1 In application P768/2017 the decision of the responsible authority is affirmed. 2 In planning permit application 412/2016/05P no permit is granted.

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1 VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ADMINISTRATIVE DIVISION PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P768/2017 PERMIT APPLICATION NO. 412/2016/05P CATCHWORDS Nillumbik Planning Scheme; Application pursuant to Section 79 of the Planning and Environment Act 1987; Rural Conservation Zone 3 (RCZ3); Environmental Significance Overlay 1 (ESO1); Bushfire Management Overlay (BMO); Single dwelling with free-standing outbuilding (garage); Earthworks and vegetation removal; Impact on environmental and landscape values; Native vegetation removal and offsets; Defendable space; Green Wedge. APPLICANT RESPONSIBLE AUTHORITY REFERRAL AUTHORITY RESPONDENT SUBJECT LAND WHERE HELD BEFORE HEARING TYPE BT Walsh Nillumbik Shire Council Country Fire Authority - Headquarters Greg Johnson - President, Friends of Nillumbik Inc. 14 Barreenong Road COTTLES BRIDGE VIC 3099 Melbourne Peter Gaschk, Member Hearing DATE OF HEARING DATE OF INTERIM ORDER 10 October December 2017 DATE OF ORDER 16 March 2018 CITATION Wash v Nillumbik SC [2018] VCAT 415 ORDER 1 In application P768/2017 the decision of the responsible authority is affirmed. 2 In planning permit application 412/2016/05P no permit is granted. Peter Gaschk Member

2 APPEARANCES For applicant For responsible authority For referral authority For respondent Mr Andrew Natoli, Solicitor with Equipe Lawyers Pty Ltd. He called Mr Lincoln Kern, Ecological and Bushfire Consultant with Practical Ecology. Ms Eloise Gabrielle, Town Planner. Mr Stephen Foster, Land Use Planning Program Leader, Country Fire Authority. Mr Bill Lord (Member of the Friends of Nillumbik Inc.) appeared in person. VCAT Reference No. P768/2017 Page 2 of 21

3 INFORMATION Description of proposal Nature of proceeding Planning scheme Zone and overlays Permit requirements Relevant scheme policies and provisions To use and develop land for a double storey dwelling, outbuilding (garage) associated earthworks and removal of native vegetation. Application under section 79 of the Planning and Environment Act 1987 to review the failure to grant a permit within the prescribed time. 1 Nillumbik Planning Scheme (the Planning Scheme). Rural Conservation Zone, Schedule 3 (RCZ3). Environmental Significance Overlay, Schedule 1 (ESO1). Bushfire Management Overlay (BMO). Clause (Table of Uses - Permit required for a dwelling - subject to requirements contained in Clause ). Clause (Construct or carry out a building or works associated with a use in Section 2 of Clause ). Clause (Construct a building or construct or carry out works and remove, destroy or lop any vegetation). Clause (Construct a building or construct or carry out works associated with the use - Accommodation). 2 Clause (Remove, destroy or lop native vegetation lot exceeding 0.4ha). Clauses 10, 11, 12, 13, 16, 21.03, 21.04, 21.05, 22.04, 22.13, 52.17, and 57. Clause 65 also applies. 1 2 Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision. Clause of the Planning Scheme also applies to an application under Clause (Bushfire Management Overlay). VCAT Reference No. P768/2017 Page 3 of 21

4 Land description The review site is located on the northern side of Barreenong Road, approximately 145m southeast of the intersection of Cottlesbridge-Strathewen Road and Mine Road/Hildebrand Road. The site has an area of approximately 0.76ha (triangular shaped with dimensions of 235m by 152m by 118m). The land is vacant and fenced around its perimeter by post rail and wire (some sections in various state of disrepair). The site is covered with a range of immature and mature trees and understorey planting including remnant and some exotic vegetation. It is located on a northwest slope that varies between 13 and 15 degrees. The slope descends down to a vegetated gully and watercourse that has intermittent flows. Vehicle access is currently gained via an existing gravel crossover located at the intersection of Cottlesbridge-Strathewen Road and Mine Road/Hildebrand Road (east of the review site). A dirt access track branches off the existing crossover and leads to the southeast corner of the review site. To the east of the site is No. 10 Barreenong Road, with a single detached dwelling and outbuildings located to the north and west. This property also shares one of two existing dams located along the common eastern boundary of the review site. 3 Land adjoining the review site to the west forms part of an approved 5-lot subdivision on land known as No. 142 Barreenong Road. 4 Nos. 5 and 25 Barreenong Road opposite the review site, include single detached dwellings set back some distance from the road. Both lots are heavily vegetated. Further north, west and south of the review site includes larger areas of contiguous forested areas associated with Kinglake National Park. 3 The council advised that one of the dams closest to Barreenong Road straddles the common title boundary with the adjoining property at No. 10 Barreenong Road, Cottles Bridge which appears to be a legacy of the review site separated via title from the adjoining property at 10 Barreenong Road. VCAT Reference No. P768/2017 Page 4 of 21

