REPORT TO Development Assessments Committee ITEM NO. 2.2 · REPORT TO Development Assessments Committee ITEM NO. 2 ... Post Independent Panel Report ITEM NO. 2.2.1 ... Shire’s website

Mornington Peninsula Shire Council 1

REPORT TO Development Assessments Committee ITEM NO. 2.2.1

MEETING DATE Monday, 20 May, 2013

SUBJECT Mornington Peninsula Planning Scheme Amendment C162 – Mount Eliza Woodland: Post Independent Panel Report

PREPARED BY Rosalyn Franklin, Team Leader – Scheme Review and Systems

AUTHORISED BY Manager – Strategic Planning

ATTACHMENT(S) YES

PURPOSE The purpose of this report is to present Mornington Peninsula Planning Scheme Amendment C162 (Mount Eliza Woodland) for further consideration by Council. It is recommended that a preliminary position be established supporting various changes in response to the outcome of the exhibition process and the recommendations of an Independent Panel. Aspects of the preliminary position would then be subject to further consultation, with persons making submissions on the changes given an opportunity to be heard at a Special Council Meeting. A report on this consultation would then be made to a further Council meeting with a recommendation for a final decision i.e. whether the Amendment ought to be adopted and submitted to the Minister for Planning for approval, with or without modifications, or abandoned. In essence, Amendment C162 involves limiting the further subdivision potential of land within part of Mount Eliza known as the Mount Eliza Woodland, south of the Nepean Highway between Humphries Road and Canadian Bay Road. The aim of this limitation is to retain, as far as possible, the distinctive landscape character of this area, on the basis that further subdivision can be expected to result in further development, and further development would, in turn, lead to both the direct removal of vegetation and ongoing pressure to remove vegetation over time (e.g. to provide defendable space for fire hazard reduction purposes). Having regard to the landscape character objective, the Amendment also proposes to directly control the level of building site coverage – to avoid situations where even single dwelling and associated outbuildings result in the removal of the majority of vegetation. It is important to recognise that a key argument in support of the Amendment is that most residents value this landscape character as a ‘shared amenity’; it is necessary to limit development to maintain this character, and the subdivision and site coverage controls ensure a ‘shared contribution’ from all landowners to maintaining the character of the area. An earlier Amendment C87 also proposed to introduce similar subdivision controls. This Amendment was adopted by Council but rejected by the then Minister for Planning, Justin Madden. The C87 Panel had opposed the use of mandatory controls and considered that performance based provisions could achieve the intended outcomes. However, C162 was commenced on the basis of advice from the current Minister that he was in fact prepared to consider the use of mandatory provisions, and this change in approach is reflected in the new residential zones which have been announced, and are due to be introduced into the Victoria Planning Provisions in July of this year. In some cases, such as the Neighbourhood Residential Zone, there will be provision to introduce a local schedule that allows for mandatory minimum lot sizes and mandatory maximum building heights. It should also be noted that even with the introduction of the new zones, the Design and Development Overlays (DDO) will remain in place.

Development Assessments Committee Meeting – Monday, 20 May, 2013 Mornington Peninsula Planning Scheme Amendment C162 – Mount Eliza Woodland: Post Independent Panel Report ITEM NO. 2.2.1


PURPOSE (CONT’D) In this context, C162 was exhibited for public comment, with notices mailed to all landowners and occupiers in the affected area. During the one month exhibition period, 423 submissions were received, with both objections and submissions in support of the Amendment. Council subsequently resolved to refer the Amendment and all submissions to an independent Panel for consideration and report (see Attachment 1 for Panel Report). In summary, the Panel has recommended that Amendment C162 be adopted subject to a number of changes to the exhibited DDO18 aimed at protecting the character of the area from any undesirable impacts of both subdivision and single lot developments. Some of these changes follow from Council submissions made to the Panel and others originated from the Panel itself. The use of mandatory controls over both minimum lot size and requirements for second dwellings is supported by the Panel. The Panel’s main recommended changes are: A lower minimum lot size (reduced from 2,500 square metres to 2,000 square metres or, if a lot

has two road frontages, 1,300 square metres – ‘the corner lot provision.’ This report, not the Panel, has characterised this provision as ‘the corner lot provision’ as the Panel’s drafting would seem to include corner lots despite the discussion in its reports arguably just relating to non-corner lots with two road frontages. Advice from Planning Panels Victoria also indicates that the Panel’s comments should be considered to apply to all lots with two frontages, including corner lots);

A new permit requirement for outbuildings of more than 10 square metres; A new permit requirement for a Dependent Person’s Unit (DPU); A new permit requirement for a fence with less than 70% transparency; Additional requirements for second dwellings (appearance as a single dwelling and sharing of a

single crossover); Amendment of objectives, setback and site coverage provisions and adjustment of precinct

boundaries as recommended in the Shire’s submission to the Panel; and A number of other changes to the design requirements including a revised structure and

formatting. This report recommends that eight of the Panel’s nine recommendations be fully or partly accepted. The key differences from the Panel’s DDO18 proposals are detailed below. General acceptance of the Panel’s recommendation to reduce the minimum lot size to 2,000 square metres but with retention of the 2,500 square metre minimum lot size for Precinct 1 (the escarpment area): Removal of the corner lot provision;



PURPOSE (CONT’D)

Inclusion of a planning permit requirement for dwellings in Precinct 1 – the Mount Eliza escarpment (previously recommended to the Panel by the Shire). A plan showing the precinct areas that form part of DDO18 is included as Attachment 7 and more detail of Precinct 1 is shown in Figure 1. The Panel did not necessarily oppose this provision but recommended that additional notice be given;

An exemption from the requirement to obtain a planning permit for any outbuilding with an area

greater than ten square metres for a garage/car port of no more than 70 square metres if it is the only one on the lot;

Tightening of permit trigger requirements so that proposals which propose to match the setbacks of adjoining buildings must still provide a minimum setback of 5 metres; and

Retention of the format and structure of the DDO18.

Departure from the Panel’s recommendations is considered to be justified on the following grounds: Precinct 1 has such landscape significance and development constraints that it warrants stricter

control than the remainder of the Mount Eliza Woodland area. Arguably, the original subdivision of this area was inappropriate and under current town planning practice, would not have been approved. Further densification of lots and dwellings would only exacerbate the current adverse impacts of development and further detract from its values. Permit assessment providing integrated assessment of siting and design issues is also critical to properly mitigate impacts and protect the values of the area; and the Panel appears to have under-estimated the likely extent of potential impact;

A corner lot provision would have unintended, adverse impacts that the Panel may not have considered. It is not warranted for the small number of cases that might be sensitively undertaken;

An exemption for a single garage/carport would provide both greater fairness and parity with

the Residential 1 Zone (R1Z) provisions upon which the Panel has modelled its 10 square metre outbuilding provision; and

The Panel’s statutory drafting does not achieve its intended effect. The Panel also made other recommendations relating to the review of the Vegetation Protection Overlay Schedule 1 (VPO1) provisions, new cohesive planning of the public realm and better enforcement of planning provisions. The underlying intent of these recommendations is generally supported and appropriate recommendations have been made in response, including the preparation of a new amendment proposing a specific VPO Schedule for the Mount Eliza Woodland area to be undertaken at a later stage and in conjunction with consideration of the Bushfire Management Overlay (BMO) proposals. BACKGROUND Land The subject land is generally bound by Humphries Road, Moorooduc Highway, Canadian Bay Road and Nepean Highway, Mount Eliza, as shown in the Amendment documents in Attachment 7.



BACKGROUND (CONT’D) Proposal Amendment C162, as exhibited, may be viewed online through either the Shire’s website or the following link: www.dpcd.vic.gov.au/planning/planningschemes/changingtheplanningscheme/amendmentsonline When compared to the previous Design and Development Overlay (DDO Schedule 4 – Environmental Design) that applied to the land (i.e. the DDO that applied prior to the current interim DDO18), the key differences that Amendment C162 would introduce are: A larger minimum lot size being 2,500 square metres instead of a provision enabling

applications for an integrated subdivision, allowing consideration of a maximum of two lots for every 2,600 square metres of site area in conjunction with a plan to construct two dwellings;

Stricter provisions for second dwellings allowing them only if:

— The second dwelling is substantially attached to an existing dwelling;

— The second dwelling has a floor area of no more than 100 square metres;

— The total site coverage of all buildings, including garages and other outbuildings, does not exceed 20% of the total lot area; and

— A Section 173 Agreement is created to prevent the subdivision of the subject land. The

Agreement must be registered on the title. The introduction of permit triggers based on site coverage.

Policy Context The policy context is set by the State and Local Planning Policy Frameworks of the Planning Scheme and this is explained in the Explanatory Report for the Amendment which may be viewed on the Shire’s website or in hard copy at the Shire’s Mornington, Hastings or Rosebud offices. It should be noted that Clause 10.04: Integrated decision making of the State Planning Policy Framework provides in part that:

“ Planning authorities and responsible authorities should endeavour to integrate the range of

policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.”

