1. The Applicant's case highlighted that the proposal is to provide a residential high care aged care facility. The residents pointed out that the Australian Government removed the distinction of low and high care in permanent residential aged care from 1 July 2014. What this means is a facility (including this proposal) could provide a mix of low and high care or just the one type of care pursuant to these new reforms.
2. The Council questioned the weight that we should place on the submissions and evidence about the future residents of this facility being high care residents given these new reforms. We asked the Applicant to address this, particularly given planning permits for residential aged care facilities do not generally specify whether the facility must be low or high care. On the last day of the hearing, the Applicant responded that this legislative change makes little, if any difference to the planning considerations of this proposal for the following reasons:
   • the Planning Scheme has never made a distinction between low and high care aged care facilities. The relevant land use "residential aged care facility" or "nursing home" in Clause 74 draws no distinction between high and low care residents, nor is it defined by reference to any classification in the Commonwealth Legislation;
   • none of the Tribunal decisions that have approved aged care facilities, including those targeted towards high care residents, have limited permission granted to a specific level of care; and
   • the Commonwealth Legislation does not require aged care providers to provide what used to be known as high and low care as confirmed by the relevant Commonwealth Department.
3. As mentioned above, the land use definitions in the planning scheme do not distinguish between high and low care. Despite this, some of the Tribunal decisions tabled during the hearing about nursing homes and residential aged care facilities[2] have recorded in the reasons the proposed intent in regard to future residents, i.e. whether the proposal will provide for high or low care residents or both. Nevertheless, our perusal of these decisions did not reveal any findings that made clear distinctions between, or relied upon, the levels of care to be provided.
4. We have asked ourselves the question as to what the relevance of the level of care may be. We envisage that there could be arguments that the level of care may impact upon operational aspects of a facility. For example, the staff levels required for high or low care; the consequential car parking demand; the layout and arrangement of rooms within the facility; and the additional activities and facilities provided on a site for future residents.
5. In this case, the proposed intent to provide a facility for high care residents forms part of the Applicant's submission and the expert evidence of Ms Dunstan and Ms Heggen. Where appropriate, we have had regard to this and have referred to the Applicant's submission and evidence in explaining the reasons for our decision. In summary, the key factors where the type of residential care became relevant in this case are the car parking provision and the level of amenity (outdoor areas) provided on the site for future residents.

1. There is no dispute between the Applicant and the Council that there is a need for aged care facilities in this area and in this municipality. It was pointed out to us that the MSS acknowledges the changing demographics in the municipality, particularly an ageing population in this region[3] with a prediction that by 2031 28% of the population will be aged 60 years or over[4]. Ms Heggen's evidence is that the Chinese population in this municipality has risen since 2006 and is now about 6% of the municipality's population.
2. Ms Cincotta explained the Applicant is one of the leaders in the Chinese nursing association and has been looking for a suitable site in the municipalities of Manningham and/or Whitehorse for about 15 years. The Applicant submits there is a large proportion of elderly Chinese residents in this municipality and only one aged care facility (On Luck) that currently caters to the specific needs of this community.

Is the Need a Significant Social Effect of the Proposal?

1. In dispute in this case is the weight to be given to the issue of need, and in particular whether it is a significant social effect pursuant to the Planning and Environment Act 1987 (the Act).
2. Section 60(1)(f) of the Act requires that the relevant decision-maker, before deciding on a permit application, must consider:

... any significant social effects and economic effects which the responsible authority considers the use or development may have.

1. The Applicant submits the existing and growing need for aged care facilities in the municipality, particularly catering to the Chinese elderly residents, is a significant social consideration; and the significant social benefit that this facility would provide is a relevant consideration in assessing this application. Ms Heggen's evidence is that this facility provides explicit social benefits for aged Manningham residents of Chinese origin and their families, which is a significant social effect to be given some weight as directed by the Act. Ms Heggen pointed out the Council's aged and disability services department supported this permit application[5]. However, she also acknowledged that this social need was not given significant weight by the Council acting in its role as the responsible authority and decision-maker (in balancing and deciding the various relevant planning considerations in this case).
2. The residents questioned the weight to be given to a facility for one sector of the community, particularly given there are 351 Chinese people over 64 years in the "Greater Templestowe" area[6] and local census data indicates that in the immediate environs there are a mix of ethnic backgrounds, not just Chinese[7].
3. We are 'standing in the shoes' of the Council in making this decision, so it is open to us to consider whether this proposal provides a significant social effect. In Rutherford & Ors v Hume CC[8], the Tribunal identified a number of factors relevant to the consideration of section 60(1)(f) of the Act. We do not intend to quote these factors as they extend over multiple pages. Rather we have had regard to them and find the need associated with this proposal is not a significant social effect for the following reasons:
   • The Applicant submits the effect is significant and relies in part on a survey of Chinese people that it was involved in. The Applicant's expert town planning witness gave evidence it is significant as there is only one other facility catering to Chinese ancestry in a municipality that has a growing number of people born in China. However, this submission and expert opinion is not considered significant by the Responsible Authority.
   • The effect of the proposal will benefit a small proportion of the community in this municipality as opposed to the community at large or a larger proportion of the community.
   • Ms Heggen gave evidence this is a relatively small scale facility in comparison to others in the municipality including the existing Chinese aged care facility, On Luck in Donvale, that provides 200 beds[9]. Again, this means the effect of the proposal will benefit a small proportion of the community.
   • Ms Heggen's evidence acknowledges that the Chinese population in this municipality remains a relatively small percentage of the overall population. The Council's aged and disability services department referral comments are that there are other ethnic groups of elderly residents in the municipality who are greater in number. In regard to the community at large or a larger proportion of the community, Ms Heggen's evidence is that this facility may cater to ageing Chinese from a broader area than just this municipality. However, no detailed information was provided in support of this.
   • The Applicant agreed its survey of Chinese people was not independent as it was conducted with the Applicant's involvement[10]. It is unclear who the survey was sent to and what age of the participants were. We were not provided with the questions asked; an explanation about how the participants were chosen; or information about how the purpose of the survey was explained to the participants.
4. Having made this finding, we do nevertheless accept the proposal will be a social benefit to a particular part of the community. This is one factor in favour of granting planning permission, particularly as the Accommodation Premises local planning policy decision guidelines[11] include consideration of the availability of this type of facility. However, this positive factor needs to be considered and balanced with other relevant factors, such as the other key issues we have identified for consideration.

