Planning and Environment Act 1987
Panel Report Cardinia Planning Scheme Amendment C209 Planning Permit Application No P1502
Front page
9 January 2017
Planning and Environment Act 1987 Panel Report pursuant to section 25 of the Act Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 9 January 2017
Sue Porter, Chair
Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017
Contents Page 1 Introduction ...... 4 1.1 The Amendment ...... 4 1.2 Background to this Amendment ...... 6 1.3 Panel process ...... 7 1.4 Procedural issues ...... 8 1.5 Summary of issues raised in submissions ...... 8 1.6 Limitations of this Report ...... 10 1.7 Issues dealt with in this Report ...... 10 2 Planning context ...... 11 2.1 Policy framework ...... 11 2.2 Planning scheme provisions ...... 17 2.3 Discussion ...... 24 2.4 Conclusion ...... 24 3 Strategic justification ...... 26 3.1 Rezoning of the Golf Club land from PPRZ ...... 26 3.2 Proposed rezoning to LDRZ and application of a VPO1 and DDO1 ...... 29 3.3 Reduction on the minimum lot size within the LDRZ ...... 32 3.4 Rezoning of the Oaktree Drive from RDZ2 to PPRZ ...... 38 3.5 Discussion ...... 39 3.6 Conclusion ...... 39 4 The proposed subdivision and permit conditions ...... 40 4.1 The issues ...... 40 4.2 Submissions ...... 40 4.3 Discussion ...... 41 4.4 Conclusion ...... 43
Appendix A Submitters to the Amendment
Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017
List of Abbreviations
CDZ Comprehensive Development Zone CFA Country Fire Authority DDO Design and Development Overlay DELWP Department of Environment, Land, Water and Planning DTPLI Department of Transport, Planning and Local Infrastructure (former) EPA Environment Protection Authority ER Explanatory Report EVC Ecological Vegetation Class GRZ General Residential Zone LDRZ Low Density Residential Zone LGA Local Government Act LPPF Local Planning Policy Framework MSS Municipal Strategic Statement PPN Planning Practice Note PPRZ Public Park and Recreation Zone PSP Precinct Structure Plan RDZ Road Zone SD Act Subdivision Act 1988 SFP Strategic Framework Plan SPPF State Planning Policy Framework UGB Urban Growth Boundary VPA Victorian Planning Authority VPO Vegetation Protection Overlay VPP Victoria Planning Provisions
Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017
Executive Summary
(i) Summary The Amendment proposes to: 25 Oaktree Drive, Pakenham Rezone part proposed Lot 1 PS743978C from a Public Park and Recreation Zone (PPRZ) and the land in the Oaktree Drive road reserve from Road Zone Category 2 (RDZ2) to Low Density Residential Zone Schedule 3 (LDRZ3), allowing a minimum subdivision size of 0.2 hectares. Apply the Design and Development Overlay – Schedule 1 (DDO1) and Vegetation Protection Overlay – Schedule 1 (VPO1) to the land proposed to be rezoned. 1, 3, 5, 7, 9, 11 and 13 Ryan Road, Pakenham and 1, 2, 3, 4 and 5 Johanna Court, Pakenham Remove the land from Schedule 1 and include it in Schedule 3 to the LDRZ to provide for a minimum subdivision of 0.2 hectares. 62 Cameron Way, Pakenham Rezone land in the existing Oaktree Drive road reserve (to be known as Proposed Lot 2 PS743978C) from Road Zone Category 2 (RDZ2) to PPRZ.
(ii) Planning Permit Application description The Planning Permit Application (Application) is for a two‐lot subdivision (boundary realignment) of Council owned land to create proposed 25 Oaktree Drive, Pakenham (Lot 1 PS743978C). The Amendment/Application both apply to land identified as surplus to the Pakenham Golf Club’s needs and rural‐residential land which is located immediately to the east. The Golf Club land was originally transferred to Council in 1976 as part of the rural‐ residential subdivision to the east. Since that time it has been part of the Pakenham Golf Course. Over a decade ago, Council sought to rezone (Amendment C66) 60% of the Golf Club land from PPRZ to a Comprehensive Development Zone to facilitate the creation of 600 residential lots, retaining 40% of the site for open space, drainage, flood storage and conservation functions. The Amendment was not supported at Panel and ultimately the Amendment was not approved. Since then, Council has prepared the Deep Creek Master Plan which shows how the site will be used and developed for a range of golf, open space, floodway and environmental purposes. As part of this Master Plan, the site occupied by the Golf Club rooms has been identified as surplus. Council seeks to rezone this land to LDRZ3 and apply the DDO1 and VPO1 to reflect the zoning/overlays of surrounding land, and to realign the title boundaries to facilitate the sale of the land. Council is also seeking to reduce the minimum lot size for LDRZ land in Johanna Court/Ryans Road to the east from 0.4 hectares to 0.2 hectares. In 2013, Council prepared Amendment
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Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017
C188 which sought to retain the proposed 0.4 hectare minimum lot size for this land, which was supported at Panel and ultimately approved. Council is now seeking to reverse this. The Amendment was placed on public exhibition between 24 June and 1 August 2016. Thirteen 13 submissions were received, with seven opposing the Amendment/Application. The submissions raised a number of key issues, these being: As the land was gifted to Council for open space/roads, Council does not have the right to sell it. Given its location within the Urban Growth Boundary (UGB) and its proximity to the Pakenham West and East Precinct Structure Plan Areas (PSPs), this land is not surplus and could be used to accommodate future social infrastructure such as a school site or open space, particularly given its locational advantage along the Princes Highway and opposite a commercial precinct. The area of the LDRZ3 rezoning should be extended to include other land also within a LDRZ. Reducing the minimum lot size within the LDRZ will adversely impact neighbourhood character. Concern about the impact of including Oaktree Drive within the PPRZ on legal access and any future plans to upgrade Oaktree Drive to provide a Pakenham By‐ pass. Concern about the potential impact of any future redevelopment of the Golf Club site on the amenity of surrounding area. Concern about the potential impact of future development on the habitat of the Growling Grass Frog. The Amendment is contrary to a Section 173 Agreement. The realignment of the title boundary will create an irregular shaped allotment and render it undevelopable. Support for the Amendment and requests that other property also be rezoned to LDRZ3 to enable subdivision. The Panel has considered the submissions and the material presented to it and considers there are a number of key issues, these are: whether the Council land should be rezoned from PPRZ if the land should be rezoned, is LDRZ the most appropriate zone should Oaktree Drive be rezoned from RDZ2 to PPRZ is the proposal to reduce the minimum lot size for the land within the LDRZ from 0.4 to 0.2 hectares appropriate is the proposed realignment of the title boundaries appropriate are the permit conditions appropriate? The Panel considers that a critical issue in in relation to this Amendment is the fact that this land is located within the South‐Eastern Growth Corridor and that land to the west, north and east has already or will be developed for conventional residential development. The location of rural‐residential development in this location is a legacy of the past and whilst once located on the edge of the Urban Growth Boundary, it is now located within it.
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Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017
For these reasons, the Panel considers that any proposal to rezone land from PPRZ, particularly land within a 400 metre walking catchment of residential area needs to be clearly strategically justified, having regard to the broader open space provision. Similarly, any proposal to provide additional low density residential land within the Urban Growth Boundary, to apply the DDO1 and the VPO1 also needs to be strategically justified. The Panel does not, however, consider that this justification exists. The Panel considers that given the concern raised above, it would not be appropriate to realign the title boundaries at this stage to facilitate this rezoning. In addition, the Panel was not presented within sufficient information about the environmental values and constraints associate with the land to enable it to make an informed decision about the potential environmental impacts associated with any future subdivision and development of this land. For this reason, the Panel does not support this application to realign the title boundaries. Similarly, the Panel considers there has been no strategic justification to reduce the minimum lot size of the LDRZ land to the east from 0.4 to 0.2 hectares. Amendment C188, which sought to retain the 0.4 hectare minimum lot size, has only recently been approved and there has been no additional strategic work undertaken that demonstrates the need to vary the approach adopted in this Amendment. In terms of the proposed rezoning of Oaktree Drive, the Panel is satisfied that as there is no strategic imperative to widen this road, the proposal to down grade its status is appropriate. The Panel does, however, consider there is a need to improve the mapping to make it clear that the front of the properties along Oaktree Drive are not included in the proposed rezoning. Whilst submissions raised concern about whether Council has the right to or should dispose of land that was ‘gifted’ to it, the Panel has found that these are not issues for this Panel to review. Similarly, the Panel does not consider the existence of a Section 173 Agreement between and landowner and the Council ultimately has a bearing on this matter. These are both issues that are to be dealt with outside this Panel process. For these reasons, the Panel has not supported the Amendment.
(iii) Recommendations Based on the reasons set out in this Report, the Panel recommends that Amendment C209 be abandoned and that Planning Permit Application P1502 for a two‐lot subdivision (realignment of title boundaries) be refused.
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Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017
1 Introduction
1.1 The Amendment
(i) Amendment description The Amendment proposes to: 25 Oaktree Drive, Pakenham Rezone part (proposed Lot 1 PS743978C) from a Public Park and Recreation Zone (PPRZ) and the land in the Oaktree Drive road reserve from Road Zone Category 2 (RDZ2) to Low Density Residential Zone Schedule 3 (LDRZ3), allowing a minimum subdivision size of 0.2 hectares. Apply the Design and Development Overlay – Schedule 1 (DDO1) and Vegetation Protection Overlay – Schedule 1 (VPO1) to the land proposed to be rezoned. 1, 3, 5, 7, 9, 11 and 13 Ryan Road, Pakenham and 1, 2, 3, 4 and 5 Johanna Court, Pakenham Remove the land from Schedule 1 and include it in Schedule 3 to the LDRZ to provide for a minimum subdivision of 0.2 hectares. 62 Cameron Way, Pakenham Rezone land in the existing Oaktree Drive road reserve (to be known as Proposed Lot 2 PS743978C) from Road Zone Category 2 (RDZ2) to PPRZ.
(ii) Planning Permit Application description The Planning Permit Application (Application) is for a two‐lot subdivision (boundary realignment) of Council owned land to create proposed 25 Oaktree Drive, Pakenham.
(iii) Purpose of the Amendment The Deep Creek Master Plan 2010 (Master Plan) has been prepared for the Pakenham Golf Course and was adopted by Council in September 2010. This Amendment seeks to implement the strategic directions contained within the Master Plan. It identifies that the existing golf course should be redeveloped within an integrated community reserve that includes the golf course realignment, new golf club house with associated parking, development of an ‘Eco’ centre, demonstration wetland and gardens, community meeting spaces, eco playground, shared pathways and creation trails with revegetation and wetland/drainage works. It also identifies land in the northern portion of the golf course (the existing clubhouse) as surplus to the golf course needs. The Amendment seeks to rezone the surplus land from PPRZ to LDRZ3 to enable it to be developed for and integrated with the existing low density residential area to the east. The money raised from the sale of this land will be used by Council to fund the works proposed in the Master Plan.