In addition, since the Panel submitted its report, the Minister for Planning has announced the reformed residential zones that he plans to introduce to the Victoria Planning Provisions. The Department of Planning and Community Development (DPCD) has indicated that there is to be a 12 month period in which Councils are expected to convert from the existing zones to the new zones. This process may also involve changes to the Local Planning Policy Framework. Whilst the criteria for applying particular zones is yet to be established, it would appear that the proposed Neighbourhood Residential Zone, which has the purpose set out below, would be the most appropriate for the Mount Eliza Woodland area.



BACKGROUND (CONT’D) Policy Context (Cont’d) Neighbourhood Residential Zone Purpose To implement the State Planning Policy Framework and the Local Planning Policy Framework,

including the Municipal Strategic Statement and local planning policies;

To recognise areas of predominantly single and double storey residential development; To limit opportunities for increased residential development;

To manage and ensure that development respects the identified neighbourhood character,

heritage, environmental or landscape characteristics; To implement neighbourhood character policy and adopted neighbourhood character guidelines;

and To allow educational, recreational, religious, community and a limited range of other non-

residential uses to serve local community needs in appropriate locations. It is noted that this Zone, like the C162 /DDO18 mandatory provisions, includes an ability to specify a minimum lot size, the maximum number of dwellings that may be permitted on a lot and a maximum building height. Process The processing of Amendment C162 has been in accordance with the Ministerial authorisation and exhibition steps described in the ‘Process’ section of an earlier Council report on this matter dated 14 May, 2012 (see Attachment 2 for the minutes of that meeting). On 14 May, 2012, the Council decided to refer all submissions to Amendment C162 to an Independent Panel for consideration. The Council also decided that the Panel should be advised that Council supported a revised version of the exhibited Amendment C162, in response to some of the matters that had been raised by the submitters. The three-person Panel appointed by the Minister for Planning invited all submitters who wished to be heard in person to a hearing on 27, 28 and 29 August, 2012 at the Shire’s Mornington office. A copy of the submission that the Shire made to the Panel maybe viewed in Attachment 3. This Council submission more fully describes the nature of the submissions that were made during the exhibition period or that were accepted as late submissions following the close of the exhibition period. All of the submissions, including the supplementary submissions that were made to the Panel by submitters who appeared at the Panel hearing maybe viewed in Confidential Attachments 4.1 and 4.2. A total of 20 parties were heard in person by the Panel. Council received the Independent Panel’s report on 7 November, 2012 and it has since been made public. Submitter 11 has responded to the Panel Report and has requested that this supplementary submission be made available to Councillors (see Confidential Attachment 5).



BACKGROUND (CONT’D) Process (Cont’d) The next step in the process is for Council to consider the Independent Panel’s report, as required under Section 27 of the Planning and Environment Act 1987 (the Act), before deciding whether or not to adopt the Amendment with or without changes. (Council also has an ability to abandon an amendment or any part of it.) A Council must not adopt an amendment unless it is satisfied that it has complied with Divisions 1 and 2 of Part 3 of the Act which deal with exhibition and submission procedures. As a Planning Authority, Council is also obliged to consider a range of matters specified in Section 12(2) of the Act, which must include any significant effects the Planning Authority considers the Amendment may have on the environment and may include any social or economic effects. These are set out in the Explanatory Report for the Amendment, the Shire’s submission to the Panel (see Attachment 3) and elsewhere in this report. Council, as an interface body under the provisions of the Transport Integration Act 2010, also has an obligation to have regard to other specified matters under that Act. In this case, it is considered that the proposal will have no significant impact on the transport system and will not be inconsistent with the transport system objectives nor the decision making principles of the Act. Independent Panel Recommendations The Panel’s full report may be viewed in Attachment 1; on the Shire’s website or the DPCD’s website through the following link: http://www.dpcd.vic.gov.au/planning/panelsandcommittees/reports#amendments The Panel summarised its main findings and recommendations as follows:

“ • The Panel agrees with Council that the vision stated for the Mount Eliza Woodlands in the Municipal Strategic Statement is not being achieved under the current controls and revised controls are appropriate;

While the exhibited version of Amendment C162 is similar to the abandoned Amendment

C87, the Panel believes the policy changes since the C87 Panel, including an apparent shift in state policy towards increased use of mandatory controls in appropriate cases, and the release of Practice Note No. 59 – the role of mandatory provisions in planning schemes, warrant a review of the conclusions of the C87 Panel;

The bushland vegetation and established canopy trees across the estate are an essential

part of the character of the area and provide wildlife habitat. If the objective is to maintain the character of Mount Eliza Woodlands, the retention of these elements is the outcome that should be sought in the relevant planning controls;

Further subdivision may result in cumulative undesirable impacts over time, especially in

relation to neighbourhood character, and tighter controls including mandatory controls on lot size are justified; and

There is a clear need to address controls on single lot developments to avoid some of the

poor outcomes that are apparent. This will require a combination of a review of DDO and VPO controls, including permit triggers, along with a review of Council’s local laws and enforcement practices in relation to vegetation protection.”



BACKGROUND (CONT’D) Independent Panel Recommendations (Cont’d) “ The Panel has recommended that the Amendment be adopted subject to a number of changes to

the proposed DDO Schedule 18 including the adoption of a minimum lot size of 2,000 square metres (1,300 square metres for lots with two road frontages) and a number of other changes to the design requirements aimed at protecting the character of the area from any undesirable impacts of both subdivision and single lot developments.” (Panel Report Mornington Peninsula Planning Scheme Amendment C162, page ii.)

The Panel’s full recommendation was that Amendment C162 to the Mornington Peninsula Planning Scheme should be adopted as exhibited subject to the following changes and further recommended actions: This report recommends: Acceptance of Recommendations 2, 7 and 9;

Rejection of Recommendation 3; The partial acceptance of Recommendations 1, 4, 5, 6 and 8, as described below:

— Recommendation 1, being the change to the minimum lot size to 2,000 square metres to be accepted, except in relation to Precinct 1 (the escarpment area) and the rejection of the proposed corner lot provision;

— Recommendation 4 to be accepted in part by an invitation for land owners and occupiers to make a submission on proposed changes and to be heard by Council if they so wish before Council makes a final decision;

— Recommendation 5 to be accepted subject to an exemption for a garage or carport of

70 square metres or less;

— Recommendation 6 to be accepted subject to changes to achieve the intended effect and avoid unintended consequences; and

— Recommendation 8 to be accepted in principle but with public realm planning supported

through other mechanisms. Consultation The Act sets out the formal consultation requirements associated with Planning Scheme Amendments. In this case there have been further consultations and other material submitted as outlined below, noting however that there is no statutory requirement for this additional material to be considered under the processes of the Act: Receipt of unsolicited correspondence after the public release of the Panel Report. This

correspondence is shown in Attachment 5 and may be summarised as follows: Submitter 4 – Growing our Community Inc. which in summary argues that C162 in its

current form should be abandoned and the Shire Team Leader – Scheme and Systems Review appointed to chair a group representing the different parties to work out an acceptable amendment to preserve and protect the Woodland area;



BACKGROUND (CONT’D) Consultation (Cont’d)

Submitter 11 – who argues that the Panel’s subdivision recommendations are not convincing as it has failed to significantly reflect opposing evidence, provide a proper critique of expert witness evidence, find new evidence to justify mandatory controls and understand that the Planisphere report rejected a 2,000 square metre minimum lot size. The Panel’s independence is questioned and its recommendations are viewed as a ‘political fix’ against the continuation of subdivision in any form. It also points to a claim in the Panel’s report as being false and misleading;

Submitter 62 – who basically reinforces earlier expressed objections;

Submitter 262 – who, like Submitter 11, questions the independence and accuracy of the Panel Report;

A non-submitter to C162 who points out there is no right of subdivision, provides

examples of why a corner lot provision is not appropriate, supports a landscaped setback of high fences, would like grey added to approved colours and beige removed and notes the 1 Heath Road subdivision was not typical because of the small size of the dwelling and has borrowed amenity from roadside vegetation; and

A non-submitter to C162 (but a previous Amendment C87 submitter) who objects on the

basis that a two lot subdivision of her property, and like properties, on the flat area of Precinct 1 – the Mount Eliza escarpment, would be appropriate and should not be prohibited.

