Attachment 7A - Mount Alexander Shire Council...The Foresite report dated June 2007 purports in its title to include an accompanying development plan (McKenzies Hill Rezoning: Proposed

Attachment 7A

Attachment 7A

Attachment 7A

Attachment 7A

Attachment 7A

Attachment 7A

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Attachment 7B

Attachment 7B

MOUNT ALEXANDER PLANNING SCHEME

AMENDMENT C38

PANEL REPORT

JUNE 2008

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MOUNT ALEXANDER PLANNING SCHEME

AMENDMENT C38

PANEL REPORT

Andrew Clarke, Chair

JUNE 2008

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MOUNT ALEXANDER PLANNING SCHEME AMENDMENT C38 PANEL REPORT: JUNE 2008

Contents

1. SUMMARY................................................................................................................ 1

2. BACKGROUND....................................................................................................... 2

2.1 The Amendment........................................................................................................ 22.2 The Panel .................................................................................................................... 2

3. WHAT IS PROPOSED? .......................................................................................... 4

3.1 The subject site and surrounds................................................................................ 43.2 Background to the proposal..................................................................................... 53.3 The proposal............................................................................................................... 5

4. PLANNING CONTEXT.......................................................................................... 7

4.1 Policy framework ...................................................................................................... 74.1.1 State Planning Policy Framework ................................................................... 7

4.1.2 Local Planning Policy Framework.................................................................. 8

4.2 Planning scheme provisions .................................................................................. 114.2.1 Zones ............................................................................................................. 11

4.2.2 Overlays ........................................................................................................ 11

4.2.3 Particular provisions...................................................................................... 12

4.3 Other planning strategies....................................................................................... 12

5. IDENTIFICATION OF ISSUES .......................................................................... 14

5.1 Summary of issues .................................................................................................. 14

6. CONSIDERATION OF SUBMISSIONS........................................................... 16

6.1 Approach of the Panel ............................................................................................ 166.2 Has Avoidance and Minimisation Been Demonstrated?................................... 186.3 What is the Preferred Planning Scheme Outcome for the Subject Site? .......... 216.4 Should the Amendment C24 Panel Recommendation be

Adhered to by this Panel?..................................................................................... 226.5 Are Offsets Achievable? ......................................................................................... 246.6 Other Matters Raised in Submissions................................................................... 27

6.6.1 Demand for Low Density Residential Zone Lots.......................................... 27

6.6.2 Sewering of Lots ........................................................................................... 30

6.6.3 Environmental Protection Measures during the Construction Stage............. 30

6.6.4 Provision of Sealed Roads and Underground Drainage Adjacent to

Residential Development to the South......................................................... 31

6.6.5 Traffic Impact Assessment............................................................................ 31

7. CONCLUSIONS..................................................................................................... 32

8. RECOMMENDATIONS....................................................................................... 34

Appendices

APPENDIX 1: DPO7 AS AMENDED AT THE FEBRUARY 2008

COUNCIL MEETING ..................................................................... 35

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1. Summary

Amendment C38 to the Mount Alexander Planning Scheme was publicly

exhibited from the 26th October to the 3rd December 2007. A number of

objecting submissions were made to the amendment which Mount

Alexander Shire Council has referred to an independent panel appointed by

the Minister for Planning.

The main issue arising from the amendment is the balancing of conflicting

objectives between growth of the Castlemaine township and protection of

native vegetation. Secondary issues related to provision of services.

The Panel has concluded that there is strategic support for the amendment

and it ought to be approved as amended by Council at its February 2008

meeting.

The Panel has also recommended as a matter of urgency a change to

Schedule 2 to the Significant Landscape Overlay, which in the Panel!s view,

currently does not require a planning permit for any vegetation removal.

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2. Background

2.1 The Amendment

Amendment C38 to the Mount Alexander Planning Scheme, as exhibited,

proposes to rezone 8.2 hectares of land located between Ireland and Martin

Streets, Castlemaine from Rural Living Zone to Low Density Residential

Zone, remove the Development Plan Overlay (DPO 3) that currently applies

to the land and replace it with a new Development Plan Overlay (DPO 7).

The land affected by the amendment is more particularly described as Lots 1,

2 and 3 LP 210919 and Crown Allotments 14B and 14G, Section D8, Parish of

Castlemaine.

The planning authority is Mount Alexander Shire Council and the

proponents are the various landowners in the area affected by the

amendment.

2.2 The Panel

This Panel was appointed under delegation on the 7th March 2008 pursuant

to Sections 153 and 155 of the Planning and Environment Act 1987 to hear and

consider submissions in respect of the amendment.

The Panel consisted of Mr Andrew Clarke, sitting alone.

Hearings and inspections

A Directions Hearing was held on Tuesday 29th April 2008 at Castlemaine.

The Panel Hearing was held on Friday 30th May 2008, also at Castlemaine.

The Panel inspected the site and surrounding area in the presence of

interested parties immediately after the Directions Hearing.

Submissions

The Panel has considered all written and oral submissions and all material

presented to it in connection with this matter.

The Panel heard the parties listed in Table 1 below.

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Table 1

Submitter Represented By

Mount Alexander Shire Council Ms Joan Copeland, Town Planner

Department of Sustainability & Environment

Mr Calum Walker, Land Use Planner

Mr and Mrs Tanner, Mr and Mrs Beaton and Mr and Mrs Bannerman (the landowners)

Mr Gary Pendlebury (Directions Hearing) and Mr Bernard Collins (Main Hearing), both of Foresite Pty Ltd, who called Mr Garry Cheers, Flora & Fauna Consultant

Friends of the Box-Ironbark Forests (Mount Alexander Region) Inc. (FOBIF)

Dr George Ryan, Solicitor, who called Mr Hans (JT) van Gemert, a member of FOBIF

A list of all written submitters to the Amendment is included in Table 2.

Table 2

Submittor Organisation (if any)

Ms Camille White, Team Leader Floodplain

North Central Catchment Management Authority

Mr Bernie Young, Manager, Public Land Stewardship, North West Region

Department of Sustainability & Environment

Management Committee Friends of the Box-Ironbark Forests (Mount Alexander Region) Inc.

Ms Joanne Runciman, Water Systems Health

Goulburn-Murray Water

Thirla & Neville Frankling

Mr Scott Sandercock, North-West Region Environment Protection Authority

Margaret & Jeff Taft

Mr Ravi Mylvaganam, Northern Region VicRoads

Ms Jenny Stewart, Acting Executive Manager Planning

Coliban Water

Mr John Stark, Delegated Officer, North West Area

Country Fire Authority

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3. What is proposed?

3.1 The subject site and surrounds

The subject site is irregularly shaped and comprises a number of contiguous

lots located between Ireland Street and Martin Street on the western

boundary of the Castlemaine township. It is gently undulating with a

variable sparse to moderate cover of vegetation. There are four houses and a

number of farm dams on the site.

The south"eastern Crown Allotment (referred to as CA 14B) is subject to an

agreement made under Section 69 of the Conservation Forests and Lands Act,

1987. The agreement is recorded on the Certificate of Title for the land. The

agreement requires the landowner to retain and manage any native

vegetation that occurs on the land to the satisfaction of the Regional Manager

of the then Department of Natural Resources and Environment and to not

damage or remove any native vegetation on the land, except with the written

consent of the Regional Manager.

To the north of the site is generally undeveloped rural/rural living land with

the lot immediately to the north of the subject site moderately vegetated. To

the west of the site is cleared farmland. Both the land to the immediate north

and the immediate west of the subject site is cleared farmland (to varying

degrees) and both areas are in a Rural Living Zone.

Immediately bordering the subject site!s western boundary is Ireland Street

which is presently unmade and unformed.