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The Amendment also seeks to rezone existing Council owned land within the Oaktree Drive road reserve from the RDZ2 to PPRZ to reflect the fact that the road is no longer intended to be widened, and therefore to down grade the status of the road. The Application seeks to undertake a two‐lot subdivision (realignment of the existing title boundaries) that will correspond with the proposed rezoning and enable the sale of surplus Council land.
(iv) The subject site The Amendment applies to land shown in Figure 1.
Figure 1 The proposed rezoning and overlays. The Application seeks to realign the existing title boundaries as shown in the proposed plan of subdivision shown in Figure 2.
Figure 2 The proposed plan of subdivision.
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1.2 Background to this Amendment There are two amendments that are directly relevant to this Amendment, these include: Amendment C66 The land occupied by the golf course was transferred to the Shire of Pakenham in 1976 as part of a low density subdivision to the east. The land was transferred with the agreement of the landowners, with clear title and for the purposes of recreation, drainage and roads. The land was ultimately included within a PPRZ. In 2005, Council prepared Amendment C66 which sought to rezone the golf course and adjacent grazing land from PPRZ to a Comprehensive Development Zone (CDZ) to facilitate the creation of 600 lots for residential development over approximately 60% of its area, leaving approximately 40% for public open space, drainage, flood storage, wetland and conservation functions. The proceeds from the sale of the land were to go towards the relocation of the golf course outside the urban growth boundary. A Panel considered submissions to the Amendment and concluded it raised significant issues of strategy and policy balance relating to residential development/open space provision, whether it could or should be disposed of; as well as a range of significant environmental issues relating to flooding and significant flora and fauna. The Panel ultimately concluded the Amendment did not appear to be the product of a rigorous, directed and orderly strategic planning process for the future community and recreational needs of a fast growing growth corridor, and had an unacceptably high risk of being unsustainable not having adequately addressed either the constraints imposed by the site conditions, or the protection of existing natural assets. It also concluded that the balance between recreation and conservation had not been properly addressed and that the long‐term feasibility of the proposed protection of the Growling Grass Frog habitat had not been established at a strategic level. The Panel ultimately recommended the abandonment of the Amendment. Council did not accept the Panel recommendation and submitted the Amendment for Ministerial approval. The Minister did not approve the Amendment. Since then, Council has prepared the Master Plan in consultation with the community, which it submits provides the strategic justification for the Amendment/Application. The Council considers the Master Plan proposes what are vastly improved public open space and recreational opportunities for the local community, including the relocation of the Golf Club House, the creation of walking trails, the extension of the golf course, development of a sustainable living eco centre, a range of recreational facilities and a native vegetation nursery. The Master Plan is also expected to provide other public benefits such as drainage corridors, wetlands and the revegetation of endangered plant communities and wildlife habitat over more than 20 hectares. The Master Plan also identifies an area in the northern portion of the site as surplus to the parks requirements. It is this land that forms the basis of this Amendment, as well as land in private ownership in Johanna Court and Ryans Road to the east.
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Amendment C188 As part of the 2013 review of residential zones, the minimum lot size for the LDRZ was reduced from 0.4 hectares to 0.2 hectares where reticulated sewerage is available. Having reviewed the final version of the proposed zone reforms the Council wrote to the Minister for Planning requesting the minimum lot size for the LDRZ in Cardinia be maintained at 0.4 hectares due to concerns that many of its LDRZ areas are subject to significant constraints, such as threats from bushfire and flooding, and that many areas contain significant biodiversity values. The Minister maintained the 0.4 hectare minimum for the LDRZ as an interim measure in order to allow Council the opportunity to “undertake further strategic work to justify a different minimum lot size for lots connected to reticulated sewer and for legislative requirements to be met.” Council undertook a strategic assessment of its low density and rural living areas and identified where increased densities (0.2 hectares) could be supported without compromising safety or environmental values. In areas with constraints being bushfire, environmental significance, steep topography, flood prone, existing neighbourhood character, or where further subdivision of the land wold result in a significant number of battle‐axe‐shaped blocks, the minimum lot size was to be retained at 0.4 hectares. Subsequently, Council prepared Amendment C188 to implement the findings of this strategic assessment. A Panel was appointed to hear submissions and generally supported the approach adopted by Council. The Minister approved the Amendment on 27 October 2016. This Amendment is relevant to Amendment C209, as it retained the 0.4 hectare minimum lot size for the privately owned land in Johanna Court and Ryans Road, which this Amendment now seeks to reduce to 0.2 hectares. 1.3 Panel process Cardinia Planning Scheme Amendment C209 (the Amendment) and Planning Permit Application P1502 (the Application) was prepared by the Cardinia Shire Council as Planning Authority and Responsible Authority. The Amendment was prepared at the request of Cardinia Shire Council (the Proponent) and was authorised by the Department of Environment, Land, Water and Planning (DELWP) on 3 May 2016. The Amendment was placed on public exhibition between 24 June and 1 August 2016. During exhibition, Council became aware that the plan of subdivision was omitted from the exhibition documents. Accordingly, Council extended the exhibition of the Amendment and the Permit Application for an additional two weeks, until 31 August 2016. At the conclusion of exhibition, 13 submissions were received, with seven opposing submissions. At its meeting of 19 September 2016, Council resolved to refer the submissions to a Panel. As a result, a Panel to consider the Amendment was appointed under delegation from the Minister for Planning on 4 October 2016 and comprised Sue Porter (Chair).
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A Directions Hearing was held in relation to the Amendment on 24 October 2016. Following the Directions Hearing, the Panel undertook an inspection of the subject site and its surrounds. The Panel then met in the offices of Cardinia Shire Council on 17 November 2016 to hear submissions relating to the Amendment/Permit Application. Those in attendance at the Panel Hearing are listed in Table 1.
Table 1 Parties to the Panel Hearing Submitter Represented by Cardinia Shire Council Ms Maria Marshall, Partner, Maddocks who was assisted by Ms Marcelle Bell, Senior Strategic Planner, Cardinia Shire Council Kenzie Park Pty Ltd Mr Phil Bisset of the firm Minter Ellison Mr & Mrs Kooloos Mr & Mrs Sauze 1.4 Procedural issues During the Hearing, Council made reference to a number of documents relevant to the Amendment/Application which were not available at the time to the Hearing. The Panel directed that copies of these documents be made available to the Panel and other parties. The Panel gave all parties one week in which to make any submissions in response to this additional information, and Council an additional week to reply to any further submissions received. The Panel highlighted this is not an opportunity to make new submissions. 1.5 Summary of issues raised in submissions The key issues raised in the submissions of the various parties are briefly summarised as follows:
(i) Planning Authority The key issues for the Council were: The Amendment/Application is consistent with the Master Plan and the sale of surplus land will assist Council to implement it. Rezoning of the surplus land for low density residential purposes is consistent with surrounding land uses. Council has the right and ability to sell the land as it is deemed surplus to Council requirements. The Amendment is strategically justified.
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(ii) Relevant agencies The key issues for the agencies were: South East Water had no objection to the Amendment and consented to the grant of the permit subject to conditions. The EPA did not object to the Amendment/Application but emphasised the importance of ensuring any industrial uses meet the required separation distances, to ensure Ministerial Directions 1 – Potentially Contaminated Land is adhered to and to adopt best practice environmental management and risk management approaches which avoid or minimise environmental degradation and hazards. The CFA submitted the Amendment does not appear to have implications relating to bushfire and/or service delivery for the CFA and therefore did not comment on the proposed Amendment/Application.
(iii) Individual submitters or groups of submitters The key issues raised by submitters were: As the land was gifted to Council for open space/roads, it does not have the right to sell it. Given its location within the Urban Growth Boundary (UGB) and its proximity to the Pakenham West and East Precinct Structure Plan Areas (PSPs), this land is not surplus and could be used to accommodate future social infrastructure such as a school site or open space, particularly given its locational advantage along the Princes Highway and opposite a commercial precinct. The area of the LDRZ3 rezoning should be extended to include other land also within a LDRZ. Reducing the minimum lot size within the LDRZ will adversely impact neighbourhood character. Concern about the impact of including Oaktree Drive within the PPRZ on legal access and any future plans to upgrade Oaktree Drive to provide a Pakenham By‐ pass. Concern about the potential impact of any future redevelopment of the Golf Club site on the amenity of surrounding area. Concern about the potential impact of future development on the habitat of the Growling Grass Frog. The Amendment is contrary to a Section 173 Agreement. The realignment of the title boundary will create an irregular shaped allotment and render it undevelopable. Support for the Amendment and requests that other property also be rezoned to LDRZ3 to enable subdivision.