5 Tribunal inspection I undertook an unaccompanied inspection of the review site and the general locality on 4 October Key Cases Referred To Geer v Nillumbik SC [2005] VCAT 1612 Orchard v Nillumbik SC [2008] VCAT 720 Beaton v Nillumbik SC [2013] VCAT Weingartner v Nillumbik SC [2016] VCAT Each of these lots has a designated building envelope to accommodate a detached dwelling and outbuilding, together with the balance of each lot set aside for the retention of native bushland under a Trust for Nature covenant. Lot sizes range between 8.0ha (lots 1-4) to just over 10.0ha in area for lot 5. VCAT Reference No. P768/2017 Page 5 of 21

6 REASONS 5 WHAT IS THIS PROCEEDING ABOUT? 1 This proceeding involves a Section 79 review under the Planning and Environment Act 1987 (the Act) by the applicant against the council s failure to grant a permit within the prescribed time under the Act. The proposal is to construct a double storey, three bedroom dwelling with detached double car garage and vegetation removal. The site is a vacant triangular shaped lot located at No. 14 Barreenong Road, Cottlesbridge. 2 The site is included in the Rural Conservation Zone, Schedule 3 (RCZ3). A number of overlays also apply over the land including the Environmental Significance Overlay, Schedule 1 (ESO1) and Bushfire Management Overlay (BMO). Proposed native vegetation removal associated with the dwelling construction also triggers a permit application under clause The land is also within the Metropolitan Green Wedge Land area and accordingly clause 57 also applies to any development proposal. The grounds of the parties 3 The council refused the application on a number of specific grounds that are summarised below: Dwelling on a substandard sized lot under RCZ3. State and Local Planning Policy Framework (SPPF & LPPF) objectives including clause Green Wedges, clause Vision Strategic Framework and clauses & 2 - Settlement and Housing and Rural Land Use. Failure to adequately address bushfire protection - clause Excessive vegetation removal contrary to clause objectives. Contrary to orderly planning of the area. 4 Friends of Nillumbik Incorporated (the Friends Group) have also lodged an objection to the proposal. The Friends Group says the proposal is not consistent with the Nillumbik Green Wedge Management Plan and provisions of the RCZ. It supports the council and says the review site is undersized and the proposal will result in excessive loss of significant native vegetation. It says the overall scale of the proposed development in this location is unacceptable. 5 The Country Fire Authority (CFA) in its role as referral authority under section 55 of the Planning and Environment Act, 1987, identifies the site is located within an area of high bushfire risk. It recommends that the 5 The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons. VCAT Reference No. P768/2017 Page 6 of 21

7 Tribunal apply a precautionary approach to any new development. Nevertheless it does not object to the proposal, subject to the inclusion of detailed conditions addressing bushfire protection and ongoing fire management measures. 6 The applicant says the proposal represents an overall net community benefit to the area. He submits the siting of the dwelling is appropriate and the design of the proposed dwelling is of high architectural merit. He says that landscape and environmental values have been considered and addressed through a proposed Environmental Management Plan. Vegetation offsets have also been addressed and approved by the Department of Environment Land Water and Planning (DELWP). The applicant also considers that an appropriate precautionary approach has been undertaken to address bushfire risks that have been supported by the CFA. This includes a Bushfire Management Plan (BMP). What is proposed 7 The proposed dwelling will be located in the southeastern portion of the site, closest to the Barreenong Road frontage. The built form will have a modern architectural style with a simple cross shaped layout extending in the direction of compass points, flat roof profile with lengths of unbroken wall, treated with fenestration and wall cladding. The dwelling will include the northern section of the ground floor cantilevered over the lower ground floor. 8 Approximately 160 cubic metres of site cut is proposed for the dwelling, garage, fire bunker and circular drive with approximately 15 cubic metres of fill added along front side sections of the dwelling at ground level. The cut and fill construction technique will require use of local stone or rust panelling retaining walls across the slope of the land. Overall building height is contained to 6m. 9 Dwelling setbacks include 11.5m (eastern boundary), 11.1m (southern boundary - Barreenong Road frontage) and approximately 36m to the northwestern boundary. A stand-alone double garage will be located southwest of the proposed dwelling, approximately 10.8m from Barreenong Road. 10 A bushfire shelter in the form of a fire bunker will also be located south of the dwelling approximately 4.2m from Barreenong Road. A new 3.5m wide crushed rock semi circular driveway is proposed from the site s southeastern corner. This new accessway will have a gradient of 1:8. 11 The site does not have reticulated water or sewerage services available so a septic tank system and effluent disposal field of some 550sqm is proposed to the west of the new dwelling. VCAT Reference No. P768/2017 Page 7 of 21