To the south of the subject site is conventional residential development in a

Residential 1 Zone. To the immediate east of the subject site is a Public Use

Zone (PUZ 4: Transport) which accommodates the Castlemaine and Maldon

Preservation Society Tourist Railway (the railway reserve). Despite the

presence of the railway line and probably because it is public land the

railway reserve is significantly more vegetated than the subject site. Further

east of the railway reserve is conventional residential development and some

larger lots all in a Residential 1 Zone.

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3.2 Background to the proposal

The Panel was advised that the amendment is a rerun of an earlier

amendment, known as Amendment C22 to the Mount Alexander Planning

Scheme, which lapsed. That amendment also sought to rezone the land from

Rural Living Zone to Low Density Residential Zone, but did not seek to alter

the generic Development Plan Overlay (DPO 3) which existed at that time

and continues to apply to the subject land today. Amendment C22 was

exhibited in 2004 and there were 13 submissions made to it, including one

from the Department of Sustainability and Environment, which sought a

new Development Plan Overlay be applied that was tailored to address

specific issues pertaining to the site, in particular criteria relating to native

vegetation and offset planting.

By the time there was agreement reached on a revised Development Plan

Overlay the amendment had lapsed. The Minister for Planning declined to

extend the lapse date, apparently on the basis that the change resulting from

the revised overlay provisions should be re"advertised under a separate

amendment. Amendment C38 is that separate amendment.

3.3 The proposal

There is no specific proposal before the Panel. An indicative subdivision

layout with building envelopes accompanied the planning report prepared

by Foresite Pty Ltd supporting the amendment and in the flora and fauna

reports prepared by Mr Cheers.

The Foresite report dated June 2007 purports in its title to include an

accompanying development plan (McKenzies Hill Rezoning: Proposed

Exhibition of Amendment C38, Accompanying Development Plan). Other than

showing a proposed subdivision layout, the Panel considers that the report

does not contain sufficient information to constitute a development plan

when assessed against the Requirements for a Development Plan which are

listed in the parent provision of the Development Plan Overlay and the

exhibited schedule to the Development Plan Overlay. However, at this stage

that does not matter.

What is before the Panel is an amendment which seeks to rezone the land

and in effect to substitute the Development Plan Overlay schedule. That is

all. It is not the task of this Panel to assess whether the purported

development plan and the indicative subdivision layout are satisfactory. If

the amendment proceeds, determining whether the development plan is

satisfactory and whether a proposed subdivision layout is satisfactory under

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a planning permit application are the tasks of the responsible authority, and

if required, the Victorian Civil & Administrative Tribunal.

The subdivision layout is useful to the Panel because it illustrates one way of

developing the land should the amendment proceed. However, its utility is

limited because the amendment does not prescribe that particular layout as

the only way of developing the land.

Much of the submissions and expert evidence presented to the Panel

concentrated on the impacts of that particular subdivision layout. For

example, both witnesses made calculations of the native vegetation required

to be removed and the required offsets to compensate that loss. The Panel

appreciates the predicament of the principal objector, Friends of the Box"Iron

Forests (Mount Alexander Region) Inc (FOBIF), that if the amendment

proceeds with a Development Plan Overlay, they will be excluded from the

process of approving any development plan prepared and submitted to

Council for approval under the Development Plan Overlay provisions and

from the subdivision planning permit application process. This is the last

formal opportunity they have to comment.

The principal issue before the Panel raised by submissions is whether or not

the amendment should be supported because of the likely need to remove

native vegetation. It is not the role of the Panel, for reasons set out later in

this report, to advise on appropriate offsets and where and how they should

be provided. The Panel uses the words “likely need to remove native

vegetation” because there is no particular development proposal before it.

This in turn makes it extremely difficult to determine whether the

amendment should proceed on the basis of loss of native vegetation because

at this stage the loss cannot be accurately quantified in the absence of a firm

and fixed development proposal. As stated there is no fixed development

proposal before the Panel. In the context of the State native vegetation policy

which relies on a three tier process of avoidance, minimisation and provision

of offsets, it is difficult in this circumstance for the Panel to accurately assess

the extent of native vegetation removal.

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4. Planning context

4.1 Policy framework

4.1.1 State Planning Policy Framework

The principal policies that are relevant to the amendment include:

Clause 11.01: Introduction, which seeks to ensure that conflicting

planning scheme objectives are balanced in favour of net community

benefit and sustainable development.

Clause 14.01: Planning for Urban Settlement, which seeks to ensure that

planning authorities plan to accommodate projected population growth

over at least a 10 year period, taking account of opportunities for

redevelopment and intensification of existing urban areas as well as the

limits of land capability and natural hazards, environmental quality

and the costs of providing infrastructure. The policy also seeks to

encourage consolidation of existing urban areas. Planning authorities

should facilitate the orderly development of developing urban areas

through the preparation of structure plans, which may consist of a

hierarchy of plans that provide the broad planning framework for an

area as well as the more detailed planning requirements for particular

neighbourhoods and precincts.

Clause 15.09: Conservation of Native Flora and Fauna, which seeks to

assist the protection and conservation of biodiversity, including native

vegetation retention and provision of habitats for native plants and

animals and control of pest plants and animals. The most relevant

paragraph of the policy is as follows:

Planning and responsible authorities must have regard to

Victoria!s Native Vegetation Management " A Framework for

Action (Department of Natural Resources and Environment 2002).

If a permit is required to remove native vegetation, or an

amendment to this scheme or an application for subdivision could

result in the removal of native vegetation, planning and responsible

authorities should follow the three"step approach as defined in the

Framework. This is achieved firstly, as a priority, by avoiding the

removal of native vegetation; secondly, if the removal of native

vegetation cannot be avoided, by minimising the loss of native

vegetation through appropriate consideration in planning processes

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and expert input into project design or management; and thirdly,

by identifying appropriate offset actions.

Clause 16.03: Rural Living and Rural Residential Development, which

has as its objective to identify land suitable for rural living and rural

residential development. The policy is implemented by Ministerial

Direction No. 6: Rural Residential Development.

Whilst other policies are relevant, the Panel considers that these are the four

main State policies that need to be considered in this amendment. In

particular, the main issue raised in submissions centred on the removal of

native vegetation to accommodate Castlemaine’s future township growth.

4.1.2 Local Planning Policy Framework

Municipal Strategic Statement

The Mount Alexander Planning Scheme Municipal Strategic Statement sets

out the planning vision, objectives and strategies at the municipal level of

consideration. It is useful to consider the separate policies as they apply to

residential and township growth and development of Castlemaine on the

one hand and native vegetation protection on the other.

Residential and Township Growth

Clause 21.01 identifies that Castlemaine is the largest town in the Shire

accommodating approximately half of the Shire!s population.

The Strategic Framework Plan for the whole of the Shire (Clause 21.03)

identifies that Castlemaine is the regional centre for social, educational and

administrative facilities and the preferred location for future commercial,

industrial and residential expansion.

Plan 3: Castlemaine Land Use Framework Plan was the subject of

considerable attention during the Panel hearing. It has been determinative in

the Panel arriving at its overall conclusions.

The Castlemaine Land Use Framework Plan depicts the subject site as a

potential low density residential area. It is qualified by comments that the

zoning of vegetated areas is to be determined following assessment of flora

and fauna and that the Significant Landscape Overlay 2 is to be extended

into proposed Low Density Residential Zone areas and to include native

bushland areas. The subject site is also included in a wider area extending to

the north, west and south identified as “vegetation on freehold land”. The

Urban Growth Boundary is shown as extending along the railway reserve

from the north to the north"east corner of the subject land and then

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proceeding west, well past the subject land. The northern boundary of the

subject land also forms what is termed “private forest interface”, a line which

also continues west and then proceeds in a southern direction along the

western boundary of the large vacant lot to the immediate west of the subject

site. This adjacent area is identified as “Future residential " subject to

structure planning & Urban Forest Interface Study”. That latter qualification

in relation to the Urban Forest Interface Study does not apply to the subject

land.

