VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NOP355/2014.
PERMIT APPLICATION WH/2013/1000.
CATCHWORDS
Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to
refuse a permit.
APPLICANT
Horace Zheng
RESPONSIBLE AUTHORITY
Whitehorse City Council
RESPONDENT
A Hansen, D Sangen, D Hinkins, S Dalton, B
Frazer, N Burridge, D Warner, T Ivic, Yeap
Heng Lo, K & S Egan, S Vick & C Wilms, D
Snooks, J Heaton, R Wong, R & C Gellard, E
Barnfather, J Easy, G Mathews, A Evans, R & J
Gysberts, H Bryan, West of Elgar Residents
Association, P Delbosc, K A Gray, G Davis, J
O’Leary, A Pearson, C Freckleton, R SwindelHurst.
SUBJECT LAND
20 Louise Avenue, Mont Albert
WHERE HELD
Melbourne
BEFORE
Laurie Hewet, Senior Member
HEARING TYPE
Hearing
DATE OF HEARING
20 October 2014
DATE OF ORDER
17 December 2014
CITATION
ORDER
1
Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil
& Administrative Tribunal Act 1998, the permit application is amended by
substituting for the permit application plans, the following plans filed with
the Tribunal:

Prepared by:
Paul Shaw & Associates

Drawing numbers:
2 of 6, 3 of 6, 4 of 6, 5 of 6, 6 of 6, all revision
B

Dated:
October 2013
2
The decision of the Responsible Authority is set aside.
3
In permit application WH/2013/1000 a permit is granted and directed to be
issued for the land at 20 Louise Avenue, Mont Albert in accordance with
the endorsed plans and on the conditions set out in Appendix A. The permit
allows:

The construction of more than two dwellings on a lot
Laurie Hewet
Senior Member
VCAT Reference No.P355/2014
Page 2 of 20
APPEARANCES
For Applicant
Ms Teresa Bisucci of Best Hooper Solicitors
Ms Bisucci called expert evidence from:
 Mr D Iles, town planner
 Mr C Cazrny, urban designer
 Mr R Fairlea, traffic engineer
For Responsible Authority Mr Gintaras Simkus, town planner.
For Respondents
VCAT Reference No.P355/2014
Mr R Gellard, Mr G White, Mr J O’Leary
Page 3 of 20
INFORMATION
Description of Proposal
The construction of a two storey building comprising
ten dwellings, and a basement car park.
Nature of Proceeding
Application under Section 77 of the Planning and
Environment Act 1987 – to review the refusal to grant
a permit.
Zone and Overlays
Clause 32.09: Neighbourhood Residential Zone
(NRZ7)1. The schedule to the zone does not contain
any amendments to Clause 55 standards or objectives.
Permit Requirements
Clause 32.09-5: A permit is required to construct two
or more dwellings on a lot. Pursuant to Clause 32.093 the number of dwellings on a lot must not exceed
two. Clause 32.09-3 does not apply to an application
to construct two or more dwellings on a lot made
before the approval date of the planning scheme
amendment that introduced clause 32.09 into the
planning scheme. This application therefore benefits
from the Transitional provisions of Clause 32.09-3.
Clause 32.09-8 of the Neighbourhood Residential
Zone imposes a mandatory height limit of 8.0 m. This
application also benefits from the transitional
provisions in respect of this provision.
Land Description
The site is located on the eastern side of the street,
about 75m south of the intersection with Mont Albert
Road. The site has a frontage dimension of 20.12m, a
depth of 45.72m and an area of 912m2. A right of way
abuts the site’s rear (eastern) boundary. The site
slopes from the east to the west by about 2.69m. A
dwelling currently occupies the site.
1
The site was rezoned from General Residential to NRZ7 via Amendment C160 gazetted on 14 October
2014.
VCAT Reference No.P355/2014
Page 4 of 20
A single storey dual occupancy abuts the site to the
north, and a two storey apartment building (8
dwellings) abuts to the south. The driveway and car
park for that development abuts the review site’s
southern boundary.
The western side of Louise Avenue in the area
opposite the review site between Mont Albert Road
and Nuttall Lane comprises a mix of medium density
housing and detached dwellings. The site at 15 Louise
Avenue, diagonally opposite the review site, is being
developed for a three storey apartment building.
The Mont Albert Neighbourhood Activity Centre is
located on the north side of Mont Albert Road,
extending along Hamilton Street. The Mont Albert
Railway Station is at the northern end of Hamilton
Street. The Surry Hills Railway Station and activity
centre, and a range of recreational, educational and
other services and facilities also serve the wider area.
Cases Referred To
VCAT Reference No.P355/2014
Louise Street Pty Ltd v Whitehorse CC [2012] VCAT
1643.
Page 5 of 20
REASONS2
WHAT IS THIS PROCEEDING ABOUT?
1
This is an application to review the decision of the Responsible Authority to
refuse permission for the construction of a two storey building comprising
ten dwellings, at 20 Louise Avenue, Mont Albert. The Responsible
Authority issued a Notice of Refusal to Grant a Permit for the following
reasons:
The proposed development of an apartment building containing 10
dwellings on this lot is contrary to the preferred neighbourhood
character and design objectives for the area as described in Clause
22.03 (Residential Development) of the Whitehorse Planning Scheme.
The bulk and massing of the proposed development is inconsistent
with the prevailing and preferred neighbourhood character and it will
result in an excessive built form facing the street and abutting
properties.
The proposed development will not sensitively integrate with the
garden character of the neighbourhood given that insufficient
opportunity has been provided for the planting of new vegetation with
spreading canopies and understory planting throughout the site due to
the extensive amount of paving throughout the site and insufficient
setbacks to side boundaries. This is contrary to the objectives of
Clause 22.04 (Tree Conservation) of the Whitehorse Planning
Scheme.
The proposal fails to satisfy objectives of Clause 55.02-1
(Neighbourhood Character), Clause 55.02-2 (Residential Policy),
Clause 55.05-3 Standard 88 (site coverage), Clause 55.05-8 Standard
B13 (landscaping), Clause 55.04-1 Standard B17 (Side and Rear
Setbacks), Clause 55.05-3 Standard B27 (Daylight to new windows),
Clause 55.05-4 Standard B28 (Private open space) and Clause 55.06-4
(Site Services).
The proposal would result in unacceptable off-site amenity impacts.
The proposed vehicular access is not suitable for a private waste
collection vehicle entering the site and would result in safety concerns
as the gradient is non-compliant with Clause 52.06 (Car parking). The
proposed ease and safety of the waste vehicle entering/exiting the site
is inadequate and does not meet Clause 52.06 (Car parking) or
Australian Standard AS 2890.2-2002.
2
Subsequent to the Council decision, and prior to the VCAT hearing, the
planning scheme was amended (C160 gazetted 14 October 2014) which
among other things, rezoned the site from General Residential to
Neighbourhood Residential (NRZ7). In accordance with the principles
2
I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered
by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in
these reasons.
VCAT Reference No.P355/2014
Page 6 of 20
established in Unger v City of Malvern VR 259 (1979) I am required to
decide the application in accordance with the planning scheme as I find it
at the time that my decision is made.
3
4
Having considered the submission and the evidence in this case, I have
concluded that the principal issues in this case can be categorised as
follows:

Is the proposal acceptable having regard to the site’s strategic and
physical context?

Is the proposal acceptable having regard to the existing or preferred
character of the neighbourhood?