8 12 A dedicated CFA fire-fighting tank will be located east of the dwelling with a domestic water tank west of the dwelling to the rear of the freestanding garage. An additional water tank will also be placed northwest of the dwelling along the site s western boundary. 13 The proposal includes the removal of some 0.38ha 6 of remnant native vegetation. An offset and Land Management Plan proposes an area generally west of the dwelling where vegetation and habitat will be managed for conservation purposes. This amounts to some 0.14ha in area, with the remaining offset requirement to be sourced off-site. 14 As part of the BMP the design response also incorporates a number of features to mitigate bushfire risks including: Non-combustible sliding louvre shutters in addition to glazed elements. Glazed elements are lifted above ground level to reduce ground transference of flames. Building cladding and retaining walls constructed from noncombustible metal cladding or locally sourced rocks. Masonry construction, low roof pitch of dwelling and garage. All water collected from roofed areas to be stored in dedicated fire fighting tanks. Lower ground floor to be banked/cut into site to maximise fire resistance with natural earth. Fire bunker with additional people capacity. PROCEDURAL ISSUES AND RULINGS Amendment VC At the commencement of the proceeding I sought confirmation from the parties whether impacts (if any) arising from VC132 (adopted 19 September 2017) on the proposed development would be addressed within written submissions. I noted that VC132 was a general amendment that made a number of administrative corrections and other changes to the Victoria Planning Provisions (VPP) following council s assessment of the proposal. The amendment also introduced references to the Bushfire Prone Area Mapping via clause 13 in the SPPF, as well as amending the BMO provisions to include a Statement of Bushfire Management objectives and corresponding changes to clause (Planning for a Bushfire). 6 The applicant s expert witness statement indicates not all of the 0.38ha would be completely cleared with some tree canopy and ground-storey vegetation retained. Up to 70 trees overall will be removed from the site as part of the development and effluent disposal system. VCAT Reference No. P768/2017 Page 8 of 21

9 16 All parties advised they had considered this amendment in their respective submissions. Parties generally considered the amendment did not alter their original positions on the development proposal. Amendments VC138 & Following completion of the hearing VC138 and VC140 were also adopted and gazetted by the State Government on 12 December These amendments addressed bushfire and native vegetation planning provisions that apply over the review site, including changes/additions to clauses (Integrated Decision Making), clause 12 (Environmental and Landscape Values), clause 13 (Environmental Risks) the RCZ, ESO1 and clause (Native Vegetation). 18 I ordered all parties (should they so desire) to prepare and circulate an addendum to their submissions/evidence provided at the hearing, containing their opinion as to the effect (if any) of these amendments on this matter. 19 All parties apart from the Friends Group provided additional written submissions to the Tribunal. The parties were also invited to comment on these addendums and to make further submissions as to the implications of the amendments Two initial points arise from these particular amendments in respect to the development proposal on the review site. 21 Firstly the Bushfire Management Statement (BMS) that accompanied the permit application in my view still remains relevant. I note all parties either acknowledged or referenced the BMS in their additional submissions on this matter. 22 The second point arises from VC140. I consider this particular amendment added some important distinctions to State planning policy in terms of planning for bushfire risk to human life. In my view greater emphasis is now placed on prioritising the protection of human life. This is evidenced in clause that states the following objective: Party submissions To strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life 23 I summarise the supplementary submissions from the parties below. 7 I also note that VC142 gazetted on 16 January 2018 amended clause of the SPPF to relocate a biodiversity strategy reference and remove the words 'high value' from that reference consistent with changes introduced by Amendment VC138. However, as this amendment enacted changes arising from VC138 & 140, it was not necessary to seek further submissions from the parties on this particular matter. VCAT Reference No. P768/2017 Page 9 of 21