THE ACCEPTABILITY OF THIS PROPOSAL IN ITS CONTEXT

1. The key issue in this case is whether the proposed facility is acceptable in its context. The acceptability of this facility is influenced by a range of factors that include the zoning of the land, the planning policy guidance about the future development and use of the land, and the physical context of the land.

Role and Purpose of the Low Density Residential Zone (LDRZ)

1. The Council and the Applicant hold differing views about the role and purpose of the LDRZ. The Council submits the structure of the residential zones and associated planning policies effectively create a hierarchy of residential zones in terms of the nature and extent of change envisaged, which places the LDRZ at the bottom of the hierarchy. As such, the Council says this proposal is not appropriately located. The Applicant points out a residential aged care facility forms part of the broader definition of "accommodation" in the planning scheme, which means it is a residential use, not a commercial use. The Applicant submits the appropriateness of a residential aged care facility in a LDRZ has been accepted by the Tribunal on numerous occasions and specifically referred to five decisions[12].
2. The LDRZ does form part of the suite of residential zones in the planning scheme. However, the purpose of the LDRZ is quite different (and, in fact quite limited) in comparison to the other zones:
   • The LDRZ does not have a purpose about providing a diversity of housing types (as is found in the Residential Growth and General Residential Zones);
   • The LDRZ does not have purposes about respecting neighbourhood character and implementing neighbourhood character policy (as is found in the Neighbourhood Residential and General Residential Zones); and
   • The LDRZ does not include the purpose found in the Neighbourhood Residential, General Residential and Residential Growth Zones that allows educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
3. The only purpose of the LDRZ consistent with the other residential zones is to implement State and local planning policies; and the relevant planning policies for this proposal is a matter we will discuss next. The only other purpose in the LDRZ is:

To provide for low density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.

1. We reiterate that, unlike the other residential zones, there is no reference in the LDRZ to a diversity of housing types nor respecting the neighbourhood character. The above purpose of the LDRZ is quite specific in regard to the type of residential development provided for in the zone - low density residential. The question is whether this proposed residential aged care facility on this site is acceptable in this zone.

Residential Aged Care Facilities in the Residential Zones

1. The use of land for a residential aged care facility and State policy related to this use changed in 2008. The Residential Growth, General Residential and Neighbourhood Residential Zones all state a residential aged care facility as a land use that does not require planning permission. This means there is an automatic acceptance of the appropriateness of this use of land in these zones. Only the construction of the building and associated works requires planning permission. Whereas both the use and development of the land for a residential aged care facility requires planning permission in the LDRZ.

1. Of the five VCAT decisions referred to by the Applicant where the Tribunal accepted the appropriateness of an aged care facility in the LDRZ, three predate the current State planning policy on Residential Aged Care Facilities at clause 16.02-3 that accompanied the land use not requiring planning permission in the former Residential 1 Zone. The remaining two VCAT decisions were made when clause 16.02-3 was in place and found that the LDRZ was an acceptable location because it is a residential zone containing residential land uses. It is unclear from these latter two decisions whether the suitability of the LDRZ was disputed or the subject of detailed submissions. In this case, it is an issue that received extensive submissions. Further, these VCAT decisions also turned on their particular facts and circumstances, which differ from this case.
2. Amendment VC50 introduced the Residential Aged Care Facilities State planning policy into Victoria's planning schemes in December 2008, and made a Residential Aged Care Facility a land use that did not require planning permission in the Residential 1, Residential 2, Residential 3, Mixed Use and Township Zones. This Amendment did not include the LDRZ. The VC50 Explanatory Report says:
   • Aged care services are essential services, not a lifestyle choice. Demand for aged care places is increasing rapidly and the amendment provides clear policy direction regarding the design and appropriate location of these facilities; and
   • The Amendment is consistent with other State policy at clause 12 which seeks to locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport.
3. An inference to be drawn from this is that the LDRZ was not automatically considered to be an appropriate location for a residential aged care facility having regard to the two dot points above.
4. The Residential Aged Care Facilities State planning policy was reviewed as part of restructuring of the State Planning Policy Framework in September 2010. Whilst the layout of the policy was modified, its content remained the same. The LDRZ was reviewed as part of the reform of the residential zones (that were subsequently introduced into this planning scheme in June 2014) but, again, no changes were made to the planning permissions required for a residential aged care facility.
5. What this all means is that the proposed use and development of this land for a residential aged care facility does not have the same level of support in the purpose or content of the LDRZ as that found in the other residential zones in this planning scheme. A considered decision needs to be made to find that this particular use and development is acceptable in this zone in this case.