Does the proposal contribute to unacceptable amenity impacts?
I have concluded that a permit should issue for this proposal. My reasons
are set out below
IS THE PROPOSAL ACCEPTABLE HAVING REGARD TO THE SITE’S
STRATEGIC AND PHYSICAL CONTEXT?
5
The recent rezoning of the site from General Residential to NRZ7 has
significant implications for the consideration of this application.
6
Specifically the purpose of the NRZ7 is different to that of the General
Residential zone, and includes new purposes that recognise areas of
predominantly single and double storey residential development, limits
opportunities for increased residential development, ensures that
development respects identified neighbourhood character, and implements
neighbourhood character policy and guidelines.
7
Relevantly the purpose of the General Residential Zone that previously
applied to the review site, encourages development that respects
neighbourhood character, implements neighbourhood character policy and
adopted neighbourhood character guidelines, provides a diversity of
housing types and moderate housing growth in locations offering good
access to services and transport.
8
The implementation of State Planning Policy Framework and the Local
Planning Policy are part of the purposes that are common to both zones.
9
.In
10
There are however transitional provisions that apply to each of these
clauses.
11
The “planning landscape” has, in the submission of Mr Simkus, drastically
changed because of the rezoning and the associated changes to local policy
addition to other matters, the NRZ7 also limits to two the number of
dwellings on a lot unless otherwise specified in a schedule (Clause 32.093), and sets a maximum height for a dwelling or a residential building of 8m
unless on a sloping site or otherwise specified in a schedule (Clause 32.098).
VCAT Reference No.P355/2014
Page 7 of 20
that were also introduced as part of Amendment C160. Mr Simkus
acknowledges the existence of the transitional provisions in the NRZ7, but
submits that the proposal must nevertheless be assessed having regard to the
purpose of the NRZ7 and the provisions of Clauses 21.06, 22.03 and 22.04
of the local planning policy framework (LPPF).
12
Because of the Amendment C160 changes to local policy, the review site is
now located in a limited change area (previously natural change) and in a
Garden Suburban Precinct 2 (GS2) under the Character Study (previously
Character Area 3).
13
Consequently, the council and the objectors submit that the construction of
a residential development adopting an apartment building typology is an
outcome that is not supported by policy on this site, and is not respectful of
the preferred character of this neighbourhood.
14
The Council and the objectors submit that the rezoning of the review site to
NRZ7 is consistent with and gives effect to the Council’s Housing Policy
(Clause 21.06). This policy divides the municipality into areas of
substantial, natural and limited change, with each of these areas aligned
with the neighbourhood character statements prepared as part of the
Neighbourhood Character Study 2014.
15
The Council and the objectors submit that within limited change areas the
form of development or redevelopment is limited to that which protects and
reinforces the environmental, heritage values and / or preferred future
neighbourhood character of the area. New development is expected to
mainly take the form of renovations to existing houses, replacement of
single dwellings with new dwellings and some limited medium density
development. Proposals adopting an apartment building typology are to be
confined to substantial change areas3 only.
16
Having regard to this local policy framework, the Council and the objectors
submit that there is no policy support for a development of the type, scale
and form of that proposed in this application. It is their submission that the
Council’s policy framework adopts a targeted approach to the achievement
of housing diversity and affordability objectives, and settlement and
sustainability objectives that are found in the State Planning Policy
Framework (SPPF) and also in the LPPF. Because the review site is not
located in a substantial growth area, it is submitted that the apartment
building typology cannot be acceptable.
17
As I have stated above, the application for planning permit was made before
the approval date of planning scheme amendment C160, and therefore this
application does benefit from the transitional provisions contained within
3
Pursuant to Clause 21.06-1 substantial change areas provide for housing growth with increased densities,
including inside designated structure plan boundaries and opportunity areas, in
accordance with the relevant plans as well as around most train stations, adjoining tram
routes and around larger activity centres.
VCAT Reference No.P355/2014
Page 8 of 20
the NRZ7. Discretion therefore exists to grant a permit for this proposal
notwithstanding the rezoning of the site to NRZ3.
18
The transitional provisions operate in such a way that this application must
be assessed against the purpose and provisions of the NRZ3, but that
assessment is not constrained by the mandatory limitation on the number of
dwellings and height of the building. I acknowledge that the introduction of
the NRZ as part of a new suite of residential zones is a significant departure
from the almost universal application of the previous Residential 1 zone
(and the default General Residential Zone). Where areas have or will be
zoned NRZ, different built form outcomes are intended than those that
could have been contemplated under the previous Residential 1 zone or the
General Residential Zone.
19
The exercise of discretion in this case however, is not limited to a
consideration of the proposal against the zone purpose. While that purpose
is a relevant matter, the exercise of discretion provided by the transitional
provisions necessarily involves a broader enquiry, and must be exercised
having regard to all relevant matters. In this case, these matters include the
SPPF, the LPPF, the purpose and decision guidelines of the zone, Clause
55, and Clause 65, the purpose of the transitional provisions and the
consequent phased implementation of the new zones. As in all cases where
discretion exists, responsible authorities (and on review the Tribunal)
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 generations4.
20
It is also relevant to have regard to the purpose of the transitional provisions
introduced by Government as a means of phasing in the new residential
zones in a manner that ensures existing applications are not disadvantaged
by the mandatory provisions5.
21
The balancing of competing objectives and policies in this case, necessitates
a consideration of those polices that aim to accommodate population
growth, an increasingly diverse social and demographic structure, housing
affordability and diversity and sustainable development objectives, against
those policies that focus on the protection of neighbourhood character,
heritage and amenity considerations.
22
In broad terms, both the SPPF and the LPPF encourage the provision of
housing diversity, with new housing having access to services, activity
4
Clause 10.04 Integrated Decision Making
The transitional provisions were introduced into the new residential zones by Amendment VC104 on
22/08/13. The explanatory report which is part of the approved documentation of the amendment states