10 24 Council says: The review site remains in a high-risk pathway in the new Guidelines introduced under VC138. The strategic biodiversity value of the vegetation on the review site increases from 0.4 to 0.6 under the Guidelines. (The applicant does not dispute this but says a more detailed on-site assessment was presented to the Tribunal during the proceedings and this should be considered and relied upon). Amendments under VC140 have strengthened the policy alignment between clause 13.05, the BMO and clause to further prioritise the protection of human life from any bushfire impact. The extent of vegetation removal on the review site to achieve defendable space and prioritise protection of human life is not consistent with new policy strategies now included in clause The council submits the amendment changes reinforce its concerns that future landowners may not be able to manage defendable space to an acceptable standard and minimise bushfire risk. 26 The CFA says that changes under VC140 make it clearer that the protection of human life must be prioritised over all other policy. It also acknowledges that clause requires further consideration of high biodiversity values of an area and where this is substantiated, development is to be avoided. However the authority submits the Tribunal must firstly determine if the review site is in an area of high bio-diversity value. If the Tribunal so finds, it must then determine if the proposed native vegetation removal required for defendable space is acceptable. 27 The applicant continues to rely on the expert evidence of Mr Kern. Mr Kern has undertaken a further assessment on the impacts of VC138 and VC140. This written assessment is on the Tribunal s records. I have summarised what I consider to be the essence of Mr Kern s supplementary evidence statement. He says: Changes to clauses 52.17, and are not relevant, as significant ecological values were not initially identified on the review site by his detailed bio-diversity evaluation. The design response has sought to minimise native vegetation removal, acknowledging that many other development proposals he has assessed in similar physical settings, has resulted in greater loss of native vegetation. A higher bio-diversity value (he says up to 0.8) may result under VC138. However he says a detailed and more specific vegetation assessment was provided to the Tribunal during the hearing and this should be relied upon. VCAT Reference No. P768/2017 Page 10 of 21

11 The amendments do not change the assessment methods to provide defendable space on the review site. If approved, this dwelling would the fourth in a small cluster in this locality that would effectively share defendable space. In Mr Kern s assessment this would add to the overall fire safety of existing properties as sought under the respective amendments. 28 The applicant says that Mr Kern s updated evidence statement generally accords with the findings of the CFA. The applicant submits that the amendments do not raise any new issues for the proceeding before the Tribunal. As a consequence, the Tribunal should give little weight to council s further submissions on the matter. 29 I conclude from these additional submissions that the parties effectively maintain their positions as put in original submissions. 30 I have considered these additional submissions and the updated evidence statement from Mr Kern in my decision that follows. WHAT ARE THE KEY ISSUES? 31 Having considered the extensive range of State and Local Panning Policies that apply to the review site, submissions and evidence from the parties and my site inspection, I find the key issues I need to address in this application are: Is the proposal consistent with development expectations within the purposes and decision guidelines of the Rural Conservation Zone and Green Wedge? Is the extent of native vegetation removal and associated site works acceptable? Are the risks from bushfire satisfactorily managed? 32 For the following reasons I have concluded that the proposal would not be acceptable; particularly when considered against the relevant zone purposes and associated State and Local Planning Policy Frameworks. I am concerned that the small physical size and setting of the review site in this Green Wedge area makes it a poor candidate for the development of a dwelling as proposed, particularly when associated with the extent of vegetation removal and site works, including those required to maintain defendable space for bushfire management and protection. I therefore affirm the council s decision and direct that no permit issue. VCAT Reference No. P768/2017 Page 11 of 21

12 CONSIDERATION OF THE KEY ISSUES Is the proposal consistent with development expectations within the purposes and decision guidelines of the Rural Conservation Zone and Green Wedge? 33 I consider the following zone purposes in the RCZ are particularly relevant to the proposal before me: To protect and enhance the natural environment and natural processes for their historic, archaeological and scientific interest, landscape, faunal habitat and cultural values. To protect and enhance natural resources and the biodiversity of the area. To encourage development and use of land which is consistent with sustainable land management and land capability practices, and which takes into account the conservation values and environmental sensitivity of the locality. 34 I also note a similar conservation emphasis exists in the strategic planning objective found in Schedule 3 of the RCZ that applies over the review site: To ensure land use changes do not have an adverse impact on the landscape or strategic environmental values of the land. 35 It is significant in my view that the RCZ is placed within the suite of rural zones under the Planning Scheme, not with the suite of residential based zones. There is therefore a clear and unambiguous planning emphasis in the zone purposes and decision guidelines on ensuring satisfactory environmental and landscape outcomes. I note similar findings were highlighted by Member Bennett (as he then was) and Member Carew in their respective decisions in Weingartner v Nillumbik SC [2016] VCAT 1359 and Beaton v Nillumbik SC [2013] VCAT In my view responsible authorities are required to keep this planning focus at the forefront of their decision-making responsibilities in the zone. 37 This is not to say that other land uses cannot be considered in the RCZ3. The schedule objective stated above clearly anticipates that permit required land uses can occur in the zone. However this land use must be able to demonstrate that the core purposes of the zone are satisfied. In my view this means the land use must result in an acceptable outcome with respect to the conservation, environmental or landscape values of the particular area. 38 The table of land uses at clause also provide for a range of uses for which a planning permit can be granted in the RCZ by the responsible authority. This includes a dwelling which also has conditions attached addressing only one dwelling can be constructed on the lot and meeting requirements particular to dwellings under clause See for example paragraph 25, Weingartner v Nillumbik SC [2016] VCAT 1359 and paragraphs 13 and 14, Beaton v Nillumbik SC [2013] VCAT VCAT Reference No. P768/2017 Page 12 of 21