A meeting held on 20 March, 2013 between Briars Ward Councillors and Growing our

Community Inc.;

A meeting held on 20 March, 2013 between Briars Ward Councillors and the Mount Eliza Residents Association;

Advice from the Shire’s Manager – Statutory Planning regarding the recommendations of this officer’s report: “The recommendations of the report are expected to address key concerns about increased workload associated with side setbacks and building site coverage”;

Advice from the Shire’s Team Leader – Planning Compliance: “Council’s compliance process

is largely based on investigation of reported cases and those highlighted by the Panel have been investigated and in one case a permit breach has been identified and is currently under the officers’ attention. The existing system is considered to be efficient and the community should be advised of the opportunity to report any suspected cases of non-compliance to the Shire”;

Advice from the Shire’s Team Leader – Maintenance Services: “The Shire’s Street Policy could

be reviewed to facilitate the planting of appropriate native vegetation, including tall trees to provide a vegetation canopy that will assist in screening dwellings in the Mount Eliza Woodland area from long distance views and otherwise contributing to the neighbourhood character and habitat values of the area”; and

Advice from the Shire’s Team Leader – Construction and Asset Protection: “A new crossover

policy could be prepared for the Mornington Peninsula Shire, including area-specific provisions to implement unique neighbourhood character objectives for areas like the Mount Eliza Woodland area. In the interim, single crossovers could be encouraged on lots within the area.”



DISCUSSION The Panel, having supported the basic rationale for Amendment C162, then goes into the detail of the provisions but arrives at some conclusions that are significantly different to those advocated on behalf of Council at the Panel hearing (see Attachment 3 for the post exhibition version of C162 advocated by Council). The key differences may be summarised as: Changes that vary permit triggers;

Changes that affect the structure and format of the DDO18 provisions; A reduction in the minimum lot size; Changes to the mandatory provisions for second dwellings in Precinct 1 (the Escarpment area); Minor changes to the general requirements; A recommended review of the VPO1; and Tools outside the Planning Scheme that are necessary to achieve the Mount Eliza Woodland

vision. Each of these differences is discussed in more detail below, together with the following new issues that have been raised by correspondence that has been received since receipt of the Panel Report: Status of correspondence received since the Panel’s report;

The accuracy of the Panel Report including whether it has properly considered evidence; Independence of the Panel and whether it has delivered a planning and political ‘fix’; Whether further notification ought to be required; and Feasibility of a negotiated alternative.

Changes to Vary Permit Triggers In summary, the Panel has recommended changes to permit triggers to: Introduce more triggers for DPUs, fences and outbuildings;

Amended setback triggers; and Removal of the trigger for development in Precinct 1.

These are more fully described and discussed below.



DISCUSSION (CONT’D) Changes to Vary Permit Triggers (Cont’d) Dependent Person’s Unit Permit Trigger Summary of Panel recommended change: “ Widening the permit trigger for a Dependent Person’s Unit (DPU) to apply in all cases not just

where the general requirements of the DDO18 will not be met.” In arriving at this recommendation, the Panel argues that there is the potential for DPUs to undermine the neighbourhood character of the Mount Eliza Woodland area due to their potential size and associated vegetation clearance impacts, especially since a DPU would not be subject to the mandatory second dwelling considerations (Attachment 1, page 52-53). The position advocated on behalf of Council with regard to DPUs is in accordance with other DDO Schedules in the planning scheme i.e. their development is generally facilitated without a permit if they comply with the general dwelling design requirements, in order to prevent unnecessary barriers to the care of a dependent person. In addition, it should be noted that the VPO would still trigger the need for a planning permit if significant vegetation removal is proposed. However, an argument in support of the Panel’s recommendation is that requiring approval for DPUs will better ensure such buildings are only used for their intended purpose i.e. relocatable buildings intended to accommodate dependent persons. If a planning permit is required for a DPU, then it is possible to apply a planning permit condition to require removal of the DPU when it is no longer required for its original purpose i.e. to provide accommodation for a dependent person. Technically, a DPU should not be occupied by non-dependent persons but a clear requirement for removal would avoid complicated enforcement requirements and would also reduce the possible assumption that DPUs can simply be converted to second dwellings, even when they would not meet the mandatory requirements proposed for second dwellings in the Amendment. An alternative to requiring a permit for all DPUs would be to exempt DPUs in Precinct 2, 3 or 4; provided it is the only dependent person’s unit on the lot, has an area of 60 square metres or less and is to be sited without any tree removal. However, this option would not provide the ability to require later removal through a permit condition. The Panel recommendation in this matter is considered reasonable and should be accepted. Outbuildings Permit Trigger Summary of Panel recommended change: “ Widening the permit trigger to capture all outbuildings of more than 10 square metres not just

those of more than 100 square metres. (The exhibited DDO18 had no permit trigger for outbuildings but at the Panel the Shire advocated a 100 square metre trigger.)”



DISCUSSION (CONT’D) Changes to Vary Permit Triggers (Cont’d) Outbuildings Permit Trigger (Cont’d) The Panel has recommended a permit trigger for outbuildings of 10 square metres or more to align it with the R1Z ‘as of right’ provisions for an outbuilding of up to 10 square metres on a lot of less than 500 square metres. However, the Panel has not recognised that the R1Z provisions exclude garages and carports. The Panel’s version would therefore mean any freestanding garage or carport would require a permit and this would be overly burdensome especially given the general capacity of the large lots in Mount Eliza Woodland area to accommodate such an outbuilding. It is noted that 100 square metres could accommodate a triple garage and having regard to the Panel’s position, a lesser 70 square metre trigger that would allow for two vehicles would be reasonable if it were the only outbuilding of more than 10 square metres on the lot. The setback requirements in the general requirements would also still apply to carports and garages of less than 70 square metres. (See more detailed discussion about setback triggers in section 7.5). The Panel recommendation is partly accepted and it is recommended that the following outbuildings be exempted from the permit trigger: In Precinct 2, 3 or 4; an outbuilding of 10 square metres or less; and

In Precinct 2, 3 or 4; a garage or carport, that is 70 square metres or less and the only

outbuilding of more than 10 square metres on the lot. (See Section 7.4 for an explanation as to why there is no exemption proposed for outbuildings in Precinct 1). Fences Permit Trigger Summary of Panel recommended change: “ Widening the permit trigger for fences to capture all those along a road that are either less than

70% transparent or 1.5 metres or more high; not just front fences that are higher than 1.5 metres and less than 70% transparent.”

The Panel’s recommendation is considered to be a measure that would assist in protecting neighbourhood character. It may encourage people to build compliant fences and so avoid the need for a planning permit application. It is likely to generate some additional applications, but the increase should not be so great that any additional budget allocation would be required. The Panel recommendation is accepted subject to revised wording that is intended to clarify the notion of ‘transparency’, as shown below: A permit is required to construct a fence if: The fence has a height of 1.8 metres or more;

The fence is constructed of fibro cement sheet materials;



DISCUSSION (CONT’D) Changes to Vary Permit Triggers (Cont’d) Fences Permit Trigger (Cont’d) The fence abuts a road and has a height of 1.5 metres or more; or

The fence abuts a road and less than 70% of the total fence structure is open or transparent. Dwellings in Precinct 1 – Removal of Permit Trigger Summary of Panel recommended change: “ Removing the permit trigger for dwellings in Precinct 1 (the escarpment face near Moorooduc

Highway).” The Panel also recommended that if Council were to pursue this permit requirement additional notification of affected persons would be warranted as although not a ‘transformation’ of the Amendment, this trigger was not part of the exhibition version (of the Amendment) and affected persons should be given a right to be heard. (Panel Report, pages 50-51). It should be noted that this recommendation relates to a proposal put to the Panel that the exhibited version of the DDO should be varied to require a planning permit for all dwellings in Precinct 1. This proposal in part responds to submissions that the proposed DDO should be ‘strengthened’ in relation to the potential impact of single dwellings, particularly in the Precinct 1 escarpment area. The Panel came to the above recommendation despite considering: “ There is a case for this area (Precinct 1) warranting particular attention to protect the

important external views of the escarpment, to manage erosion on steeply sloping sites and to maintain and enhance the internal neighbourhood character of the escarpment.” (Attachment 3, page 33).

Whilst the Panel shared a common understanding of the problem with Council it arrived at a different solution (i.e. a permit trigger was not required for dwellings in Precinct 1). The reasoning for the Panel’s recommendation is set down in its report (see Attachment 3, page 50-51) however it seems to be based on two questionable assumptions. The first assumption is contained in the following extract from the Panel’s Report: “ The Panel understands that Precinct 1 has characteristics that make it different to other parts of

the Mount Eliza Woodlands. However, the Panel considers that the changes proposed to DDO18 as outlined in the Panel preferred version of DDO18 will mean that development will trigger a planning permit in any case, due to the proposed subdivision, building and works and design controls, no matter which precinct it is in. (Attachment 3, page 50).

The assumption here is that all development will trigger a permit and this is not the case:

— The general height requirements (a wall height of 5.5 metres or a building height

of 6 metres) may be met by a sensitive building design stepped to follow any slope of the land. (Building forms that seek height for a double storey, or to maximize views or facilitate a single level construction on a steep site will of course be caught);”



DISCUSSION (CONT’D) Changes to Vary Permit Triggers (Cont’d) Dwellings in Precinct 1 – Removal of Permit Trigger (Cont’d)

“ — The site coverage general requirements are based on a survey of existing

development and the permit trigger reflects the average existing building site coverage. Similarly, the impervious site coverage trigger reflects the existing situation on the majority of lots. This means that the site coverage permit triggers would only capture the potentially over-sized and out of character dwellings not the ones of an average or lesser scale; and

— The general setback requirements have also been set at levels that only require new buildings to have setbacks that match adjoining lots (see further analysis of setback triggers in section 7.5). It is also noted that many of the lots in Precinct 1 are substantially larger than other lots in the Mount Eliza Woodland area and would have ample scope to meet the setbacks without any deviation from the requirements as well as some considerable flexibility in the siting of a building that could influence how visible it appeared from long distance views.”

