Like 2 Pigeon Bank Road, 14 Barreenong Road Cottles Bridge is in the Nillumbik Green Wedge in the Rural Conservation Zone. Unlike Pigeon Bank this case was taken all the way to VCAT by the applicant, which issued its ruling on March 16: a permit was not granted.
The application to build a dwelling and outbuildings was made to council on 26 July 2016. Council Officers considered the application and recommended against the issue of a permit. But Deputy Mayor Karen Egan ‘called in’ the application with a view to ignoring the Council Officers’ recommendation and granting the permit. However, at the Future Nillumbik Committee meeting on September 12 2017, after some 35 objections were received from residents, the Council ended up voting 4 votes to 2 against a permit, with only Karen Egan and Councillor Peter Perkins voting in favour.
Inappropriate planning applications can be conceived in ignorance of a proper identification of the relevant parts of the law, or with a view to deliberately pushing the boundaries based on commercial self-interest. A VCAT hearing is the place where disputed applications meet the law of the land. To read the ruling is to gain an appreciation of how essentially robust is the underlying Green Wedge protection machinery.
An interesting issue in this application was the lot size. At 0.76 hectares it is ‘undersized’, as was 2 Pigeon Bank Road, at 5 hectares. The minimum lot size, specified in ‘Schedule 3 to the Rural Conservation Zone’ in the Nillumbik Planning Scheme is 8 hectares. But this is in fact merely the smallest size acceptable in a new subdivision, and does not directly preclude a successful application to build a dwelling. What was critical however, in the opinion of the VCAT Member, Mr Peter Gaschk was the proportion of the property which would be affected by the development. To quote from the Decision:
- “Up to 50% of the site’s existing vegetation (0.38ha) will be removed/altered to provide for the dwelling, free standing garage, septic system, effluent disposal area, water tanks and driveways. This will in my view have a greater visual and environmental impact on the site’s physical setting and its surrounds due to its small size, than if it were a larger parcel of land with a similar scale of residential development. I find this outcome is contrary to the conservation, landscape and environmental purposes of the RCZ3 and relevant planning policies associated with Green Wedge area”
The law protecting the green wedges is extensive and in many cases requires judgement in its application. This Decision refers to judgements made in four previous relevant VCAT cases, notably one concerning Overbank Road, Eltham. It listed the following significant statements from Member Mr John Bennett‘s Decision in that case:
- Green wedge land is to be protected from use and development that would diminish its environmental, conservation and landscape values.
- Residential development is to be contained within existing urban zones on land within the Urban Growth Boundary.
- Residential use within non-urban areas is discouraged.
- Development on small rural lots below the zone minimum is to be limited, unless exceptional circumstances exist.
- Continued development of dwellings in green wedge areas undermines the values and characteristics of the green wedge/non urban areas.
- Land use changes must not have an adverse effect on landscape or strategic environmental values of the land.
This case differed from the 2 Pigeon Bank case in that the Nillumbik Council did not end up overturning their Officers’ rejection of the permit, which resulted in the applicant’s appeal to VCAT. But what should be noted is the importance of community involvement, in this case in the form of community objections to the application and particularly the involvement of Friends of Nillumbik and Mr Bill Lord’s appearance at VCAT.
You can read the VCAT Decision here.