13 39 The applicant says that local planning policy and zoning provisions do not discourage or prevent the development of smaller lots for the purposes of a dwelling in the RCZ. The applicant disputes submissions from the council and the Friends Group, that asserts the review site is substandard or an undersized lot because it fails to meet the minimum 8.0ha lot size required under the RCZ. The applicant says this proposition is misconceived as: All proposals to use land for a dwelling in the RCZ are subject to a permit, irrespective of the size of the land in question. 40 The applicant submits that the minimum lot size of 8.0ha specified in Schedule 3 to the RCZ, is simply a minimum lot size for the purposes of determining a planning permit application for the subdivision of land I have already referred to the matters that need to be considered in the zone for the development of a dwelling under clause These include: Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles. The dwelling must be connected to a reticulated sewerage system or if not available, the waste water must be treated and retained on-site in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes. The dwelling must be connected to a reticulated electricity supply or have an alternative energy source. 42 A minimum 8.0ha lot size for dwellings within the zone is not included in this clause. As such I accept the applicant s submission that the zone provisions do not specifically mandate a minimum lot size of 8.0ha for a dwelling to be considered in the RCZ3. If an existing lot is below the 8.0ha subdivision requirement, this does not automatically mean the proposed dwelling fails to satisfy the planning tests set out under the RCZ. This must be tested against other relevant policy settings in the Planning Scheme. 43 I note the applicant pointed out in his submission that similar findings were made in Geer v Nillumbik SC [2005] VCAT However Member Dr S Mainwaring in this proceeding made an important observation in reaching this position. That was, that any proposal on an existing lot that was below the minimum subdivision size, would also have a net positive effect in environmental terms. 44 In this regard, I think the council and respondent s submission that the principal purposes of the RCZ3 seeks to conserve the identified landscape and environmental values of the review site and surrounds is correct. The council also says that rural residential land use is not an automatic 9 See clause and Schedule 3 of the RCZ. VCAT Reference No. P768/2017 Page 13 of 21

14 entitlement and all land uses are subordinate in some degree to the environmental values of the land. In my view environmental values need to be applied and considered irrespective of what the existing lot size may be. 45 I consider the RCZ zone purposes and Schedule Conservation Value are therefore extremely important and integral as to how any permit required land use is to be considered and assessed in the RCZ3. These purposes provide the strategic planning policy barometer or measuring stick for the assessment of this particular proposal. In my view this includes considering whether the size of the site is of sufficient size to enable the satisfactory conservation of the identified environmental and landscape values of the site and surrounds to be achieved. 46 It is also integral to the decision making process that the broader planning policy settings at both State and Local Planning Policy Frameworks are considered when assessing this proposal on the review site. It is not simply a matter of assessing whether the proposal can satisfy relevant provisions in the RCZ at clause that will determine whether a permit is to issue for this particular proposal. A holistic consideration of relevant State and Local Planning Policies must also be undertaken to determine the merits of this proposal in this particular location. 47 Council s grounds of refusal highlight some of the relevant State and Local level policies that need to be considered against this proposal. This includes clause in the SPPF (Green Wedges). 48 The review site is located outside the Urban Growth Boundary and is within a Green Wedge. 49 Clause seeks to protect the Green Wedges of Metropolitan Melbourne from inappropriate development. The following strategies are relevant to this matter: Support development in the green wedge that provides for environmental, economic and social benefits. Consolidate new residential development within existing settlements and in locations where planned services are available and green wedge area values can be protected. 50 Clause 57 (Metropolitan Green Wedge Land) also applies to all land outside an Urban Growth Boundary. The following objective that I consider is relevant to my assessment of this particular proposal: To protect metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, cultural heritage, conservation, landscape natural resource or recreation values. 51 In the same vein the following planning policies and strategies in the SPPF are also relevant to this matter including clause (Biodiversity), clause (Native Vegetation Management), clause (Environmentally VCAT Reference No. P768/2017 Page 14 of 21