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1.6 Limitations of this Report A number of submissions were received which challenged Council’s right to sell surplus Council owned land. This Panel has been appointed by the Minister for Planning under Section 153 of the Planning and Environment Act 1987 with a specific task, that is to consider and hear submissions under the Act about the following amendment to a planning scheme. It has not been appointed to hear submissions or make findings in relation to whether Council has the legal right to sell land, the process it must follow to determine whether land is genuinely surplus to Council’s requirements or whether alternate uses should be considered before it is sold. These are all matters dealt with under alternate legislation with relevant procedures and review processes defined. As these matters are not directly affected by this Amendment, this Panel will not make any further findings or recommendations on this matter. Similarly, submissions were made about whether the Amendment is contrary to a Section 173 Agreement. The Panel considers the Section 173 Agreement is a matter between Council and Sharlin Pty Ltd, not this Panel. For this Panel will not make any further findings or recommendations on this matter. 1.7 Issues dealt with in this Report The Panel considered all written submissions made in response to the exhibition of the Amendment; as well as further submissions and other material presented to it during and after the Hearing (in accordance with the Panel’s Directions), and observations from site visits. The Panel has reviewed a large volume of material. The Panel 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 Strategic justification The proposed subdivision and permit conditions
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2 Planning context
Council provided a response to the Strategic Assessment Guidelines as part of the Explanatory Report. The Panel has reviewed Council’s response and the policy context of the Amendment outlined and has identified additional policy and planning scheme provisions which are also relevant to the consideration of submissions to this Amendment/Permit Application. The Panel has outlined these and will refer to them throughout the report where relevant. The Panel has also made a brief appraisal of the relevant zone and overlay controls. 2.1 Policy framework
(i) State Planning Policy Framework (SPPF) The following clauses in the SPPF are relevant to the consideration of the Amendment: Clause 9 – Plan Melbourne interpretation ‐ states that Planning and Responsible Authorities must consider and apply the Plan Melbourne: Metropolitan Planning Strategy. Clause 10.02 – Operation of the State Planning Policy Framework ‐ Goal – states that a primary objective of the SPPF is to provide for the fair, orderly, economic and sustainable use and development of land and sets out the objectives of planning in Victoria. Clause 11 ‐ Settlement ‐ requires that planning anticipate and respond to the needs of existing and future communities through provision of zoned and serviced land for housing, employment, recreation/open space, commercial/community facilities and infrastructure. Clause 11.02 ‐ Planning for growth areas – requires that urban growth is located close to transport corridors and services, and provides efficient and effective infrastructure. This includes meeting housing needs by providing a diversity of housing types and distribution. Clause 11‐02‐1 – Supply of urban land – seeks to ensure that a sufficient supply of land is available for residential, commercial, retail, industrial, recreational, institutional and other community uses. Specifically, a 15‐year supply of land should be available to accommodate projected population growth. Clause 11.03‐1 – Open Space Planning ‐ seeks to assist the creation of a diverse and integrated network of public open space commensurate with the needs of the community. Key strategies include ensuring that land is set aside and developed in residential areas for local recreational use and improving the quality and distribution of open space and ensuring its long‐term protection. Clause 11.03‐2 – Open space management – requires that long term management of open space is provided for, including ensuring public access to open space is appropriately managed. Clause 11.04‐5 – Environment and Water – recognises the need to protect natural assets and better plan our water, energy and waste management systems to create a sustainable city.
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Clause 12 ‐ Environmental and landscape values – seeks to assist the protection and conservation of Victoria’s biodiversity, including important habitat for Victoria’s flora and fauna and other strategically valuable biodiversity sites. Clause 13 – Environmental Risks – requires that planning should adopt a best practice environmental and risk management approach which aims to avoid or minimise environmental degradation and hazards. Clause 13.02‐1 – Floodplain management – seeks to assist in the protection of life, property and community infrastructure from flood hazard, which is to be achieved by avoiding intensifying the impacts of flooding through inappropriately located uses and developments. Clause 15 – Built Environment and heritage – seeks to ensure that all new land use and development appropriately responds to its landscape, valued built form and cultural context, and protects places and sites with significant scientific and cultural value (amongst others). Clause 15.01‐3 – Neighbourhood and subdivision design – seeks to ensure the design of subdivision achieves attractive, liveable, walkable, cyclable, diverse and sustainable neighbourhoods. This is to be achieved through creating a range of open spaces to meet a variety of needs with links to open space networks, providing a range of lot sizes to suit a variety of dwelling and household types, creating a strong sense of place through well designed attractive built form and landscape character; and protecting and enhancing native habitat. Clause 15.01‐5 – Cultural identity and neighbourhood character – aims to recognise and protect cultural identity, neighbourhood character and sense of place. This includes ensuring development responds and contributes to existing sense of place and cultural identity, its context and also reinforces the special characteristics of local environment and place. Clause 16 – Housing – acknowledges that planning should provide for housing diversity and ensure the efficient provision of supporting infrastructure. Clause 16.01‐2 – Location of residential development – seeks to locate new housing in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport. Objectives to achieve this include facilitating residential development that is cost‐effective in infrastructure provision and use. Clause 19.03‐2 – Water supply, sewerage and drainage – identifies the need to plan for the provision of water supply, sewerage and drainage services that efficiently and effectively meet State, community needs and protect the environment. Strategies to address this include providing for sewerage at the time of subdivision, or ensuring lots created are capable of adequately treating and retaining all domestic wastewater within their boundaries. Council submitted the Amendment/Application supports and responds to these policies by: Allowing for the redevelopment and management of public open space to meet the long term needs of the Pakenham Community. Allowing for the appropriate application of the LDRZ providing for residential development that will be consistent with neighbourhood character.
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Including land that is serviced with reticulated sewerage and not subject to environmental risks within the appropriate LDRZ.
(ii) Local Planning Policy Framework (LPPF) The following clauses in the LPPF are relevant to the consideration of the Amendment: Clause 21.01‐2 ‐ Key Influences – identifies the provision of infrastructure to meet the needs of the existing and future community, including educational facilities, as a key influence. Clause 21.01‐3 – Key Issues – provides for the provision of infrastructure which meets the needs of the existing and future community. Some of the key issues identified include the sustainable development of growth areas and the provision of appropriate rural residential and rural living development; as well as the provision of infrastructure to meet the needs of the existing and future community. It also identified the need to encourage attractive, functional and sustainable built form in existing and future development, as well as the restructure of inappropriate subdivisions. Clause 21.01‐4 – Strategic Vision – aims to foster the sustained wellbeing of the community and environment in the Cardinia Shire and to recognise and protect the diverse and significant environmental and cultural heritage values in the municipality. Clause 21.01‐5 – Strategic Framework Plan – identifies the land within the Golf Course as a ‘Major Recreational Reserve’ and the surrounding land, including the privately owned land affected by this Amendment as ‘Residential’. Clause 21.02‐3 – Biodiversity – recognises that the municipality contains State and Nationally Significant rare and threatened species of flora and fauna, including the Growling Grass Frog. It seeks to achieve a net gain in the quantity and quality of native vegetation in the municipality and to maintain and enhance the diversity of indigenous habitats and species. One of the ways in which it seeks to achieve this is to avoid the fragmentation of land in areas of biodiversity significance and to create new habitat corridors/biolinks, as well as protecting and enhancing biodiversity within natural waterways and man‐made drains and dams through subdivision design, development design and appropriate management. In particular, it identifies the need to protect and enhance the habitat of threatened flora and fauna species, and specifically identifies the Growling Grass Frog. Clause 21.02‐5 – Open space – recognises the Shire has a significant amount of regional open space, waterways and streams that provide passive open space linkages. It seeks to ensure land is provided and developed for a range of open space functions to meet community needs for active and passive open space (including linkages) and the protection of the environment having regard to its intended use. One of the key strategies is to discourage the fragmentation of open space within new development and subdivision. Clause 21.03‐1 – Settlement and Housing – recognises that housing within Cardinia Shire is currently dominated by detached dwellings in both urban and rural areas. It seeks to address this issue by encouraging a diversity in housing to meet the needs of existing and future residents, and to encourage the provision of housing to cater for groups within the community for specific housing requirements.
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Clause 21.03‐2 – Urban growth area – recognises the subject land is within the Cardinia Urban Growth Area and in particular, the Pakenham Precinct. It recognises that Pakenham is a major activity centre and that Deep Creek forms an open space corridor. Some of the key principles for development of these precincts are to co‐ordinate the appropriate staging and development of land; to ensure greater housing choice, diversity and affordability; to deliver accessible community facilities and infrastructure and to achieve good urban design outcomes with a strong urban character including the creation of multi‐use, linked open space networks. The Pakenham Precinct is identified as a short‐term priority to 2013 and it identifies the need to protect areas of future urban development from inappropriate subdivision that limits the future orderly and efficient development of the land for urban purposes and for development contributions to provide the funding for physical and community infrastructure. In terms of further strategic work, it seeks to progressively prepare detailed Precinct Structure Plans and Development Contribution Plans for various precincts within the growth area. Clause 21.03‐4 – Rural‐residential development and rural living development – identifies rural‐residential development as single dwellings on lots between 0.4 – 2.0 hectares. It recognises that indiscriminate development of land for rural residential purposes may result in extensive land and water degradation and unnecessarily high development and maintenance costs. It seeks to recognise the demand for rural residential development and to provide for this development where it is closely integrated within an existing urban area. It also seeks to ensure that subdivisions and developments are designed to take into account the constraints of the area and limit detrimental impacts to the surrounding environment. Clause 21.04‐3 – Activity Centres – identifies a Neighbourhood Activity Centre immediately to the north of the golf course on the northern side of the Princes Highway. It recognises that Activity Centres provide a range of retail, commercial, entertainment and community services and activities integrated with housing in a location which is highly accessible by road, public transport, foot and bicycle which are a focus for community activity. Clause 21.05‐1 – Infrastructure provision – recognises that the provision of an adequate level of physical and social infrastructure is one of the major issues facing the Shire over the coming decades and that there is a need to coordinate infrastructure provision, as well as provide funding mechanisms to ensure the provision of infrastructure. It seeks to provide for the timely provision of an adequate level of physical and social infrastructure which is necessary to foster economic development, ensure wellbeing of the community and protect the environment. In terms of funding this infrastructure, it seeks to work in partnership with Federal and State Governments to identify priorities and to secure funding for capital works projects, as well as raising funds to assist in the provision of infrastructure through development contributions and the sale of surplus Council owned land. One of the implementation measures identified is to include surplus Council owned land in an appropriate zone to facilitate its sale and development. Clause 21.05‐5 – Pedestrian and bicycle network – aims to develop well‐located, safe and interconnected pedestrian and bicycle networks which are well connected between new and existing development providing for important recreational pursuits.
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Clause 21.05‐6 – Community services and facilities – aims to provide a reasonable level of community services and facilities and to ensure these services and facilities are provided in response to community needs. In terms of locating community facilities, including recreational facilities which allow for a diverse range of age groups, it seeks to establish them in the most accessible location for local residents. Council submitted the Amendment/Application supports and responds to these policies by allowing for: the redevelopment of public open space to improve community services and facilities. surplus Council land to be rezoned to LDRZ with the application of a VPO and DDO consistent with adjoining land. the appropriate application of a schedule to the LDRZ consistent with serviced land with environmental constraints allowing suitable housing choice within the Urban Growth Boundary (UGB). Council owned land that was previously earmarked for a road widening that is no longer required for this purpose to be incorporated into the adjacent public open space. The Panel will consider the issue of strategic justification in Chapter 4 of this report.
