167 East Ivanhoe Pty Ltd v Banyule CC [2013] VCAT 455

1. Leave granted to amend the application by substituting the plans prepared by Petridis Architects Drawings TPA01 to PA12 dated 30 November 2012 and marked as "For VCAT".
2. The decision of the Responsible Authority is set aside.
3. In permit application P775/2011, a permit is granted and directed to be issued for the land at 167 Lower Heidelberg Road, in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows a multi dwelling development (14 dwellings) in apartment style layout, alterations of access to a RDZ1, removal of vegetation, and reduction in provision of car parking.

Adrienne Kellock, Town Planner, Kellock Town Planning

Ian Pitt SC, solicitor and barrister, Best Hooper. He called the following experts to give evidence:

• W. Bromhead, Town Planner
• Simon Howe, Arborist
• J. Patrick, Landscape Architect
• R. Fairlie, Traffic Engineer.

As amended, three storey apartment building for 14 dwellings, not including the basement. The proposed basement provides 16 car spaces, one for each dwelling and two for visitors. It also contains storage areas, bin storage and bicycle racks.

The development is setback 8.5 metres from Lower Heidelberg Road. The ground and first floors have a similar footprint, and the second floor further recessed from the lower floors.

Residential 1 Zone; Vegetation Protection Overlay Schedule 3 (Eaglemont, Ivanhoe East and Ivanhoe area).

Lower Heidelberg Road is in a Road Zone Category 1.

Clauses 11, 15, 16.01, 21.04, 21.06, 22.02, 22.03, 52.29, 52.35, and 65.

The site is on the north side of Lower Heidelberg Road between Heritage Lane and Rotherwood Road, East Ivanhoe. It is almost regular in shape, with a frontage of 17.98 metres, a rear width of 16.76 metres, a maximum depth of 58.83 metres, and a site area of 1054 sq m. It falls by approximately 3.4 metres from the rear north-east corner to the front south-west corner. It contains a single storey dwelling. The front and rear gardens contain scattered vegetation, except for a Lemon-scented gum at the northwest corner of the site which is highly visible from Lower Heidelberg Road.

Adjoining the site to the west is a multi-unit development at No. 171 Lower Heidelberg Road. Although these dwellings are single storeys, the design of the development with an acute roof angle is such that it gives an impression of a two storey height. Adjoining the land to the east at No. 169 is a medium density development of seven double storey dwellings under construction. No. 169 wraps around the rear of the review site.

There are other multi unit developments in the immediate surrounding: No. 171, 173, 157 (an age care facility), and 155 on the same side, and more on the south side of Lower Heidelberg Road.

Diagonally opposite the site on the south side of the site is extensive parkland, with facilities for active and passive recreation.

Lower Heidelberg Road is a main road. The Ivanhoe East Neighbourhood Activity Centre is on Lower Heidelberg Road approximately 400 metres to the east.

1. The permit applicant seeks to develop the land for a three storey (not including basement) apartment building for 14 dwellings, to make alterations to access from a Road Zone Category 1, and associated removal of vegetation. Council has determined the application and issued a refusal. The grounds of refusal relate to scale and bulk, inadequate space for landscaping, inadequate area and dimensions for secluded private open space, inadequate vehicular access and car parking, inadequate storage, and contrary to orderly planning.
2. With regard to the amended design following the substitution of plans, which involves improvements to the basement car parking and access ramp, reduction in the height the building by a split level design, increased front and rear setbacks of the top level, and a reduction in the length of the upper floor, Council remains opposed to the development in the areas of scale, form and mass, its ability to integrate successfully with the established and preferred character of the neighbourhood, unreasonable adverse visual impacts on the streetscape, and inadequate landscaping opportunities.
3. The matter was heard on 22 January 2013. The issue of the Lemon Scented gum came up: that is whether it can be retained, which is proposed to be so. At the hearing, it was brought to the Tribunal's attention that works at the rear of 169 Lower Heidelberg Road has caused severance of major roots of this tree. It became questionable whether this tree can remain stable in the long term and whether it has a medium useful life span. Opinion given at the hearing was that the tree should be removed.
4. An order dated 24 January 2013 gave direction for further investigation by Council's arborist on the tree, the impact of the works carried out around the tree, and the future useful life space of the tree. This investigation is to be carried out in consultation with Simon Howe, the arborist called by the review applicant to give evidence. This order also provided 10 days following the receipt of Council Arborist's report to submit comments, and that the Tribunal will proceed to determine the matter, if no request is received for a further hearing.
5. Council's commissioned report on the tree[1] was received on 20 February 2013, and comments received from Mr. Pitt on 27 February 2013. There was no further comment received from other parties. No one has requested a further hearing. On this basis, the Tribunal proceeds to determine the matter.
6. The issues of this review are the form, scale and design of the development in the context of the site; and the matter of tree retention, particularly the Lemon Scented Gum.

