Victorian Civil and Administrative Tribunal|2015-11-25

For the reasons explained above, the decision of the Responsible Authority is set aside. A permit is issued subject to conditions.

Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with plans dated 22 September 2015 by 'CK Designworks P/L' and marked as 'VCAT Submission' but modified to show:

Deletion of that part of the terrace for Apartment G.01 that is located further north than the northernmost wall of this apartment, aside from the steps along the northern wall and a minimal landing area at the top of the steps, which can be retained; 2. Deletion of the notation showing the provision of additional screening over the boundary fencing along that part of the northern boundary that is located west of unit 1, 5 Cherry Road (i.e. adjacent to the front garden);

The provision of a cross section through the lift overrun depicting that the overall height of the building does not exceed 10 metres above the natural ground level;

The identification of the location of all plant and equipment, which if to be located on the roof, must be centrally located so as to reduce its visual presence, and must be screened and acoustically treated; 2. All car parking spaces having a width of 2.6 metres; 3. Plan notations indicating that any planting within the pedestrian sight triangles adjacent to the driveways be no higher than 900 mm; 4. Details of the proposed ramp signals, in accordance with Section 5.5 of the 'Traffic and Transport Assessment to VCAT' expert witness statement dated 27 October 2015; 5. A plan notation stating that car parking will be allocated at a rate of 1 space per one or two bedroom dwelling, two spaces per three bedroom dwelling and that the tandem spaces will be allocated to the same three-bedroom dwelling; 6. The external finish to the lift overrun; 7. The external finish marked as '10' (the balcony screen) to state that the downward view will be no more than '25 per cent transparency' and the dimensions of the section on TP09 Revision 1 updated to reflect this; 8. All windows show as being 'obscure' to also be either 'fixed' or 'awning windows with maximum 100 mm opening';

A plan notation on the ground floor plan stating that the protection of the Cedrus deodara (cedar) and the Corymbia ciriodora (Lemon Scented Gum) in the front setback is to be in accordance with the endorsed Tree Management Plan;

An amended landscape plan in accordance with Condition 3 of this Permit; 2. A Tree Management Plan in accordance with this Permit;
The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
An amended landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The plan must be drawn to scale with dimensions and three (3) copies provided and must be in accordance with the landscape plan by John Patrick dated September 2015 but modified to show:
1. Details of the species and quantities of all proposed plants; and
2. Any changes so as to be consistent with the Tree Management Plan required by Condition 6 of this Permit.
Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.
All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.
A Tree Management Plan must be submitted by a suitably qualified and experienced Arborist in relation to the management and maintenance the Cedrus deodara (cedar) and the Corymbia ciriodora (Lemon Scented Gum) in the front setback of the property and must be approved by the Responsible Authority prior to the commencement of any works including demolition and levelling of the site. The tree management plan must make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites and detail the following to the satisfaction of the responsible authority ensuring that the trees remain healthy and viable during construction:

A tree protection plan to scale is to be submitted along with the tree management plan that is to show: 1. all tree protection zones and structural root zones, 2. all tree protection fenced off areas and areas where ground protection systems will be used 3. The type of footings within the tree protection zone 4. All services to be located within the tree protection zone and a notation to state that all services will either be located outside of the tree protection zone or bored under the tree protection zone; and 5. A notation to refer to the tree management plan for specific detail on what actions are required within the tree protection zone. 2. Details of appropriate footings within the tree protection zone;

Supervision timetable required by the Project Arborist to the satisfaction of the responsible authority;

The details of how the root zone within the tree protection zone will be managed throughout the project, including making specific comments about how the existing grade around the tree trees will be maintained, including specific assessment of whether any front fence or retaining wall is required.; 2. The Lemon Scented Gum must be pruned by a suitably qualified arborist prior to any works on the site. The pruning comments must reference Australian Standards 4373:2007, Pruning of Amenity Trees and a detailed photographic diagram specifying what pruning will occur must be provided; 3. Prior to demolition or site excavation a meeting must be held on site with Council's Arborist (Statutory Planning) with the builders, project managers and the demolition company (as applicable) top discuss the installation of tree protection fencing and tree protection measures. Council's Arborist must be given at least 48b hours' notice to arrange this meeting; and 4. All works including demolition within an 8 metre radius from the Lemon Scented Gum tree must be supervised by Council's Arborist unless otherwise agreed to in writing. Council's Arborist must be given 48 hours' notice of any such works. 5. The details of how the excavation for the basement and basement access ramp is to be undertaken, and that these works will be supervised by an arborist.

The recommendations contained in the approved tree management plan must be implemented to the satisfaction of the Responsible Authority.