(iii) Other planning strategies relevant to this Amendment/Application Deep Creek Master Plan The Council submitted the Amendment/Application is consistent with the Master Plan which outlines the concept for the future development of the Golf Course, including the identification of land which is surplus to the golf course requirements. The Panel notes there are a number of other key strategic documents which are also relevant to the consideration of submissions to this Amendment/Permit Application, which must also be considered and these include: Plan Melbourne – recognises the growth that will occur within Melbourne and as part of transitioning to a more sustainable city, innovative metropolitan planning approaches should seek to create more compact cities, as well as more open space. Plan Melbourne contains a number of initiatives directly relevant to this Amendment/Permit Application which include: Initiative 4.5.1 – Develop a new Metropolitan Open Space Strategy recognises that the responsibility for providing open space is currently shared by a number of government agencies and local government and that this creates a lack of overall direction in strategic planning for open space across Melbourne and can lead to confusion about who is responsible for funding, planning and delivering open space. Initiative 4.5.2 – Provide new neighbourhood parks and open space recognises that as our city grows and accommodates more people there will be a need to increase the quantity and quality of public open space, leisure, recreation and sporting facilities. It recognises that many Councils have prepared open‐space strategies and that precinct structure plans will also identify where open spaces will be provided, however, it states there is scope to explore more innovative ways in increasing open space at the local level.
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Growth Corridor Plans – Managing Melbourne’s Growth – 2012 ‐ South East Growth Corridor Plan Identifies that Melbourne’s four Growth corridors are expected to accommodate close to half of Melbourne’s new housing over the next thirty to forty years and that substantial new communities will emerge in these corridors. It identifies that the transport, town centre and open space networks established in the initial development of these growth corridors will be in place for many generations. It identifies that good strategic planning to guide future development in these corridors is vital if these new communities are to be provided with diverse local housing and employment opportunities, facilities and services, sustainable transport options, a healthy environment, a high level of amenity and a strong local identity. It identifies that the Growth Corridor Plans (GCP) provides a framework to guide the planning of new communities in each of the Growth corridors. South East Growth Corridor Plan shows this site within the UGB and as ‘Existing Urban’. Metropolitan Open Space Network Prepared by the Victorian Planning Authority (VPA), it contains an inventory of open space within the metropolitan area to better inform planning in relation to open space and land management to assist State agencies and local government to continue to deliver and maintain Melbourne’s world class open space network. The inventory identifies the subject land as ‘Sportsfields and organised recreation’. In terms of its location within ‘Walkable Catchments’, it identifies the land as ‘Restricted public land’ which “provides one or more of the outdoor recreation, leisure and environmental benefits and/or visual amenity” and the northern portion of the proposed site as being open space within a ‘400 metre walking catchment’ of a residential area. It recognises that not all land has the same open space function, value or access and the primary function of the land, such as restricted public land, will impact on its existing or future potential community use. It outlines a series of fundamental network planning principles to guide the assessment of open space provision across the metropolitan region, and to assist in identifying and prioritising potential interventions. The principles/pillars rest on the foundation of optimising access to, and use of all practically available publicly owned land (inclusive of Restricted Public Land) for net community benefit. These principles are based on the contention that no one element or factor in isolation can deliver a high quality open space network, and that there are a range of universal ingredients that underpin spatial planning solutions which are responsive to local or regional circumstances. These principles have been crafted to provide direction and strategic planning for the metropolitan open space network as a whole, and to provide a framework for local government as they review and revise their existing open space strategies. The overarching goal of the Network Planning Principles are to: Achieve an integrated and accessible open space network that facilitates high quality and affordable communities, maximises the community benefit of all available public land and underpins and strengthens Melbourne’s liveability, resilience and biodiversity.
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The six pillars include: Equitable distribution – deliver a network of open spaces that are located to ensure community access within a 5 minute walk (approximately 95% of residents). Access and connectivity – create a network of open spaces that are accessible to all, free of charge and connected by safe pedestrian and cycle links, public transport options and where practicable co‐located with community infrastructure. Quality – design, build and maintain open spaces to optimise their capacity and resilience and to enhance community appreciation. Quantity – provide an appropriate amount of open space to cater for a range of community uses. Diversity – deliver a network of open space types (pocket, neighbourhood, community, district, municipal and regional parks) that provide for a range of uses, functions and differing levels of amenity. Sustainability – create a network that is planned and managed to support biodiversity and city amenity which also fit for purpose, fiscally responsible and resource efficient. Cardinia Shire Council Recreational Open Space Strategy 2000 This strategy seeks to develop a quality, interconnected open space system which: Is safe, convenient and accessible for people to appreciate and use. Offers a variety of opportunities which encourage people to participate in different recreational, sporting and cultural activities, catering for a wide range of community needs. Balances the need for the protection of environmental, landscape and heritage values with sporting and recreational uses. Retains the essence of the existing character of rural areas and provides visual separation between urban areas and towns. Can be effectively managed and maintained, and Integrates with surrounding open space areas provided by local government and other government agencies. Whilst the Plan recognises the need to provide open space and linkages along Deep Creek, it makes no specific reference to the Pakenham Golf Course. 2.2 Planning scheme provisions
(i) Zones Land affected by the Amendment/Application is included within three zones, these are: Public Park and Recreation Zone – applies to the land within the Golf Course. Low Density Residential Zone 2 – applies to the privately owned low density residential land affected by this Amendment/Application and has a minimum lot size of 0.4 hectares. In addition to implementing State and local policy, the purpose of the LDRZ is “To provide for low‐density residential development on lots which, in the absence of
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reticulated sewerage, can treat and retain all wastewater.” The decision guidelines require that any application for the subdivision of land must include consideration of the “protection and enhancement of the natural environment and character of the area including the retention of vegetation and faunal habitat and the need to plant vegetation along waterways, gullies, ridgelines and property boundaries, as well as the availability of services”, amongst others. A permit is required for the subdivision of land. Road Zone Category 2 –applies to the Oaktree Drive road reserve.
(ii) Overlays The privately owned subject land is affected by two overlays, these are: Vegetation Protection Overlay 1 – Low Density Residential ‐ the purpose of the VPO is: To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. To protect areas of significant vegetation. To ensure that development minimises loss of vegetation. To preserve existing trees and other vegetation. To recognise vegetation protection areas as locations of special significance, natural beauty, interest and importance. To maintain and enhance habitat and habitat corridors for indigenous fauna. To encourage the regeneration of native vegetation. The ‘Statement of nature and significance of vegetation to be protected’ is: The low density residential areas within the Shire support substantial areas of remnant indigenous vegetation and mature exotic species. The maintenance and enhancement of the flora habitat is vital for the long‐term protection of these areas and the native fauna they support. Some of these areas contain small lots which are not protected under the native vegetation controls of Clause 52.17 resulting in areas of vegetation becoming increasingly fragmented. The remnant vegetation is important for its contribution to habitat and environmental values and processes. This provides protection to waterways including the reduction of siltation and contributes to habitat corridors as well as playing a role in supporting soil stability, reducing stormwater runoff, and limiting erosion and salinity. Under this overlay, a permit is required to remove, destroy or lop any vegetation, exemptions apply. Design and Development Overlay 1 – Low Density Residential – the purpose of the DDO is to implement the SPPF and LPPF, including the Municipal Strategic Statement (MSS) and local planning policies; and more specifically identify areas which are affected by specific requirements relating to the design and built form of new development.
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The design objectives are: To ensure that the location and design of buildings creates an attractive low density residential environment. To ensure that any development has regard to the environmental features and constraints of the land. To ensure that the subdivision of land has regard to the existing pattern of subdivision in the area. Under this overlay, a permit is required for buildings and works1 and the subdivision of land. The decision guidelines require the consideration of a range of matters, including the impact on remnant vegetation and habitat of botanical and zoological significance, as well as the character of the area and the need to protect waterways and water quality, amongst others. The decision guideline in the head clause in relation to subdivision requires consideration of “Whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area.” The Amendment proposes to extend this overlay to the Council land to be rezoned to LDRZ.
(iii) General Provisions The Panel has also identified a range of General Provisions which must be considered when considering the Application to subdivide the land (realign the title boundaries), these include: Clause 65 ‐ Decision Guidelines ‐ outlines a wide range of issues that must be considered when considering an application or approval of a plan and also the subdivision of land, these are: The matters set out in Section 60 of the Act. The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. The purpose of the zone, overlay or other provision. Any matter required to be considered in the zone, overlay or other provision. The orderly planning of the area. The effect on the amenity of the area. The proximity of the land to any public land. Factors likely to cause or contribute to land degradation, salinity or reduce water quality. Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site. The extent and character of native vegetation and the likelihood of its destruction. Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
1 Exemptions apply
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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. Before deciding on an application to subdivide land, the Responsible Authority must also consider, as appropriate: The suitability of the land for subdivision. The existing use and possible future development of the land and nearby land. The availability of subdivided land in the locality, and the need for the creation of further lots. The effect of development on the use or development of other land which has a common means of drainage. The subdivision pattern having regard to the physical characteristics of the land including existing vegetation. The density of the proposed development. The area and dimensions of each lot in the subdivision. The layout of roads having regard to their function and relationship to existing roads. The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots. The provision and location of reserves for public open space and other community facilities. The staging of the subdivision. The design and siting of buildings having regard to safety and the risk of spread of fire. The provision of off‐street parking. The provision and location of common property. The functions of any body corporate. The availability and provision of utility services, including water, sewerage, drainage, electricity and gas. If the land is not sewered and no provision has been made for the land to be sewered, the capacity of the land to treat and retain all sewage and sullage within the boundaries of each lot. Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas. Clause 66.01‐1 – Mandatory conditions ‐ outlines a number of mandatory conditions which must be included on any permit granted for the subdivision of land: 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 lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision
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submitted for certification in favour of the relevant authority for which the easement or site is to be created. 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. Clause 93.01 – Realign the Common Boundary between two lots ‐ outlines a number of information requirements, including (but not limited to): A layout plan, drawn to scale and fully dimensioned showing: The location of the approved stormwater discharge point. The location and details of any significant vegetation. A written statement that describes: The existing use of the land and its possible future development. If the land is in a residential zone and the realignment of the common boundary will result in a vacant lot, information that shows that the vacant lot meets the requirements of Standard C8 of Clause 56. It also outlines a range of decision guidelines which must be considered by the Responsible Authority, which include (but are not limited to): The suitability of the subdivision including how the layout and dimensions of the subdivision: Respond to and integrate with the surrounding urban environment. Protect significant vegetation. Protect solar access for existing and any future dwellings on the lots. Appropriately accommodate the provision of utility services to each lot. Appropriately accommodate the siting of buildings having regard to the risk of spread of fire. Appropriately accommodate the existing use and possible future development of the land. If the land is in a residential zone and the realignment of the common boundary will result in a vacant lot, the objective and standard of Clause 56.04‐22.