1. Urban consolidation and increased density development in and around activity centres are encouraged. It is a matter of the intensity of it.
2. The site is within convenient and easy walking distance of the East Ivanhoe neighbourhood activity centre, and is on a main road.
3. Council's view, however, is that the site is not in an area where significant change is anticipated, and that it is suitable for an "incremental change" as identified in the local policy framework. It considers an apartment style development acceptable in principle, provided that it is "suitably modulated to integrate successfully with its surrounds".
4. In terms of the amended design, Council maintained that it has failed to provide an acceptable degree of change and a design that responds to the established built form and landscape character of the area, and that it is not as an appropriate response to the desired future character of the Garden Suburban precinct 6 (GS6). It submitted that the scale of the development is overly prominent when viewed from the street and surrounding residential properties because:
   • The setback of the first floor balcony (unit 7) is forward of the setback of the dwellings on the east and west side of the land, a feature that is exacerbated by the feature frame over the balcony;
   • A lack of difference in setback between the ground and first floors, and that the slightly stepped setbacks are not adequate to provide any real visual relief;
   • The three storey height of the front entry foyer will present substantial visual bulk when viewed from the adjoining property to the west;
   • The scale of the development is significantly larger than nearby development; and
   • Limited planting opportunities around the perimeter of the building to soften the development.
5. Respondents' concern regarding the design is the size of the building, the density of around 1 dwelling per 75 sq m of land which to them is excessive, and being contrary to the Garden Suburban precinct guidelines.
6. On the other hand, Mr. Bromhead's opinion was that Clauses 21.06 and 22.02 should be read in the context of the site and the particular characteristics of the site. To him, the site at over 1000 sq m is substantial and can contain 14 dwellings, thus making a meaningful contribution to urban consolidation. He also considered an apartment style development appropriate because the character of the area is not homogenous. Further, his observation is that the site is on a major arterial road that carries a substantial volume of traffic, and that the character of the area has changed and now includes apartment style development such as at 196 and 202 Lower Heidelberg Road. In his opinion, this character will continue to evolve.
7. My inspection of the site confirms the extent of redevelopment of this part of Lower Heidelberg Road, with replacement of single dwelling with town house and apartments.
8. I accept Mr. Bromhead's view that Clauses 21.06 and 22.02 need to be read with the existing character of the area. In this case, the site is on Lower Heidelberg Road where the existing character is robust and mixed. It contains different housing types, from single dwellings, town houses to apartments. In terms of these two clauses, an important element is the retention of tall trees for a site that is in the Garden Suburban Precinct and Vegetation Protection Overlay. An apartment style development is not out of the place in the locality. A three storey building, if the top floor is well recessed and articulated and the building not visually dominant, is an acceptable response to the locality.
9. The proposal is for a three storey building and to retain the most significant tree on the land (the Lemon Scented Gum referred to as Tree 11) at the northwest corner. The ground floor is setback from all boundaries, 1.2 metres from the eastern boundary (against the two storey town house development at No. 169 Lower Heidelberg Road), and a minimum of 3 metres from the western boundary, another medium density development at No. 171 Lower Heidelberg Road.
10. The front 13 metres of the west side of the building is setback 5 metres to allow for a walkway into the central foyer of the development where the lift and stairwell to the upper floors are located.
11. The first floor has a similar footprint as the ground floor, except that the minimum setback from the eastern boundary is increased to 2 metres. The top floor is further recessed from the lower floor by being set back 11.47 metres from the lower floor at the front (6.2 metres for the balcony), 5 metres from the western boundary (not including the lift stairwell), 4.5 metres from the eastern boundary, and 7.87 metres to the boundary at the balcony of Unit 14 and 11.37 metres for the wall.
12. Given the mixed architecture of this part of Lower Heidelberg Road and the recessiveness of the top floor from all elevations, particularly from the front and rear, I form the view that the building is a gradual increase in scale and building mass from adjoining sites, that is from the single storey but two storey in appearance development to the west and the two storey medium density development under construction to the east and north of the site. I also consider the top floor, with its degree of recesses from all boundaries, especially the front and rear, an appropriate response to the street by being obscured when viewed from the opposite side of Lower Heidelberg Road, and from the two storey unit at 197 Lower Heidelberg Road at the rear.
13. The only modifications I require are to reduce the prominence of the building by reducing the protrusions into the front setback area, which are the pulling back of the first floor balcony of Unit 7 facing Lower Heidelberg Road to be no more than 2 metres forward of the front wall of the unit, the feature frame on the first and second floor removed, and the covered walkway.