1. Whilst it might be said that the part of the purpose of the LDRZ about providing for wastewater treatment on the land is no longer relevant in this case as this area now has the benefit of reticulated sewerage[13], this has not resulted in any change or any proposed change to the Low Density Residential zoning of this area. At the start of the hearing, the Council tabled a letter from the former Minister for Planning dated 3 March 2014 that acknowledged the Council's request for the 0.4 hectare minimum lot size to remain in the LDRZ based on the Manningham Residential Strategy 2012, housing needs, environmental limitations and landscape characteristics. The Minister's letter concludes:

No changes to the current Schedule to LDRZ of the Manningham Planning Scheme are required.

1. Hence, whilst this area now has the benefit of reticulated sewerage, the purpose of the zone for low density residential development remains unchanged.
2. Having said all of this, the fact remains that the use and development of a residential aged care facility is not prohibited in the LDRZ. Hence, the acceptability of this proposal needs to be determined having regard to the guidance to be obtained from relevant State and local planning policies and the physical context of the site and surrounds.

1. State planning policy seeks the timely development of aged care facilities to meet existing and future needs; with strategies to:
   • Ensure local housing strategies provide for such facilities; and
   • Encourage planning for housing that delivers an adequate supply of land or redevelopment opportunities for such facilities[14].
2. The Municipal Strategic Statement (MSS) in the planning scheme references two housing strategies. The 2012 Residential Strategy is a reference document to clause 21.05 and is effectively silent on aged care facilities. The 2002 Manningham Residential Strategy is a reference document to the Low Density section of the MSS. It contains a section on 'Older Person Housing in Manningham' that says there are few developments with design features addressing the needs of the growing demand for dwellings specifically targeted at people aged 60+. It suggests such developments:

... would be accommodated best on larger sites through the consolidation of a number of properties or within multi-unit development containing a mix of housing. Currently, Council considers that relatively flat sites near transport routes which are in close proximity to shopping centres provide the best opportunities for older person accommodation.[15]

1. Having regard to these housing strategies, such facilities are encouraged in locations consistent with the characteristics described in the above quote. This site does not meet these characteristics.
2. State policy also encourages appropriately located residential aged care facilities, with strategies that:
   • Recognise such facilities are an appropriate use in a residential area; and
   • Seek to ensure such facilities are located in residential areas, activity centres and strategic redevelopment areas, close to services and public transport[16].
3. The Council's submission is that the LDRZ is not a suitable location for a residential aged care facility. Whilst it falls within the umbrella of residential zones, it is a zone that the Council says has different locational characteristics to its other residential areas that render this site in a LDRZ unsuitable for an aged care facility. The Council highlighted that the MSS distinguishes its residential areas as being "Residential" and "Low Density". The Residential section at clause 21.05 of the MSS specifically does not include land zoned LDRZ. The Low Density section of the MSS[17] identifies "inappropriate forms of residential development" as a key housing issue; and the following objectives that are relevant to this proposal:
   • To ensure that development does not adversely impact on the landscape character or environmental values of land.
   • To maintain the low density character of the area.
   • To recognise that increased densities and residential development in low density residential areas are constrained by land capability, environmental values and lack of convenient access to physical and community infrastructure.
4. There is no dispute in this case that this area has a low density character; landscape character values; and a lack of convenient access to physical and community infrastructure. Hence, the acceptability of this proposal needs to be able to demonstrate that this character and identified constraints have been appropriately dealt with.
5. Much focus was placed on the Accommodation Premises local planning policy during the hearing, and particularly the location criteria at clause 22.04-3. We agree with the Applicant's submission that this policy applies to a vast range of uses including retirement villages, backpacker's lodges and residential hotels. As such, whether the locational criteria is met is but one aspect of this policy and one factor that needs to be considered. Having said this, the fact is much of the locational criteria are not met in this case, which means that there is no clear locational policy support for this proposal on this site in this LDRZ. Hence, the acceptability of the design response of the proposal to its physical context and the relevant planning controls is important.

1. The parties agree the site is located in an elevated position near a hill crest with some significant pine trees that can be seen for quite some distance. The site is also located in, what the residents describe as, a semi-rural area with paved roads about 4-5 metres wide that have gravel shoulders, no footpaths and some overhanging trees. The semi-rural character is also influenced by the fact that the lots are at least 4,000sqm with varying levels of vegetation cover and either sprawling ranch style houses or tall mansion style houses.
2. The parties also agree the site is removed from public transport and other services and facilities as the nearest bus stop and local shops are about 750 metres away, along Newmans Road that has no footpaths. More significant shopping and associated services are located a few kilometres away at either Templestowe Village or The Pines. Nevertheless, the Applicant submits this type of facility does not need to be close to such services as the residents do not drive; are highly unlikely to walk around outside of this facility; and staff will park at the facility due to the significant on-site car parking numbers.
3. The site's location near the crest of the hill means that it has a reasonable slope, including a cross-fall. The proposal seeks to take advantage of this by excavating to create a large basement area accessible from the lower street frontage in Websters Road. The extent of excavation is matter of concern to the Council and the residents, and we will deal with this later.
4. The site has two sensitive interfaces with 68 Websters Road to the west and 3 Monckton Road to the north. Each of the houses on these properties are located close to the boundaries with this site, and they both have natural ground and ground floor levels that are lower than the natural ground level of this site.
5. Clause 16.02-4 states residential aged care buildings are different to houses in their purpose and function and will have a different built form including height, scale and mass. As this land use requires planning permission in this case, these differences need to be carefully considered, particularly as the clause 16.02-4 strategies also seek to ensure that a residential aged care facility is designed to respond to a site and its context.