(iv) Ministerial Directions and Practice Notes Council submitted the Amendment meets the relevant requirements of the following Ministerial Directions:
2 Lot area and building envelopes objective
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Ministerial Direction No 9 – Metropolitan Strategy This Ministerial Direction states that in preparing an amendment a Planning Authority must have regard to metropolitan strategy and identify what aspects of the strategy are relevant, whether the amendment is consistent with and will implement the strategy; or whether it may compromise the strategy. Ministerial Direction No 11 ‐ Strategic Assessment of Amendments The Amendment is consistent with Ministerial Direction 11 (Strategic Assessment of Amendments) and Planning Practice Note 46 (Strategic Assessment Guidelines). The Form and Content of Planning Schemes (s7(5)) The Amendment is consistent with the Ministerial Direction on the Form and Content of Planning Schemes under Section 7(5) of the Act.
(v) Planning Practice Notes (PPNs) In assessing whether the Amendment and Application are consistent with the PPNs, Council focussed on PPN78 ‐ Applying the Residential Zones alone. PPN78 – Applying the Residential Zones Council submitted the Amendment is consistent with PPN78 as it states that the LDRZ may be appropriate for “areas where sewerage may not be available or areas where larger residential allotment (to a minimum of 0.2 hectares) are connected to reticulated sewerage” and “allows an application to be made to subdivide a lot minimum of 0.2 hectares where connected to reticulated sewerage.” It was submitted that applying Schedule 3 to the Johanna Court/Ryans Road area is consistent with this PPN as the land is serviced by reticulated sewerage and has no environmental constraints. Whilst relevant, the Panel considers there are a number of other PPNs which must also be considered. These are: PPN37 – Rural Residential Development The Panel notes that PPN37 – Rural Residential Development. It states that LDRZ is a ‘residential’ zone and that where reticulated sewerage is available, lots can be 0.2 hectares, yet where not available, lot size should be at least 0.4 hectares. It states planning schemes should ensure reasonable opportunities are found for rural residential development as part of providing for housing diversity and choice. In considering whether rural residential development is appropriate, it raises a number of key questions which should be taken into account, recognising that the final detailed subdivisional and design matters can be considered as part of the permit application process, these include: Strategy: Does rural residential development align with the overall strategic planning of the municipality? Housing need: How much rural residential development is required to provide appropriate housing diversity and choice to meet housing needs? Location: Where should new rural residential development take place?
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Subdivision and design: Is the new rural residential development subdivided and designed in an attractive setting offering high amenity and efficient infrastructure? It states that rural residential development should be integrated with the existing urban areas and must not impede the proper long‐term growth of an urban area based on fully serviced residential development at normal urban densities; and where there is no adopted settlement strategy, the likely future growth and structure of the urban area based on an analysis of social infrastructure and service provision must be considered. It states that rural residential development should be located in areas to avoid or minimise any adverse impact on the environment, native vegetation and biodiversity; provide adequate social and physical infrastructure; as well as consider how new rural residential development can be subdivided and designed in an attractive setting to offer high amenity and efficient infrastructure. It states that for an amendment proposal for rural residential land must be supported by: 1. A site and context description. 2. A report explaining: the proposal how the proposal supports the strategic framework how the proposal meets housing needs and the housing objectives of the area why the proposed location is suitable for rural residential development. This should include an assessment, where appropriate, of: how the proposal is supported by existing urban development the land’s capability for agricultural use and how the proposal will impact the long term continuation of agriculture in the area the locality’s natural resources and the measures that may be taken to protect those resources the locality’s environmental features and biodiversity and how these could be protected and enhanced the locality’s landscape and heritage values and how these could be protected the proposal’s social and physical infrastructure requirements and the community cost of providing these services the proposal’s compatibility or impact on the surrounding land uses the land’s servicing capability. 3. A summary of relevant agency comments and any other comments from peak groups or known affected persons. PPN46 – Strategic Assessment Guidelines for preparing and evaluating planning scheme amendments The Panel notes this Practice Note is also relevant.
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This PPN builds on Ministerial Direction 11 and outlines the level of assessment against strategic considerations that is required. As this Amendment will introduce the extension of a zone and overlays that will produce a different and new land use and development outcome, it states that a full assessment against the strategic considerations is required. 2.3 Discussion It is clear that the original subdivision of the land into rural residential allotments was undertaken at a time when it was surrounded by rural land, with the closest urban area being the Pakenham township. Since then, however, the South‐East Growth Corridor as become one of the fastest growing growth areas in Australia, and the subject land has now not only been included within the UGB, but it will eventually be surrounded by conventional residential development on three sides. For this reason, the Panel considers this Amendment should not be considered on its own, but rather in the context of how it fits into the broader planning for this area. Therefore, the key question for this Panel is what is the future of this land within the urban growth corridor and ultimately what is the strategic direction that guides the future decision making for not only the land affected by this Amendment/Application, but also the other rural residential land located nearby. The question is then ultimately whether the proposed Amendment/Application is consistent with that strategic direction. Whilst Council has identified a number of State and local policies which it considers supports this Amendment, the Panel has also identified policies, planning scheme provisions and practice notes that also provide extensive guidance and requirements in relation to open space planning, the provision of low density residential development as well as the consideration of permit applications for the realignment of title boundaries, which also must be considered. Having considered the Amendment/Application against these, it becomes clear to the Panel that not only is there a lack of clear strategic direction in relation to the future development of this land, but also all of the LDRZ in this immediate area, particularly given its location within the UGB and its proximity to emerging residential precincts. The Panel considers that insufficient information has been provided to enable it to be confident that all of the relevant issues required to be considered as part of the permit application have been. Having said this, the Panel is not saying the rezoning of the Golf Course land or a reduction in the minimum lot size in the LDRZ may not be appropriate, but rather in the absence of a clear strategic framework and more details in relation to the environmental constraints associated with the land, the Panel does not consider that the Amendment/Application should be supported at this time. 2.4 Conclusion The Panel therefore concludes that the bulk of the Amendment/Application is not strategically justified and should not be supported at this time. The Panel considers that before such an Amendment/Application to proceed, there is the need for further strategic work that:
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Considers the future of the surplus Golf Club land within the broader open space network. Reviews all of the LDRZ in this area (Oaktree Drive, Johanna Court, Ryans Road and Fairway Court) to determining what role this land will play in not only accommodating housing growth, but also providing a diversity of housing types, including appropriate lot sizes and ensure this is clearly identified within the local strategic framework in the Cardinia Planning Scheme. This work needs to be undertaken in consultation with the current landowners. Should further subdivision of this LDRZ land be considered appropriate, how should this occur taking into consideration the existing subdivision layout, built form as well any environmental constraints/values that may exist in the area. It should also consider what the appropriate planning tool would be to ensure that any future subdivision/development of the land is undertaken in a coordinated manner.
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3 Strategic justification
3.1 Rezoning of the Golf Club land from PPRZ 3.1.1 Issue Whether the Golf Club land should be rezoned from PPRZ? 3.1.2 Submissions K and J Kooloos (Submissions 4, 4A & 4B) submitted that a pond on the golf course, opposite their property, is home to the Growling Grass Frog and should be preserved by retaining the site within open space. D and J Hughes (Submission 6) submitted that any proposed earth works will seriously impact flooding in the area given there is no provision for drainage and increased water runoff, particularly at the junction of three creeks where the chance of flood will be increased. They also submitted that any proposed earth works will seriously impact on the outlook, aspect and amenity of Oaktree Drive and views from their property. Mr Bisset submitted the land should remain as public open space given its proximity to residential areas, and in particular the neighbourhood centre located within 400 metres to the north of this open space. Ms Marshall submitted the Master Plan provides the strategic justification for the zoning of the land from PPRZ. She highlighted it has undergone extensive community consultation and submitted the northern part of the Golf Course site had been identified as surplus with limited environmental constraints. She also submitted that Council anticipates the revenue from the sale of the rezoned land will fund the implementation of the Master Plan, therefore offering an opportunity to substantially improve the public open space further south. 3.1.3 Discussion The Panel notes it is Council’s submission that the Master Plan provides the strategic justification for the rezoning of this land from PPRZ; on the basis that it has been identified as surplus. In considering the weight that should be placed on the Master Plan in justifying the Amendment, the Panel makes the following comments: Whilst adopted by Council, the Master Plan does not form part of the Cardinia Planning Scheme and therefore carries no weight. It considers the Deep Creek Reserve only and does not consider this open space within the broader open space network. The Master Plan provided to the Panel constituted a ‘Map 2A: Masterplan Opportunities Map’, ‘Landscape Plan’, ‘Ground Floor Plan’ for what appears to be the future Golf Club Rooms and a series of Schematic Elevations. There is no background report supporting these plans outlining the environmental values and constraints on this part of the Golf Course and how these have been addressed.
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The ‘Masterplan Opportunities Map’ includes a caveat which states “Please note this is not an implementation plan and does not commit council to undertake the works”. The site of the existing Golf Club is the only land identified as ‘Surplus’ and the southern portion of the proposed site has not been similarly identified. Whilst identifying the Golf Club site as surplus, it contains an annotation which reads “Future uses to be considered if the club house is to be relocated.” The Panel does not consider that this rules out the potential for the land to be used for alternate future open purposes. The background reports provided to the Panel3 post‐hearing do not address the subject land. For these reasons, the Panel does not consider that the Master Plan provides the necessary strategic justification to remove the land from the PPRZ. The Panel commends Council for preparing the Master Plan in consultation with the community and agrees the works proposed would significantly improve the quality and opportunities this open space offers. It can also appreciate that Council proposes to use the returns from the proposed sale to fund the development as proposed in the Master Plan. However, the Panel does not consider this alone justifies the rezoning of this land from PPRZ to an alternate zone. Any rezoning of this land from the PPRZ still needs to be justified in the broader strategic context. In response to a request by the Panel during the Hearing to provide the strategic work supporting open space planning in the Shire, Council provided: Cardinia Shire Council Recreational Open Space Strategy – 2000 Cardinia Shire Council Recreational Reserve Facility Standards Policy – 2012 Cardinia Shire Council Play Space Strategy – 2014 Cardinia Open Space Management Framework ‐ 2015‐2020 Health by Design Guidelines Municipal Health and Wellbeing Plan. Having reviewed these documents, the Panel finds they are either so outdated4 (particularly given the development that has occurred within the growth corridors since its preparation) or of such a general nature that they provide no specific guidance in relation the future of this land. For this reason, the Panel does not consider they provide sufficient strategic justification to rezone this land from the PPRZ to an alternate zone. To determine whether the proposed rezoning of the land from the PPRZ is appropriate, the Panel has also reviewed the Amendment within the broader policy context, including Plan Melbourne (and Plan Melbourne Refresh), the Growth Corridor Plans – Managing Melbourne’s growth June 2012, South East Growth Corridor Plan, Metropolitan Open Space Network, as well as the Strategic Framework Plan and other local policy which are all outlined in Chapter 2.