1. The proposal is to retain the Lemon-scented gum at the northwest corner of the site. It is the most significant tree on the land and the immediately surrounding area. The desired future character of the Garden Suburban Precinct 6 also emphasised the objective of retaining large trees.
2. The site is affected by the Vegetation Protection Overlay Schedule 3. The statement of significance of this overlay notes the contribution of tall trees to this part of Banyule. It is an objective of this schedule to retain tall trees, and for alternative design to be considered prior to removal of tree.
3. This tree (referred to as Tree 11) is a statuesque specimen estimated by Mr. Howe to be 19 metres high, of semi-mature age, and has a useful life of 20 years[2]. It was given a high retention value and proposed to be retained in the proposal. The building footprint in the development generally keeps clear of the Structural Root Zone (SRZ) and the Tree Protection Zone (TPZ) of this tree. A small corner of Unit 6 to the extent of 2.2 x 0.6 metre is within the TPZ of the tree and a small portion of the stairs from the courtyard of that dwelling into the living room of Unit 6 also encroaches on the SRZ of the tree. To retain this tree, the footprint of the development has been set back 7.3 metres from the rear boundary. Subject to a detailed Tree Management Plan, the retention of this tree, can be successful.
4. As referred to earlier in these reasons, it appears that the development at No. 169 to the east and rear has severed sizeable roots of the tree by the construction of retaining wall. This was brought to the attention of the Tribunal at the hearing. Mr. Howe, who made the initial assessment of the tree, gave evidence at the hearing after further investigation on 18 January 2013 just prior to the hearing on 22 January. His investigation found:
   • One large structural root in excess of 150 mm has been severed and its cut face embedded in concrete;
   • Another large root between 150 and 200mm also severed by the footing of the retaining wall and the cut face not revealed.
   • These roots were well within the SRZ (3 metres) of the tree;
   • The retaining wall has been filled. To him, a fill of over 100mm should be avoided due to their impact on water penetration, causing a change to the texture of the soil, and creation of a blanket that can affect infiltration of oxygen; and
   • These works has affected about 25% of the TPZ where the Australian Standard recommends no more than 10%.
5. He advised that he has brought the situation to the attention of Council's Arborist, Mr. Withers. His opinion is that the tree would not suffer immediate failure, but would deteriorate over time and then may fail. It is also his opinion that the tree should be removed.
6. When asked by Council whether his view of the tree has changed from one of high retention value to no retention value, he answered in the affirmative. When asked if there is no further damage to large roots apart from the two he found, would he change his mind? He answered that he would, but would maintain that the tree will suffer dieback. He advised that it is not desirable to have a tree that potentially shed limbs to be close to units (west) and north (development in No. 169).
7. Mr. Power, the developer for 169 Lower Heidelberg Road submitted that the works around the tree were not undertaken by the builder but were existing works in the easement.
8. Council submitted that the situation of the tree happened so recently that it did not have the opportunity to determine whether the conditions of the tree are as dire as described. It suggested that further exploration of soil to the depth of between 300 and 600 mm should be carried out before a decision is made to remove this tree.
9. As suggested by Mr. Pitt, the Tribunal directed Council to prepare a report on this tree as set out in the order dated 24 January 2013.
10. This report, prepared by Tree Dimensions, assessed this tree to be 15 metres in height with a spread of 18 metres, has good foliage, good limb conditions, good stem conditions, and with many intact roots despite minor damages. It found that the tree has not been subject to pests or disease and should have a useful life of 40 years or more. It was given a high amenity value, is of significance and of high retention value. The exploration carried out, including an investigative trench in the narrow space between the tree stem and the boundary fence with No. 169, showed the extent of root encountered and a schedule of roots was provided. These roots include structural and non-structural roots with their sizes nominated. Of the roots encountered, there were many fine woody roots. There were seven larger but non-structural wood roots (2 to 3 cm diameter), and 12 major structural wood roots (4 to 18 cm diameter). This report commented that for a tree of this size, the uncovered roots represent only a portion of its overall root system.
