signs, must be fully completed and subsequently inspected and approved by a suitably experienced civil engineer or Building Practitioner at the arrangement and expense of the developer. This person must supply written certification that the works have been constructed in accordance with this permit and to appropriate standards to the satisfaction of the Responsible Authority
36. Prior to the approval of the engineering construction plans a Drainage Strategy, prepared in consultation with Melbourne Water and the Responsible Authority, must be submitted to, and approved by, the Responsible Authority. The Drainage Strategy must show all drainage runoff being controlled and treated by Gross Pollutant Trap(s) and/or other Water Sensitive Urban Design elements and must include catchments within and external to the subject land where they are deemed to be affected by, or have an effect on, the development and subdivision.
37. Prior to a Statement of Compliance being issued the owner/developer must demonstrate to the satisfaction of the Responsible Authority that stormwater runoff exiting the subject land has been designed and constructed to meet the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999) as follows: • 80% retention of the typical annual load of suspended solids; • 70% reduction of the typical annual load of gross pollutants; • 45% retention of the typical annual load of total phosphorous; and • 45% retention of the typical annual load of total nitrogen. In lieu of meeting all of the above stormwater quality objectives the owner/developer must demonstrate to the satisfaction of the Responsible Authority that it has nevertheless achieved the intended outcomes of Clause 56.07-4 of the Planning Scheme in accordance with relevant Practice Notes.
38. Prior to a Statement of Compliance being issued for each stage, the retaining walls on subject lots that are to be located adjacent to Council road reserves must be completed to the satisfaction of the Responsible Authority and at no cost to the responsible authority.
39. Prior to any works commencing on the land a "Construction Management Plan" (CMP) must be prepared to the satisfaction and approval of the Responsible Authority, detailing how the owner will manage the environmental and construction issues associated with the development. The Construction Management Plan must address: a. Erosion, sediment and sediment laden water runoff including the location and details of techniques / structures proposed; b. Dust control; c. Equipment, machinery, construction wastes and/or earth storage/stockpiling during construction; d. Access to the subject land for construction vehicle traffic;
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e. The location and details of sign(s) to be erected at the entrance(s) of the subject land advising contractors that they are entering a 'sensitive subject land' with prescribed Vegetation Protection Zones and fences; f. The location of any temporary buildings or yards; g. Hours of construction; h. Noise sources and measures to reduce noise; i. Traffic management arrangements; j. Construction vehicle road routes; k. Soiling and cleaning of roadways; l. Security fencing; m. Disposal of subject land waste and any potentially contaminated materials; n. Location of subject land offices; o. Redirection of any above or underground services; p. Subject land lighting during any night works; and q. A plan by a qualified zoologist to protect wildlife impacted by the removal of vegetation including (but not limited to): i. A survey to determine the species of native wildlife likely to be impacted; ii. The timing and staging of the vegetation removal to avoid the breeding and nesting periods of such native wildlife; and iii. Measures to protect, and translocate if appropriate, any native wildlife found to be resident during removal of the vegetation. The Construction Management Plan must include all requirements in accordance with the document Proposed Residential Subdivision, Holloway Road, Wonga Park, Victoria: Cultural Heritage Management Plan, Number 13335, 5 May 2015 by Ecology and Heritage Partners. The CMP must ensure: i. No temporary or permanent storage of any materials, vehicles or equipment must take place within areas of native vegetation identified to be retained in accordance with the endorsed plans. ii. Prior to the commencement of works, all persons undertaking the removal/works must be properly briefed on all environmental requirements of the planning permit. A copy of the permit must be made available to all people working on the project. iii. Before the vegetation removal starts, the boundaries of all vegetation to be removed and retained must be in accordance with Condition 6. Removal must accord with the endorsed plan(s). iv. During the landforming stage of the development, all vehicle access is to be via Holloway Road over Lot 2 on PS 403716J, with no construction or earthmoving vehicles to access the subject land via Meadowbank Avenue/Regency Rise. Prior to the permit holder being granted access to Lot 2 on PS 403716J, Roads
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Corporation land (reference L50490), a formal license will be required to be entered between the permit holder and the Roads Corporation under section 88 of the Transport Integration Act 2010 (Vic). A temporary creek crossing catering for up to a 3-month Average Recurrence Interval (ARI)/ 98.2% Average Exceedance Probability (AEP) storm is to be constructed in consultation with Melbourne Water to provide access for construction vehicles. v. All vehicles, earth-moving equipment and other machinery must be cleaned of soil and plant material before entering and leaving the subject land to prevent the spread of weeds and pathogens. Once approved, the plan will form part of the permit and must be implemented for the duration of construction.
40. Condition renumbered
41. Development works on the land must be undertaken in accordance with the endorsed Construction Management Plan to the satisfaction of the Responsible Authority.
Multinet Gas conditions
42. Prior to a Statement of Compliance being issued, easements in favour of Multinet Gas must be created on the plan to the satisfaction of Multinet Gas with road reserves designated for the supply of gas.
43. Should the owner require gas supply to the subdivision, application for supply must be made to Multinet Gas.
44. The Plan of Subdivision submitted for certification must be referred to Multinet Gas in accordance with section 8 of the Subdivision Act 1988.