15 Sensitive Areas), clause (Landscapes), clause (Bushfire) and clause (Rural Residential Development). 52 At a Local Policy level in the LPPF clause (Rural Residential Use) and clause (Environment, Conservation and Landscape) are both relevant. I note particularly at clause (Siting and Design Policy for Buildings and Works in Non Urban Areas) the following objectives are sought and relevant to this matter: To encourage the appropriate and respectful siting and design of dwellings and other buildings in rural areas to minimise landscape and habitat impacts, avoid erosion, areas liable to flooding and other off-site effects and best prepare for potential fire risk. To encourage appropriate and respectful works in rural areas to minimise landscape and habitat impacts, avoid erosion and mitigate threats posed by flooding and other off-site impacts. (Tribunal emphasis added) 53 This local policy also includes a range of specific strategies aimed at helping the assessment of built form impact arising from individual proposals on matters such as landscape and amenity, vegetation and habitat, earthworks and erosion, fire and flood, energy efficiency, drainage and effluent treatment. 54 In Weingartner (paragraph 28), Member Bennett provided a comprehensive and very useful overview of the key themes or directions sought for land within a Green Wedge. In that matter a similar set of zone, overlay controls and vegetation controls also applied, as they do to the review site that I am now considering. Given this is a relatively recent decision (2016) within the Nillumbik Green Wedge area and the matter involved the development of a single dwelling with associated garage, water tank and vegetation removal on a lot of 3.8ha. The themes and directions identified are apt to the matter before me and I have already noted recent Planning Scheme amendments that elevate bushfire considerations and modify native vegetation considerations. 55 Of particular relevance to the matter before me are the following statements from that decision: Green wedge land is to be protected from use and development that would diminish its environmental, conservation and landscape values. Residential development is to be contained within existing urban zones on land within the Urban Growth Boundary. Residential use within non-urban areas is discouraged. Development on small rural lots below the zone minimum is to be limited, unless exceptional circumstances exist. VCAT Reference No. P768/2017 Page 15 of 21

16 Continued development of dwellings in green wedge areas undermines the values and characteristics of the green wedge/non urban areas. Land use changes must not have an adverse effect on landscape or strategic environmental values of the land. (Tribunal emphasis added) 56 It is also significant that: The size of the review site (0.7ha) is significantly smaller than the site Member Bennett considered (3.8ha). Approximately 50% of the review site is proposed for some level of vegetation removal. 10 The review site is located in the North East Regional Organisation of Councils (NEROC) Site 69 (Pittle s Paddock), which is identified as having State faunal and high habitat significance. 11 The review site is under an ESO1 that recognises this Site designation and its surrounding area as being of a significant strategic habitat link. 12 The review site is under a BMO that requires a level of vegetation removal and ongoing management for defendable space for bushfire protection purposes The applicant says the review site should not be viewed as an isolated rural lot. He says the area is characterised by dwellings on smaller bush lots of between 1.6 and 3.7ha including: No. 5 Barreenong Road (3.7ha) No. 10 Barreenong Road (1.6ha) No. 25 Barreenong Road (3.7ha). 58 Site context is a relevant factor in this matter and my site inspection confirmed the area around the review site contains some existing dwellings on relatively small lots. (I say this in comparison to the minimum 8.0ha subdivision requirement). I was not advised when these dwellings were constructed and whether the planning controls in place now over the review site were the same when these particular dwellings were constructed Expert evidence for the applicant from Mr. L Kern from Practical Ecology states that most of the 0.3ha will not be completely cleared with much of the tree canopy and much groundstorey retained (see paragraph 3.4 of Mr Kern s Evidence Statement, dated 26 September 2017). Expert evidence from Mr Kern states the review site is significantly disturbed with only a few small patches of tussock grass Red Anther Wallaby Grass Joycea Pallida, and associated flora, located in the central portion of the lot (see Paragraph 6.3 of Mr Kern s Evidence Statement, dated 26 September 2017). As identified in Beardsell s Sites of Faunal and Habitat Significance in North East Melbourne [1997]. Under the BMP the dwelling will have a minimum bushfire attack level of BAL-40, requiring defendable space to distances close to or extending beyond property boundaries. VCAT Reference No. P768/2017 Page 16 of 21