11. This report went on to comment that the three major structural roots damaged have not been severed. One, a root to the north, 9cm in diameter, was damaged at a distance of 70 cm from the centre of the stem. A second root, 12 cm in diameter to the northeast of the stem, and the third root 18 cm in diameter to the northwest of the stem, were damaged at a distance of 1.3 metres from the stem centre. Despite these, it is the opinion of the attending arborist that the observable damage is unlikely to significantly affect tree health or tree stability, as the plentiful structural roots uncovered appeared healthy and mostly structurally sound. He is also his opinion that as long as remaining roots 4cm diameter and larger remain intact within 2.7 metres of the tree (SRZ), the life expectancy and ongoing viability is unlikely to be affected. He noted that the site works and its immediate impacts on the tree's roots occurred about one year prior to his investigative work, and there is no indication that the tree is stressed as a result of the site works and no indication of root plate instability. However, it is also his opinion that the tree will require protection from any future site works that may be proposed at the rear of either 167 or 169.
12. Mr. Howe, through Mr. Pitt, responded to this report. He generally agreed with its findings, except that there is no assurance that the major roots embedded in the concrete have not been severed as the investigative work was not carried with him or with Council's arborist presence. He would not agree that the damage to the major roots as minor. He maintained that the soil conditions have changed, and that the tree is subject to a slow decline. He also expressed concern that this report or Council has not formulated any remedial action to enable the retention of the tree.
13. Mr. Pitt's response was that in the absence of remedial works at 169 Lower Heidelberg Road, the tree would go into a long slow decline. He contended that in the absence of such works, to which Council has made no commitment and which are beyond the review site and the capacity of the applicant for review, the tree does not have a safe useful life expectancy in the longer term.
14. Since Mr. Pitt's comments, there has been further development with regard to 169 Lower Heidelberg Road. Council by letter dated 26 February 2013, advised that it has issued a Planning Infringement Notice to 169 Lower Heidelberg Road for the works undertaken within the tree protection zone of this tree without the consent of the responsible authority in contravention of the permit issued for the development P362/2009, particularly condition 10(d). A copy of this letter with the issued infringement notice was sent to all parties. This means Council is taking action with regard to protection of the tree from 169.
15. My inspection of the site confirms the contribution of the tree to the locality and area. It also informed me how close the development at No. 169 is to the trunk of this tree.
16. The retention of this tree is consistent with the VPO that affects the site and the objective of retaining tall trees in the Gardens Suburban precinct. It is provided for in the design of the development. Council's enforcement action, hopefully, will see to the tree protection works required in the development at No. 169 carried out and that the completion of that development will not further undermine the health of the tree. The tree should have a good chance of survival and continue its contribution to the landscape quality of the area.
17. My review of the layout of the development is that further modifications to the design are warranted to protect the tree, apart from the Tree Management Condition proposed by Council. I will include a condition requiring a review of the design of private open space of Unit 6 so that there is no need for retaining wall or excavation within the SRZ of the tree. I will also require the part of the courtyard of Unit 6 within the SRZ of the tree to become part of the common area for the development. This is to alleviate the responsibility of the tree on one of the dwellings so that the management of the tree falls on owners' corporation as well as expanding on the size of the communal open space. This means the side setback of the development between the western boundary and Unit 6 (all of which is within the 3 metre wide easement) to join the proposed common courtyard area along this boundary in the development.
18. The next consideration is whether the proposed landscaping can reduce and soften the building. The extent of tree retention is the retention of a Pencil Pine at the front southwest corner and several along the western boundary, apart from the Lemon Scented gum at the northwest corner. These other trees are not of any particular significance, but would retain some of the green foliage along the western boundary of the site.
19. Mr. Patrick's landscape design is to plant a 'feature tree' at the front setback area, other feature trees at regular intervals along the western boundary, at the north-eastern corner and two in the courtyards along the eastern boundary. Other than these trees, mostly Crepe Myrtle with a Pin oak in the front garden and a Frangipani and Jacaranda at the north east corner, the site is to be framed by Pittosporums. The landscaping effect is one of a feature tree capable of reaching and exceeding the height of the building by the Pin oak at the front, a backdrop by the Lemon Scented gum, peripheral planting of crepe myrtles and the dense foliage of pittosporum along the edges. The entry walkway is to be covered by climbers. I am persuaded that such a regime is capable of softening the building in a landscape setting.
20. In all, I am satisfied that the proposed building, subject to the modifications to reduce its streetscape prominence, with the retention of the Lemon Scented gum and the landscaping proposed, is an acceptable response to the Vegetation Protection Overlay that affects the site and the existing neighbourhood character of the area.