that the transitional provisions were introduced in response to a recommendation of an Advisory
Committee on the new residential zones, and are intended to ensure that existing applications would not
be disadvantaged by the new provisions included in the new residential zones and the consequential
changes to Clause 55 applying to four storey residential development.
5
VCAT Reference No.P355/2014
Page 9 of 20
centres, public transport, schools and open space6. Housing that meets
community needs and an increased supply of housing in existing urban
areas is to be facilitated in appropriate locations. New housing is to be
located in or close to activity centres and employment corridors and at other
strategic redevelopment sites that offer good access to services and
transport7. The proportion of housing in Metropolitan Melbourne within
the established urban areas is to be increased, particularly at activity
centres, employment corridors and at other strategic sites and the share of
new dwellings in green field and dispersed development areas is to be
reduced. Higher density housing is encouraged on sites that are well
located in relation to activity centres, employment corridors and public
transport8.
23
These policy outcomes are consistent with the strategic directions provided
by Plan Melbourne9 which has been adopted by Government as the strategic
level document intended to guide the future direction of Melbourne’s
growth. In particular, these outcomes reflect the concept of 20 minute
neighbourhoods, in which people have safe and convenient access to the
goods and services they need for daily life within 20 minutes of where they
live, travelling by foot, bicycle or public transport10.
24
With respect to the LPPF, the site is not located within an area identified for
substantial change, but the policy at clause 21.06 does promote housing
growth and diversity in locations within walking distance of public
transport and local services such as shops, parks and education.
25
From a policy perspective therefore, the review site’s locational attributes,
including its proximity to Mont Albert Neighbourhood Activity Centre, the
Mont Albert Railway Station, and the range of recreational, educational and
other services and facilities serving the area, contribute to the site’s
suitability for some form of medium density housing. In circumstances
where discretion exists because of the inclusion of the transitional
provisions in the zone, the site’s suitability for medium density
development is a relevant consideration.
26
Whether the proposal achieves an acceptable outcome having regard to all
the relevant considerations, is dependant on the proposal’s built form
response to the preferred character of the neighbourhood, and its amenity
impacts. Whether an apartment building is acceptable on this site is
primarily a built form consideration, because a dwelling is an “as of right”
use in the NRZ7, and any attempt to differentiate between different types of
dwellings is misguided. I cannot conclude that this proposal is
6
Clause 16 Housing
Clause 16.01-1 Integrated housing
8
Clause 16.01-2 Location of residential development
9
Plan Melbourne: Metropolitan Planning Strategy (Department of Transport, Planning and Local
Infrastructure, 2014)
10
Plan Melbourne Direction 4.1: Create a City of 20 Minute Neighbourhoods.
7
VCAT Reference No.P355/2014
Page 10 of 20
unacceptable simply because it adopts an apartment building typology.
The acceptability of the proposal requires a consideration of the proposal’s
response to the character of the area. I address that issue below.
IS THE PROPOSAL ACCEPTABLE HAVING REGARD TO THE EXISTING
OR PREFERRED CHARACTER OF THE NEIGHBOURHOOD?
27
The preferred character statement for the GS2 precinct is:
The combination of heritage and quality older style dwellings and well
designed contemporary buildings set within large gardens will
continue to form the key characteristics of this area. New dwellings
will be sited in generous gardens to reflect the spacious qualities and
the dominance of planting in the streetscape. Buildings or extensions
will respect neighbouring properties from earlier periods, in scale and
siting.
The vegetated character of the area will be maintained by retaining
consistent front setbacks that allow for trees and shrubs. Buildings
will be set back from side boundaries to provide a visual separation
reflecting the typical rhythm of the streetscapes. Low or open style
front fences will allow private gardens to contribute to the leafy
character of the area.
Areas with good access to trams and train stations will accommodate
more dwellings with slightly more compact siting than the remaining
residential areas, but with the continued incorporation of trees and
gardens, and high quality, responsive design11.
28
The Council and the objectors submit that this proposal does not respect the
preferred character of this neighbourhood, because it creates a large and
dominating building that fails to make any meaningful contribution to the
spacious qualities of the neighbourhood, the “leafy” character, rhythm of
the streetscape and the garden setting.
29
Mr Simkus submits that the proposal does not meet several of the
guidelines against which developments in the GS2 are to be assessed.
Consequently, it is submitted that the proposal is an overdevelopment and is
out of scale with the predominantly modest development in the area. The
dominance of the basement access, the lack of meaningful landscaping
opportunities, and the lack of open space within which canopy trees can be
planted, are all identified as particular concerns.
30
Mr Simkus does acknowledge however that the proposal does meet some of
the guidelines. In particular, the building has no heritage significance and
does not abut any heritage dwellings. There is no vegetation on the site that
is worthy of retention and the street tree is to be retained. The front setback
is acceptable. There is no on boundary construction. The site does not
interface with an adjoining park or open space. The building does not
11
Clause 22.03-5
VCAT Reference No.P355/2014
Page 11 of 20
exceed a two storey height. The building’s articulation reflects without
mimicking the details of the buildings in the locality.
31
Notwithstanding the preferred character statement’s emphasis on the
combination of heritage and quality older style dwellings and well designed
contemporary buildings set within large gardens, and the vegetated
character of the area, the review site actually sits within an area which is
very mixed in terms of its built form and vegetated qualities. I note that the
Council has not seen fit to apply any overlay protection for existing
vegetation, and there is therefore no permit control over the removal of
vegetation. The site abuts to the south a two storey apartment building and
to the north, a two dwelling, infill development. A three storey apartment
buildings is under construction on the western side of the street, and the
balance of that side of the street comprises medium density housing and
large, contemporary detached dwellings. The character of this part of the
neighbourhood is very mixed and any assessment of this proposal’s respect
for the character of the neighbourhood, must have regard to that mixed
context.
32
I am satisfied that the proposal does respect to an acceptable degree the
preferred character of the neighbourhood. My conclusion on this point is
informed by the following aspects of the design:

The proposal adopts a modest, domestic form with a two storey
height, pitched tiled roof, and a stepped front setback.

The materials and fenestration are complementary in this
neighbourhood setting.

The front setback (8.0m) is consistent with the setback pattern in the
street, and allows for a front garden landscape theme to be
incorporated into the design. At least one canopy tree can be provided
in the front setback.

The proposal provides 3.0m wide (minimum) side boundary setbacks
which also provides opportunities for in ground planting.

The front, ground floor dwelling spans the width of the building and
assumes a single dwelling presentation in the street. The architectural
detail is reflective of the more contemporary infill dwellings that are
emerging in the neighbourhood.

The mass and scale of the building is successfully moderated by the
combination of the landscape theme, and the articulation, materials,
finishes and colours.

The entry to the basement is obtained via a single crossover, and the
entry itself is partly concealed below the building mass and the
footpath level.
VCAT Reference No.P355/2014
Page 12 of 20

I acknowledge that the performance standards in Clause 22.04 (Tree
Conservation)12 for tree regeneration cannot be met. I note however
that the policy applies to all land in the municipality irrespective of
site context, area and configuration, form of development proposed,
neighbourhood character, existing and proposed vegetation features of
the site and the locality. It is therefore a policy than cannot be
realistically applied on a universal basis, and its implementation must
be applied flexibly and with caution, in order to ensure that it is not
used to prejudice otherwise acceptable development. I am satisfied
that in this proposal, in this neighbourhood, the space available for
landscaping and replacement planting is more than sufficient to
achieve an acceptable landscape theme. The lack of existing
vegetation on the site considered to be worthy of retention, and the
fact that nine (9) trees are to be retained in any event, is relevant to my
findings on this point.13
33
I am satisfied therefore that this building will assume a comfortable fit in
what is a very mixed neighbourhood.
34
During the hearing I received submissions to the effect that my assessment
of this proposal should not be unduly influenced by the recent approval and
construction of the apartment building located at 15 Louise Avenue,
because that site context of the building is very different to that of the
review site. I agree that 15 Louise Avenue does exhibit a number of site
context features that differentiate it from the review site (for example it has
a right of way extending along two boundaries). That building however
does now form part of the character of this neighbourhood and it is simply
not possible to ignore its existence in drawing my conclusions about the
mixed nature of this part of the neighbourhood.
DOES THE PROPOSAL CONTRIBUTE TO UNACCEPTABLE AMENITY
IMPACTS?
35
Although included as a ground of refusal, the Council did not vigorously
pursue off site amenity impacts in its submission. The Council did not
identify any significant non compliances with the relevant amenity
standards of Clause 55, relating to overlooking, day light, overshadowing,
visual bulk. The very limited non compliances with the standards of Clause
55 are of little consequence and I am satisfied that the relevant objectives of
Clause 55 are met.
36
I am also satisfied that this proposal has not been designed simply to
comply with Clause 55 standards. The design exhibits a successful, site
12
This is a policy that encourages new trees to be planted 3 metres from a building, in a minimum area of
35m2, and in an area not encumbered by easements. Juvenile trees are discouraged for replanting.
13
Mr Gellard did submit that the loss of the existing front boundary hedge has an adverse impact on the
streetscape. I am satisfied that the replacement planting in the front setback will adequately compensate
for the loss of that vegetation.
VCAT Reference No.P355/2014
Page 13 of 20
sensitive response to its residential neighbours, and this has assisted in
containing off site amenity impacts to acceptable levels. I agree with Mr
Czarny’s evidence in this respect, and I note the following specific aspects
of the design:
37