THE IMPACT ON THE SIGNIFICANCE OF THE HERITAGE PLACE

1. The whole of the site is affected by a site specific Heritage Overlay control (HO115). The Schedule to the Heritage Overlay specifies the entire property is the heritage place; it is affected by tree controls; and the front fence and gate are not exempt from the notice requirement, the decision requirements and the review rights of the Planning and Environment Act 1987.
2. It is the Council's view that the important heritage elements on the site are the house (Caringa), the front fence, the front garden and the Cypress hedge that abuts part of the Monckton Road frontage.
3. The parties generally agree the large shed that is centrally located on the land was used as a packing shed associated with the former use of the land as an orchard. The Council has no concern with the demolition of this building. We inspected the site in between the scheduled hearing days and advised the parties that we had observed its degree of intactness with elements reminiscent of its packing history. However, its history is not recognised in the reasons why this site has heritage significance, so we have no reason not to accept the Council's support for its demolition.
4. The Heritage Overlay applies to the entire site and the statement of significance applicable to this site is not particularly helpful in articulating the significant aspects of the site that warrant protection. The Council and Mr Raworth agree that the significance of this heritage place is the house (Caringa) and its garden setting including the Oak tree and Cypress hedge to the north of the house.
5. The Council's heritage advisor expressed concern about the demolition of the small shed at the rear of Caringa and the loss of the underground cistern. Mr Raworth does not consider that these features of the site contribute to the heritage significance. Rather, it is his opinion that the house, its front and side fencing as well as the Cypress hedge and Oak tree are the significant features that contribute to the heritage significance.
6. Clauses 15.01-5 and 15.03-1 of State planning policy encourage development that respects heritage places. There was no dispute that a beneficial aspect of the application is the retention and reuse of Caringa. The issue is whether the proximity of the new development will have an adverse impact upon the heritage significance of Caringa and its garden setting.

1. The residents tabled photographs from when the property was sold in 2010 showing the well maintained interior of Caringa, and expressed concern about potential changes to the interior of Caringa. Heritage Overlay HO115 does not include planning permission for internal alterations, so this is not a matter that we can consider. Rather, we must decide whether any of the external alterations or new buildings/structures will adversely affect the significance of Caringa.

1. The only external alteration or new structure is the proposed canopy to provide a covered walkway from the rear of Caringa into the proposed facility. During the hearing, it was clarified that the canopy will be free standing and sit below the rear gable of Caringa with a maximum height of 2.2 metres. Mr Czarny expressed the view that the canopy would need to be a minimum height of 3.0 metres. We have no concern about the inclusion of a canopy, but find the detail of the location, height and appearance of it needs to be clarified. This is important given the heritage significance of Caringa. If we had been of a mind to grant a permit, we would have included permit conditions to enable the Council to determine the suitability of the details.

Design and Proximity of New Building to Caringa

1. During the hearing, we questioned the visibility and impact of the southeast lift and lift overrun in the proposed building upon the significance of Caringa. As a result, the Applicant proposed modifying the south side of the facility by moving the lift from the southeast corner to a mid-point location along the south side of the building. This results in the ground floor of the new building being set back between 7.2 and 9 metres from the rear of Caringa, with a glazed wall sitting behind Caringa to a maximum height of 8.07 metres. These modifications to the setbacks and appearance of the new building behind the principal façade of Caringa will not adversely affect the significance of the heritage place.

1. The garden around Caringa is part of its heritage significance. Based on the 2010 photographs provided by the residents, it was a manicured low scale garden of defined garden beds and individual low scale plantings framed by the wire fencing along the Monckton Road frontage and the north side of the house. Now much of it has become overgrown and unkept.
2. Mr Thomson acknowledged the significance of this garden setting and pointed out that his landscape concept plan did not include any details for this garden. He and Mr Raworth agree that a detailed landscape plan to restore the garden setting is important to the heritage significance of Caringa. They suggest permit conditions would be necessary to achieve this outcome. Whilst we have decided to refuse this proposal for other reasons, we nevertheless encourage the Applicant to engage a suitably qualified heritage/landscape expert to assist in restoring the garden so it contributes positively to the significance of this heritage place.

1. Mr Thomson's landscape concept includes a combination of medium scale bushes and trees either side of the existing northern wire fence that frames the garden. We do not support this. As evident in the 2010 photographs, the garden setting includes views across the front garden up to the Oak tree to the north, which includes clear visibility through much of the northern wire fence. As such, the proposed aspects of the landscape concept either side of this northern fence should be deleted and, instead, be subject to a detailed heritage landscape concept for the garden setting of Caringa.
2. Mr Thomson's landscape concept also includes two new feature trees (Woollemi pines) in the front garden that will grow to a maximum height of around 16 metres. He explained they are included because they are interesting, look like pine trees (which are mentioned in SLO6) and will add some interest to the front garden. We find the significance of the garden is influenced by its clear views of Caringa, the open nature of its front and side wire fencing and its manicured setting, including expansive lawn areas. As such, we are not persuaded new feature trees are an acceptable inclusion in this case. They should be deleted from the landscape concept.