1. Although vehicular access and car parking was a ground of refusal, the amended plans has improved this aspect of the proposal that Council made no further submission on the topic.
2. Respondents remained unconvinced that traffic and parking has been resolved. They believed that car parking provided is not enough, and that two car spaces should be provided for each two bedroom units plus visitor parking.
3. Car parking provision is now derived from Clause 52.06. This clause requires the rate of one space for two bedrooms or under dwellings, and two spaces for three bedrooms and over, plus one visitor car space for every 5 dwellings. On these rates, 16 car spaces would be required, one for each of the dwellings which are all two bedrooms or under, and two visitor car spaces. If the correct number is provided, there is no requirement for additional spaces.
4. Mr. Kiriakidis, himself a traffic engineer, submitted that the layout of parking spaces and access in the basement is not satisfactory, especially the parallel spaces along the basement wall. He submitted that these spaces are not equipped with an allowance of 300mm on the sides to allow opening of car doors. He was also concerned with the manoeuvrability of these parallel parking spaces, especially Spaces 13 and 16, which would require three point turns. With regard to visitor parking, he noted that two spaces have been provided. However, he submitted that the basement is a secure basement, and visitor access to the basement is by means of an intercom. Since the intercom is on the right hand side of the ramp and given the access down into the basement is on the left hand side of the driveway, he submitted that accessing the intercom on the right side of the driveway is not efficient. He recommended an intercom to be located in the centre of the driveway.
5. Mr. Fairlie disagreed. To him, an intercom system in the middle of a driveway is for large commercial development rather than domestic buildings, and that such a structure would detract from the appearance of the development. He is also of the view that it is not necessary to allow for the 300mm on each side of these spaces.
6. I understand Mr. Kiriakidis' theory that a car space constrained by wall should provide for allowance to open car doors. However, the diagram showing the design of a car space with such an allowance (Diagram 1 of Clause 52.06-10) relates specifically to 90o parking. Mr. Pitt submitted that it is a matter of law that the 300mm on each side is not for parallel car space.
7. It is evident that the parallel car spaces need to do a three point turn in the basement in order to exit the site in a forward manner. These spaces are constrained by wall on one side. To eliminate three point turns, it is necessary to widen the basement by nearly 600mm. It that case, it would have a flow effect in reducing the area available for landscaping on the ground level.
8. Although 90o parking is most efficient, I do not agree this to be the reason to delete the parallel car spaces and the commensurate number of dwellings (four) in the development as advocated by Mr. Kiriakidis. However, I agree that the necessity for three point turns for the parallel parking spaces is not efficient and not attractive parking. Together with the fact that the spaces do not enjoy an allowance to enable car door opening on the driver side as that side of the car spaces abuts the basement wall, some modifications to the parking layout is justified.
9. I would set aside Car Space 6 as the turn around space and loading and unloading space for the parallel spaces. This means one of the visitor car spaces will be converted for resident use and one visitor car space to be waived. I consider this a worthwhile trade-off. This means on-street parking will be relied on to make up for one visitor parking space.