3 Flora and Fauna Assessment and Biodiversity Offset Analysis for Deep Creek Reserve, Pakenham – 2014 & Deep Creek, Pakenham, Wetland Concept Design Report ‐ 2016 4 Cardinia Shire Council Recreational Open Space Strategy ‐ 2000
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The Panel also notes that the Golf Club land and the Deep Creek Reserve are both identified as a ‘Major recreation reserve’ within Council’s Strategic Framework Plan. The Panel notes the Growth Area Plan identifies this land as being located within the existing urban area, which is very general and provides no greater level of direction. The Metro Open Space Network, however, identifies the northern portion of the proposed lot is within a 400 metre walking catchment of residential properties and could therefore provide a valuable open space resource in this area. Based on this policy context, and given this land is located within the fastest growth area in Melbourne and will be largely surrounded on by conventional residential development to the west, north and east (with the exception of the LDRZ land which will be discussed later in this report), any decisions about the future of public open space need to consider open space within the broader strategic context, not on a site by site basis. Another issue of concern for the Panel relates to the environmental values (habitat for the Growling Grass Frog) and constraints (potential flooding) associated with the land. A number of submissions raised these as concerns and they were certainly issues extensively considered during and by the Panel for Amendment C66. The Panel considers these are important issues that need to be addressed in considering the future use of this land. The Panel notes, however, that the Master Plan provided no background report which addressed these issues and the information provided to the Panel post‐hearing does not appear to cover the subject land. For this reason, this Panel has not been provided with adequate information to enable it to make an informed decision. The Panel acknowledges these may not be relevant issues in relation to this land, however, it has not been provided with any information or evidence that enables it to conclude with confidence that they are not. For this reason, the Panel does not consider there is clear strategic justification to rezone the land from PPRZ to an alternate zone and to do so would in fact not only be contrary to a substantial amount of local policy5, it would also be inconsistent (or potentially inconsistent) with several of the of the key objectives of planning including: (a) To provide for the fair, orderly, economic and sustainable use, and development of land. (b) To provide for the protection of natural and man‐made resources and the maintenance of ecological processes and genetic diversity. (c) To secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria. … (e) To protect public utilities and other facilities for the benefit of the community. …
5 Clauses 11.03‐1, 21.01‐5, 21.02‐5, 21.03‐2, 21.05‐6, Plan Melbourne Initiative – 4.5.2
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(g) To balance the present and future interests of all Victorians. Within a Growth Corridor, the Panel considers there needs to be a very clear strategic justification to rezone land from PPRZ, and at this stage the Panel does not consider that this strategic justification exists. For this reason, the Panel does not support the rezoning of the land. Should Council wish to proceed with a future Amendment which seeks to rezone this land, the Panel considers that this proposal should be consider the future of the surplus Golf Club land within the broader open space network. 3.1.4 Conclusion The Panel therefore concludes that the rezoning of the land from PPRZ would not be consistent with metropolitan and local policy, and contrary to the objectives of planning. On that basis, the Panel does not support the rezoning of the land from the PPRZ. 3.2 Proposed rezoning to LDRZ and application of a VPO1 and DDO1 3.2.1 Issue Is it appropriate to rezone the land to LDRZ and to apply the DDO1 and VPO1? 3.2.2 Submissions Mr Bisset challenged Council’s proposition that if the land is not required for open space, that low density residential is the most appropriate alternate use submitting this a “land supply argument, based on an assumption that there is insufficient, low density residential land within the Growth Area.” He submitted that if Council’s concern is land supply within the Growth Area, then the proposed rezoning will not go far to remedy this issue as it will only facilitate the development of lower density residential at the expense of medium density residential development (as land potentially available for residential purposes would have to be dedicated to a school/open space), and ultimately result in less residential land availability within the Growth Area overall. Ms Marshall submitted the zone will contribute to the delivery of housing growth within the UGB and meets the objectives of Plan Melbourne and SPPF in relation to diversity of housing stock; and will use underutilised land to facilitate new housing, which she submitted is also consistent with housing and open space objectives sought by the LPPF. For these reasons, she submitted that the LDRZ3 coupled with the DDO1 and VPO1: will retain the exiting low density residential character of the locality will create a density and manage development in a way that is generally consistent with the surrounding landholdings will provide the least possible impact on the surrounding land owners; and ensures an appropriate (and consistent) framework is in place to guide future use and development of the land for urban development.
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3.2.3 Discussion Proposed LDRZ rezoning Again, this is where the Panel needs to consider the proposed rezoning within the strategic context. As outlined previously, this land is identified in the Strategic Framework Plan as a ‘Major recreation reserve’ and the Panel has found there is no strategic justification to change that. Yet having said that, even if that were not the case, the Panel still questions whether the LDRZ would be the most appropriate alternate zone. The Panel can understand why Council proposed to rezone the land to LDRZ to reflect the nature of the development to the west and east, however, given the location of this land within a Growth Area, the Panel considers that any proposal to provide additional LDRZ land must have a clear strategically basis, and must consider whether the land has the potential for a more intensive form of residential development. The LDRZ land to the west and east are a legacy of the past, a reflection of times before this land was included within the UGB, and within one of the major growth areas of Melbourne. This not to suggest that low density housing does not have a role to play in providing a housing diversity within the Shire and that it should all be converted to conventional residential development, as local policy6 clearly identifies it does provide housing diversity and that it should be located within existing urban areas. The Panel questions whether low density housing is still appropriate in this location given it will be surrounded by conventional residential development on three sides and is prominently located along the Princes Highway; therefore is more low density housing justified? This is an important question, particularly given this Amendment not only proposes more LDRZ land, but it also seeks to intensify the development of existing LDRZ land by reducing the minimum lot size. The Panel accepts that the LPPF seeks to recognise the demand for rural residential development, and to provide for this development where it is closely integrated within an existing urban area.7 To this extent, the provision of lower density housing is not inconsistent with this LPPF, however, given the location of this land within a Growth Area and the fact that it is surrounded by existing and future conventional residential development on three sides, the Panel considers there is a need to consider whether this zone and the allotment sizes proposed are in consistent the broader strategic directions for the area, taking into account the physical constraints of the land. This is consistent with Planning Practice Note 78 – Applying Residential Zones which states: Applying the residential zones should be underpinned by clearly expressed planning policies in the planning scheme. The State Planning Policy Framework (SPPF) and Local Planning Policy Framework (LPPF) in the planning scheme should be the starting point for deciding whether the council’s strategic objectives are still valid and sound, or whether new strategic work is
6 Clauses 7 Clause 21.03‐4
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required. Alternatively, a council may have undertaken relevant strategic planning for their residential areas. It also states that sound strategic planning for residential areas is essential to ensure that land use and development achieves the desired outcomes for an area and can ensure: use and development in residential areas fits into the overall strategic planning of the municipality housing development is consistent with the housing needs and housing strategies new housing demand, growth and diversity can be accommodated in identified areas housing growth may be restricted or moderated in identified areas new development respects and preserves existing neighbourhood character planning for residential areas takes into account matters such as access to infrastructure, transport, employment, commercial and community facilities, heritage and environmental constraints, and hazards such as bush re and contaminated land the most appropriate residential zone is used to achieve strategic planning objectives. The Panel notes there has been no strategic work that addresses any of these issues in relation to this land; and the Panel has not been presented with any information that assists it to clearly understand the environmental values and constraints associated with the land. The Panel therefore considers the proposed rezoning has not been based on a sound strategic approach. The Panel considers that if Council is seeking to add to or change the density of these rural‐ residential areas, then there is a need to do a strategic assessment of not only this land, but all of the LDRZ land which surrounds the Deep Creek Reserve (Oaktree Drive, Johanna Court and Fairway Court) to determine what role it will play in accommodating the future growth and housing diversity in the Shire. If it is found that the land is still to provide for low density residential development and existing densities, then the Panel considers that this should be clearly reflected in the LPPF. If not, then the Panel considers a more a co‐ordinated approach is required rather than dealing with this on a site‐by‐site basis. This work would also need to be undertaken in consultation with the landowners, as it is clear that there are different opinions about the future of this land. The Panel considers that this work would also need to consider what impact any future development of the land might have on the environmental values in the area and potential environmental constraints. In relation to the submissions relating to land supply, the Panel recognises this is not a substantial parcel of land within the overall context of the Growth Corridor. Therefore, the Panel does not consider that whether the land is developed for conventional or low density residential development is going to make a significant contribution housing supply overall. The Panel agrees with Ms Marshall that this is more an issue of housing diversity, which is a valid consideration.