Clause 21.04"1 sets out the urban growth strategy for the Shire. It identifies

further urban consolidation and expansion of Castlemaine as the main

growth area in the Shire. Settlement issues include that new residential and

industrial areas need to be identified in Castlemaine. The relevant strategy is

to apply Ministerial Direction No. 6 for any proposed rezoning of land to

Low Density Residential Zone. The relevant implementation measures are to

apply the Development Plan Overlay to proposed new residential areas in

the Shire!s towns and to implement the town framework plans. Further

strategic work includes a study of the supply and demand for low density

residential lots and development of criteria to guide application of the zone.

Clause 21.04"2 deals with strengthening Castlemaine!s regional role. The first

settlement objective is to encourage residential expansion to the west and

south of Castlemaine in the McKenzies Hill, Diamond Gully and Campbells

Creek areas (it was common ground that the subject site is located in the

McKenzies Hill area). The relevant settlement implementation measure is

use of the Castlemaine Town Framework Plan.

Native Vegetation Protection

Clause 21.01 identifies that the Box Ironbark forests of the region are

important habitat for many threatened species. Clause 21.02 identifies that

the Shire has significant and diverse natural landscapes including the Box

Ironbark forests, now greatly diminished in Victoria, and home to a rich

biodiversity of flora and fauna, some rare or threatened.

Clause 21.04"1 sets out the urban growth strategy for the Shire. One of the

environmental issues identified is the impact of urban development on

native vegetation, fauna (particularly at the interface with parks, reserves

and urban fringe areas) and heritage and landscape. The relevant

implementation measure is to apply the Significant Landscape Overlay to

areas of special landscape significance and interest.

Clause 21.04"7 deals with protection of biodiversity and landscape. It

identifies that appropriate locations for residential development are to be

based on a number of considerations including the condition and value of

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the natural environment, native flora and fauna habitats, flooding, fire

hazard, land capability, soil structure, vegetation quality and proximity to

reserves and parks. The relevant objective for protection of native vegetation

is to protect remnant native vegetation and retain native vegetation in

privately owned forested land. The relevant objective for biodiversity and

habitat is to improve the conservation status of native fauna and flora in the

Shire, especially the most threatened species. The relevant strategies for

protection of native vegetation are to protect native vegetation and

encourage appropriate revegetation to prevent land degradation, maintain

water quality and protect biodiversity of flora and fauna species and to

encourage development that protects native vegetation linkages and

minimises the impact of development on native vegetation. The relevant

strategy for biodiversity and habitat is to ensure a net gain in habitat extent

and quality across the Shire!s range of native vegetation communities. The

relevant implementation measures are to ensure that flora and fauna and net

gain assessments are carried out for proposed new residential development

before incorporated or development plans are prepared for these areas and

to apply the Vegetation Protection Overlay to land containing native

vegetation of high significance and quality. Further strategic work includes

the preparation of an Urban Forest Interface Study for Castlemaine. The

Panel notes that the preparation of this study is not a prerequisite for further

rezonings except as indicated on the Castlemaine Land Use Framework Plan

in relation to the land to the west of the subject site but not including the

subject site.

Local planning policy

There are three local planning policies relevant to the amendment. These

are:

Clause 22.01: Castlemaine

Clause 22.12: Urban Growth Boundaries

Clause 22.13: Catchment and Land Protection

Castlemaine Policy

The policy does not provide a great deal of guidance other than referring to

the Castlemaine Land Use Framework Plan.

Urban Growth Boundaries Policy

The policy applies to various townships including Castlemaine. The policy

basis identifies that the Council is committed to providing a high quality

urban environment and encouraging the consolidation of existing township

areas by maximising opportunities within these areas. It is important to

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accommodate urban development within the main township areas that have

or will have reticulated infrastructure, such as water, sewerage and

stormwater drainage. Urban development should not prejudice or limit the

agricultural use of land around towns. The policy seeks to clearly define

township boundaries so as to ensure protection of rural uses from urban

encroachment. The township boundaries of Castlemaine are clearly

delineated on the Castlemaine Land Use Framework Plan.

Catchment and Land Protection Policy

The policy applies to all land and water in the Farming and Low Density

Residential Zones. The relevant objective is to promote the maintenance of

ecological processes and genetic diversity.

4.2 Planning scheme provisions

4.2.1 Zones

Under the Mount Alexander Planning Scheme the subject site is in a Rural

Living Zone wherein the minimum lot size for subdivision is 8 hectares. As

the existing lots are less than 8 hectares in area and the total land area is

approximately 8.2 hectares the rezoning is required if smaller lots are to

occur.

Land to the immediate north of the subject site is also in a Rural Living Zone

(minimum subdivision size of 8 hectares), land to the west is in a Rural

Living Zone (2 hectares with reticulated water, 4 hectares without reticulated

water), and land to the south, south"west and east (of the railway reserve) is

in a Residential 1 Zone.

4.2.2 Overlays

There are three overlays that apply to the subject site. These are:

Significant Landscape Overlay (SLO 2: Castlemaine Landscape

Significance Area);

Development Plan Overlay (DPO 3: Low Density Residential/Rural

Living Zone Development Plan; and

Wildfire Management Overlay, which applies to a small portion of the

land along its eastern boundary.

The Significant Landscape Overlay and the Wildfire Management Overlay

will be unchanged as a result of the amendment. As indicated, the

Development Plan Overlay is to be replaced.

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During the course of the hearing, the Panel noted that Schedule 2 to the

Significant Landscape Overlay has been incorrectly drafted. Unlike the

Environmental Significance Overlay, which requires a planning permit for

any vegetation removal unless specifically exempted by the schedule to the

overlay, the Significant Landscape Overlay only requires a permit to remove

vegetation that is specifically identified in the schedule to the overlay. SLO 2

includes under the heading “Permit requirement” only those works and

vegetation for which a permit is not required. No works that require a

permit or vegetation types that require a permit for their removal are

specified in the schedule. Therefore, SLO 2 is a “toothless tiger” because it

does not require planning permission for any vegetation removal. As a

matter of urgency Council should remedy this situation.

4.2.3 Particular provisions

Under the existing and proposed zoning, planning permission will be

required under Clause 52.17 to remove native vegetation. A number of

exemptions apply.

4.3 Other planning strategies

There are three related planning strategies, all of which are currently

referenced in the planning scheme. These are the Mount Alexander Urban

Living Strategy, Castlemaine Land Use Strategy and Castlemaine Residential

Strategy.

The Land Use Framework Plan contained in the Mount Alexander Urban

Living Strategy recommends rezoning the subject site to the Low Density

Residential Zone. This zone rather than the Residential 1 Zone was chosen

because of the presence of native vegetation on freehold land.

The Land Use Framework Plan contained in the Castlemaine Land Use Strategy

also recommends that the subject land be developed for future low density

residential purposes.

The Castlemaine Residential Strategy also recommends a Low Density

Residential Zone over the subject site.

These background reports merely provide the strategic planning background

for the present inclusion of the Castlemaine Land Use Framework Plan in the

MSS.

Mr Collins emphasised that part of the decision to choose future urban

development on the western side of Castlemaine was to avoid the need for

native vegetation removal in other more environmentally sensitive areas

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around Castlemaine. This view was supported by Ms Copeland of Council.

Mr Collins emphasised that the principle of avoidance of removal of native

vegetation as set out in the native vegetation framework had already

occurred at this higher strategic level.