The second assumption is indicated in the following extract:

“ The Panel also notes that the Bushfire Management Overlay (BMO) applies to the entire area of

Precinct 1, and the BMO triggers a permit requirement for all buildings and works associated with uses including Accommodation.

The Panel believes that the inclusion of a permit trigger in DDO18 for all buildings and works in Precinct 1 is unnecessary. (Attachment 3, page 51). The assumption behind this argument appears to be that any permit trigger will be sufficient to trigger a comprehensive assessment of character requirements. This is not the case. Under the normal practice of law an assessment should be confined to just those matters that trigger the assessment. For example, siting should not be questioned if it is only the height issue that has triggered the permit. Likewise neighbourhood character issues should not be taken into account because of a trigger for fire prevention reasons under the BMO. (It is also noted that the BMO mapping is being revised throughout the State and there is a likelihood that it could be retracted from parts of Mount Eliza by the State Government as modelling parameters have changed with more focus on areas within 150 metres of vegetated areas of four hectares or more.)

A further basis for the Panel’s recommendation in this matter would seem to be that it has recommended a review of the Vegetation Protection Overlay Schedule 1 with a view to introducing a permit requirement for the removal of all vegetation, subject to the standard State exemptions. It is agreed this could mean that risks to existing trees could be more directly addressed without the need for a permit trigger for a dwelling but it is noted that at the present time this provision is not in place and would be subject to a separate planning scheme amendment that has no guarantee of success.”



DISCUSSION (CONT’D) Changes to Vary Permit Triggers (Cont’d) Dwellings in Precinct 1 – Removal of Permit Trigger (Cont’d) “ The absence of Panel support for a Precinct 1 dwelling permit trigger is somewhat incongruous

with the Panel’s recommendations elsewhere (e.g. supporting a new permit trigger for DPUs partly in consideration of vegetation issues) especially when the outcome would be to better protect the iconic character of the Mount Eliza escarpment, not just the internal amenity of the area.

In conclusion, it is considered that in some cases, the Panel’s recommendations may be sufficient. However, control beyond the normal triggers in order to facilitate an integrated siting and design of development will be essential to avoid excessive visual impact in this National Trust recorded landscape, especially given that the VPO1 is not proposed to be changed as part of C162 (see section 12 for further discussion of the VPO). For these reasons, the Panel recommendation to delete the permit requirement for dwellings in Precinct 1 is not accepted. However, the Panel’s recommendation regarding the need for further notification in relation to this matter is accepted (see Section 17 for further detail).”

Setback Permit Trigger Summary of Panel recommended changes: “ The Panel proposes:

Adding a new permit trigger for rear setbacks;

Reducing the side road setback from 10 metres to 7.5 metres for lots with a frontage of less than 30 metres; and

Reducing side setback triggers to enable matching of setbacks of buildings on adjoining

lots. (Note: 96% of lots are 2,500 square metres or more and for this category the exhibited C162 proposed a minimum side setback of 10 metres with no reduction for matching of setbacks).”

For details see Attachment 1, Appendix C, Table 1 to Clause 43.02 Schedule 18.

The purpose of the setback provisions is essentially to promote siting which maintains a reasonably consistent building line along established streetscapes, provide for separation between buildings on adjoining lots and avoid boundary to boundary construction and allow for landscaping on boundaries, integrating buildings with the landscape. A rear setback requirement is intended to support the maintenance of a ‘backyard zone’ i.e. the retention of vegetation in adjoining rear garden areas which often contributes to a green canopy landscape. The Panel recommendations are partly accepted insofar as they support a new rear setback trigger, a reduced trigger for lots of less than 2,500 square metres and some reduction of side setbacks. However the option of simply matching adjoining side setbacks on all properties is not supported as this is considered unlikely to properly protect amenity i.e. if there is already a building close to the common boundary on an adjoining lot, constructing a new building equally close to that boundary is likely to exacerbate the potential impact.



DISCUSSION (CONT’D) Changes to Vary Permit Triggers (Cont’d) Setback Permit Trigger (Cont’d) As an alternative it is recommended that matching of adjoining setbacks only be supported if a minimum setback of 5 metres is provided. It should also be noted that these requirements are open to discretion to consider particular circumstances on their merits. Minimum Lot Size Panel recommendation: “ A reduction in the minimum lot size from 2,500 square metres to 2,000 square metres (or

1,300 square metres for lots with two road frontages).” The Panel’s recommendation for ‘a 1,300 square metres minimum lot size for lots with two road frontages’ will be referred to as the ‘corner lot provision’. Although there is some ambiguity in the expression of the Panel Report, Planning Panels Victoria have advised that the Panel comments in relation to ‘lots with two frontages’ are intended to apply to all lots with two frontages i.e. not only lots which are located between two roads, and therefore it is taken to include corner lots for the purpose of this discussion. In describing its reasons for making this recommendation the Panel notes that it accepted the following arguments made by objectors: The initial rationale for area is no longer relevant now that the area is connected to reticulated

sewerage; and

The effect of the 2,500 square metre lot size minimum, which is a prohibition on subdivision of lots of less than 5,000 square metres, is excessive. (Attachment 3, page 43).

The Panel then goes on to argue:

“ The Panel considers that it is unreasonable to put a higher lot size control on an area that is zoned Residential 1 Zone than that which would be permitted under land zoned for lower density. A lot size of 5,000 square metres in this part of Mornington Peninsula, considering its proximity to Frankston, Mornington and Mount Eliza, serviced by sewerage and drainage infrastructure, seems anomalous. The Panel also notes that the minimum lot size of 2,000 square metres is one of the options proposed by Planisphere in its report, and is the same as that introduced through Amendment C42 for land nearby.

The Panel therefore concludes that a lot size minimum of 2,000 square metres instead of the proposed 2,500 square metres is a more appropriate control. In coming to this view, the Panel has also considered the provisions of the BMO, and the ‘as of right’ vegetation clearance that can be carried out within the overlay area. This includes clearance within 10 metres of a dwelling of canopy trees, and 50 metres of a dwelling of bushland vegetation. The Panel considers that the cumulative impact of any future subdivision of lots of between 4,000 square metres and 5,000 square metres, and any vegetation clearance that may occur as a result of the BMO, will not have a net detrimental impact on the character of the area.” (Attachment 3, page 43-44.)



DISCUSSION (CONT’D) Minimum Lot Size (Cont’d)

There is a need for some clarification in relation to these comments. The minimum lot size proposed under DDO18 is 2,500 square metres, which is obviously not greater than the current minimum lot size in the Low Density Residential Zone (LDRZ) of 4,000 square metres. It appears that the Panel is comparing the minimum lot area where an application for further subdivision could be made under DDO18 i.e. 5,000 square metres, with the minimum lot size in LDRZ (4,000 square metres), rather than making an appropriate comparison with the minimum lot area where an application can be made in the LDRZ i.e. 8,000 square metres. The Panel may also have been contemplating the introduction of changes to the LDRZ as part of Minister’s Reformed Zone Package, where the minimum lot size under the LDRZ in areas where reticulated sewerage is to be reduced to 2,000 square metres. However, the Minister has accepted that this minimum may be varied through a local schedule (and the Advisory Committee envisaged variations for hazards or areas of environmental significance). In fact, on the Mornington Peninsula the vast majority of LDRZ areas are also included within DDO’s which increase the average minimum lot area to between 1 and 4 hectares, and these DDO’s will remain in force. It is also noted that Planisphere put forward a 2,000 square metre option without knowing how many lots would additionally become subject to potential subdivision, but supported such research being undertaken (Mount Eliza Woodland Neighbourhood Character Study Report, October 2006, page 58). That research has now been undertaken with respect to the lowered minimum lot sizes recommended by the Panel and the results are shown statistically in Table 3 and geographically in Figure 2. It is estimated that if the Panel’s recommendations were approved, subdivision may become permissible for 13 % of existing lots, in addition to the 6% of lots for which subdivision would be permissible under the exhibited version of C162, giving a total of 19% of lots. The number of lots with subdivision potential is also likely to further increase over time if some owners seek realignment of lot boundaries or consolidation of lots specifically for that purpose, with a view to achieving a third lot through a battle-axe layout. In terms of the general pattern of subdivision potential there is a general scattering of corner lots, as maybe expected, but otherwise a noticeable clustering in three areas: Near the face of the Mount Eliza escarpment (Precinct 1);

Around the Cummins Lane/Mather Road/Camelot Court area (part of Precinct 2); and In the Baden Powell Drive/Nepean Highway/Humphries Road area (Precinct 4). Some of the lots in Precinct 4 are understood to be subject to a covenant that would prevent more than one dwelling on the land and this may have also had an effect in maintaining the size of these relatively large lots although in recent times at least one of those lots has been successful in having the covenant amended to overcome that provision (via the issue of a planning permit).