1. Notwithstanding that the site is in an 'incremental change' area, the site is on a main road where development is mixed in character. The proposed three storey apartment building, with its top floor well recessed, is of a scale that is acceptable to the context of the site, subject to the modifications to reduce the visually prominent design features.
2. The issue of retaining the tall tree at the northwest corner of the site has been subject to further investigation and Council is taking action against the neighbouring property to ensure that the tree can be protected. Together with tree protection and tree management measures within the review site as required by permit conditions, this tree should continue to make a contribution to the landscape quality of the area and as intended for a Garden Suburban Precinct and the Vegetation Protection Overlay that affect the site.
3. The proposal does not cause a level of amenity impact that fails the test of Clause 55.04.
4. Subject to further modifications to the car parking layout to ensure that vehicular manoeuvrability within the basement, I support the proposal.
5. Council's decision to refuse the application (based on the original proposal) is set aside. It is directed that a permit subject to the modifications discussed in these reasons and most of the conditions contained in Council's without prejudice conditions is to issue.

APPENDIX A: PERMIT CONDITIONS FOR PERMIT P775/2011**

1. Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the amended plans circulated by the permit applicant prior to the VCAT hearing (prepared by Petridis Architects, labelled TPA 01-1 of 12, TPA 02-2 of 12, TPA 03- 3 of 12, TPA 04-4 of 12, TPA 05- 5 of 12, TPA 06-6 of 12 and TPA 07-7 of 12, dated 30th November 2012), but modified to show:
   • (a) The balcony of Unit 7 on the first floor facing Lower Heidelberg Road reduced in size so that it projects no more than 2 metres from the front wall of the unit;
   • (b) The feature frame at the front of the building forward of the front wall of the building deleted;
   • (c) The covered walkway not to protrude more than 2 metres forward of the front wall of Unit 1;
   • (d) Car space 6 to be converted as the turn around and loading and unloading space for the parallel parking spaces 13, 14, 15 and 16. The ground of car space 6 to be marked accordingly;
   • (e) Number of visitor car space in the basement reduced by one;
   • (f) Redesign of the private open space of Unit 6 so that there is no excavation and no retaining wall within the Structural Root Zone of Tree 11, and its size reduced in line with (g) below;
   • (g) The common courtyard on the ground level extended to include the easement along the western boundary and the Structural Root Zone of Tree 11;
   • (h) The changes to the vehicle crossover required by VicRoads in accordance with Condition 2 of this permit;
   • (i) The existing natural ground level clearly labelled on all elevation plans;
   • (j) Overall maximum building heights (measured to the top of the roof) above natural ground level to each component of the building;
   • (k) A reduction in the width of the communal pedestrian path to 1 .5 metres;
   • (l) All balconies to have a minimum area of at least 8m2 at a 1.6 metre minimum width, which may be reduced to no less than 1 metre as a design feature consistent with the design in the development. This must be achieved without reducing the setbacks of balconies from front/side/rear boundaries;
   • (m) Notations that Tree No's 5, 8, 9 (part row only), 10 and 11 are to be retained on the subject site (numbering reflects Tree Assessment Report submitted with the application, prepared by John Patrick Landscape Architects and dated October 2011);
   • (n) The Tree Protection Zones of Tree No's 5, 8, 9 (part row only), 10 and 11 in accordance with those outlined in the Tree Assessment Report submitted with the application (prepared by John Patrick Landscape Architects and dated October 2011);
   • (o) All measures outlined in the approved Tree Management Plan required by Condition 5 of this permit to protect the health and vitality of Tree No. 11.