SPI Electricity conditions
45. Prior to a Statement of Compliance being issued, the applicant must enter into an agreement with SPI Electricity Pty Ltd for the supply of electricity to each lot shown on the endorsed plans.
46. The Plan of Subdivision submitted for certification under the Subdivision Act 1988 shall be referred to SPI Electricity Pty Ltd in accordance with Section 8 of that Act.
47. The applicant shall provide to SPI Electricity Pty Ltd, a copy of the version of the Plan of Subdivision submitted for certification which shows any amendments which have been required.
48. Prior to a Statement of Compliance being issued, the applicant shall enter into an agreement with SPI Electricity Pty Ltd for the supply of electricity to the premises. (A payment to cover the cost of such works will be required and easements internal and external to the subdivision and provision of subject lands for substations may also be required.)
CFA conditions
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49. Prior to the issue of a Statement of Compliance under the Subdivision Act 1988 for the relevant stage, operable above or below ground hydrants must be provided to the satisfaction of the CFA.
50. The maximum distance between hydrants and the rear of all building envelopes within the relevant stage (or in the absence of a building envelope, the rear of the lot) must be 120 metres and hydrants must be no more than 200 metres apart. These distances must be measured around lot boundaries and obstacles such as fences and the like.
51. All hydrants must be identified to the satisfaction of CFA and as specified in the publication titled ‘Identification of Street Hydrants for Firefighting Purposes’ available on the CFA web subject land: www.cfa.vic.gov.au.
Yarra Valley Water conditions
52. Prior to a Statement of Compliance being issued, the owner of the subject land must enter into an agreement with Yarra Valley Water for the provision of water supply.
53. Prior to a Statement of Compliance being issued, the owner of the land must enter into an agreement with Yarra Valley Water for the provision of sewerage.
54. The plan of subdivision must be referred to Yarra Valley Water under Section 8 of the Subdivision Act, 1988 prior to certification.
Melbourne Water conditions 55. All created allotments are to be filled a minimum of 600mm above the adjacent flood level.
56. Melbourne Water will take ownership of the wetland based on the annual removal of 1000 kilograms of Total Nitrogen as per the submitted MUSIC model.
57. Prior to the commencement of works, a detailed analysis of the hydraulic loading impacts on the proposed wetland is required to be submitted to Melbourne Water and Council to ensure the long term viability of the asset due to the large catchment size. This will be a requirement during the functional design phase.
58. Council confirmation that they will accept to enter into a shared maintenance agreement with Melbourne Water for the stormwater quality treatment and amenity assets proposed along the Brushy Creek Reserve must be provided to Melbourne Water for our records.
59. A Maintenance Agreement and Maintenance Plan are to be established with Yarra Ranges Shire and Melbourne Water prior to the completion of the construction of the proposed wetland works. The agreement must clearly identify the physical areas and activities for which each party is responsible, the agreed level of service and life of the Maintenance Agreement. The maintenance plan, as a minimum, must include the design intent, a schedule of all maintenance activities for the assets including civil structures, vegetation and landscaping, the frequency of all maintenance activities and an estimated annual cost profile for the life of the asset.
60. Any earthworks must be done such that the volume of cutting within the floodplain is equivalent or greater than the volume of filling. Prior to the commencement of works,
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volume calculations must be submitted to Melbourne Water demonstrating that the volume of filling does not exceed the volume of cutting.
61. Prior to the commencement of any works occurring on-subject land, detailed plans showing the existing and proposed surface levels to Australian Height Datum (AHD) must be submitted to Melbourne Water for approval. Plans must include the waterway centreline and alignment of the bed and banks.
62. There is to be no direct connection to a Melbourne Water waterway. Evidence that sediment treatment is occurring prior to any discharge to a proposed or existing asset is required prior to Statement of Compliance being released.
63. Stormwater runoff from the subdivision must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the 'Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999'. Acceptable methods for the design of treatment measures include the stormwater treatment modelling software package ‘Model for Urban Stormwater Improvement Conceptualisation’ (MUSIC), or the ‘Water Sensitive Urban Design Engineering Procedures manual’ available at http://wsud.melbournewater.com.au which provides the procedure for design of various treatment measures.
64. Prior to the commencement of works, a Stormwater Management Strategy for the subdivision must be submitted to the Responsible Authority and Melbourne Water for approval. The strategy must demonstrate the proposed alignment for the 1 in 5 year ARI flows and drainage infrastructure and the relevant flow paths directions for the 1 in 100 year ARI flood event. The drainage strategy should demonstrate how runoff from the subject land is to be treated to comply with Best Practice Standards for pollution removal and stormwater run-off through onsubject land treatment works.
65. A landscape plan must be submitted to Melbourne Water for approval, particularly detailing the development's interface with the waterway. This plan should outline setbacks, location and methods to deal with any significant native vegetation and planting schedules and details of revegetation required. With regards to the waterway, it must detail any stream improvement works that may be undertaken as part of the development. Please refer to suggested location within the Bellara Drive and Black Springs Road Vegetation Management Strategy.