1. All parties agree the Oak tree and Cypress hedge along part of the Monckton Road frontage to the north of Caringa form part of the garden setting and the heritage significance of the site.
2. The proposal includes a new pedestrian path from Monckton Road to the front entry in the northeast section of the new building. To create this path, it is proposed to remove a small part of the north end of the Cypress hedge and then have a circular path wrapping around the tree protection zone of the Oak tree to reach the front entry to the new building. We are not persuaded these works are necessary or desirable given the heritage significance of these landscape features.

1. The Applicant's expert witnesses did not know with any certainty the extent to which the Cypress hedge may be affected. Mr Thomson said about 0.5-1.0 metres of the north end of the hedge would need to be removed, which would mean its new ending would die. He said the only way this could be remedied would be to plant a new Cypress tree at the new northern end of the hedge. The Cultural Heritage local planning policy strongly discourages the removal or lopping of vegetation that makes a significant contribution to the setting or heritage value of a heritage place[18]. We find this aspect of the proposal is a poor design outcome, and would adversely affect part of the significance of the heritage place.

1. In regard to the tree protection zone (TPZ) for the Oak tree, the Applicant did not present any expert arboricultural evidence. The arborist report submitted with the permit application states the TPZ diameter is 24 metres. The arborist letter by Mr Galbraith attached to Mr Thomson's evidence states the TPZ is 10.3 metres (based on an inspection in late June 2014). It is unclear to us why there is a variation (12 versus 10.3 metres). Nevertheless, considering Mr Galbraith's letter, we note both he and Mr Thomson expect the path will not involve any excavation. Mr Thomson acknowledged the surface of the path around the Oak tree is not specified in the plans. The ground levels in proximity to the pedestrian path suggest there may be some excavation to create retaining walls, albeit minor. The level of uncertainty of the detail of the works required and the extent of TPZ required has led us to conclude that it would preferable for the pedestrian path to be deleted.
2. The proposal provides a circular driveway off Monckton Road with a canopy over part of it to provide weather protection. During the hearing, questions were asked as to whether the southern half of this driveway could be used by pedestrians and Ms Dunstan's evidence was that it is a little steep for use. We do note that the northern half is less steep and perhaps its design could be modified to provide an acceptable gradient for disabled pedestrian access from Monckton Road, if necessary.

1. The site and surrounds on the north and northwest sides of Newmans Road and Monckton Road are affected by SLO6. The purpose of the Significant Landscape Overlay is to implement relevant policies; identify significant landscapes; and conserve and enhance the character of significant landscapes. SLO6 applies to what is described as low density residential significant Pine and Cypress tree theme areas. It explains that concentrations of Pine and Cypress tree plantings can be found in some low density residential parts of Park Orchards, Templestowe and Donvale. They were historically planted as wind breaks around orchards and homesteads; and have become visual landmarks due to their size and location on prominent ridgelines and hilltops. SLO6 says they contribute to the distinctive landscape character of these areas and the removal of these trees "will have a significant impact on the landscape and the structural integrity of the wind breaks". The statement of nature and key elements of landscape in SLO6 includes the following:

The dominant visual element of the landscape in these areas is the mix of large canopy trees, comprising pine, other exotic and native species. Development in these areas must seek to retain the mix of canopy species, replacing Pine or Cypress trees when removed, with appropriate similar species.

Development in these areas should also be integrated with surrounding landscape features. Built form should seek to be subordinate to the landscape, avoid the loss of canopy trees and respond to the topography of the land.

The unique landscape characteristics of these areas need to be properly managed to ensure that their distinctive visual values are conserved and protected.

1. Planning permission is required to construct a building for any purpose other than a dwelling. Planning permission is also required to construct a dwelling if certain built form outcomes are not met. In this case, these built form outcomes reinforce the purpose of the LDRZ of encouraging low density residential development. In addition, planning permission is also required to remove 11 trees on the site.

1. SLO6 explains that development should be integrated with surrounding landscape features and buildings should seek to be subordinate to the landscape, avoid the loss of canopy trees and respond to the topography. The landscape character objectives to be achieved include ensuring the visual impact of development and earthworks is minimised. The decision guidelines include:
   • Whether the building design and siting is in keeping with the character of the area;
   • Whether the external building finishes and colours are non-reflective and blend with the natural landscape;
   • Whether a reasonable proportion of the lot is free of buildings to provide for lawn or other pervious area; and
   • Whether building setbacks are adequate to maintain and enhance landscape surrounds.
2. The Applicant considers the proposal achieves a building form not dissimilar to other large houses in the area as well as significant setbacks (in the order of 9 metres) from the north and west side boundaries within which significant landscaping can be planted.
3. Other parties were critical of the extent of excavation, which is significant. This enables the creation of a large basement floor level with vehicle access via Websters Road. Benefits of excavation can be that a new building minimises its height above natural ground and responds to the topography (in this case, the natural slope). However, this design does not achieve this outcome.
4. The design is not a typical residential home but rather an aged care facility, which requires a different building form (as recognised in State planning policy). The need for large floor plates on a limited number of floor levels creates an expansive building footprint. This means the benefits to be derived from excavation are not achieved as the building form does not follow the topography and has a significant overall height.
5. We agree with Mr Czarny that the elevated two storey form as viewed from Websters Road and the west (68 Websters Road) is an intense form of development that is at odds with the purpose of LDRZ and the landscape objectives of SLO6. Mr Czarny said the type of building, the slope of the land and the extent of building footprint are the challenges for this proposal. He suggested possible solutions may include the west side of the building being dropped to single storey or setting the building back further from the west side boundary. We are not persuaded these solutions are sufficient to address the SLO6 landscape objectives.
6. The building may be centrally located on the site, but the combination of the width and height of each elevation is not in keeping with the character of the area (a matter we will explain further shortly). The type of building means there is extensive glazing on all elevations. Whilst the choice of glazing can be non-reflective, the overall extent of glazing is a finish that is at odds with the character of the area and does not blend with the natural landscape.
7. The building footprint is large with an extensively paved central courtyard area and a car park and circular driveway in the northeast corner. Whilst we accept Mr Thomson's landscape concept provides new landscaping opportunities including to the north and west of the building, we are not persuaded the building will be subordinate to the landscape character. SLO6 encourages a balance between the extent of building versus the extent of landscaping including lawn areas. This is consistent with the purpose of the LDRZ of encouraging low density residential development. No planning permission is required for a house in SLO6 if it has a 15% building site coverage and a building height of 8 metres. In this case, the building site coverage is 34% with additional car parking and driveway areas and the building has a maximum height of about 9.5 metres. Whilst the dwelling requirements in SLO6 do not apply to a residential aged care facility, they are helpful in explaining why the proposed building, even with the proposed landscaping, is not subordinate to the landscape and in keeping with the character of the area.