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5. Identification of issues

5.1 Summary of issues

Issues raised in submissions

From the submissions to the Amendment, the Panel identified a number of

issues that need to be addressed. These can be summarised as follows:

Balancing the competing objectives of promoting future township

growth and the need to avoid and minimise native vegetation removal,

and

In addition to raising vegetation removal issues two submitters from

the residential area to the south also raised issues in relation to paving

of roads and other infrastructure items. One of these submitters (N & T

Frankling) attended the Directions Hearing and advised the Panel in

writing that they were now satisfied with the proposal, now supporting

proposed vegetation removal and the pruning of trees close to the

southern boundary of the site, but they still sought paving of the access

road along this boundary.

Issues from the Strategic Assessment Guidelines

The purpose of the Strategic Assessment Guidelines is to provide a consistent

framework for the evaluation of a proposed planning scheme amendment

and the outcomes it produces.

The Guidelines require the Panel to consider:

Why is an amendment required?

Does the amendment implement the objectives of planning and any

environmental, social and economic effects?

Does the amendment comply with all of the relevant Minister!s

Directions?

Does the amendment support or implement the SPPF?

How does the amendment support or implement the LPPF, and

specifically the MSS?

Does the amendment make proper use of the VPP?

How does the amendment address the views of relevant agencies?

What impact will the new planning provisions have on the

administrative costs of the responsible authority?

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The Panel has considered the response to the Strategic Assessment

Guidelines included in the exhibited Explanatory Report for the amendment,

together with submissions on the guidelines from Council. The Panel

endorses Council’s response and considers that no other issues are raised by

an assessment against the Strategic Assessment Guidelines.

Ministerial Directions

The Minister has made a direction under Section 12(2)(a) that contains the

following requirement:

Direction No. 6 Rural Residential Development

In preparing an amendment which would have the effect of allowing

rural residential development, a planning authority must demonstrate

and show in the explanatory report that the proposed rural residential

development:

· Is consistent with the housing needs and settlement strategy of the area.

· Is supported by and supports sustainable and viable settlements and

communities.

· Does not compromise the sustainable future use of existing natural

resources, including productive agricultural land, water, mineral and energy resources.

· Protects existing visual and environmental qualities of the area, such

as landscape, water quality, native vegetation, habitat and

biodiversity.

· Avoids predictable adverse environmental processes and effects,

such as flooding erosion, landslip, salinity or wildfire.

· Can efficiently be serviced by social and physical infrastructure, at

an acceptable and sustainable community cost.

Compliance with Practice Notes

The following Practice Notes are relevant to the consideration of the

amendment:

Managing Native Vegetation in the Planning System.

Form and content

The Minister has made a direction under Section 7(5) in relation to the form

and content of planning schemes.

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6. Consideration of Submissions

6.1 Approach of the Panel

The principal issue raised by the amendment is the balancing of the

competing objectives of accommodating Castlemaine!s future urban growth

and the need to avoid or minimise native vegetation removal.

Much of the submissions and the expert evidence provided to the Panel were

concerned with the calculation of offsets. There are difficulties and

limitations at the planning scheme amendment stage with calculating offsets.

In Villawood Properties v Greater Bendigo City Council the Victorian Civil &

Administrative Tribunal made the following observations about applying the

three"step approach to net gain:

In applying Net Gain via the three step approach outlined in the

Framework, it will not always be possible to undertake or complete each

step simultaneously.

Implementing the principles of ‘avoid’ and ’minimise’ will be essential

components in the initial decision about whether a permit should be

granted to remove vegetation. If consideration of these principles leads to

the conclusion that a permit can be granted, then at this point the

provision of offsets becomes mandatory.

We consider that there is some ambiguity in the way in which the three

step approach to applying Net Gain is expressed in the Framework. We

refer to the quotation in paragraph 27. We consider that the statement:

“Only after these steps have been taken should offsets (actions

undertaken to achieve commensurate gain) be considered”, refers to steps

one and two ! avoid and minimise. It will only be after the application of

those principles that the actual amount of vegetation loss in terms of

habitat hectares or number of trees will be known. Until that is agreed

upon, appropriate offsets cannot be devised.

In the context of urban land it will be rare that an offset is capable of

being fully approved at the permit stage for a number of reasons. It is

likely that offsets will be required to be provided off site. This may

involve the acquisition of land for revegetation or entering negotiations

with persons or bodies to improve the quality or quantity of vegetation on

other land. It is unlikely that an applicant will wish to commit to these

steps without the certainty of knowing the planning permit has been

issued and without knowing the number of habitat hectares that the offset

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plan must compensate for the loss of. It is for these reasons that the

tribunal has endorsed deferring the definition of offsets to a secondary

consent process….

We endorse the use of the secondary consent process to determine the

detail of offsets. We consider that all offset plans should be prepared to

the satisfaction of both the responsible authority and DSE as referral

authority. Requiring offset plans to be to the satisfaction of DSE ensures

that the appropriate level of expertise is brought to bear in their

assessment and approval, and it ensures that DSE as a referral authority

is a specified body for the purpose of any applications for review under

section 149 of the Planning and Environment Act 1987. We consider

that as a matter of course the detail and approval of offset plans should be

left to a secondary consent process rather than confusing the permit

issuing process. The permit should specify the vegetation that may be

destroyed and this should be expressed in terms of habitat hectares or

numbers of large old trees in accordance with the Framework. If a permit

for vegetation removal is granted, it is a given that the permit cannot be

acted upon in this respect until an appropriate offset plan has been

approved. And if appropriate offsets cannot be provided, then the

vegetation cannot be removed.

We consider that the primary issue of whether a permit should be granted

to remove vegetation should not depend upon whether an appropriate

offset plan can be provided, but rather on the significance of the

vegetation itself and the extent of vegetation removal proposed. The need

for appropriate offsets then becomes mandatory once it is decided that

vegetation may be removed. However, whilst it is not necessary to be

aware of all the specific details of the offset plan at the time a permit is

granted, the decision maker would need to be satisfied that there was a

general scope for a satisfactory offset plan to be implemented. If there is

no scope to provide appropriate offsets (for whatever reason) then this

may be grounds for saying that a permit should not be granted for

removal of this quantity of native vegetation. (Paragraphs 43"50).

This Panel makes the observation that if it is difficult to quantify offsets at the

permit application stage then it is even more difficult to quantify the offsets

at the planning scheme amendment stage in the absence of a firm

development proposal.

The issue then becomes whether or not in the context of all policies that

appropriate provision has been made to avoid and minimise native

vegetation removal.

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Therefore, the Panel proposes to address this issue under the following

subheadings:

1. Has there been appropriate attention in the first instance to avoid native

vegetation removal and in the second instance to minimise native

vegetation removal?

2. In the context of all of the relevant planning scheme policies, should

there be any native vegetation removal? That is, what is the outcome

sought for this site under the planning scheme?

3. The extent to which this Panel should be persuaded by the

recommendation of the Panel in Amendment C24 to the Mount

Alexander Planning Scheme that there be no further rezonings to

residential use in the Castlemaine Urban Forest Interface Study area

until that study is completed.

4. Are offsets for native vegetation removal achievable?

6.2 Has Avoidance and Minimisation Been Demonstrated?

The Panel is persuaded by the submissions by Mr Collins and confirmed by

Ms Copeland that the strategic planning decision to locate urban growth to

the west of Castlemaine has avoided the need to remove native vegetation

from other areas.

The Panel was advised that the original proposal for the subject site included

access from Martin Street. There was some question as to whether legal

access was available from Martin Street, but nevertheless it is now proposed

that the Martin Street access be confined to its very southern end and access

be taken from Ireland Street. In its submission to the Panel the Department

of Sustainability and Environment referred to the change of plan as avoiding

the removal of native vegetation in Martin Street, and this was at least part of

the reason why the Department now supported the proposal.