DISCUSSION (CONT’D) Minimum Lot Size (Cont’d) It is noted that Precinct 4 is a prominent area exposed to long distance views from along the Nepean Highway and elsewhere outside the Mount Eliza Woodland area and for this reason should command some priority for landscape protection. Table 3: Potential impact of the C162 Panel’s proposed reduction in minimum lot size

Scenario – Subdivision Impact Number of lots where a subdivision application could be

considered.

Proportion

Exhibited Scenario C162 as exhibited – 2,500 square metre minimum lot size (i.e. subdivision permissible for lots over 5,000 square metres).

96 6%

Panel General Scenario C162 Panel recommendation for a 2,000 square metre minimum lot size (i.e. subdivision permissible for lots of 4,000 square metres or more).

220 13% i.e 7% increase from exhibited

Panel Corner Scenario C162 Panel recommendation for subdivision of all lots with two frontages – including corner lots. (i.e. subdivision permissible for lots of 2,600 square metres or more that can accommodate a rectangle of a nominated size – note site surveys needed for confirmation of numbers).

118, including 9 between 4,000 and 5,000 square metres and 9 over 5000 square metres

7%

Panel Total Scenario C162 Panel recommendation total (i.e. total of Panel general and corner scenarios).

320 19%

Total Lots 1,708 100%



DISCUSSION (CONT’D) Minimum Lot Size (Cont’d) Figure 2: Potential impact of the C162 Panel’s proposed reduction in minimum lot size



DISCUSSION (CONT’D)

Minimum Lot Size (Cont’d) In its decision, the Panel seems to have been influenced by the C42 decision and the Planisphere 2,000 square metre option as well as the proximity of the land to Frankston, Mornington and Mount Eliza. It is therefore incongruous that the Panel’s written analysis has omitted to make mention of the Council’s secondary arguments pertaining to matters other than neighbourhood character. Most importantly, that the retention of larger lot sizes would provide a better ‘land bank’ for any future deliberate land release that may be considered appropriate in the long term.

Extract from the conclusion of the Shire’s submission to the Panel (page 59): “ Even if the Panel is of the view that the character of the Woodland area does not warrant the

level of protection proposed and should be considered as an area for incremental change, it has been argued that there is significant benefit in maintaining the larger lots to keep options open for any future change in local area planning.”

A 2,000 square metre minimum lot size, which would encourage people to realign lot boundaries to achieve better lot yields is likely to lead to a less regular subdivision pattern and denser development that would be more difficult to retrofit to new road layouts or the like should that be required in the very long term future. That being said, incremental increase in density through individual actions rather than via a coordinated program is not uncommon, but it is likely to lead to poorer quality amenity, environmental and infrastructure outcomes especially in an area that is subject to significant constraints. The Mount Eliza Woodland area is such an area – it includes waterways, steep slopes with associated landslide risks, fire and flooding hazards and a road layout with limited connectivity in a north-west to south-west direction as well significant landscapes. The analysis shown in Table 3 and Figure 2 was not available to the Panel, although the Panel may have drawn like conclusions from its own analysis of Attachment 7 in the Shire’s submission to the Panel. The option of rejecting the Panel’s recommendation and retaining a 2,500 square metre minimum lot size is attractive given the foregoing analysis and could arguably be supported. However, respect for the Panel process means that its findings should be given substantial weight with departure only considered as a response to serious omissions or flaws. In this context it is recommended that the Panel’s recommendations for a lower minimum lot size (of 2,000) should adopted, but only in relation to Precincts 2, 3 and 4; with a 2,500 square metre minimum lot size being retained for Precinct 1, being the more sensitive face of the Mount Eliza escarpment. The Panel’s further proposed reduction for lots with two road frontages (i.e. 1,300 square metres corner lots) should not be adopted. This position is advanced on the grounds that: The Panel has recognised Precinct 1 may warrant special treatment but has accorded insufficient

weight to protecting its values in accordance with State and Local policy and current town planning practice;

The majority of the (19) owners in Precinct 1 who would be affected by the Panel’s recommendation either expressed no objection to or supported the exhibited provisions; and



DISCUSSION (CONT’D)

Minimum Lot Size (Cont’d)

The proposed corner lot provision is inequitable, would significantly undermine the objectives of the Amendment and is contrary to standard town planning practice.

These grounds are discussed further below. The Case for a 2,500 Square Metre Minimum Lot Size in Precinct 1 The Panel’s recommendation makes no distinction between any of the subdivision provisions pertaining to Precinct 1 compared to the other precincts despite its earlier findings that that there is a case for Precinct 1 warranting particular attention (Attachment 1, page 33, last paragraph). “ There may be a case for Precinct 1 warranting particular attention under the proposed

planning controls to protect the important external views of the escarpment, to manage erosion on steeply sloping sites and to maintain and enhance the internal neighbourhood character of the escarpment. This needs to be assessed in the context of the other permit triggers proposed in Amendment C162.” (Attachment 1, page 37)

It is noted that the opening of Peninsula Link has resulted in further visual exposure of the escarpment, in Precinct 1, to travellers to and from the Peninsula. The Panel’s discussion on page 45 under Criteria 2 argues that it was not provided with any direct evidence on ‘breaking down planning proposals’ and that it has examined the lot layout in arriving at its conclusion. It is correct that the Shire’s submission was advocating for a consistent 2,500 square metre minimum lot size over the whole area, but it also stressed the unique landscape importance of Precinct 1. In fact, if today’s standard town planning practice were applied, it is highly unlikely that the existing pattern of development in Precinct 1 would have been established. The landscape significance of the escarpment and its setting, flanking a highway and the Green Wedge, taken together with its higher erosion risks and fire prevention issues, would be factors opposing residential development in the escarpment area. In this sense it could be reasonably regarded as an old and inappropriate subdivision, which is arguably not the case for the other precincts. Whilst restructuring is not realistic for Precinct 1, its landscape values are still significant and the development constraints still remain. This means that there is still considerable scope to apply State and Local Policy pertaining to those matters and potential densification of lots would be inconsistent with that policy and would clearly exacerbate adverse impacts of an old and inappropriate subdivision. Clause 13.03-2: Erosion and Landslip has a strategy calling to ‘Prevent inappropriate development in unstable areas or areas prone to erosion.’



DISCUSSION (CONT’D) Minimum Lot Size (Cont’d) The Case for a 2,500 Square Metre Minimum Lot Size in Precinct 1 (Cont’d) Clause 11.02-1 Supply of urban land also includes the following strategy: “ Planning for urban growth should consider:

Opportunities for the consolidation, redevelopment and intensification of existing urban areas;

Neighbourhood character and landscape considerations;

The limits of land capability and natural hazards and environmental quality; and

Service limitations and the costs of providing infrastructure.” The subdivision pattern in Precinct 1 shows that there has already been a number of relatively small lot subdivisions achieved, showing they are not technically impossible and it is to be reasonably expected that pressure for such will continue. Decisions about how such pressure ought to be regulated are rightly the purview of planning scheme provisions, with matters of detail and individual assessments to be addressed by way of planning permit applications. A mandatory ‘benchmark’, with a 2,500 square metre minimum, rather than a 2,000 square metre minimum lot size, would potentially offer considerable resource savings as it would avoid applications that a highly likely to be unacceptable for the broader strategic reasons already cited. In addition, it may be noted that although the adoption of the lower site area requirement proposed by the Panel would enable applications on 19 lots within Precinct 1; none of the owners of these lots expressed an objection to the exhibited provisions. The Case for Abandoning a ‘Corner Lot’ 1,300 Square Metre Subdivision Provision The Panel appears to have arrived at its corner lot provision on the basis that there are ‘special cases’ where good subdivision outcomes can be achieved and to support its argument quotes the ‘1 Heath Road’ case as an excellent example. However, it later notes “the development was taken to the Victorian Civil and Administrative Tribunal (VCAT) twice in order to gain approval” and “This indicates to the Panel that achieving a development outcome that meets Council’s vision and objectives is extremely difficult on lots of less than 4,000 square metres.” (NB: It is factually incorrect that the ‘development was taken to VCAT twice in order to gain approval’ there were actually two applications, only the first of which was taken to VCAT. Submitter 11 alerted the Panel to this error and Council subsequently received emailed advice from Planning Panels Victoria on 27 November, 2012 that “The Panel Chair notes Mr. White’s version of events in relation to VCAT. It does not alter the Panel’s recommendations.” (Refer to Attachment 6). It is often argued that corner lots provide ‘special opportunities’ because having two frontages simplifies the provision of access and avoids the need for internal driveways, providing more effective site area.