1. This proposal is seeking permission to remove 11 trees from the land in order to facilitate the development of the proposed building. Given we do not find the building to be acceptable, it follows that we also do not support the removal of the trees merely for this purpose. Nevertheless, we also have some concerns about the appropriateness of the removal of some of these trees.

1. The row of five Monterey Pine trees along the Websters Road frontage and six other trees across the site require removal under SLO6, including two trees originally intended for retention at the permit application stage. These two trees now need to be removed to enable the construction of the northeast car park and the canopy and driveway near the entrance to the new building. The trees to be removed are a Powton tree on the east side of the dam, a Peppercorn tree and a Wattle tree on the west side of the dam near the garage of 68 Websters Road, and a Sunburst tree, Queensland Bottle tree and a Flame tree in the northeast section of the site near Monckton Road.
2. SLO6 requires consideration of a number of matters in deciding whether to allow the removal of vegetation including:
   • Whether the removal of trees has been avoided and minimised;
   • Whether the Monterey Pine trees to be removed will be replaced with a suitable species; and
   • Whether adequate provision has been made for landscaping and replacement planting of canopy trees to maintain the strong vegetation character of the area.

1. These trees have been assessed by arboriculturalists twice. The first time was as part of the permit application (in December 2012) when they were identified as having an age of approximately 60 years with heights of between 20 and 25 metres. They were all described as having branch decay and major deadwood with poor canopy health but with a sound structure that may positively contribute to the area for another 10 or more years. These trees were assessed again for Mr Thomson in June 2014. In this latter assessment, the trees are described as being over mature, in poor health, hazardous with limb shed histories, and at high risk of shedding further limbs or even uprooting.
2. Despite the fact that specific planning permission is required to remove Monterey Pine trees in SLO6, the Applicant chose not to call any expert arboricultural evidence. This is not a criticism but, rather, a statement of fact. What is also fact is that the Council has not sought any internal or expert advice about the current condition of these trees. A further fact is that none of the other parties provided expert evidence about the existing condition of these trees.
3. These facts are relevant because there was no ability for the views expressed in Mr Thomson's latter assessment to be tested. The Applicant submitted some of the trees could be retained (except those where the basement access is proposed) but suggested their removal is preferable given the findings of the latter arboricultural assessment. Whilst we appreciate that trees do not live forever and it may well be that these trees are reaching the end of their safe useful life expectancy, the change in arboricultural opinion in the space of about 18 months warrants greater explanation. This is particularly important given these trees are specifically recognised for their value and contribution to the recognised significance of the landscape. As Council submitted, their loss is significant to the character of the surrounding area and the landscape character recognised by SLO6. To be clear, we do not support the removal of these trees on the basis of the information available to us.

1. The Powton tree to the east of the dam is approximately 20 years old with a height of 16 metres. The arboricultural report submitted with the permit application describes its appearance as poor, its structure as sound but with a low rating and preservation value. The Peppercorn tree to the west of the dam is approximately 30 years old with a height of 14 metres. It is described as having a medium appearance with a sound structure and low rating and preservation value. The Wattle tree adjacent to it is approximately 20 years old and 11 metres high. It is described as having a good appearance, sound structure and a low rating and preservation value.
2. The Powton tree needs to be removed in order to facilitate the construction of the building. Given its central location within the site, we accept that this tree may need to be removed to facilitate a development on the site.
3. The Wattle and Peppercorn trees on the west side of the dam are within the proposed west setback area of the new building, but the building will be within the tree protection zones of both of these trees. It would appear that the impact on the tree protection zones will be greater than 10%, which is the recommended extent of encroachment in the relevant Australian standard.
4. If the removal of these trees was the only concern we had with the proposed building, their removal may have been acceptable on balance and with suitable replacement species given there is sufficient opportunity within the proposed 9 metre setback along the west side boundary to plant new canopy trees. However, the removal of these trees is an issue as their loss has an impact upon the landscape character for at least the short to medium term and will contribute to the visual bulk impact of the new building, particularly to the west.