Dr Ryan verbally asserted that the avoidance of removal of less disturbed

and more significant native vegetation in the Martin Street reserve was not

relevant because it was not on the subject site. The Panel is aware of at least

one decision by the Victorian Civil and Administrative Tribunal where the

sole reason for disallowing a permit for native vegetation removal (so as to

provide access to a proposed house) was the need to remove native

vegetation from an unmade access road to the site and that the first test to

avoid native vegetation removal had not been satisfied (see Graham v

Macedon Ranges Shire Council, VCAT 1744). The Panel therefore considers

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that the avoidance of using Martin Street for access avoids vegetation

removal in Martin Street and helps satisfy the avoidance principle.

As noted there is no firm subdivision and development proposal before the

Panel. Nevertheless, in any future subdivision proposal there are other

measures available to avoid the removal of native vegetation.

Ms Copeland also emphasised that part of the reason for choosing the Low

Density Residential Zone was that it avoided vegetation removal to a far

greater extent than a Residential 1 Zone (although the Panel considers this is

minimisation rather than avoidance because under either zone some native

vegetation will be removed).

To what extent has vegetation removal been minimised? Mr Cheers was

engaged to assist in the proposed subdivision design. He identified a

number of cleared areas or areas with little or no understorey where building

envelopes could be located. Part of Mr van Gemert’s evidence was that some

of the building envelopes may in fact require greater vegetation removal

than that estimated by Mr Cheers. However, both witnesses agreed that

rotation or minor amendment of the building envelope location would avoid

that additional vegetation removal to a greater extent. Therefore, one of the

ways of minimising native vegetation removal is through the appropriate

location of building envelopes. Whilst there was some dispute whether the

present subdivision layout achieves this, this simply means that the precise

location of building envelopes may need to be revisited in the future.

However, the Panel is satisfied based on its own inspections that there are

areas on the subject site that are clear or contain little native vegetation that

could be used as locations for building envelopes and therefore minimise

native vegetation loss.

The Department of Sustainability and Environment was concerned that the

subdivision layout did not adequately address the minimisation of native

vegetation removal. Its original submission sought additional changes to the

exhibited schedule to the Development Plan Overlay. At its February 2008

meeting, Council considered submissions and resolved to request a Panel. It

also resolved to incorporate changes requested in the original submission by

the Department. These changes included the provision of physical services

within vehicle access ways. Mr Walker for the Department also indicated

that he was still concerned with loss of vegetation associated with access way

location and fire prevention measures. The Panel notes that the schedule to

the overlay requires appropriate arrangements for the preservation of

existing vegetation and also requires the location of the vehicle access ways

to be shown, so the issue of access way location can be revisited if necessary

at the development plan and permit application stages. The Panel notes that

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both Clause 52.17 and the schedule to the Significant Landscape Overlay

provide exemptions for fire prevention purposes. However, because those

exemptions exist it should not be assumed that all of the existing vegetation

on the lot within the area covered by the exemption will be removed, just as

it should not be assumed that if the lots were less than 0.4 ha (say 3,999

square metres) that all of the vegetation would be removed simply because

lots of this size are exempt from the Clause 52.17 permit requirement.

Mr Walker for the Department was apparently unaware of the Council

resolution to incorporate the changes that the Department originally

requested. After inspecting the revised schedule to the Development Plan

Overlay he indicated that he was satisfied with it and noted that it included

the Department’s recommended measures that address minimisation.

The evidence of Mr Cheers was that the conservation significance of the site

was degraded and would be classified as medium under the native

vegetation framework. This view was shared by the Department of

Sustainability and Environment and in its written submission to the Panel

concurred with Mr Cheers’ report that a number of threatened and rare

species of plants and animals have been recorded within a five kilometre

radius of the site but that the condition of the vegetation on the site is below

that required for many of the flora species to establish and that the site lacks

suitable habitat for and is unlikely to be used by threatened and rare fauna

species recorded in the vicinity of the site.

Mr van Gemert provided evidence that the Brush"tailed Phascogale (a small

nocturnal marsupial) existed in the wider area and asserted that it would be

expected to occur in the larger Yellow Gum and Grey Box trees around the

subject land as the remnant is contiguous with the Castlemaine Bushland

Reserve. Neither he nor other members of the environmental groups with

which he is associated had positively identified the species on the subject site

or on the adjoining railway reserve, the latter of which was apparently

frequently used by those groups. However, he advised the Panel that the

Phascogale is difficult to observe because of its nocturnal behaviour and the

difficulty of identifying scats on the ground in bushland areas.

Mr Cheers further recommended that an agreement on title be provided on

all future lots to prevent further vegetation loss, which would also assist in

the minimisation of native vegetation removal. Whether or not this measure

is also required in addition to the provision of offsets can be determined at

the permit application stage, but it does represent an additional minimisation

measure.

The conclusion that the Panel draws is that due to past clearing the subject

site’s native vegetation value is depleted. Appropriate measures have been

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applied or can be applied in any future subdivision proposal to avoid native

vegetation removal in some instances, and techniques of subdivision design

and construction can be employed to further minimise native vegetation loss.

On this basis the Panel is satisfied that appropriate provision for avoidance

of vegetation loss in the first instance and measures for minimisation of

vegetation loss in the second instance has and can be adequately catered for

with the proposed rezoning and in future subdivision design.

6.3 What is the Preferred Planning Scheme Outcome for the Subject Site?

The principal issue confronting the Panel in this amendment is the balancing

and resolution of conflicting objectives contained in both the State and Local

Planning Policy Frameworks which on the one hand seek to facilitate the

urban growth and development of urban areas (in this case Castlemaine) and

on the other the protection of native vegetation so as to achieve a net gain.

The Castlemaine Land Use Framework Plan provides the specific outcome

that is foreshadowed for the subject site in the planning scheme. It depicts

the subject site as a potential low density residential area. It is qualified by

comments that the zoning of vegetated areas is to be determined following

assessment of flora and fauna and that the Significant Landscape Overlay 2 is

to be extended into proposed Low Density Residential Zone areas and to

include native bushland areas. The subject site is also included in a wider

area extending to the north, west and south identified as “vegetation on

freehold land”. The Urban Growth Boundary is shown as extending along

the railway reserve from the north to the north"east corner of the subject land

and then proceeding west well past the subject land. The northern boundary

of the subject land also forms what is termed “private forest interface”, a line

which also continues west and then proceeds in a southerly direction along

the western boundary of the large vacant lot to the immediate west of the

subject site. This adjacent area immediately west of the subject site is

identified as “Future residential " subject to structure planning & Urban

Forest Interface Study”. That latter qualification in relation to the Urban

Forest Interface Study does not apply to the subject land.

The Panel considers the most logical interpretation of this plan is as follows.

The subject site is identified for potential low density residential

development, however vegetated areas to be retained will follow from an

assessment of flora and fauna that exists on the site. Mr Cheers has

undertaken that assessment. Further refinement of that assessment may be

required at the development plan and permit application stages. The subject

site is within the urban growth boundary. The land to the west of the subject

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site has been identified as potential future (conventional) residential land,

but will need to be the subject of a structure plan, and its rezoning will also

be dependent upon the outcome of a future Urban Forest Interface Study.

The absence of such a reference to that study over the subject site suggests

that its rezoning is not dependent on the outcome of that study, but

nevertheless will require its own specific flora and fauna assessment.

The Panel considers that the proposed amendment is consistent with that

outcome. It proposes to include the land in a Low Density Residential Zone.