In general terms, the siting of the building has been arranged to
achieve reasonable separation between it and the sensitive interfaces.
Toward the front, 3m setbacks provide the opportunity for layered
landscaping to be provided.

The northern boundary is the most sensitive abuttal, and it is here that
the side setbacks are at their most generous. Projecting elements
forward of the building line are limited and at the upper level,
balconies are provided in the void between the building footprints.
The greatest northern boundary setback aligns with the private open
space of the two abutting dwellings

The opportunity provided by the non sensitive interface to the south
(driveway and car park associated with abutting apartments) has been
appropriately responded to by reducing the side boundary setback, to
enable greater setbacks to be provided on the northern boundary.

To the east the rear laneway provides physical separation from the rear
of the dwellings on the opposite side of the right of way. The upper
level, projecting balcony on the east elevation is suitably screened and
there is a combination of both solid and transparent elements that
successfully breaks up the mass of that elevation.
Having regard to my findings, I am satisfied that the concerns expressed by
Mr O’Leary (who resides in the front of the two dwellings abutting to the
north) have been addressed in the design, and the amenity impacts are
acceptable.
OTHER MATTERS
38
The Council’s final ground of refusal relates generally to car parking,
vehicular access, and waste management issues. The objectors also raised
concerns about these issues.
39
Mr Fairlie provided evidence on these matters.
40
I was advised that following the preparation of amended plans the Council
is now satisfied about the car parking layout and access arrangements, and
that waste collection can be accomplished either on site, or on street by
Council’s waste collection service.
41
I note that the provision of 13 car parking spaces is in accordance with the
requirements of Clause 52.06 of the planning scheme. Mr Fairlie’s analysis
of the publicly available car parking in the vicinity of the site confirms that
any overflow car parking generated by the proposal, can be accommodated
without compromising the safety or functioning of the street network.
VCAT Reference No.P355/2014
Page 14 of 20
42
Having regard to the above, there are no car parking or traffic related
matters that would prevent the grant of a permit for this proposal.
WHAT CONDITIONS ARE APPROPRIATE?
43
In deciding the conditions to be included on the permit I have had regard to
the “without prejudice” conditions provided to the Tribunal by the
responsible authority and the submissions and evidence of the parties in
addition to the matters which arise from my reasons.
CONCLUSION
44
For the reasons explained above, the decision of the Responsible Authority
is set aside. A permit is issued subject to conditions.
Laurie Hewet
Senior Member
VCAT Reference No.P355/2014
Page 15 of 20
APPENDIX A
PERMIT APPLICATION NO:
LAND:
WH/2013/1000
20 Louise Avenue, Mont Albert
WHAT THE PERMIT ALLOWS:

The construction of more than two dwellings on a lot
in accordance with the endorsed plans.
CONDITIONS
1
Before the development starts, or any trees or vegetation removed, amended
plans (three copies in A1 size and one copy reduced to A3 size) shall be
submitted to and approved by the Responsible Authority. The plans must be
drawn to 1:100 scale, with dimensions, and be generally in accordance with
the plans submitted with the application but modified to show:
a
Development plans to reflect all sustainability features indicated in the
Sustainability Statement Assessment.
b
The locations of Tree Protection Zones described in Condition 5, with
all nominated trees clearly identified and numbered on both Site and
Landscape Plans, and a summary of the requirements of Conditions 5
and 6 to be annotated on the development and landscape plans.
c
Landscape Plan in accordance with Condition 3, including the
following:
i
An upper canopy tree capable of growing in excess of 12 metres
within the front setback.
ii
All new trees must be planted at a minimum height of 1.5
metres.
All of the above must be to the satisfaction of the Responsible
Authority. Once approved these plans become the endorsed plans of
this permit.
2
The layout of the site and the size, design and location of the buildings and
works permitted must always accord with the endorsed plan and must not
be altered or modified without the further written consent of the
Responsible Authority.
3
No building or works must be commenced (and no trees or vegetation shall
be removed) until a landscape plan prepared by a suitably qualified and
experienced person or firm has been submitted to and endorsed by the
Responsible Authority. This plan must be generally in accordance with the
landscape concept plan tabled at the VCAT hearing on 20 October 2014
(prepared by Hansen, Drawing No. LCD – 001 Rev A, dated 23/09/14)
VCAT Reference No.P355/2014
Page 16 of 20
When endorsed the plan shall form part of this permit. This plan shall
show:
a
A survey of all existing vegetation, abutting street trees, natural
features and vegetation.
b
Buildings, outbuildings and trees in neighbouring lots that would
affect the landscape design.
c
Planting within and around the perimeter of the site comprising trees
and shrubs capable of:
i
providing a complete garden scheme,
ii
softening the building bulk,
iii
providing some upper canopy for landscape perspective,
iv
minimising the potential of any overlooking between habitable
rooms of adjacent dwellings.
d
A schedule of the botanical name of all trees and shrubs proposed to
be retained and those to be removed incorporating any relevant
requirements of condition No. 1.
e
The proposed design features such as paths, paving, lawn and mulch.
f
A planting schedule of all proposed vegetation (trees, shrubs and
ground covers) which includes, botanical names, common names, pot
size, mature size and total quantities of each plant.
Landscaping in accordance with this approved plan and schedule shall be
completed before the addition to the building is occupied.
Once approved these plans become the endorsed plans of this permit.
4
The garden areas shown on the endorsed plan must only be used as gardens
and must be maintained in a proper, tidy and healthy condition to the
satisfaction of the Responsible Authority. Should any tree or shrub be
removed or destroyed it may be required to be replaced by a tree or shrub of
similar size and variety.
5
Prior to the commencement of any building and or demolition works on the
land, a Tree Protection Zone (TPZ) must be established and maintained
during and until completion of all buildings and works including
landscaping around the following trees in accordance with the distances and
measures specified below, to the satisfaction of the Responsible Authority:
a
Tree protection zone distances:
i
Tree 1 (Prunus – Cherry Plum) - TPZ 2.7m radius from centre
base of tree.
ii
Tree 2 (Liquidamber styraciflua – Exotic deciduous) - TPZ 6.4m
radius from centre base of tree.
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iii
Tree 3 (Photinia serratifolia –Exotic evergreen) - TPZ 4.8m
radius from centre base of tree.
iv
Tree 4 (Ligustrum lucidum –Exotic evergreen) - TPZ 2.2m
radius from centre base of tree.
v
Tree 5 (Betula pendula –Silver Birch) - TPZ 3.6m radius from
centre base of tree.
vi
Tree 6 (Photinia serratifolia –Chinese Hawthorn) - TPZ 3.7m
radius from centre base of tree.
vii
Tree 7 (Prunus cerasifera – Cherry Plum) - TPZ 3.1m radius
from centre base of tree.
viii Tree 8 (Acer palmatum – Japanese Maple) - TPZ 2m radius from
centre base of tree.
ix
b
Tree 9 (Lophosterom confertus – Brush Box) - TPZ 5.8m radius
from centre base of tree.
Tree protection zone measures are to be established in accordance to
Australian Standard 4970-2009 and including the following:
i
Erection of solid chain mesh or similar type fencing at a
minimum height of 1.8 metres in height held in place with
concrete feet.
ii
Signage placed around the outer edge of perimeter the fencing
identifying the area as a TPZ. The signage should be visible from
within the development, with the lettering complying with AS
1319.
iii
Mulch across the surface of the TPZ to a depth of 100mm and
undertake supplementary provide watering/irrigation within the
TPZ, prior and during any works performed.
iv
No excavation, constructions works or activities, grade changes,
surface treatments or storage of materials of any kind are
permitted within the TPZ unless otherwise approved within this
permit or further approved in writing by the Responsible
