By Callum Ludwig
VCAT Member Cassandra Rea has directed Yarra Ranges Council to modify the conditions of a previously issued planning permit for a Yarra Junction property.
Applicant Darren Thomas brought the case forward for the 19 Crescent Road property, seeking different conditions for the four-lot subdivision which will also remove some existing sheds and water tanks and a total of 27 trees.
VCAT considered whether utilities should be provided within the road reserve rather than the creation of common property, how trees should be protected, whether a building or dwelling exclusion zone be provided on Lot 4 to accommodate the council’s future road widening of Linden Avenue, when the open space contribution is payable, is an agreement for a 10-metre exclusion zone to protect trees necessary, whether the permit holder should reconstruct George Street and what approvals and works are necessary for the subdivision as the key issues.
Yarra Ranges Council believed that the adjacent George Street road reserve is the appropriate location for utilities and infrastructure servicing the lots and argued that common property located adjacent to a road reserve is an anomaly and contrary to neighbourhood character and that it reduces the developable land by 210m2 and results in an inefficient use of the land. The applicant argued that future infrastructure services are unlikely to extend beyond the site as it is at the edge of the general residential zone and it would incur significant additional costs.
Ms Rea said in the decision that she does not agree that common property is restricted to just access.
“It is often available for a variety of recreational and service needs for future occupants of the lots. It is a question of efficient use of the site, and not creating any future management issues,” the decision reads.
“On the basis that the common property area is landscaped which will enhance the site’s contribution within the SLO22 and the area is not physically discernible as common property, I find the arrangement acceptable and will require these conditions be deleted.”
The applicant submitted that there is ‘no sound basis’ for the prohibition of building or works in the tree protection zone fo four trees and suggested a tree management plan (TMP) could be implemented to protect trees post-subdivision, which Yarra Ranges Council did not oppose.
Ms Rea said she considers that once appropriate subdivision works have been sensitively completed, there is no ongoing need to provide extra protection to the four trees with medium to high retention value.
“Council’s submission recognises that there is an option to have an arborist confirm that the tree will remain viable for encroachment above 10 per cent which is a variation from the wording of the condition. The proposed TMP condition will be consistent with this position of council.”
The notion of road widening on Linden Avenue has been recorded five times since 1962 and most recently in 2020, but no works have been undertaken to widen the road. Council wanted an exclusion zone for all buildings to allow for any potential project, which left properties abutting Linden Avenue ‘in limbo’.
The applicant suggested a ‘sunset clause’ of 15 years to provide more time certainty, which was agreed to by Ms Rea who said she finds that there is insufficient policy to justify extending the exclusion zone to include all buildings.
“I am mindful that some buildings can be relocated or otherwise reconstructed without significant expense to the future owner of Lot 4 if the land for the road widening is acquired,” the decision reads.
“In forming this view, I have recognised the effort of council to obtain or otherwise make land available for road widening, but at the same time conscious this project has already had a 60 plus year gestation.”
Council submitted that using section 173 agreements for the enforcement of ongoing no build zone requirements is appropriate which the applicant opposed believing the subdivision already creates a general restriction.
Ms Rea said in the decision that she is mindful of matters seeking ongoing enforceability of the subdivision component of the permit.
“Given the purpose of the dwelling exclusion zone is to accommodate potential future council road widening and the council is potentially the beneficiary of the restriction, I find it appropriate for the section 173 agreement to be entered to give the council the ability to enforce, but also give consent to any variation of the requirements,” the decision reads.
In regards to the open space contribution, Ms Rea amended the condition to allow the payment to be made prior to the statement of compliance associated with stage 1 of the planned works.
Yarra Ranges Council’s original permit required the applicant to reconstruct George Street between Linden Avenue and the current termination point of George Street to accommodate waste collection and emergency services access while also sealing the road due to concerns regarding extra traffic movements and the unsealed nature of the inclined road.
The applicant presented a turnaround bay design that had adequate space for waste and emergency services to turn around and presented evidence that George Street was in good condition and would experience about 30 traffic movements per day up from 20 and would not warrant an upgrade to sealing, whereas Council provided no further evidence. The turnaround bay design was approved and conditions deleted regarding drainage or sealing works for George Street.
The need for engineering plans, public works approvals and stormwater management plans was maintained, factoring in the modified conditions.
Yarra Ranges Council was ordered to issue an amended planning permit with the varied conditions.