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Proposed DDO1 The Panel notes the justification to extend this overlay to the west was to replicate the controls that exist on the existing LDRZ land to the east. Given the Panel has concluded that it is not appropriate to rezone this land to LDRZ at this time, it also considers it is not appropriate to extend this overlay. Proposed VPO1 In relation to the proposed application of the VPO1, the Panel notes Council again sought to extend the existing controls over the proposed LDRZ land. Whilst at there is some logic to that approach, the Panel considers there needs to be a demonstrable justification to extend the VPO1. The Panel was not presented with any information which demonstrated that the vegetation on this land is worthy of protection. Without such evidence, the Panel does not consider it appropriate to extend this control on the assumption that the land has significant vegetation. The Panel does not consider it appropriate to apply an additional level of control over land, unless there is a specific and identified need to do so. For this reason, the Panel does not support the extension of the VPO1. 3.2.4 Conclusions The Panel concludes that the proposed rezoning to LDRZ and the application of both the VPO1 and DDO1 are not strategically justified and therefore are not supported. 3.3 Reduction on the minimum lot size within the LDRZ 3.3.1 Issue Should the minimum lot size within the LDRZ be reduced from 0.4 to 0.2 hectares? 3.3.2 Submission J and C Sauze (Submission 1) supported the proposed reduction in lot size on the condition that their land could also be subdivided to 0.2 hectares lots. They submitted that given their land is located 400 metres away from the Pakenham East Precinct which will include land within a Residential 1 Zone and the configuration of their allotment and the location of existing buildings, that they too could accommodate a 0.2 hectare lot with direct road access without the need to create battle‐axe lot. On that basis, they submitted their site is ideally suited for subdivision down to 0.2 hectares and should be included in the Amendment. K and J Kooloos (Submissions 4, 4A & 4B) objected to the proposed 0.2 hectares lot size because it would have a significant impact on existing uninterrupted views directly over the road reserve to the golf course. At the same time, they submitted the whole Oaktree Drive subdivision should be included in the Amendment to enable subdivision down to 0.2 hectares because: The Oaktree Drive subdivision abuts conventional residential development along its western boundary The attributes of the subject land are also shared by the Oaktree Drive subdivision Oaktree Drive properties are already serviced including sewer, water, stormwater and gas Smaller lots would be consistent with the principles of urban consolidation
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The Oaktree Drive subdivision is an anomaly given the nature of more recent subdivision/development There is no reason why it shouldn’t be. M Richmond and P Abdallah (Submission 2) objected to the inclusion of both golf course land and the Johanna Court/Ryans Road land within the LDRZ3 on the basis that the surrounding LDRZ has 0.4 hectare minimum lot size and the proposed rezoning should reflect the existing zoning. They submitted that to allow smaller allotments would change the country atmosphere of the area and that there are not many locations where residents can purchase a ‘decent’ block and consider their location is “one of the last bastions.” They also submitted they are being zoned out in order to gain extra revenue from rates on the multitude of properties that would be create on the proposed rezoned land. Reeds Consulting, on behalf of Sharlin Pty Ltd (Submission 8A) objected to the proposed Amendment to reduce the minimum lot size to 0.2 hectare on the basis that the area is designated for residential growth in the strategic framework plan, and allowing for 0.2 hectares will not facilitate a higher density of residential development envisaged. It was submitted that the vision would be compromise in the following ways: Would not result in a net benefit for the community through failing to support the economic and social viability of surrounding centres and reserves Not provide for a growth in population which would support the public infrastructure in the area Would not have a net community gain due to not allowing the growth in population to support the adjacent commercial and employment areas, in particular the employment corridor to the south and activities centres in proximity to the site. It was also submitted that with population increases expected in the growth area, subdivision of their client’s land into 0.1 hectares lots would assist in accommodating that growth. Ms Marshall submitted that the strategic review undertaken by Council as part of C188 concluded that the application of a 0.2 hectare lot size should be supported where the land: has access to reticulated services had not yet been subdivided/developed for existing low density residential at 4,000 square metres, and therefore an established residential character has not yet been established; and where the land is not affected by significant environmental or topographical constraints. and that the 0.4 hectare lot size would be appropriate where land was: bushfire prone located within an area of environmental significance impacted by steep topography flood prone contained within an area with an existing neighbourhood character; or
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contained within an area where further subdivision of the land would result in a significant number of battle axe shaped blocks. An approach which Ms Marshall submitted was supported by the C188 Panel. For these reasons, she submitted that the inclusion of the Council land, Ryans Road and Johanna Court land is appropriate to be included in LDRZ3 (0.2 hectare) because: the lots have access to reticulated services (or could connect to these services in the future); with the exception of 5 Johanna Court, the lots have not been subdivided/developed for existing low density residential at 4,000 square metres. The lots are generally 10,000 square metres or more in size. Several lots are vacant, therefore a residential character of 4,000 square metres has not yet been established for this particular area. Council has prepared a number of concept subdivision plans for lots of both 2,900 square metres and 4,000 square metre in order to demonstrate the possible subdivision layout of the area; given the size and configuration of the lots, it is unlikely that any further subdivision of the lots will result in a significant number of battle axe shaped blocks; the lots are not affected by any significant environmental or topographical constraints; and the lots are not affected by a significant landscape overlay, floodway overlay, land subject to inundation overlay, or bushfire overlay. 3.3.3 Discussion The Panel notes the purpose of C188 was to make changes to the LDRZ where Council considers increased densities can be supported, and to retain the original 0.4 hectare minimum lot size in areas where it could not. Amendment C188 was prepared in response to the revised residential zones which reduced the minimum lot size for the LDRZ from 0.4 hectares to 0.2 hectares. The Minister agreed to maintain the existing 0.4 ha lot size as an interim measure pending a strategic review by Council of its low density residential areas. Having completed this work, Council prepared Amendment C188, which sought to retain the existing 0.4 hectare minimum lot size for the privately owned land affected by this Amendment. This Amendment was recently approved by the Minister retaining its 0.4 hectare minimum lot size. The Panel notes that no additional strategic work has been undertaken by Council since Amendment C188 which has recommended an alternate approach. The Panel has therefore reviewed the strategic work undertaken to support C188, the Panel Report and Council submission to the Panel, as these provide the only insights available on the strategic directions identified by Council in relation to this and the surrounding LDRZ land.
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The Panel notes that the strategic review8, identified that: In relation to the Low Density Residential Zone Council stated in its submission to the committee that these properties are generally located on the periphery of our townships and still support a high cover of native vegetation, particularly large old trees. This vegetation provides habitat for a range of local fauna species some of which are listed under both the Environmental Protection and Biodiversity Conservation Act (1999) and the Flora and Fauna Guarantee Act (1988). Allowing further subdivision of Low Density Residential properties which are sewered to 0.2ha will inevitably lead to a large loss of native vegetation and will diminish the “leafy” rural character of our townships. The Low Density Residential zoned properties in our Shire have a high risk of bushfires due to their topography and high vegetation cover. We are concerned that such small blocks may not be able to meet the defendable space requirements of the Bushfire Management Overlay. We also question whether increasing the number of dwellings in high bushfire risk area is compatible with recommendation 39 and 40 of the Royal Bushfire Commission which urges a substantial restriction of development and subdivision in bushfire prone areas. Many of these fire prone areas have small winding residential streets that cannot safely support large volumes of traffic needed to evacuate people in the event of a bushfire. The work identified that the privately owned land affected by this Amendment should retain its 0.4 hectare minimum lot size. It is clear from the Council submission to the Panel considering Amendment C188, that in undertaking this review, Council considered not only land affected by this Amendment but also the surrounding LDRZ land in Oaktree Drive and Fairway Court and made the following submissions to the Panel: … A minimum lot size of 0.4 hectares square metres will be retained for land within the urban growth corridor that is currently zoned LDRZ as it is considered that further strategic work will be required to ensure that ad hoc development does not detrimentally impact upon the functionality and character of these areas. Many of the lots within the growth corridor and within some township areas are developed with substantial dwellings that have only been constructed in recent years. Further subdivision of the land would result in multiple battle axe blocks and impacts on the road network if further subdivision was to occur in an uncontrolled manner and therefore requires further strategic investigation. … It also stated that Amendment C188 supports the LPPF, as:
8 Review of the Low Density Residential Zone – Council Briefing – 21 July 2014
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It supports the protection of existing township character through maintaining the majority of lots in the Low Density Residential Zone at the existing densities and applying the Design Development Overlay Schedule 1 to ensure that setbacks are consistent with existing setbacks within the townships. Ensuring the protection of significant vegetation through the application of the Vegetation Protection Overlay Schedule 1 and where appropriate, the maintenance of the Environmental Significance Overlay Schedule 1. Council also submitted that it had considered a number of submissions from owners of land within Ryans Road (affected by this Amendment) and the other surrounding LDRZ areas seeking a reduction in the minimum lot size from 0.4 hectares to 0.2 hectares, and the position adopted by Council in response to these submissions was: Not supported by Council at this point in time for the following reason: Council officers consider that an overall plan for the development of this area is required to ensure that ad hoc development does not result in poor outcomes and prejudice future development of this area in a controlled manner. In response to submissions from submitters from the Ryans Road, Johanna Court and Fairway Court area, the Council submitted to the Panel that: Council Officers consider that the Ryan Road area has the same issues as the Meeking Drive area. Some areas have been subject to a number of subdivision applications in the past. This has led to the creation of a number of battle‐axe blocks which is not ideal from an access or amenity point of view. Council officers consider that an overall plan for the development of this area is required to ensure that ad hoc development does not result in poor outcomes and prejudice future development of this area in a controlled manner.9 The comments in relation to Meeking Drive were: The land in the Meeking Drive area is located within the growth corridor, which indicates that it is suitable for further subdivision. However the land is part of a Low Density Residential Zone area which includes Meeking Drive and has been subject to a number of subdivision applications in the past. This subdivision of this area has led to the creation of a number of battle‐axe blocks which are not ideal from an access or amenity point of view. Council officers consider that an overall plan for the development of this area is required to ensure that ad hoc development does not occur resulting in poor outcomes and prejudicing future development of this area. An overall plan would ensure that development occurs in a controlled manner.10 It was acknowledged that the overlay controls assist with specific aspects of development, but will not ensure an overall coordinated approach to further subdivision.
9 p25 10 p26
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This position was supported by the Amendment C188 Panel in December 2015 when it stated: The Panel recognises the subject areas in Pakenham are substantially developed at the existing LDRZ density, namely 0.4 hectare lot sizes, and there are limited development opportunities for further greenfield subdivision in these estates. The Panel agrees with Council that the areas have an established urban character and further development at a 0.2 hectare lot size would potentially result in significant adverse amenity impacts that would be potentially opposed by many of the existing land owners in the estates. Further, the Panel accept that Council’s advice that if further subdivision were to be approved it would be essential to coordinate the development outcome. The Panel notes that such a coordination could be facilitated via the application of a Development Plan Overlay. The Panel concludes that it supports the application of the LDRZ2 to Pakenham’s established low density residential areas as exhibited. … Should demand be expressed by a large number of land owners for a review of this position, the Panel supports Council’s suggestion that such an outcome should be coordinated by the preparation of a comprehensive and coordinated development plan on an estate basis with the opportunity being afforded to all landowners to participate. Amendment C188 was approved by the Minister on 27 October 2016. The Panel considers the issue of density was fully and properly considered by the Amendment C188 Panel and the Panel supports and reinforces these findings. This Panel has not been presented with any submissions or evidence that suggest that the position adopted by Council in 2014, presented to and supported by the Panel in December 2015 and ultimately approved by the Minister in 2016 is no longer appropriate; and conversely that the 0.2 hectare minimum lot size is appropriate and why. Whilst Council provided a schematic subdivision layout demonstrating how a 0.2 hectare subdivision could be undertaken over the entire area affected by the Amendment, the Panel notes this Amendment does not seek to introduce a Development Plan Overlay to facilitate this. It was submitted as an illustration only. Therefore, it is most likely that any future subdivision of this land would be considered on an adhoc basis, and ultimately not be undertaken in a coordinated manner. The Panel is concerned that to make one‐off decisions about only part of this land without a clear strategic approach could compromise any future development potential of this land, would not be undertaken in a co‐ordinated manner and therefore would not lead to orderly and proper planning. Before any changes are proposed to minimum lots sizes, the Panel considers that further strategic work is required to review the future of role of land within this and the other LDRZ. Any future strategic work would need to consider what role this land would play in meeting
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Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017 future housing demand and diversity; as well as how it integrates with surrounding and existing residential areas, environmental values and constraints, neighbourhood character, as well as meeting the community’s expectations. The Panel agrees with Council position and supported by the Panel in relation to C188, that if any further provision of LDRZ land or a reduction in the minimum lot is to occur, then there is a need to undertake this on a strategic basis. In saying this, the Panel is not expressing an opinion about whether the LDRZ should be retained or what the minimum lot size should be, as this should be determined based on the physical characteristics of the site/area, what development has already occurred, environmental values and constraints, bushfire management etc in consultation with the landowners. This information was not presented to this Panel. The Panel does, however, consider that reduce the minimum lot sizes without undertaking this work would be premature and inappropriate. 3.3.4 Conclusion The Panel therefore concludes that a change to the minimum lot sizes is not strategically justified and supported at this time and that further strategic work is required, in consultation with the landowners, before any further amendments are proposed. 3.4 Rezoning of the Oaktree Drive from RDZ2 to PPRZ 3.4.1 Issues Whether Oaktree Drive should be rezoned from RDZ2 to PPRZ? 3.4.2 Submissions Whilst not objecting to the Amendment/Application, D and K Jackson (Submitter 3) questioned why the Amendment seeks to include part of Oaktree Drive within a PPRZ and whether it will create any disadvantage for the residents along Oaktree Drive in terms of legal access. They also submitted that Oaktree Drive has long been identified as a bypass route around the Pakenham township and questioned why it is being rezoned from RDZ2 to PPRZ. K and J Kooloos (Submission 4, 4A & 4B) raised concern about the condition of Oaktree Drive and its ability to accommodate additional traffic associated with any future development. Ms Marshall submitted that Oaktree Drive is no longer intended to be a by‐pass for Pakenham and therefore it is appropriate to downgrade the status of the road. She also submitted it is necessary to rezone the land because the RDZ2 not only affects the existing road, but also a large grassed strip along the road, adjacent to the golf course which is to be redeveloped in accordance with the Master Plan for open space. She confirmed the proposed rezoning does not affect any privately‐owned property fronting Oaktree Drive, but acknowledged the zoning map has a second line along the western side of Oaktree Drive which gives the impression that it does and acknowledged this should be address to avoid confusion.