DISCUSSION (CONT’D) Minimum Lot Size (Cont’d) The Case for Abandoning a ‘Corner Lot’ 1,300 Square Metre Subdivision Provision (Cont’d) The Panel’s rationale for a corner lot provision is understood, however, it is considered that the number of ‘special cases’ does not warrant the provision particularly given the associated adverse impacts that may result. It is with good reason that general residential subdivision provisions throughout the State are not known for corner lot provisions (enquiry with DPCD has not identified any other known occurrences). Denser development at intersections, particularly within or at the end of town centres, is an accepted urban design technique when it is intended that a corner landmark or ‘book-end’ is to be intentionally created. However, general residential estates do not warrant this treatment, and the more overriding consideration is for the corner lots, which are generally more prominent, to be treated equitably with others and be consistent with the general character of the area. It would be incongruous for corner lots to have conspicuously denser housing development than would otherwise be the case in a lower density area. It may also be noted that the Planisphere Report does not contemplate any such denser corner development as part of the existing or preferred neighbourhood character for the area. While corner lots do have some advantage in terms of effective site area, the basis of C162 is that lot owners should contribute equitably to maintaining the character of the area by applying consistent subdivision requirements. Accordingly, this type of treatment is not one that is considered appropriate for the Mount Eliza Woodland area. A further general concern about a corner lot provisions would be the equity of the practice and the potential for other owners particularly those ‘sandwiched’ between the corners to seek similar development potential. In a case like Humphries Road there may commonly only be four or fewer lots sandwiched in between two corners, and the sheer number of corners could in fact lead to ‘special cases’ themselves creating a change in character of the area and pressure for further development. If pressure for development is high enough, the corner lot provisions drafted by the Panel may also lead to a ‘loophole’ where a owner could effectively achieve two road frontages (and therefore a subdivision potential) simply by creating a cul de sac within their lot even if it were not situated at the intersection of two existing roads. Changes to the Mandatory Provisions for Second Dwellings In summary, Council’s post exhibition version of DDO18 allows for second dwellings to be constructed on a lot if the following requirements are met: The provision has not been previously applied to any of the land involved in the application;

The land has an area of at least 2,600 square metres; The second dwelling is substantially attached to an existing dwelling; The second dwelling has a floor area of no more than 100 square metres;



DISCUSSION (CONT’D) Changes to the Mandatory Provisions for Second Dwellings (Cont’d) The total site coverage of all buildings, including garages and other outbuildings, does not

exceed 15% of the total lot area for any lot located in Precinct 1 or 2, or 20% of the total lot area for any lot in Precinct 3 or 4; and

A Section 173 Agreement is created to prevent the subdivision of the subject land. The

Agreement must be registered on title. The Panel additionally recommends (Recommendation 2, page iii) the DDO18 be amended to require: The second dwelling be constructed to appear as a single building with the existing dwelling on

the site; and The crossover and driveway for the second dwelling be shared with the original dwelling where

required by the Responsible Authority. These changes are considered a reasonable response to submissions and are supported together with the following suggestions of the Panel (see page 57 of the Panel Report) which appear to have merit: Removing the reference to a ‘Dependent Person’s Unit’ as this is a superfluous requirement;

and

A lot with subdivision potential not facing the same second dwelling restrictions that would apply to a lot without subdivision potential (i.e. aligning the number of dwellings provision with the subdivision provision).

However, in Appendix C of its report the Panel also provides preferred wording for the DDO18. This wording would have the effect of implementing the Panel’s recommendation, as above, but would also appear to have some seemingly unintended consequences: Removing the mandatory requirements restricting the total number of dwellings on lots of more

than 4,000 square metres; and

Removing the mandatory nature of the ‘number of dwelling/second dwelling’ provisions. The unintentional nature of these impacts appears to be evidenced by the Panel Report in Section 8.5 Provisions for second dwellings which state on page 49 that: “ The Panel concludes that it is appropriate to allow small second dwellings to be constructed on

lots of 2,600 square metres or greater, to provide for changing family needs. Second dwellings should be constructed so as to blend in with the existing dwelling and minimise the potential for vegetation loss as a result of their construction. The Panel concludes that it is appropriate to allow mandatory controls to guide the development of second dwellings and prohibit future subdivision of the land.”



DISCUSSION (CONT’D) Changes to the Mandatory Provisions for Second Dwellings (Cont’d) Accordingly, support for the Panel’s recommendations in relation to second dwellings should be tempered with revised drafting of the provisions to ensure that: The underlying intent of the provisions is properly expressed (i.e. the aforementioned

unintended impacts are overcome);

For lots that have subdivision potential, there is an opportunity to align the number of dwellings may be permitted with the number of potential lots rather than a potential to build an unrestricted number of dwellings;

Potential inequities are overcome (i.e. enable two dwellings to built on a vacant lot rather than

just enable a new second dwelling to be attached to an existing dwelling); and Greater readability is achieved. It is therefore recommended that the provision for adoption read as follows: “ Number of Dwellings A lot must not contain any more than one dwelling. This does not apply to any of the following:

A lot that has potential for subdivision in accordance with the minimum lot area requirements specified in this Schedule where the number of dwellings to be contained on the lot does not exceed the number of lots that may be so created;

An application that meets all of the following requirements:

— The lot must be at least 2,600 square metres in area; — The lot must contain only two dwellings, including any existing or proposed

dwellings; — One of the dwellings must have a floor area of 100 square metres or less; — The two dwellings must be substantially attached and designed to appear as if they

were only one dwelling on the lot; — The two dwellings must share a single crossover; — The total site coverage of all buildings, including garages and other outbuildings,

must not exceed 15% of the total lot area for any lot located in Precinct 1 or 2, or 20% of the total lot area for any lot in Precinct 3 or 4;

— This provision must not have been previously applied to any of the land involved in

the application; and — A Section 173 Agreement must be created to prevent the subdivision of the subject

land. The Agreement must be registered on title.

Except for the single crossover requirement, these requirements cannot be varied with a permit.”



DISCUSSION (CONT’D) Changes to the Mandatory Provisions for Second Dwellings (Cont’d) Except for the single crossover requirement, these requirements cannot be varied with a permit. In addition to this change, it is also recommended that the readability of the DDO18 be enhanced by amending the ‘No Permit Required’ section to clarify that a dwelling will require a permit if it is not the only dwelling on the land. Minor Changes to the General Requirements The Panel’s preferred wording of the DDO18 in Appendix C contains the following minor changes to the DDO18 but there is no detailed explanation of them in the main report apart from a general reference on page 57 that ‘The Panel has also made some other minor changes to DDO18 where it was necessary to simplify the intended outcome.’ Minor changes to the general requirements being: Removing the requirement for the proper battering or retention of earthworks; and

Splitting one long dot point provision about the colour and reflectivity of buildings into two

shorter dot points. These matters were not of specific concern to submitters. The provisions that the Panel proposes to amend are standard provisions that appear across a number of other DDO Schedules in the Mornington Peninsula Planning Scheme. Splitting the long dot point would therefore be inconsistent in format, but the provisions would remain the same and there is therefore no objection. However, the Panel’s proposed removal of the requirement to properly batter or retain earthworks is not supported given that the Building Regulations only regulate this matter where the earthworks may structurally impact another building or an allotment boundary and the Mount Eliza Woodland area is known to have slopes where erosion could be a significant problem. The absence of an Erosion Management Overlay (EMO) in the area is a weakness of the Planning Scheme and the Council is undertaking research that could rectify this in the future, but even so it would still be appropriate for this provision to generally apply in combination with an EMO over the larger and more severe areas of risk. Changes that Affect the Structure and Format of the DDO18 Provisions In considering this matter the Panel notes the complexity in interpretation of the DDO for the lay person and comments: “ The Panel concludes that it is appropriate to make some changes to DDO18 to ensure the intent

of the control is expressed clearly. The Panel believes that these changes do not change Council’s intent, make the control easier to use and reduces the potential for confusion.”



DISCUSSION (CONT’D) Changes that Affect the Structure and Format of the DDO18 Provisions (Cont’d) Whilst the Panel’s changes to the structure and format of the DDO18 provisions have been made with the best intentions they have not taken into account that: The structure of the DDO is effectively dictated by the ‘parent provisions’ of the DDO, which

are specified in clause 43.02 of the Planning Scheme; and

The fact that the mandatory provisions are meant to apply whether or not a planning application is required.