A new Development Plan Overlay schedule applying only to the subject site

will require an assessment of native vegetation to be undertaken before

development proceeds.

The Panel therefore concludes that the amendment is a direct

implementation of the strategic outcome contained in the planning scheme

envisaged for this site.

6.4 Should the Amendment C24 Panel Recommendation be Adhered to by this Panel?

Amendment C24 to the Mount Alexander Planning Scheme was the three"

year review of the planning scheme required under the Planning and

Environment Act, 1987. A main recommendation of the Panel that considered

submissions to that amendment was:

The need to complete the proposed Castlemaine Urban Forest Interface

Study before lands adjacent to forested areas are rezoned for residential

development ! either to R1Z or LDRZ. The Castlemaine Land Use

Framework Plan shows a number of areas adjacent to forested land as

proposed for rezoning to R1Z or LDRZ. The Panel also considers that

this notation on the plan is premature, that the land should not be

rezoned until the study is completed, and the Castlemaine Urban Forest

Interface Study should be treated as a priority project by the Council;

This Panel was advised that the study has not commenced but that

consultants have recently been appointed to undertake it.

The Castlemaine Land Use Framework Plan that the Amendment C24 Panel

considered is appended to that Panel Report (in Appendix D). The Plan

makes no mention of the Interface Study and it was presumably because of

this absence of reference to the Study that the Amendment C24 Panel made

its recommendation.

However, it appears that the recommendation was not fully accepted by

Council. Certainly in relation to the area to the west of the subject site and

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other areas proposed for conventional residential development the

recommendation was accepted where the notation on the framework plan

was changed from:

Proposed new residential areas. Rezoning from Rural Living or Rural

Zone to Residential 1 Zone.

to:

Future residential ! subject to structure planning & Urban Interface

Study.

In relation to the subject site and other proposed Low Density Residential

Zones the earlier Panel!s recommendation appears not to have been accepted

by Council or the Minister for Planning. The version that was considered by

that Panel states in relation to proposed Low Density Residential areas:

Proposed Low Density Residential Zone

· Rezone from Rural Living and Rural Zone…

Vegetation on Freehold Land.

The approved version now in the planning scheme states:

Potential low density residential area

· Zoning of vegetated areas to be determined following assessment of

flora and fauna.

Vegetation on Freehold Land.

Whilst there are references in the text of the Local Planning Policy

Framework to prepare the study, nowhere is there a reference to prepare the

study as a prerequisite to rezonings to Low Density Residential Zone. That

is, for whatever reason Council as the planning authority did not accept the

previous Panel’s recommendation.

The role of a panel appointed to consider submissions to a planning scheme

amendment is quite different to that, say, of the Victorian Civil and

Administrative Tribunal. The Tribunal considers an application for permit as

if it is the responsible authority and is empowered to make a decision as to

whether or not a permit should issue and what conditions will apply if a

permit does issue. A panel, on the other hand, merely makes a

recommendation to the planning authority. Recommendations are not

always accepted by the planning authority. It is open to a planning authority

to disagree with a panel recommendation, and then adopt an amendment in

a different form to that recommended by a panel. The Council and not the

Panel is the planning authority.

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After an amendment is adopted by the planning authority it is submitted to

the Minister for Planning for approval, and with one minor exception,

becomes law when notice of that approval is published in the Government

Gazette. The Minister can alter the amendment adopted by the planning

authority, for example, to include a change recommended by a panel but not

adopted by the planning authority.

This Panel does not know the reasons why the Amendment C24 Panel!s

recommendation to defer rezoning of proposed Low Density Residential

Zones was not followed by the planning authority in this instance. Nor is it

necessary to know those reasons. It would be quite inappropriate for this

panel to make a recommendation to defer this rezoning until the study is

completed on the basis that this was recommended by a previous panel,

when that previous recommendation appears not to have been accepted as

part of the statutory planning scheme amendment process.

What is important is what the planning scheme, as approved, now says. It

does not say that proposed Low Density Residential Zones should be

deferred pending the completion of the proposed Castlemaine Urban Forest

Interface Study. Rather, the planning scheme says that the land should be

potentially rezoned for low density residential purposes following an

assessment of flora and fauna. That assessment has been undertaken to the

satisfaction of both the planning authority and the Department of

Sustainability and Environment.

6.5 Are Offsets Achievable?

The Panel is mindful of the Villawood decision cited above which indicates

that it is not always possible to determine appropriate offsets at the permit

application consideration stage, and that the provision of offsets should be

dealt with as a secondary consent under a planning permit condition that

specifies the amount of habitat hectares to be offset and includes the

Department of Sustainability and Environment as part of that secondary

consent process because of the expertise that it brings to bear on the

calculation of the offset.

In the absence of any firm development proposal before the Panel it is even

more difficult to determine appropriate offsets.

Apparently as part of its support of the amendment the Department of

Sustainability and Environment required additional work to be undertaken

in the flora and fauna assessment including an updated calculation of the

habitat hectares loss. This update was apparently required because of

changes to the methodology of calculating native vegetation loss since Mr

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Cheers prepared his first report. The Panel has carefully considered Mr

Cheers methodology against the methodology set out in Victoria"s Native

Vegetation Framework ! A Framework for Action and the various native

vegetation planning practice notes. Overall, the Panel is satisfied that the

correct methodology has been followed. The Panel is not in a position to

confirm whether the actual calculations of native vegetation loss are accurate,

and there was a degree of difference for various reasons between the two

expert witnesses, Mr Cheers and Mr van Gemert, who both gave evidence on

this matter. One of those reasons was that Mr van Gemert included an area

that could be cleared around buildings after they are erected that is exempt

from the requirement for planning permission for native vegetation removal.

The Panel notes that the native vegetation framework is a policy.

Application of the policy is triggered by a planning permit requirement.

Whilst some assumptions can be made in relation to the size of

dwellings/building envelopes and the resultant consequential loss of

vegetation that will occur, it appears to be irrelevant to include in the total

calculation of loss other areas exempt from permission and which therefore

do not trigger application of the policy. That is, it should not be assumed

that because permission is not required to remove native vegetation that it

will be removed and to factor this into the total equation of native vegetation

loss. In addition, if Mr Cheers’ recommendation that the area outside of the

building envelopes and access ways is covered by some form of agreement

that prevents further native vegetation removal except with the permission

of Council (it is ultimately up to Council and the Department of

Sustainability and Environment to determine if this additional requirement is

necessary at the planning permit application stage), then this as of right

vegetation loss can be further controlled.

However, this was not the major concern with the methodology used by Mr

van Gemert in his assessment of appropriate offsets. Firstly, whilst he did

not have the benefit of Mr Cheers subsequent report when he prepared his

witness statement, Mr van Gemert relied on the methodology and results

that Mr Cheers used in his first report and which have now been superseded.

At the hearing, Mr van Gemert provided an updated calculation based on Mr

Cheers’ calculations in his latest report but included areas around buildings

exempt from planning permission in his calculation of vegetation loss.

Secondly, Mr van Gemert used the shortcut method contained in the VPP

Practice Note: Assessing Applications Involving Native Vegetation Removal. The

shortcut method is to be used as an alternative to the more complex method

set out in the Native Vegetation Framework. It is not to be used as one step

in the calculation of the more complex habitat hectares calculation

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methodology contained in the native vegetation framework but is an

alternative simpler method of undertaking the whole calculation.

Thirdly, the shortcut method does not apply to applications that are required

to be referred to the Department of Sustainability and Environment

(presumably on the basis they use and understand the more complex

method), and on Mr van Gemert’s calculations an application would need to

be referred to the Department.

Fourthly, Mr van Gemert applied a recommended offset set out in the

shortcut method (but not included in the Native Vegetation Framework) that

quadrupled the offset area as if it were under conservation management.