17 59 However the review site at 0.7ha is still much smaller than these particular developed lots highlighted by the applicant. I also note approval has been given for a further 5 lots adjoining the north-western boundary of the review site, with lot sizes ranging from a minimum of 8.0ha up to 10.0ha. I was also not advised if there were any other remaining smaller vacant lots in the vicinity of the review site that could be developed for residential purposes. 60 I accept that dwellings can be considered and approved on smaller lots zoned RCZ3 that are located within a Green Wedge area. However, in this application, I have not been persuaded that a dwelling as proposed on a relatively small irregular shaped lot, with the proposed extent of vegetation removal and site works is appropriate. 61 Up to 50% of the site s existing vegetation (0.38ha) will be removed/altered to provide for the dwelling, free standing garage, septic system, effluent disposal area, water tanks and driveways. This will in my view have a greater visual and environmental impact on the site s physical setting and its surrounds due to its small size, than if it were a larger parcel of land with a similar scale of residential development. I find this outcome is contrary to the conservation, landscape and environmental purposes of the RCZ3 and relevant planning policies associated with Green Wedge area. 62 The ESO1 over the review site seeks to retain significant vegetation and habitat areas on the subject land and surrounds. Correspondingly the BMO requires some level of vegetation removal and maintenance to create defendable space for protection from bushfire attack. I find the combination of these overlay objectives on this small site has a strong potential to cause adverse and lasting impacts on the existing environmental and landscape values and setting of the subject site and its immediate surrounds. 63 On balance I find that the weight of planning policy found in the SPPF and LPPF, generally seeks to discourage the inappropriate development of isolated smaller lots in the Green Wedge. I consider the review site is an isolated small lot in this locality and on this basis alone, approval of a dwelling on the subject land would be contrary to the State and Local Policy settings that generally discourage residential development on small lots located within the Green Wedge area. Is the extent of native vegetation removal and associated site works acceptable? 64 The Statement of Environmental Significance of ESO1 that applies over the review site states the following: There are specific sites occurring on both private and public land that have been identified as being of particular importance within the Sites of Faunal and Habitat Significance in North East Melbourne (Beardsell 1997). Identification, protection and enhancement of the environmentally significant sites and VCAT Reference No. P768/2017 Page 17 of 21

18 strengthening of connecting habitat links will assist in the maintenance of biodiversity within the Shire and surrounding areas. 65 Key environmental objectives in the ESO1 include: To protect and enhance sites of faunal and habitat significance identified in (Beardsell 1997) Sites of Faunal and Habitat Significance in North East Melbourne. To protect and enhance regional and strategic habitat links identified in (Beardsell 1997) Sites of Faunal and Habitat Significance in North East Melbourne. 66 Clause is also relevant to this matter. The clause contains the following purposes: To ensure that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation. This is achieved by applying the following three-step approach in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (Department of Environment, Land, Water and Planning, 2017) the Guidelines: 1. Avoid the removal, destruction or lopping of native vegetation. 2. Minimise impacts from the removal, destruction or lopping of native vegetation that cannot be avoided. 3. Provide an offset to compensate for the biodiversity impact if a permit is granted to remove, destroy or lop native vegetation. To manage the removal, destruction or lopping of native vegetation to minimise land and water degradation. 67 Evidence provided by Mr Lincoln Kern from Practical Ecology states that the overall clearing of vegetation and habitat on the review site is fairly minimal. According to Mr Kern s evidence: Only 0.3ha of vegetation would be cleared, with most not completely cleared with much of the tree canopy and groundstorey retained. Mr Beardsell maps the site as part of the Pittle s Paddock site of significance as documented in the NEROC report in Mr Kern considers that Mr Beardsell was generous in his mapping of sites of faunal significance. The review site does not contain much of the important values that the Pittle s Paddock site was determined to have. Much of the proposed development site is disturbed with indigenous groundstorey absent in large areas and significant areas of weed cover. The proposed dwelling, effluent and defendable space is in the most disturbed area of the site where minimal groundstorey is present. VCAT Reference No. P768/2017 Page 18 of 21

19 At most some 70 trees will be removed from the review site with the current tree canopy mostly in tact, except for a gap around the dwelling and small 5.0m gaps throughout the defendable space. No specific evidence was obtained that the development would have an adverse impact on a local wildlife corridor. The proposed development is not part of a significant wildlife corridor. 68 The council accepts that based on the submitted plans, vegetation assessment and support provided by the Department of Environment, Land, Water and Planning (DELWP), any loss of vegetation can be adequately offset both on and off the site. An area for this offset has been proposed on the western side of the proposed dwelling. 69 I accept that suitable offsets have been set aside to compensate for the overall loss of native vegetation removal arsing from this development proposal. However, the major concern I have in respect to the vegetation removal is the impact of removing some 0.38ha of existing vegetation on a site that is only 0.7ha in size. Mr Kern acknowledges this in his evidence statement at paragraph 6.1 where he states: In this case the environmental impact is actually minimal and appears more significant because of the inclusion of the site in the Pittle s Paddock site of significance and the small size of the block. (Tribunal emphasis added) Mr Kern goes on to point out in his evidence that: The proposed development footprint is of minimal extent compared to more typical impact zones for rural houses on bush block under the BMO. 70 I accept Mr Kern s overall vegetation assessment of the review site and evidence statements that there are some levels of vegetation disturbance evident across the review site. I observed this from my site inspection. However, despite the legitimate attempts by Mr Kern and the architect to minimise the extent of vegetation removal required by the development proposal, it is still the small size of the review site that exacerbates the loss of any native vegetation proposed on the site. 71 I am required to assess the vegetation removal in the context of the planning controls as they apply to the site. In this regard the site still forms part of Beardsell s 1997 Sites of Faunal and Habitat Significance in North East Melbourne. The ESO1 objectives still require any development proposal to protect and enhance environmentally significant sites and strengthen connecting habitat links to assist in the maintenance of biodiversity within the Shire and surrounding areas. I am not satisfied that removing up to 50% of the site s existing vegetation cover is consistent with the objectives and provisions of the ESO1 or clause I am also not satisfied that the extent of this vegetation removal will enable a strengthening of the biodiversity link and habitat that makes up the remainder of NEROC site in VCAT Reference No. P768/2017 Page 19 of 21