Authority.
v
All supports and bracing should be outside the TPZ and any
excavation for supports or bracing should avoid damaging roots
where possible.
vi
No trenching is allowed within the TPZ for the installation of
utility services unless tree sensitive installation methods such as
boring have been approved by the Responsible Authority.
vii
Where construction is approved within the TPZ, fencing and
mulching should be placed at the outer point of the construction
area.
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viii Where there are approved works within the TPZ, it may only be
reduced to the required amount by an authorised person only
during approved construction within the TPZ, and must be
restored in accordance with the above requirements at all other
times.
6
Prior to the commencement of any buildings or works, an amended
Environmentally Sustainable Development (ESD) Management Plan must
be prepared by a suitably qualified environmental engineer or equivalent to
the satisfaction of the Responsible Authority. This may include use of high
performance glazing, low water use bathroom and kitchen fittings, energy
efficient appliances, light fittings, gas boosted solar hot water and
stormwater storage for garden irrigation.
7
Prior to the commencement of any building or works an amended Waste
Management Plan must be prepared and approved to the satisfaction of the
Responsible Authority. Once approved the Waste Management Plan must
be implemented by the owners/occupiers of the site to the satisfaction of the
Responsible Authority unless with the further written consent of the
Responsible Authority. In the event that kerbside waste collection is
proposed the waste management plan must address issues associated with
the removal of bins from the kerb following collection.
8
The Applicant/Owner shall be responsible to meet all costs associated with
reinstatement and/or alterations to Council or other Public Authority assets
deemed necessary by such Authorities as a result of the development. The
Applicant/Owner shall be responsible to obtain an “Asset Protection
Permit” from Council at least 7 days prior to the commencement of any
works on the land and obtain prior specific written approval for any works
involving the alteration of Council or other Public Authority assets.
9
All treatments to prevent overlooking must not include ‘Translucent film’
on windows and must be in accordance with Standard B22 of Clause 55.
10
All stormwater drains must be connected to a point of discharge to the
satisfaction of Responsible Authority.
11
Prior to any works, design plans, calculations and specifications of the civil
works within the site associated with the development are to be prepared by
a registered consulting engineer (who is listed on the Engineers Australia
National Professional Engineer Register), and submitted to the Responsible
Authority. Certification by the consulting engineer that the civil works have
been completed in accordance with the design plans and specifications must
be provided to the Responsible Authority.
12
Stormwater connection to the nominated point of discharge and stormwater
on-site detention (if required) must be completed and approved to the
satisfaction of the Responsible Authority prior to the occupation of the
buildings.
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13
As constructed drawings prepared by a Licensed Land Surveyor are to be
provided to Council after the completion of civil works prior to Statement
of Compliance or occupation.
14
Stormwater that could adversely affect any adjacent land shall not be
discharged from the subject site onto the surface of the adjacent land.
15
The existing street tree shall not be removed or damaged except with the
written consent of the Responsible Authority.
16
Prior to any works commencing on the land a "Construction Management
Plan" (CMP) must be prepared to the satisfaction and approval of the
Responsible Authority, detailing how the owner will manage the
construction issues associated with the development.
The CMP must address; any demolition, bulk excavation, management of
the construction site, land disturbance, hours of construction, noise, control
of dust, public safety, traffic management, construction vehicle road routes,
soiling and cleaning of roadways, discharge of any polluted water, security
fencing, disposal of site waste and any potentially contaminated materials,
location of site offices, redirection of any above or underground services,
and site security lighting.
The CMP shall include suitable washing facilities are to be provided and
utilised on site for the cleaning of all construction vehicles prior to them
exiting the designated property so as to prevent any grease, oil, mud, clay or
other substance to fall or run off a vehicle onto a road, into any drain or
under the road.
The "Construction Management Plan" (CMP) must be implemented to the
satisfaction of the Responsible Authority and a contact name and phone
numbers for the site manager must be provided to the Responsible
Authority.
17
This permit will expire if one of the following circumstances applies:
(a)
The development is not started within two years of the issued date of
this permit.
(b)
The development is not completed within four years of the issued date
of this permit.
In accordance with Section 69 of the Planning and Environment Act 1987,
an application may be submitted to the Responsible Authority for an
extension of the periods referred to in this condition.
--- End of Conditions ---
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