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3.5 Discussion The Panel could find no reference to Oaktree Drive being identified as a future by‐pass for Pakenham in the Planning Scheme and Mr Jackson did not provide any references that it was, rather relying on the 1974 Outline Development Plan which has been superseded. The Panel therefore agrees with Ms Marshall’s submission that as Oaktree Drive is no longer intended to perform a by‐pass function for Pakenham, it is appropriate to reflect this in the planning scheme. The Panel also agrees with Council that the zoning map should be altered to make clear that the extension of the PPRZ does affect privately owned land and is to be limited to the road reserve only. The alignment and condition of Oaktree Drive is not an issue relevant to this Amendment/Application and should be addressed directly with Council. 3.6 Conclusion The Panel concludes that it is appropriate for Oaktree Drive to be rezoned from RDZ2 to PPRZ, but that the mapping should be corrected to ensure that the PPRZ does not extend to include private property fronting Oaktree Drive.
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4 The proposed subdivision and permit conditions
4.1 The issues Whether the proposed subdivision (realignment of the title boundaries) and conditions on the permit are appropriate? 4.2 Submissions Reeds Consulting, on behalf of Sharlin Pty Ltd objected to the proposed boundary realignment on the basis that it is not consistent with subdivision layout agreed between Sharlin Pty Ltd and Council; and would render their clients land undevelopable due to the irregular parcel being created. D and K Jackson (Submitter 3) questioned why that the proposed plan of subdivision does not show the measurements or bearings for the proposed boundary between the two new lots to be created, and submitted this should be addressed. K and J Kooloos (Submission 4, 4A & 4B) raised concern about the condition of the road at the intersection of the Princes Highway and Oaktree Drive and submitted that any subdivision should be conditional upon: The width of the northern sector of Oaktree Drive, where there will be additional subdivision, be widened by at least one metre and that the pavement have concrete kerbing AND Oaktree Drive be straightened so it becomes part of the existing signalised intersection at Princes Highway, opposite Windermere Boulevard. They also submitted that the future layout of the intended subdivision and internal road layout, particularly for the southern section of the Amendment should be shown and form part of the Amendment to provide absolute certainty for future residents. In its submission, South‐East Water (Submitter 13) consented to the grant of a permit subject to the following conditions: The owner of the subject land must enter into an agreement with South East Water for the provision of sewerage and fulfil all requirements to it’s satisfaction. The owner of the subject land must enter into an agreement with South East Water for the provision of potable water supply and fulfil all requirement to its satisfaction. Prior to the certification, the Plan of Subdivision must be referred to South East Water, in accordance with Section 8 of the Subdivision Act 1988. The certified Plan of Subdivision will need to show sewerage supply/water supply easements over all existing and/or proposed South East Water sewer/mains located within the land, to be in favour of South east water Corporation pursuant to Section 12(1) of the Subdivision Act. Ms Marshall submitted that the realignment of the title boundary is based on the land which has been deemed surplus by Council, has an appropriate configuration and is of sufficient
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Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017 area to enable the subdivision of the land into 0.2 hectare lots in its own right, irrespective of any potential redevelopment of the Sharlin Group land to the east. Ms Marshall also submitted that Council had no objection to amending the permit to address the issues raised by Mr Jackson and to include the conditions specified by South‐ Water. 4.3 Discussion The Panel considers there are two questions, firstly, whether the proposed realignment of the title boundaries is appropriate and secondly, whether the proposed conditions on the permit are appropriate. Proposed boundary realignment As discussed in Chapter 4, the Panel has already concluded there is no strategic justification to set a minimum lot size of 0.2 hectares for this land or the LDRZ land to the east. Whether the appropriate minimum lot size is conventional residential lots, 0.1, 0.2 or 0.4 hectares is a matter that requires further investigation and strategic work which has been recommended by the Panel. On that basis, the Panel considers it would be premature to realign the title boundaries and create an allotment in order to facilitate the subdivision of this land into 0.2 hectare allotments, particularly given the irregular shape of the allotment. To do so would be contrary to local policy, provisions and a PPN which seek to ensure that rural residential land and subdivision does not compromise future development of land,11, and ultimately an objective of planning which seeks to “provide for the … orderly … development of land”. Having said that, even if the Panel accepted Council’s submission that 0.2 hectares is the appropriate minimum lot size, there appears to have been insufficient analysis of the opportunities and constraints associated with this land to enable this Panel to determine whether the subdivision as proposed is appropriate or not. The only information provided in support of the Application relating to the realignment of the title boundaries was the proposed plan of subdivision. As outlined in Chapter 2, there is a significant amount of local policy12 and planning scheme provisions13 which guide not only what information should be submitted with applications for subdivisions (including realignments of title boundaries), but also the range of issues that must be considered when assessing applications. This includes a site analysis, vegetation cover and how the proposed subdivision relates to the existing or likely use and development of adjoining and nearby land, and the relationship with the surrounding land, as well as building envelopes. As this is a staged subdivision (with further subdivision required to create the proposed smaller lots) how the balance of the land may be subdivided, amongst others. This information that should be provided with any application to subdivide land, whether it be private or Council owned land, has not been provided to enable this Panel to make an informed decision. Of particular concern to the Panel are the potential impacts of subdivision and future development on significant environmental values and drainage. Based on submissions to
11 Clause 21.03‐2, Clause 65 and PPN37 12 Clause 21.03‐2 13 Clauses 32.03‐3, 43.02‐3, 65 and 93.01
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Cardinia Planning Scheme Amendment C209 and Planning Permit Application No P1502 Panel Report 9 January 2017 this Amendment and the Panel Report for C66, the Panel is aware this area is known to provide significant habitat for a number of floral and faunal species, most notably the Growling Grass Frog (which the Panel understands is listed in as ‘Vulnerable’ under the EPBC Act), however, no information or evidence was provided about whether this land forms part of this habitat and what the likely impact of the subdivision and any future development might be. The Council clearly acknowledges that there is significant vegetation that needs to be protected, as it seeks to introduce a VPO1 over this land. Similarly, drainage issues were identified as significant issues, however, there was no information presented to the Panel that demonstrates that any drainage issues can be properly dealt with through this and any subsequent re‐subdivision of the land. The Panel raised this issue at the Hearing and in response Council provided a range of additional information including Flora and Fauna Assessment and Biodiversity Offset Analysis for Deep Creek Reserve, Pakenham (2014) and Deep Creek, Pakenham, Wetland Concept Design Report (2016). However, having reviewed this information none of it appears to relate to the subject land. Council also provided a copy of a letter referring the Amendment/Application to the Minister for Environment, Climate Change and Water and advised that no response was received. Similarly, the Panel questioned how subdivision of this land would occur and how it would be integrated with the land to the east. In response, Council provided a concept plan for the subdivision showing how all of the lots affected by this Amendment could be subdivided into 0.2 hectare lots, however, none of the parties to Hearing had ever seen the plans and the Amendment does not include any planning tools that would ensure this would occur. The fact that this is a combined Application/Amendment which seeks the increase the development density in this area makes these issues even more relevant and without this information, it is not possible for the Panel to make an informed decision about whether the proposed realignment of the title boundaries is appropriate or not. It is clear that there is a need for more detail analysis of the areas site context, environmental conditions (values and constraints) and how the proposal will integrate with the surrounding development before any decisions are made about the subdivision of this land. Given the concerns the Panel has about the strategic justification for the proposed rezoning/lot sizes, the Panel considers the realignment of the title boundary as proposed may not facilitate the proper and orderly planning of the area. The Panel considers that further investigation and strategic work is required before any further rezoning/subdivision as proposed is undertaken. For these reasons, the Panel does not support the proposed subdivision and does not recommend that the permit be issued. Proposed Conditions The Panel notes Council’s support for Mr Jackson and South East Water's propose conditions and had it supported the proposed subdivision it would have recommended the permit be amended to address these issues and to include these conditions. The Panel would not have recommended that the permit be amended to address the road condition as raised by Mr Kooloos as this does not directly relate to this
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Amendment/Application and should be addressed with Council independent of this Amendment. 4.4 Conclusion The Panel concludes the proposed subdivision is not appropriate and a permit should not be granted.
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Appendix A Submitters to the Amendment
No. Submitter 1 J & C Sauze 2 P Abdallah & M Richmond 3 D E & K M Jackson 4 K & J Kooloos 5 J & D Sartori 6 D & J Hughes 7 Kenzie Park Pty Ltd 8 Reeds Consulting on behalf of Sharlin Pty Ltd 9 G Eyre 10 T & D Dineen 11 Country Fire Authority 12 Environment Protection Authority 13 South East Water
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