Other than Lot 14B, a relatively small area in the south"east corner of the site

which is the subject of an agreement under Section 69 of the Conservation

Forests and Lands Act, 1987 and will not be the subject of further native

vegetation removal other than a common property road (provided the

consent of the regional manager of the Department is obtained), none of the

amendment site is under conservation management.

Fifthly, Mr van Gemert, asserted that the conservation significance of the site

could be classified as high, which he believed was justifiable presumably on

the basis that the quality of existing vegetation could be improved or had

been high in the past (this was not entirely clear). Nevertheless, the

methodology provided by Mr Cheers clearly indicated that the existing

conservation significance of the site was medium. The existing condition of

the site rather than its potential condition is the general basis of assigning the

conservation significance.

For these reasons, the Panel prefers the evidence of Mr Cheers to that of Mr

van Gemert.

Mr Cheers calculated a native vegetation loss of 0.49 habitat hectares of Box"

Ironbark Forest of medium conservation significance. He estimated 0.2

habitat hectares of offset is available in the northern portion of the site, whilst

Mr van Gemert was concerned that area could not be provided as an offset

because it was subject to exemptions from native vegetation removal under

Clause 52.17. In the context that Mr Cheers also recommended agreements

to further protect the remaining vegetation, any offset provided on"site

would require some type of binding agreement even if other areas of the site

not required as offsets were not so protected. In any event, it was conceded

by Mr Cheers that most of the offset would need to be provided off"site. He

indicated that there are mechanisms such as through the Bush Broker

Program where these offsets could be provided locally. In addition, whether

some of the offset is provided on"site or not, the overall offset is not

particularly large.

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As indicated, it is difficult to accurately calculate offsets at this stage of the

planning process. The Panel expects that if offsets are to be provided they

will be required as a condition of planning permit. In the Villawood decision

the offset plans were required to be submitted with the plans for

endorsement and included a requirement for details to be provided for

permanent protection of the offsets. If the offset plans are not satisfactory

and not endorsed then the vegetation removal cannot commence. That is, if

satisfactory arrangements for provision of the offset are not provided the

vegetation removal authorised by the permit cannot occur.

6.6 Other Matters Raised in Submissions

Other matters raised in submissions relate to:

1. Unsubstantiated demand for additional Low Density Residential Zone

land (FOBIF).

2. A requirement to sewer the land (Goulburn"Murray Water).

3. Environmental protection measures during the construction stage

(EPA).

4. Provision of sealed roads and underground stormwater drains in the

area adjacent to the conventional residential area to the south (residents

to the south).

5. A Traffic Impact Assessment be prepared prior to developing the land

to address the impact of the development on the existing arterial road

network and in particular the Pyrenees Highway/Ireland Street

intersection (VicRoads).

6.6.1 Demand for Low Density Residential Zone Lots

The General Practice Note Rural Residential Development Guidelines (October

2006) requires an assessment of housing need. This is also required by

Minister’s Direction No. 6: Rural Residential Development. In the submissions

by both Council and the proponent little analysis was provided about the

demand for rural residential lots.

Ms Copeland referred to the Castlemaine Residential Strategy which

identifies an estimated 593 lots and which provides a 10"year supply for

Castlemaine under the adopted growth scenario. The subject site forms part

of an additional area of 47 ha that would be required to meet projected

demand until 2021. She noted that there were extensive areas of Rural Living

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zoned land in Castlemaine but only approximately 40 undeveloped existing

Low Density Residential zoned lots.

Mr Collins referred to population projections contained in the Mount

Alexander Shire Urban Living Strategy, which apparently identified the need

for an annual average of 37 additional new dwellings until 2011 and an

average of 33 additional new dwellings from 2000 to 2021 in Castlemaine.

Dr Ryan relied on the Amendment C24 Panel report, which whilst accepting

the existing zoned supply (potentially 593 lots as described by Ms Copeland),

rejected what it concluded were overly"high estimates of demand for 59 lots

per annum.

Victoria in Future provides population projections (prepared in 2003) which

indicate that Castlemaine will grow by approximately 43 additional

households per annum between now and 2031. The Panel was not provided

with any data in relation to take"up rates or dwelling approvals in

Castlemaine!s existing Low Density Residential Zones, so it is not possible to

ascertain what proportion of those additional 43 households will gravitate to

Low Density Residential Zones and whether there is an actual demand that

will exceed 10 years supply for additional rural residential lots.

The Panel is loath to guess what the take"up of rural residential lots will be,

but if 10% of all new households located in the Low Density Residential

Zone, that is approximately 4 lots per annum, the available 40 lots identified

by Ms Copeland (notwithstanding some are constrained) would provide the

10 year supply identified in the State Planning Policy Framework and the

Rural Residential Development Guidelines.

However, in this instance what is the planning consequence of an oversupply

of rural residential lots? For example, will it result in the permanent loss of

productive agricultural land? There is the obvious short term impact of

some native vegetation loss occurring sooner rather than later, but before the

loss occurs there will be a requirement to commit to the delivery of the offset.

The criteria to be applied to assess the consequences of more than 10 years

supply can be found in the Minister!s Direction for Rural Residential

Development. The criteria are that a rural residential development:

· Is consistent with the housing needs and settlement strategy of the

area.

· Is supported by and supports sustainable and viable settlements and

communities.

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· Does not comprise the sustainable future use of existing natural

resources, including productive agricultural land, water, mineral

and energy resources.

· Protects existing visual and environmental qualities of the area, such

as landscape, water quality, native vegetation, habitat and

biodiversity.

· Avoids predictable adverse environmental process and effects, such

as flooding, erosion, landslip, salinity or wildfire.

· Can efficiently be serviced by social and physical infrastructure, at

an acceptable and sustainable community cost.

In relation to these criteria, the Panel makes the following observations:

In relation to housing need, there may not be a pressing demand for

additional residential lots. That in itself does not raise any community

disbenefit as the only person affected by the oversupply is the owner of

the land. As previously identified the rezoning of the subject land to a

Low Density Residential Zone is consistent with the settlement strategy

expressed by the planning scheme.

The subject land adjoins conventional residential development to its

south and is separated by the railway reserve from existing and

proposed conventional residential development to its east. It is a

logical, sequential and sustainable physical extension of the

Castlemaine urban area.

The subject land is not currently used for agricultural purposes and is

not required for water catchment, mineral or energy resource purposes.

Whilst acknowledging that there was some debate about the impact on

existing visual and environmental qualities of the area, specifically

native vegetation removal, habitat and biodiversity issues, the Panel

has concluded that the proposal is and can be compliant with the native

vegetation policy and framework.

There was no suggestion by any party of predictable adverse

environmental processes and effects such as flooding, erosion, landslip,

salinity or wildfire. In relation to wildfire, Dr Ryan advised the Panel

that earlier advice from the Country Fire Authority (CFA) in relation to

Amendment C22 is that the land is subject to wildfire attack. However,

the Amendment C22 submission by the CFA went on to state that the

wildfire hazard was not considered to be of sufficient severity as to

preclude the rezoning from Rural Living Zone to Low Density

Residential Zone. A Wildfire Management Overlay exists over part of

the eastern portion of the site. The Panel observes that many houses,

including in the Low Density Residential Zone are affected by this

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overlay and may be subject to potential wildfire attack. The Wildfire

Management Overlay does not prohibit development of dwellings or

subdivision but may require measures such as an appropriate provision

of water supply as a condition of approval. In any event, the Panel

notes that the overlay covers a very small area of the whole of the

subject site, and Mr Cheers recommended that building envelopes

avoid the overlay area presumably to minimise the removal of native

vegetation for fire protection purposes.