20 this locality. I consider the vegetation removal will place further pressure on the remainder of the NEROC site. I am concerned that this loss of native vegetation will act as the thin edge of the wedge, further threatening the existing habitat links and environmental significance of the overall area. Are the risks from bushfire satisfactorily managed? 72 The council is concerned that the BMP prepared for the site identifies the most common fire risk is expected to come from the northwest. It says that land to the immediate northwest is protected by a Trust for Nature Covenant that seeks to retain and protect the bushland environments existing on these properties. To highlight its concerns the council notes the BMP predicts a flame length of approximately 39m from the northwest. The proposed dwelling will be set back approximately 36m at its closest point to the northwest boundary, thus a flame rating has been required and applied to the site boundary. 73 However, in the context of this particular concern, the council submits a precautionary principle should be applied in respect to bushfire risks on and around the review site. It says the recent changes to State Policy around this matter only serves to strengthen the approach it has taken to this matter. 74 The CFA acknowledges the review site is located in a bushfire risk landscape described as Landscape Type Three. This effectively means: The type and extent of vegetation located more than 150m from the site may result in neighbourhood-scale destruction as it interacts with the bushfire hazard on and close to a site Bushfire can approach from more than one aspect. The site is located in an area that is not managed in a minimum fuel condition. Access to an appropriate place that provides shelter from bushfire is not certain. 75 The CFA also agrees that the direction of greatest bushfire risk in regards to the review site is from the northwest. It acknowledges that attendance by fire personnel in a significant bushfire cannot be guaranteed. It says the anticipated wider landscape bushfire behaviour from the northwest to southwest would be significant. 76 However the CFA considers the specific bushfire risks affecting the review site can be addressed by the following: Vegetation management to a distance of 40m or the property boundary (defendable space as shown in the BMP). The bushfire shelter will help to mitigate the reduced setback proposed along the northwest boundary. Building to a BAL-40 level of construction. VCAT Reference No. P768/2017 Page 20 of 21

21 Dedicated static water supply for fire fighters. Ongoing maintenance of bushfire mitigation measures set out in the BMP. A private bushfire shelter (bunker) is provided. 77 The CFA submits that the Tribunal should support the proposed dwelling in the context of the conditions it is recommending for the development. 78 I place due weight on the CFA s assessment of this particular proposal on the review site. Nevertheless, having inspected the site and noting the relatively steep slopes to the northwest and the existence of relatively dense levels of trees and understorey vegetation cover on the review site, I continue to have some concerns in respect to the reduced defendable space setback to the northwest as proposed in the BMP. 79 I note the CFA is satisfied the provision of a bushfire shelter on the site will add another level of safety to occupants and visitors on the site should a bushfire occur. 80 Nevertheless I remain concerned that the BMP notes there may be slopes on the site that are greater than 15 degrees, thereby potentially increasing the risk of bushfire speed and intensity from this direction. I was not advised where/if these slopes were located directly on the site. If these slopes are located along the critical northwestern boundary, this matter would require further review. As I have refused a permit for reasons already explained, I have not directed further information on this matter. CONCLUSION 81 Having considered the submissions and evidence placed before me, I find the proposal will be contrary to the purposes of the RCZ3 and Green Wedge provisions. The applicant has not satisfied me that the proposed dwelling accords with the purpose to encourage development and use of land which is consistent with sustainable land management and land capability practices, and which takes into account the conservation values and environmental sensitivity of the locality. The proposed dwelling on this particular sized lot has not demonstrated that it will result in overall net community benefit. It follows that no permit should be granted. I will affirm the decision of the responsible authority. Peter Gaschk Member VCAT Reference No. P768/2017 Page 21 of 21