1. The Sunburst tree, Queensland Bottle tree and Flame tree are all required to be removed to facilitate the construction of the circular driveway, covered canopy and access to the northeast car park. The arboricultural report submitted with the permit application identified the Flame tree and the Queensland Bottle tree as having medium retention value. This is significant as, overall, two trees on the site were identified as having high value and three trees (including these two trees) were identified as having medium value. All other plants were identified as having low value.
2. The loss of the Flame tree and the Queensland Bottle tree was of particular concern to some of the residents. The removal of these trees cannot be avoided if additional car parking and the circular driveway to the main entrance of the building are to be provided in the northeast corner of the site. The car parking provided far exceeds that required by either the planning scheme or Council's local planning policy. It would appear to us that tree 18 (the Queensland Bottle tree) could be retained if the two car spaces at the southern end of this car park were removed together with the pedestrian path surrounding the Oak tree. The arboricultural report recommends a 4.8 metre setback from the trunk of the Queensland Bottle tree, which appears to be achievable, possibly including up to a 10% encroachment as recommended by the relevant Australian standard.
3. The removal of the Flame tree and the Sunburst tree cannot be avoided due to the design of the vehicular entry and exit and the layout of the car park at the northeast corner of the site. Their loss may be avoided if either this car park was not provided or the access arrangements were changed, e.g. perhaps removing the circular driveway arrangement. Overall, the acceptability of the loss of these trees goes hand in hand with a consideration of the acceptability of the proposed new building and associated works. Given the proposed building is not supported, we do not support the removal of these trees.

1. There was much focus in the hearing upon the character of the area and whether the proposed building would be an acceptable fit. Remembering that the purpose of the LDRZ is to provide for low density residential development, a key question in this case is whether the proposed building is acceptable in a character of low density residential development.
2. Ms Heggen gave evidence the proposed building footprint is consistent with other properties in the area. She described the characteristics of this LDRZ area as sprawling ranch style or tall mansion style dwellings with a high number of rooms and facilities like large garages, tennis courts, swimming pools and gazebos. Both of the adjoining properties to the north and west contain these characteristics. Whilst the west and north sides of the proposed building may be similar in length to the length of the houses and garages on the adjoining properties, both of these houses are ranch style with 3 Monckton Road having a proportionally small second storey element. In contrast, the size of the overall building footprint and its central courtyard appears to be more than double the size of either of the houses on the adjoining properties or, for that matter, other houses in the surrounding area. Further, the height of the proposed building ranges between 7 and 9.5 metres across all elevations with the southwest corner of the ground floor projecting up to 1.3 metres above natural ground level[19]. All of these aspects of the proposed building significantly increase its built form prominence and visual bulk.
3. Much emphasis was placed upon the west and north side setbacks of around 9 metres and how they are generous in a residential context with substantial landscaping opportunities. However, this area is not a typical residential context where clause 55 applies and such characteristics would be considered significant opportunities. This is a low density residential area as stated in the LDRZ purpose with subordinate buildings sitting within the landscape as stated in the SLO6 key elements. This proposed residential aged care facility does not acceptably fit in with this character. The building is too large, too high and the land use is too land hungry when the built form area is combined with the proposed extent of car parking.

1. Ms Heggen gave evidence the west interface with 68 Websters Road is the most sensitive in terms of potential amenity impacts. We have inspected the two adjoining properties and find that both are sensitive interfaces, albeit the layout and orientation of the rooms and open space at 68 Websters Road have a higher degree of sensitivity.
2. We have already made findings about the visual bulk associated with the extent of building proposed.
3. Concern was raised about overlooking and Ms Heggen gave evidence that a 9 metre setback plus the 3.5-4.0 metre setbacks of the houses on the adjoining properties creates a reasonable separation. As we have concerns about the overall extent of the building on the site, we do not wish to make a definitive decision on this point. Rather, we wish to point out that clause 55 (which contains a standard to assess overlooking within 9 metres) does not apply in the LDRZ. As such, we consider the extent of proposed windows, whether they are general living or bedroom windows, the slope of the land, and the location of private open space areas and habitable windows on the adjoining properties are all matters to be considered in deciding whether the extent of overlooking is acceptable.
4. There are significant areas of what we would describe as glazed walls facing the adjoining properties. We asked about the potential for glare and emission at night during the hearing. Ms Heggen said the glazing should be clear so there is no reflectivity; and the Applicant suggested curtains on the windows could be closed at night to ensure there is no unreasonable light emission overnight. These are matters of detail that need to be addressed in a location such as this, which is semi-rural and zoned for low density residential purposes, so as to ensure the land use does not unreasonably impact on the amenity of adjoining properties.
5. The proposal contains limited external areas for the high care residents. The internal courtyard is available, but we find this courtyard provides a poor level of amenity as there are limited landscaping opportunities and a central light court that provides light to the basement staff room. The opportunity for outside activities was a matter that was raised during the hearing. The Applicant and Ms Heggen emphasised that high care residents have limited mobility and therefore limited necessity for outdoor activities. Nevertheless, we agree with the Council and the residents that space for outdoor activities, even just pathways and seating areas, should be a part of the internal amenity created by the proposal. This is of particular importance in this case because of the lack of footpaths and hence the lack of opportunity for family and friends to take a resident out for a walk along the surrounding streets.
6. Creating such outdoor spaces on this site raises a further issue though, as the opportunities for such amenities are generally in proximity to the two sensitive interfaces with the adjoining properties. Ms Heggen did not support pathways to the west because of the potential noise impact to both the high care residents and 68 Websters Road. 3 Monckton Road also did not support outside activities along their common boundary. Given the size of the building and car parking areas, there remains limited opportunities to create such amenities in this proposal.