The Panel was advised that it is proposed to connect the future

subdivision to reticulated services including sewer and water, which

appears feasible given its location adjacent to existing urban areas of

Castlemaine. The subject site is not remote from the urban area of

Castlemaine such that there would be a failure to access social

infrastructure (eg. garbage collection, access to schools).

The Panel therefore concludes that although there might already be in the

order of or more than 10 years supply of rural residential land in

Castlemaine this does not lead to any adverse community consequence or

disbenefit as a result of rezoning the subject site for this purpose.

Furthermore, the Panel notes that with an area of a little more than 8

hectares, the subject site is already developed with four dwellings and

comprises three landholdings. The existing dwelling density is already akin

to a rural residential density (normally regarded as being between 0.4 ha " 2.0

ha per dwelling) rather than a rural/rural living density (normally regarded

as being greater than 8 ha per dwelling), and the land is essentially already

used for rural residential purposes with at least one dwelling on each of the

three landholdings.

6.6.2 Sewering of Lots

The Panel was advised that it is proposed that in any future subdivision of

the land the lots will be connected to reticulated sewer. This is also a

requirement in the proposed schedule to the Development Plan Overlay.

6.6.3 Environmental Protection Measures during the Construction Stage

These environmental protection measures include matters such as protection

of trees proposed to be retained, sediment control and the like during the

construction phase of the subdivision. These matters are normally controlled

by conditions on permit and are best dealt with at that stage.

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6.6.4 Provision of Sealed Roads and Underground Drainage Adjacent to Residential Development to the South

The provision of sealed access ways and appropriate drainage measures to

ensure stormwater is adequately catered for would appear to be appropriate

particularly along the subject site’s southern interface with existing

residential areas. Sealing of roads is a requirement of proposed DPO7,

although it is unclear whether this is confined to Council roads and also

includes common property access ways. Again, this matter will be the

subject of an engineering assessment by Council at the planning application

stage and when engineering design is undertaken for the subdivision as part

of the subdivision approval process.

6.6.5 Traffic Impact Assessment

The Panel considers the impact of additional traffic on the Pyrenees

Highway/Ireland Street intersection as a result of the development of the lots

envisaged under the subdivision would be relatively insignificant, but

nevertheless notes that in its February 2008 resolution, Council resolved to

require such an assessment. The Panel does not propose to alter this

provision on the basis that VicRoads did not attend the hearing presumably

on the basis that it was satisfied with the change made by Council.

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7. Conclusions

The Panel has formed the view that the amendment, as amended at the

February 2008 Council meeting should be adopted and approved.

In summary, the reasons for this are:

1. The Panel considers that sufficient attention has been given to the

avoidance of native vegetation removal at a strategic level by directing

growth to less sensitive areas such as to the west of Castlemaine.

Avoidance has also been achieved by choice of the Low Density

Residential Zone rather than the Residential 1 Zone and not seeking to

use Martin Street for access. Minimisation of native vegetation loss can

be achieved through the careful siting of building envelopes, provision

of services in access ways, and if adopted by Council and the

Department of Sustainability and Environment, the recommendation by

Mr Cheers for further restrictions on future vegetation removal outside

of building envelopes. The Panel considers the general support for the

amendment by the Department of Sustainability and Environment,

particularly after the Council resolution of February 2008 included the

changes requested by the Department, is significant given that the

Department is the principal organisation for administering the native

vegetation policy provisions.

2. In the Panel!s view the outcome sought for this site by the planning

scheme, and in particular by the Castlemaine Land Use Framework

Plan is its development for low density residential purposes following

an assessment of its flora and fauna characteristics. This assessment has

been undertaken.

3. Although the Amendment C24 Panel recommended no rezonings to

Low Density Residential Zone and Residential 1 Zone until completion

of the Castlemaine Urban Forest Interface Study, this recommendation

has not found its way into the planning scheme with respect to

potential Low Density Residential Zone areas.

4. Although native vegetation offsets probably cannot be accurately

quantified until the permit application process, on the information

available to it the Panel is satisfied that appropriate offsets can be

provided.

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5. Although the rezoning of the land to Low Density Residential Zone

may result in greater than 10 years supply of low density residential

land in Castlemaine, the Panel considers this is of little consequence

having regard to the manner in which the land is currently used.

6. Detailed matters relating to provision of services and the standard of

road construction are matters that can be dealt with as part of Council!s

planning and engineering assessment at the permit application stage.

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8. Recommendations

The Panel recommends that Amendment C38 to the Mount Alexander

Planning Scheme, as amended by Council at its February 2008 meeting,

should be adopted and approved. A copy of the amended DPO7 schedule is

included at Appendix 1 to this report.

The Panel further recommends that Schedule 2 to the Significant Landscape

Overlay be amended as a matter of urgency so as to identify the vegetation

for which a permit is required to remove, destroy or lop.

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Appendix 1: DPO7 as Amended at the February 2008 Council Meeting

SCHEDULE 7 TO THE DEVELOPMENT PLAN OVERLAY

Shown on the planning scheme map as DPO7

MARTIN & IRELAND STREETS CASTLEMAINE

1.0 Requirement before a permit is granted

A permit may be granted before a development plan has been prepared to the

satisfaction of the responsible authority to use land, construct buildings or to construct

or carry out works ancillary to the existing dwellings.

2.0 Conditions and requirements for permits

All residential development must be serviced with reticulated water and sewerage,

and underground reticulated electricity.

All subdivision must be serviced with sealed roads and underground stormwater

drainage.

3.0 Requirements for development plan

The Development Plan must:-

Describe the relationship of uses proposed on the land to the existing and proposed

uses on adjoining land, including appropriate regard to the adjoining residential area.

Identify proposed subdivision layout including the location, dimensions and areas of

all lots.

Identify the location of building envelopes, and vehicle access ways to building each

building envelope.

All residential development must be serviced with reticulated water and sewerage,

and underground reticulated electricity. These services are to be located within the

vehicle accessways.

All subdivision must be serviced with sealed roads and underground stormwater

drainage.

Identify any sites of conservation, heritage or archaeological significance and the

means by which they will be managed.

Provide appropriate arrangements for the provision and funding of necessary

physical infrastructure.

Provide appropriate arrangements for the preservation and regeneration of existing

vegetation.

Assess the existing vegetation type, quality and quantity on the site to the

satisfaction of the Department of Sustainability and Environment.

Identify any native vegetation proposed for removal, and areas for replanting to the


--/--/20--

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Provide a native vegetation offset plan to the satisfaction of the Department of

Sustainability and Environment.

Provide an explanation of how the net gain outcome specified in Victoria’s Native

Vegetation Management- A Framework for Action (2002) has been met to the


Provide suitable linkages between the site and road, public, bicycle and pedestrian

transport facilities to urban areas.

Identify proposed water supplies, storages and systems required for fire fighting

purposes.

Show fencing that is visually unobtrusive and appropriate to permit the passage of

wildlife.

Require the execution of a Section 173 agreement that prevents further subdivision

or the erection of second dwelling on any allotment.

Provide a Traffic Impact Assessment report to the satisfaction of VicRoads prior to

the development of the subject land. This assessment will address the impact of the

development on the existing arterial road network and details of any mitigating

works required at the Pyrenees Highway / Ireland Street intersection.

ATTACHMENT DEI 38

ATTACHMENT DEI 39

ATTACHMENT DEI 39

ATTACHMENT DEI 39

ATTACHMENT DEI 40A

ATTACHMENT DEI 40B

ATTACHMENT DEI 40C

ATTACHMENT DEI 40D

Documents

Attachment 7A - Mount Alexander Shire Council...The Foresite report dated June 2007 purports in its title to include an accompanying development plan (McKenzies Hill Rezoning: Proposed