The Panel’s redrafted version would therefore have the unintended impact of: Removing all the exemptions from the DDO (i.e. all buildings and works would require a

permit); and Removing all the mandatory requirements (sewerage, drainage, maximum building height, and

second dwellings) where a planning permit application is not required. Unfortunately, the complexity of the proposed drafting is necessary to comply with the structure imposed by the Victoria Planning Provisions (VPP) and therefore the Panel’s recommendations on this matter cannot be accepted. However, DPCD may be encouraged to take on board the comments of the Panel in a future review of the VPPs. Review of the Vegetation Protection Overlay Schedule 1 (VPO1) The Panel recommends that Council review the vegetation protection provisions to better protect existing vegetation, encourage planning (sic) of new vegetation, and encourage appropriate siting of buildings within the vegetated landscape of the Mount Eliza Woodlands. The Panel comes to this conclusion after, in summary, finding that: The VPO1 exemptions are likely to prevent the VPO1 objectives from being achieved as they

prioritise development over vegetation protection; and

The vegetation characteristics for the Mount Eliza Woodland area are not clear and a revision of the VPO1 could provide a statement of significance, specific objectives for the area, no exemption for new development and clearer decision guidelines relating to character impacts and replacement vegetation.

It is recognized that VPO1 (Township Vegetation) does provide a range of exemptions that were designed to avoid the need for a permit where vegetation clearing related to a single dwelling. The exempted vegetation removal is essentially limited to the dwelling footprint and the immediately surrounding area (i.e within 2 metres of a building). This is more a matter of striking a balance between vegetation retention objectives and the reasonable expectation of developing a single dwelling on a lot in residential zone, rather than ‘prioritising development’.



DISCUSSION (CONT’D) Review of the Vegetation Protection Overlay Schedule 1 (VPO1) (Cont’d) However, the Panel’s recommendations are considered to have merit and it is anticipated that a new VPO Schedule could be developed to specifically apply to the Woodlands area. Including a new VPO Schedule in Amendment C162 at this late stage rather than including it in a new amendment would be possible but it would deny the opportunity for the normal consultation process and is not supported. Tools Outside the Planning Scheme that are Necessary to Achieve the Mount Eliza Woodland Vision A number of submitters raised concerns about adverse character impacts arising from works in the public realm (e.g. second crossovers, pathway design), non-compliance with planning permits (e.g. landscaping plans not implemented) and unlawful works (e.g. some tree removal). The Panel’s recommendations on these matters (Recommendations 8 and 9) are complementary to any action on Amendment C162. The Panel recommends a cohesive ‘all of Council’ Strategy to manage neighbourhood character in the public realm. It is agreed that this would be beneficial. Key matters that could be managed would include road and footpath design; street tree plantings, crossover locations and plans for Council reserves. At present, all of these matters have their own existing programs and processes. There are two basic choices in terms of bringing about a more cohesive strategy for the area. One would be to have a new single Public Realm Strategy for the Mount Eliza Woodland area that would then guide decisions under the other programs and processes. The alternative would be to achieve greater integration by incremental improvement of existing policies, programs and processes. In this second alternative, the Strategic Planning Unit would provide input to policies, programs and processes of other Shire Units in their normal process of review. It is noted that there is an existing Street tree policy under review and that the Shire’s Construction and Asset Protection Unit has supported the need for a future Shire-wide Crossover Policy and this could potentially address one of the key concerns about neighbourhood character, being impacted by multiple crossovers – a concern that is not restricted to the Mount Eliza Woodland area. This alternative is recommended as a more appropriate way to achieve change without unnecessary duplication. The preparation of a ‘Fact Sheet’ providing an overview of the various existing policies and how they apply in the Woodland area would also be appropriate. In terms of enforcement, it is noted that since receipt of the Panel Report, the cases highlighted by the Panel have been referred to the Shire’s Planning Compliance team for further investigation. Any future cases would be similarly investigated, although it should be recognised that Council’s enforcement process depends on case reports being received. It would be appropriate to advise submitters of the opportunity to report any suspected cases of non-compliance to the Shire.



DISCUSSION (CONT’D) Status of Correspondence Received Since the Panel’s Report The correspondence received since the Panel’s report is mostly from previous submitters but there is one letter from a person who is not a submitter. Due to its lateness, this letter does not need to be treated as a formal submission demanding consideration by the Independent Panel, however, it has been provided for information. The issues raised in the letters from other submitters that reiterate concerns from their earlier submissions and presentations at the Panel can also be reasonably considered in that context. However Submitters 11 and 262 have made commentary upon the Panel Report that should be taken into account. In addition to that Submitter 4 – Growing our Community Inc, as a community group that represents many of the opponents to C162, should reasonably expect a response to its suggested alternative approach to C162 – a matter that was not canvassed in the Panel hearing. The Accuracy of the Panel Report Including Whether it has Properly Considered Evidence Submitter 11 has argued the Panel’s conclusions in relation to their decision to promote a minimum lot size of 2,000 square metres are based around (four) failures being: A. The Report fails to significantly reflect the evidence presented in opposition to a ban on

subdivision;

B. The Report failed to provide a proper critique of the evidence of the only ‘expert witness’ to the hearings;

C. The Report clearly failed to convince that the adoption of mandatory control was necessary, or

was the correct planning approach to controlling future development in Woodland; and D. The Panel asserted, erroneously, that Planisphere had proposed a 2,000 square metre minimum

lot size – in fact, the Planisphere Report specifically rejected such an option. In relation to point ‘A.’ the submitter argues that the Panel, despite its assertions to the contrary, failed to establish any link between the impact of actual (or proposed) subdivision and the level of neighbourhood character. There is an obvious relationship between subdivision density and neighbourhood character, however the degree to which character changes as density is increased and whether or not this is acceptable is a more difficult question and relates to the problem of managing cumulative effects. Any individual application is unlikely to have a significant impact on character, which constitutes a shared benefit or ‘amenity’ for all landowners in a neighbourhood. However, the overall effect of multiple decisions over time is a significant change in character. In these circumstances, it is considered necessary to apply a consistent and mandatory control, to ensure that landowners are treated equitably and share in the costs of maintaining the shared amenity. Assessment of proposals on their individual merits, as undertaken by VCAT, cannot reliably achieve this outcome. It is considered that the Panel has appropriately turned its mind to these issues and this is evidenced by its request for further information that was supplied by Council and its report which includes reference to issues and evidence raised by opponents and supporters of the proposal.



DISCUSSION (CONT’D) The Accuracy of the Panel Report Including Whether it has Properly Considered Evidence (Cont’d) As a matter of efficiency, a Panel Report should provide a sufficient but not excessive amount of detail, in explaining the rationale for its recommendations. It is considered that the C162 Panel Report generally complies with that standard. In relation to point ‘B.’ Submitter 11 has provided his own critique of the expert witness evidence. It is inappropriate to consider this in isolation from its context in the Panel hearing. During the Panel hearing, the expert witness was available for cross examination by Submitter 11 and other parties and was also open to direct questions from the Panel. The Panel Report makes numerous mentions of the expert evidence and it is clear that it has come to its own considered conclusions about the merit of the evidence (e.g. see last paragraph on page 33, where the Panel departs from the expert’s conclusions), albeit that they may differ from those held by Submitter 11. The Panel’s conclusions are not considered to be unreasonable. In relation to point ‘C.’ Section 5.2 and Section 5.3 of the Panel’s report specifically examines the findings of the C87 Panel Report and recent development history since then. Section 4.4 and chapters 5 and 8 then extend the discussion of mandatory controls that was highlighted in these earlier sections by providing more detailed discussion of both the State Practice Note No. 59 (The role of mandatory provisions in planning schemes) and the application of mandatory controls in C162. The Panel’s reasoning about the need for mandatory control will not necessarily convince all submitters. Submitter 11 has raised various matters, but none of these are considered sufficient reason to reject the Panel’s finding about this matter. Contrary to some of the submitter’s assertions, it is noted that: The Panel’s conclusions in Section 5.3 did extend to matters other than ‘policy’ given that after

examining recent development history it concluded: “To the extent that further subdivision may result in cumulative undesirable impacts over time, especially in relation to the neighbourhood character, the Panel concludes that some tighter controls may be justified” (Panel Report, page 23); and

The Panel did refer to the C87 Panel’s finding that performance criteria had not been given time

to work. (Panel Report, page 20 with related references and analysis in relation to this matter elsewhere in the report.)

In addition to this, Submitter 11 has not argued any failure of the Panel to identify the relevant issues. In relation to point ‘D.’ Submitter 11 claims that the Panel erroneously asserts that the Planisphere report (Planisphere (2006) Mount Eliza Woodland Neighbourhood Character Study report) had proposed a 2,000 square metre minimum lot size when the Planisphere report had rejected that option. This claim is not accepted; whilst the Planisphere report in its conclusion on page 59 supported a minimum lot size of 2,500 square metres (thereby effectively rejecting a 2,000 square metre option) it had considered a 2,000 square metre minimum lot size option on page 58. The Panel’s statement in relation to this matter (see below) is therefore not erroneous. “ The Panel also notes that the minimum lot size of 2,000 square metres is one of the options

proposed by Planisphere in its report, and is the same as that introduced through Amendment C42 for land nearby.” (Panel Report, page 44).