The site must be drained to the satisfaction of the Responsible Authority.
Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.
Before the use starts or any building is occupied, areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

Constructed; 2. Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

Line marked to indicate each car space; 2. Clearly marked to show the direction of traffic along the access lanes and driveways; and 3. Drained

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose, to the satisfaction of the Responsible Authority.
Visitor parking spaces within the development must be:

Clearly identified by appropriate signage having an area no greater than 0.3m2; 2. Line marked to indicate each car space; and

Available for visitor usage at all times.
Low intensity lighting must be provided to ensure that car park areas and pedestrian accessways are adequately illuminated without any unreasonable loss of amenity to the surrounding area, to the satisfaction of the Responsible Authority.
The external faces of walls on or facing boundaries must be cleaned and finished to an acceptable standard to the satisfaction of the Responsible Authority.
Prior to the occupation of the building, a waste management plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular waste (including recyclables) collection service by a private waste collection contractor for the subject land including:

the types and number of waste bins; 2. screening of bins;

frequency of waste collection; and 2. delivery of bins to waste collection points and retrieval of bins once collected or location of collection points within basement.

Collection of waste must be conducted so as not to cause any unreasonable disturbance to nearby residential properties and may only take place during the following times:

Saturday, Sunday and Public Holidays: No collection

Prior to the commencement of any site works, a construction management plan must be submitted to and endorsed by the Responsible Authority. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the construction management plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority. The plan must provide details of the following:

Hours for construction activity in accordance with any other condition of this permit; 2. Measures to control noise, dust, water and sediment laden runoff;

The location and design of a vehicle washdown bay for construction vehicles on the site, or provision of details of an alternate arrangement of how vehicles' wheels will be washed to ensure no unreasonable amount of dirt/mud is transported onto the surrounding road network;

The location of parking areas for construction and sub-contractors' vehicles, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay; 2. Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the construction management plan; 3. Contact details of key construction site staff; 4. The location of any site sheds and the like; and 5. Any other relevant matters.
All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the Responsible Authority:

This permit will expire if one of the following circumstances applies:
1. The development is not started within two years of the issued date of this permit.
2. The development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] Section 4(2)(d) of the Victorian Civil & Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[4] In Ballarat C185 (PSA) [2015] PPV 103 at page 40.

[5] (includes Summary) (Red Dot) [2014] VCAT 786.

[6] Prepared by the Department of Environment, Land, Water & Planning.

[7] Clause 11.01-2 of the Boroondara Planning Scheme.

[13] As set out in the purposes to the General Residential Zone.

[14] Clause 32.08-7 creates the ability for a mandatory height limit to be set, and Schedule 1 to the General residential Zone, as applies to the review site, sets that mandatory height limit as 9 metres, and 10 metres for sloping sites.

[15] (Correction) [2015] VCAT 717.

[18] Such as Reid v Nillumbik SC (No.3) [2011] VCAT 925.

[20] In reference to the decision of Reichert v Banyule City Council (1996) VICCAT 44

[21] In reference to the decision of Amoco Australia Limited v City of Berwick (1983) 1 PABR 166

[22] (Mitcham Towers) [2004] VCAT 1706.

Environment Amendment (Recognising Objectors) Act 2015

Environment Act 1987

Administrative Tribunal Act 1998

Backman & Company Pty Ltd v Boroondara CC (Includes Summary) (Red Dot) [2015] VCAT 1836 (25 November 2015)

Backman & Company Pty Ltd v Boroondara CC [2014] VCAT 1581; Lazzcorp Projects Pty Ltd v Boroondara CC (Correction) [2015] VCAT 717; Tewlen Pty Ltd v Melbourne CC [2014] VCAT 766; Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675; Rutherford & Ors v Hume CC (includes Summary) (Red Dot) [2014] VCAT 786; Golden Ridge v Whitehorse CC (Mitcham Towers) [2004] VCAT 1706.

[9] Of course, a finding about the type of repeat appeal involved in the proceeding is only the starting point of an assessment, as one must also have regard to the merits of the proposed development. This was identified in the decision of Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675[19] where the Tribunal remarked:

[12] There are four tests established to determine the factors which might justify a departure from an earlier decision in a repeat appeal. These tests were refined in the decision of Batsis Nominees Pty Ltd v Hobsons Bay CC [2009] VCAT 928 to include the following:

Backman & Company Pty Ltd v Boroondara CC

At a glance

Court

Decision date

Source

Judgment (42 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (4)

Backman & Company Pty Ltd v Boroondara CC (Includes Summary) (Red Dot) [2015] VCAT 1836 (25 November 2015)