1. In regard to the car parking provision, Ms Dunstan's opinion is a greater level of car parking is required in this case due to the location of the site away from public transport and services and due to the fact that a high care facility equates to additional staff parking[20]. This proposal provides 0.57 car spaces per bed, which is a surplus of 14-16 spaces having regard to the car parking rate in clause 52.06 of the planning scheme and the local planning policy rate at clause 22.04. Ms Dunstan says this amount of car parking will address the resident concerns about overflow car parking as the proposed car parking will cater for the worst case scenario on Mothers Day.
2. No planning permission is required to provide additional car parking spaces over and above the rate specified in clause 52.06 of the planning scheme. However, the design and layout of the car parking including the impact that this has on the proposed building and hard paved areas on the site do require consideration as part of the planning permission for buildings and works. For reasons already explained, we have concerns about the size of the building and the extent of area used for car parking and driveways not being in accordance with the purpose of the LDRZ or the landscape character of SLO6.
3. Given it is possible that this building could be used for low care residents or a combination of low and high care residents, Ms Dunstan was recalled to provide us with further evidence about this. She advised a low care facility would have a lower car parking demand for staff that is closer to the clause 52.06 rate. Nevertheless, in this case, she is of the opinion there would be no real or meaningful difference in the car parking or traffic.
4. Whilst it does seem possible the car parking could be reduced if this was a low care facility, this would not change our decision about the unacceptability of this proposal. We reiterate that it is the combination of the building and car parking that is problematic, not just the extent of car parking.

1. The residents raised a number of concerns about the impacts of the traffic generation, including:
   • Websters Road and Monckton Road intersection having a history of accidents;
   • The noise and headlights of the staff vehicles;
   • The head room clearance for mini-bus in the basement,
   • The head room clearance and turning movements for the waste collection vehicles in the basement; and
   • The location of the entry and exit points for each car park.
2. The intersection already has a history of accidents based on material provided by the residents. Ms Dunstan gave evidence that the 50 kilometre speed limit along Newmans Road and Monckton Road is exceeded on occasion (as stated by the residents), but there is no evidence of serious accidents at the intersection. There is also no evidence before us to demonstrate that this proposal will make the situation worse. These roads are controlled by the Council, and the Council raises no objection to this proposal based on traffic generation or road safety. As such, we cannot conclude that the traffic generation is unacceptable.
3. We have no concern with the location of any of the entry or exit points to the car parks. Ms Dunstan gave evidence that the residents will not perceive the traffic noise or headlights unless they are out of the front of their properties or working in their front gardens. The other matters of concern raised could be dealt with through the detailed design of the car parking layout, so they are not reasons why we have decided to refuse this proposal.

1. For the abovementioned reasons, we have decided to affirm the Council's decision and order that no permit be issued.

[1] We 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. We do not recite or refer to all of the contents of those documents in these reasons.

[2] Including Altostruct Pty Ltd v Manningham CC [2001] VCAT 243 and Park Orchards Aged Services Property Pty Ltd v Manningham CC & Ors [2010] VCAT 1476.

[5] The internal referral from this department states in part - "The facility is being built with the Chinese community in mind. The Chinese community represents 5.9% of the Manningham community and is the largest culturally and linguistically diverse group overall. Whilst in the 65+ age group there are other groups (Italian and Greek) who are greater in number, the Chinese community is also significant with over 1,100 persons aged 65+ years (2011 Census data inclusive of residential care) and having residential aged care which can cater for cultural diversity is supported."

[6] An extract from G & M Mariotti's statement of grounds quoting the 2011 census of 2854 Chinese people in Greater Templestowe

[7] Mr Paddle highlighted that one of the two census statistical areas surrounding this site contain 4.7% of 406 people with Chinese ancestry and speaking Chinese at home. The other census statistical area contains 9% of 343 people with Chinese ancestry and 7.6% speaking Chinese at home.

[8] (includes Summary)(Red Dot) [2014] VCAT 786 at [49]- [56]

[9] Based on the figures quoted by Ms Taylor during her cross-examination of Ms Heggen

[10] The survey report dated Nov-Dec 2012 was conducted by Chinese Nurse Association Australia and the Applicant. It states at the start that both organisations "wanted to gain an insight into the elderly generation's lifestyle, thoughts in relation to their future and general thoughts on possibly living in a nursing home now or in the future first-hand. Another aim was also to find out what the elderly generation look for when choosing or residing in a nursing home thus this survey was written and spread out to various Chinese-speaking elderly social groups across Melbourne ..."

[12] Park Orchards Aged Services Property Pty Ltd v Manningham CC & Ors [2010] VCAT 1476; Altostruct v Manningham CC [2001] VCAT 243; Fifth Linstock Nominees Pty Ltd v Manningham CC [2006] VCAT 945; Fitzpatrick v Manningham CC [2006] VCAT 2524; and De Nova Group Pty Ltd v Manningham CC [2009] VCAT 603

[13] The Council submits this area now has the benefit of reticulated sewerage, which the residents explained is a pressurised tank that links into a sewerage system.

[15] Extract from section 4 on page 32 of the Residential Strategy.

[19] Based on the Council's cross-examination of Ms Heggen

[20] Ms Dunstan explained a car parking rate of 0.3 spaces per bed is used for a lot of aged care facilities but high care generally equates to 0.4-0.45 spaces per bed, so she always requires more in her advice for such proposals.