DISCUSSION (CONT’D) The Accuracy of the Panel Report Including Whether it has Properly Considered Evidence (Cont’d) On the basis of the above analysis, the questions that Submitter 11 has raised about the accuracy of the Panel Report and whether it has properly considered evidence are not considered to be of sufficient magnitude to sway Council’s deliberation in this matter. Independence of the Panel and Whether it has Delivered a Planning and Political Fix Following the receipt of the Panel Report Submitters 11 and 262 have raised concern about the Independent Panel not being independent or having an undisclosed conflict of interest given that the Panel is alleged to have included a full time, permanent member of the Victorian Public Service employed through DPCD and (who is) directly accountable to the Minister for Planning. It is noted that the submitters did not take the opportunity to raise these concerns before the Panel itself, which would have been the appropriate course of action. Legislative provisions for the appointment and operation of Independent Panels are set out in the Act and the appointment of the C162 Independent Panel was requested by Council in accordance with those provisions. From a Shire officer perspective, the level of independence of the Panel was not a matter that warranted challenge at the time of the Panel hearing and is not a matter that should affect the integrity of the Panel’s report in the context in which it is made. This matter, as now raised by the submitters, is considered to be a general issue that would go to the way in which ‘Independent’ Panels are appointed under the Act. It is noted that VCAT, also has permanent and part-time members, a somewhat similar context to the employment of permanent and part-time Panel members. In terms of whether there has been a ‘planning and political fix’ it is noted that the Act has the following objectives: Under Section 4(1) the objectives of planning in Victoria include the following: “ (a) to provide for the fair, orderly, economic and sustainable use, and development of land. (g) to balance the present and future interests of all Victorians.” Under Section 4 (2) the objectives of the planning framework include the following: “ (h) to establish a clear procedure for amending planning schemes, with appropriate public

participation in decision making.

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice.

(j) to provide an accessible process for just and timely review of decisions without

unnecessary formality.”



DISCUSSION (CONT’D) Independence of the Panel and Whether it has Delivered a Planning and Political Fix (Cont’d) It is considered that the Panel has turned its mind to the fairness of the process with one of its main findings being that a review of the C87 outcome was warranted. Furthermore there has been no flaw found in the planning scheme amendment procedures. Whatever the outcomes of C162, there are likely to be some unsatisfied submitters and this is the usual outcome for contentious land use planning issues; and highlights the importance of adherence to procedures under the Act. Changing political and planning imperatives may justify further reviews in the future, such as when Rescode was first introduced, and this is the proper process at work. To the extent that the Panel Report on C162 has assessed and responded to changed circumstances since Amendment C87 this is what is meant to happen under the Act. Whether Further Notification Ought to be Required In support of the argument about delivering a ‘fix’ Submitter 11 has also indicated (See Confidential Attachment 5, submission 11, page 2, point 3c and 3d) that the Panel has supported un-exhibited changes to the DDO18 that whilst, in general terms, are welcomed, “remain to be tested in the Woodland community.” In relation to this matter it is noted that the Panel has clearly turned its mind to the issue of whether further notification ought to be required given that it has recommended: Should Council, contrary to the Panel’s recommendation, proceed to adopt a permit trigger for

all dwellings in Precinct 1 it should provide all land owners and occupiers with notification and a right to be heard (see details in Recommendation 4); and

That the VPO1 affecting the Mount Eliza Woodland area should be reviewed in a future amendment (see details in Recommendation 7).

It is recognised that the Panel Report does not explain why other changes to the exhibited C162 that it has recommended should be able to proceed without further opportunity for public consultation, despite some of these arguably being more onerous than the exhibited provisions and potentially affecting persons who have not made any submission (e.g. additional permit triggers for some fences and DPUs). The Panel’s position is not unusual as further changes following an original exhibition are often made without a formal second exhibition. Often this is on the basis that the proposed changes do not significantly alter the affect of the Amendment. However, as a matter of natural justice (i.e. the right to a fair hearing) it is considered that affected persons ought to be given an opportunity to comment on any substantial changes between exhibition and adoption if these are significantly more onerous.



DISCUSSION (CONT’D) Whether Further Notification Ought to be Required (Cont’d) Some of the changes supported in this report arguably fall into this category and for this reason, it is recommended that Council establish a preliminary position and then invite affected persons (whether they be existing submitters or other owners and occupiers of land) to make a submission on these matters and, if they so wish, to be heard in person at a future Council meeting. It is important to emphasise that it is only submissions on new increased requirements that would be invited and considered. An alternative to this would be to start a fresh planning scheme amendment. However, the changes are not considered to be so significant as to represent a ‘transformation’ of amendment which warrant this course of action. Preliminary discussion with officers of DPCD indicates support for the provision of additional notice prior to final consideration of the amendment by Council, as an alternative to a possible direction from the Minister to provide more notice at a later stage of the process. Feasibility of a Negotiated Alternative Growing our Community Inc has suggested that C162 be abandoned and a Shire officer lead group representing the different parties be convened to work out an acceptable alternative to C162. A similar idea to this was unsuccessfully canvassed amongst the groups prior to the Independent Panel process. Given the past lack of support/agreement around this idea, the recent considerable investment in the Panel process by all stakeholders and the likelihood that a consensus is unlikely; the setting up of a group to try and negotiate an acceptable alternative to C162 is not supported. This having been said, this approach could be reconsidered in the context of a future review of the area, especially one that focused on whether any new provisions that may be implemented are having their intended effect. It could also have other objectives such as working with residents to encourage the enhancement of the Woodland character. A positive initiative where persons on both sides of the debate could work on common goals may assist in building relationships which have, in some cases, been strained in the course of C87, C162 and related planning permit application processes. ISSUES The changes that are contemplated to C162 have resource ramifications over and above those originally canvassed in the Explanatory Report. Compared with the originally exhibited C162, the version of the DDO18 recommended in this report could be expected to generate: A greater number of applications for subdivision;

Substantially fewer applications because of setback triggers; Substantially fewer applications because of site coverage triggers; and A greater number of applications because of revised impermeable site coverage triggers.



ISSUES (CONT’D)

It is considered that the resource implications of these changes should not require additional statutory planning resources, given that the existing interim DDO18 is already in operation and the Woodlands area is already substantially developed. OFFICER DIRECT OR INDIRECT INTEREST No person involved in the preparation of this report has a direct or indirect interest requiring disclosure. CONCLUSION The Panel has agreed that the vision for the Mount Eliza Woodland area cannot be achieved under the current Planning Scheme provisions and that mandatory controls are appropriate. The Panel’s recommendations are generally accepted, with some departures as previously discussed. However, some of the resultant adjustments to the DDO18 that are now considered necessary to achieve the intended outcomes are arguably more onerous than previously exhibited and therefore warrant some limited further consultation with potentially affected persons. In these circumstances, if Council is inclined to pursue rather than abandon Amendment C162, it should not arrive at a final decision at this stage, but rather invite submissions from those persons and enable them an opportunity to be heard, although this hearing would be limited to the new matters only and not a reiteration of the previous submissions/arguments regarding subdivision provisions etc. In order for meaningful consultation to take place, it would be appropriate for Council to resolve to support a preliminary position on Amendment C162 as shown in Attachment 7. RECOMMENDATION

1. That Council resolves to provide preliminary support for a version of Mornington Peninsula Planning Scheme Amendment C162 DDO18 as shown in Attachment 7.

2. That Council’s preliminary position on C162 be placed on public exhibition for one

month and those submitters and other persons whose property or place of residence might be materially affected by any of the provisions that are more onerous than those previously exhibited as part of C162 (these are summarised below) be invited to lodge a written submission and appear before a further Council meeting to be heard in person, if they so wish:

A. Amended objectives;

B. Adjustment of precinct boundaries;

C. A new permit trigger for all dwellings in Precinct 1;

D. A new permit trigger for a Dependent Person’s Unit;

E. A new permit requirement for outbuildings of more than 10 square metres

excluding a garage/carport of 70 square metres if it is the only one on the lot;



RECOMMENDATION (CONT’D)

2. (Cont’d)

F. A new permit requirement for a roadside fence where less than 70% of the total fence structure is open or transparent;

G. A new permit requirement for a roadside side or rear fence that is 1.5 metres or higher;

H. Additional requirements for second dwellings (mandatory appearance as a

single dwelling and encouraged sharing of a single crossover);

I. A new rear setback provision; and

J. A new impervious site coverage permit trigger.

3. That a further report on any additional submissions made in the context of Recommendation 1 above, be made to Council prior to Council making a final decision about whether Amendment C162 ought to be abandoned or adopted with or without changes, for subsequent submission to the Minister for approval.

4. That Council resolves that Attachments 4.1, 4.2 and 5 to this report be retained as a

confidential item pursuant to Section 77(2)(a) and (b) of the Local Government Act 1989 and be placed in a separate minute book for confidential items.

REPORT TO Development Assessments Committee ITEM NO. 2.2 · REPORT TO Development Assessments Committee ITEM NO. 2 ... Post Independent Panel Report ITEM NO. 2.2.1 ... Shire’s website

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