• Any alterations required to the building envelope of the development to minimise intrusion into the TPZ;
• Any alterations required to the location, design and materials of

pedestrian paths and/or external paved areas;

• Any particular construction techniques required for the portion of the building that is located within the TPZ;
• The location, design and height of any retaining walls required to

Any alterations to the building envelope of the development must not

(p) Screening treatment of habitable room windows on the first and second floors to meet Standard B22 of Clause 55.04-6.

(q) Engineering plans showing a properly prepared design with computations for:

• The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site

  detention system;

• The drainage works necessary to connect the subject land to the

  Council nominated point of discharge;

Any new drainage works must be designed and located outside of the TPZ of Tree 11 if possible. Where unavoidable, details must be provided as to how impacts on the TPZ will be mitigated.

(r) All structures (including letterboxes, meter boxes, fences and retaining walls, etc) located within the 2m x 2.5m splayed area adjacent to the driveway entrance constructed to a maximum height of 900mm, or relocated clear of the splayed area, to ensure adequate sight distance to pedestrians. Landscaping in this area must also have maximum height of 900mm.

(s) The location of the new street tree within the site's frontage in accordance with Condition4 of this permit.

(t) The Tree Management Plan in accordance with Condition 5 of this permit.

(u) Landscaping as required by Condition 6 of this permit.

1. The proposed crossover on Lower Heidelberg Road must be constructed to a minimum width of 5.5 metres at the property line, flared 60 degrees, with 3 metre radial turnouts at the kerb line and minimum 1.0 metre clearance from any fixed object, to the satisfaction of VicRoads and the Responsible Authority and at no cost to VicRoads prior to the occupation of the buildings hereby approved.
2. All disused or redundant vehicle crossings must be removed and the area reinstated to kerb and channel to the satisfaction of and at no costs VicRoads prior to the commencement of the buildings hereby approved.

1. The permit holder must:
   • Remove the existing street tree prior to the commencement of the development;
   • Plant a Coiymbia ficifolia (Red-flowering Gum), with a minimum pot size of 40 litres, centrally within the nature strip abutting the site's frontage immediately upon completion of the development;
   • Maintain the new tree for a period of two (2) years from the date of occupation of the development;
   • Bear the full cost associated with the removal, establishment works (including plant selection, mulching and staking) and two year maintenance period;

The planting and establishment works must be undertaken by a suitably qualified landscape professional to the satisfaction of the Responsible Authority.

1. Prior to the commencement of any buildings and works a Tree Management Plan (TMP) prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority. When approved, the TMP will form part of this permit and all works and measures set out in the TMP must be implemented to the satisfaction of the Responsible Authority. The TMP must include:
   1. Details of investigative work undertaken alongside the northern boundary of the subject site in proximity to Tree No. 11 to review the level of root disturbance and/or severance that has occurred due to recent works on the adjoining land to the north. Any excavation works undertaken within TPZ must be performed using 'Air Excavation' or similar techniques to the satisfaction of the Responsible Authority.
   2. All measures required to protect the health and vitality of Tree No. 11. Such measures must include (but are not necessarily limited to):

- any alterations required to the building envelope of the development to minimise intrusions into the TP;

- any alterations required to the location, design and materials of pedestrian paths and/or external paved areas;

- any particular construction techniques required for the portion of the building that is located within the TPZ;

- the location, design and height of any retaining walls required to minimise impacts on the TPZ

c Detailed tree management requirements for Tree No. 11. Such

requirements should include (but not necessarily be limited to):

- tree protection fencing, mulching and irrigation prior to any works commencing on site including demolition;

- root pruning of smaller roots damaged by the easement pit and/or retaining wall construction (both of which are sited on the adjoining land to the north of the tree);

- root pruning along the basement alignment prior to piling works commencing to ensure roots are not inadvertently torn by excavation;

- routing of all underground services out of the TPZ;

- ongoing irrigation requirements post construction and follow up assessments.