66. Prior to construction commencing, a planting schedule and weed management schedule is to be developed in accordance with Melbourne Water's conditions and is to be submitted to Melbourne Water for approval. The weed management schedule must include the location, method of control, timing and priority of weed species in need of control.
67. All new lots must achieve appropriate freeboard in relation to local overland flow paths to Council’s satisfaction.
68. All disturbed areas within the floodplain are to be landscaped and revegetated with appropriate indigenous species to the satisfaction of the Responsible Authority and Melbourne Water.
69. Any crossing of the creek is subject to a separate application, and must be made to Melbourne Water’s Asset Services Team. Melbourne Water’s preference is for single span crossings of its waterways.
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70. The Pedestrian Paths and Crossing must be set at or above the 1 in 10 year flood level, being the underside of the bridge. Pedestrian paths running parallel to Melbourne Water’s waterway must have a minimum offset of 5 metres from top of bank.
71. A maintenance agreement in accordance with our standard template is to be prepared for the recreational features within the reach of the waterway. Council's acceptance of the boardwalk and pedestrian path and creek crossing is to be obtained prior to commencing this portion of the works.
72. A drainage reserve is to be created over the waterway (and wetland) to the satisfaction of Melbourne Water.
73. A Certified Survey Plan is to be submitted for approval after the completion of filling, verifying that the specified fill levels have been achieved. This will be required prior to an issue of a Statement of Compliance for the Subdivision.
74. Any road or access way intended to act as a stormwater overland flow path must be designed and constructed to comply with the floodway safety criteria outlined within Appendix A of Melbourne Water's Land Development Manual.
75. Prior to the issue of a Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water’s drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
76. Prior to commencement of works, a subject land environment management plan (SEMP) is to be submitted to Melbourne Water for approval. The SEMP must detail sediment and pollution controls that will be implemented during the construction phase of the project.
77. Prior to the commencement of works separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.
78. Engineering plans of the subdivision (in electronic format) are to be forwarded to Melbourne Water for comment/approval. A Certified Survey Plan may be required following our comments on the engineering drawings.
79. Local drainage must be to the satisfaction of Council.
NOTES Prior to the commencement of any works affecting or involving Council roads or drains, Asset Protection and/or Road Reserve/Easement Works permit(s) are required. An application for a permit can be made at the Yarra Ranges Council Community Links (phone 1300 368 333). The application must include a copy of the relevant permit(s), endorsed subject land plan(s) and approved civil engineering plan(s) if required by this permit.
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The granting of this permit does not obviate the necessity for compliance with the requirements of any other authority under any act, regulation or local law. A maintenance agreement in accordance with Melbourne Water’s standard template is to be prepared for the recreation features with reach of the waterway. Council acceptance of the boardwalk and pedestrian path and creek crossing is to be obtained prior to commencing this portion of the works. A subdivision approved under a planning permit does not constitute the certification of a Plan of Subdivision. A separate application should be made by a licensed land surveyor. Following the issue of Statement of Compliance, all buildings, including access and egress conditions on any of the lots or common property within this subdivision are required to conform to the Building Regulations 2006. The owner or applicant must contact a registered building surveyor to obtain advice on how to meet the building requirements.
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IMPORTANT INFORMATION ABOUT THIS PERMIT
WHAT HAS BEEN DECIDED?
The Responsible Authority has issued a permit. The permit was granted by the Minister administering the Planning and Environment Act 1987 under section 96I of that Act.
WHEN DOES THE PERMIT BEGIN?
The permit operates from a day specified in the permit being a day on or after the day on which the amendment to which the permit applies comes into operation.
WHEN DOES A PERMIT EXPIRE?
1. A permit for the development of land expires if -
* the development or any stage of it does not start within the time specified in the permit; or
* the development requires the certification of a plan of subdivision or consolidation under the Subdivision Act 1988 and the plan is not certified within two years of the issue of a permit, unless the permit contains a different provision; or
* the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988.
2. A permit for the use of land expires if -
* the use does not start within the time specified in the permit, or if no time is specified, within two years after the issue of the permit; or
* the use is discontinued for a period of two years.
3. A permit for the development and use of land expires if -
* the development or any stage of it does not start within the time specified in the permit; or
* the development or any stage of it is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or • the use does not start within the time specified in the permit, or, if no time is specified, within two years after the completion of the development: or • the use is discontinued for a period of two years.
4. If a permit for the use of land or the development and use of land or relating to any of the circumstances mentioned in section 6A(2) of the Planning and Environment Act 1987, or to any combination of use, development or any of those circumstances requires the certification of a plan under the Subdivision Act 1988, unless the permit contains a different provision-
* the use or development of any stage is to be taken to have started when the plan is certified; and
* the permit expires if the plan is not certified within two years of the issue of the permit.
5. The expiry of a permit does not affect the validity of anything done under that permit before the expiry.
WHAT ABOUT APPEALS?
* In accordance with section 96M of the Planning and Environment Act 1987, the applicant may not apply to the Victorian Civil and Administrative Tribunal for a review of any condition in this permit.
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