1. Management requirements for Tree No's 5, 8, 9 (part row only) and 10 to be retained on site. Such requirements should include (but not necessarily be limited to):

- pre-construction: tree protection zones, tree protection fencing, the amount and type of mulch required and the method of cutting any roots/ branches which extend beyond the tree protection zones;

- during construction: watering regime during construction, method of protection of exposed roots, method for siting services where near to any existing tree to be retained, arborist involvement with any pruning or root exploration;

- post-construction: details to include watering regime and time of final inspection when barrier can be removed and construction related protection works and regime can cease. Pruning, dead wood removal and weight reduction regime.

1. The development permitted by this permit must not be commenced until a satisfactory detailed Landscape Plan is submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design generally in accordance with the Landscape Plan prepared by John Patrick, Drawing "Landscape Plan for VCAT" and dated November 2012, and shall include:

1. details of planting throughout the site; 2. Any modifications to the building envelope of the development, including the location of retaining walls and pedestrian paths/paved areas, that are required to satisfy Condition 1 of the permit.

1. The Tree Protection Zones (TPZ) of all trees to be retained on site.

1. All new planting alongside either side of the driveway entrance within a 2m x 2.5m splay (as appropriate) to have a maximum height of 900mm. 2. A schedule detailing the establishment dimensions and proposed maintenance regime for the new street tree required by Condition 4 of this permit. 3. A schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified. 4. Location and details of paving, steps, retaining walls, water tanks, clotheslines, fence design details and other landscape works including cut and fill.

1. Except with the further written consent of the Responsible Authority, no vegetation (other than that indicated on the endorsed plan, or exempt from planning permission under the provisions of the Banyule Planning Scheme) shall be damaged, removed, destroyed or lopped.
2. Unless otherwise agreed in writing by the Responsible Authority, the landscaping areas shown on the endorsed plans must be used for landscaping and no other purpose and any landscaping must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

1. Prior to the commencement of the development, a Waste Management Plan prepared by a suitably qualified person must be submitted to and approved to the satisfaction of the Responsible Authority. Such plan, generally in accordance with the Waste Management Plan prepared by Leigh Design dated 26 November 2011 submitted with the permit application, must specify that collection is to be by way of private contractor and detail

1. the amount of communal storage area required to provide sufficient space for refuse and recycling bins for all dwellings within the development; 2. how waste and recycling materials are to be managed within the site and collected from the subject site;

1. anticipated frequency, hours and duration of collection(s);

1. how bin storage areas will be maintained to ensure there is no unreasonable emission of odour or noise;

Once approved, this management plan must be adhered to by the owner(s), permit holder(s) and occupier(s) of the dwellings at all times unless otherwise approved by the responsible authority.

1. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority

1. Unless otherwise agreed in writing by the Responsible Authority the development permitted by this permit must not be occupied until:

1. the Waste Management Plan required by Condition 9 of this permit is submitted and approved by the Responsible Authority; 2. the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority;

1. drainage works have been undertaken and completed to the requirements and satisfaction of the Responsible Authority;

1. the dwellings are numbered in accordance with Councils allocation of street numbers.

1. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
2. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.
3. The boundaries of all car spaces, access and egress lanes and the direction in which vehicles should proceed along the access lanes must at all times be clearly indicated on the ground to the satisfaction of the Responsible Authority.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • The development is not commenced within two years of the date of this permit; or
   • The development is not completed within four years of the date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing along with payment of relevant fee before the permit expires, or within three months afterwards.

[1] Aboricultural Assessment by Clive Sorrell and dated 15 February 2013,

[2] According to the arborist report submitted with the application: Tree Assessment Report by Simon Howe of John Patrick PL, dated October 2011.