1. The responsible authority and respondent challenge these and related submissions made by those objecting to the grant of a permit. They agree that Standards B6 and B17 are not met, but they say the minor extent of non-compliance is unlikely to be perceived and is not symptomatic of overdevelopment. All other numerical standards are met, such as site coverage, permeability, site layout and Standards B21 and B22.
2. The responsible authority and respondent submit the proposal represents incremental change and housing diversity as envisaged for Precinct E4 and is evident in the area. It represents contemporary architecture, contrasting with some existing corner multi-unit developments that are of an earlier design approach. The proposal makes efficient use of the land. They note raised floor levels have been included to respond to Council's concerns about inundation.
3. The Council disagrees with the applicant about the extent of non-compliance with Standard B6. The Council submits the front setback is to be read from the porch of No. 10 David Street such that the required setback would be 6.09 metres. That is, the front wall on the adjacent site to the west is measured from the brick columns/piers to the porch (the porch being over 3.6 metres in height). It says the reduced setback of Unit 1 is a minor portion of the dwelling, with the majority of the frontage being setback in accordance with the required setback. The height of the porch is required to be increased in order to comply with flood level finished floor requirements, therefore, and on balance, the outcome is acceptable when considering competing objectives.
4. The respondent states that whether the dimension is 6.09 metres or 6.89 metres to comply with Standard B6, the streetscape includes varied setbacks and there is the prominent porch on the immediately abutting property at No. 10 David Street. The objective of clause 55.03-1 is met.
5. With respect to Standard B17, clause 55.04-1, the responsible authority and respondent submit that the first floor the proposed setbacks are in excess of the minimum requirements of the standard, except for the bedroom 2 of Unit 1 which proposes a variation of 320mm (west elevation). The minor variation is acceptable as the wall is opposite a non-sensitive wall on boundary for the adjoining dwelling's garage. It will not impact residential amenity as it does not affect windows or private open space areas.
6. The responsible authority and respondent submit there is sufficient space for planting to respond to the existing and preferred character, noting that much of the current canopy presence is associated with street trees.

1. Being within the incremental change area, there is not the same ambition for new development to be 'consistent' with 'prevailing character' as is associated with minimal housing change areas.[6] Rather, the strategic directions for incremental change areas, as I have recited earlier, refer to new development being 'generally consistent with the character of the area and responsive to varying local conditions, allowing for moderate housing growth and diversification over time'.
2. This is reflected in the preferred character statement where, on my reading:
   • There will be a variety of building styles over time, with an expectation of original and new dwellings sitting with and being read together.
   • New dwellings are to acknowledge the form, scale, siting and materials of Interwar or Postwar buildings where these are a feature of the streetscape, but do not have to replicate extant original building stock. The design guidelines state that 'In streets with many Interwar and Postwar dwellings, new development should interpret the defining elements of these styles in a contemporary way'.
   • Sufficient space for landscaping and planting of substantial vegetation is important to maintain 'the open, lowscale atmosphere of the precinct'. Front gardens will continue to be bounded by low or open front fences that allow views to dwellings and gardens.
3. The character statement uses the phrase 'well-designed', which is not defined. Nor is there numerical or detailed guidance[7] with respect to 'avoid' statements such as to when to conclude that a new development would be out of scale with adjoining buildings or appear to dominate the streetscape, or when to conclude it would present as 'large, bulky buildings with unarticulated facades'. A judgment must be made, upon which there can be legitimate differences of opinion. That judgment determines the acceptability of the design response as informed by the land's context, guided by the scheme's directions, and assessing the response to scheme requirements.
4. Some similar, but not identical, considerations were relevant to the Tribunal's decision in Mavrikis v Darebin CC [2024] VCAT 646 ('Mavrikis'), which was among a number of Tribunal decisions parties referred to in their submissions. The proposal in Mavrikis, for which a permit was refused, was found to have multiple failings.[8] One was visual impacts on adjoining properties and particularly the rear interface across multiple adjacent lots, which is not in issue in the current proceeding. Ultimately, each case must be decided on its own facts and circumstances.
5. The proposed development differs from the existing single storey building stock, which includes but is not limited to Interwar or Postwar buildings. The northern side of David Street, between Nichol Street and Sinnott Street, is more varied in building styles/roof forms/detailing than seen on the southern side of David Street, between Watson Street and Jackman Street.
6. The context of the subject land is demonstrably low scale. Single storey dwellings predominate in the site's environs, but double storey dwellings are part of the existing character and are expected as part of the preferred and future character. It is expected new two storey dwellings, that contribute to diversity, will emerge and sit with existing single storey homes.
7. It is relevant, in this case, that the subject land is a corner site and many of the double-storey, attached, multi-units in the locale are on corners. The proposal, although architecturally different, adopts a scale and massing that is not too ambitious nor an overdevelopment understanding this evolving existing character feature and scheme expectations. This is the case even though the proposal contains four dwellings, unlike other corners in the environs with two or three dwellings. The frontage widths are evidently narrower, but would not be unique given the size and breadth of other corner lots and sites such as in Little Ruby Street. There are no proposed boundary walls, with spacing and transition afforded to adjacent dwellings.
8. I appreciate the arguments that the attached upper floors are insufficiently set back from the ground floor and that the articulation is different and uncharacteristic. Materials, colours and gable forms are part of this difference. However, I find that attached townhouses on corner lots are reasonably expected, and will be more prominent than extant single storey houses. I do not consider the siting and scale are problematically uncharacteristic. The extent of clause 55 compliance is relevant here, and I do not find there is excessive bulk at the upper levels. Gable elements are used in other multi-unit developments and single dwellings in the environs, albeit they are not predominant.[9] Porches are also evident, including for the dwelling to the west of the subject land, although proposed Units 2-4 do not adopt porches to the shallower Nichol Street frontage. The contemporary design is again not unique (refer No. 16 Sinnott Street with its gabled and cantilevered elements) but is emerging and will continue to do so in line with scheme provisions.
9. I do not consider the proposal has insufficient landscape opportunities or a garden setting, mindful of allowable side setbacks to Nichol Street under clause 55 (to which I refer below). The buildings have sufficient space for landscaping and planting of new vegetation. Front gardens for the new dwellings will have open front fences that allow views to dwellings and plantings.

1. The street setback objective in clause 55.03-1 is:

To ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site.

1. Standard B6 provides that walls of buildings should be set back from streets:
   • At least the distance specified in a schedule to the zone, or
   • If no distance is specified in a schedule to the zone, the distance specified in Table B1.
2. Porches, pergolas and verandahs that are less than 3.6 metres high and eaves may encroach not more than 2.5 metres into the setbacks of this standard.
3. The Table to Standard B6, as relevant here is:

If there is a building on the abutting allotment facing the front street, the same distance as the setback of the front wall of the existing building on the abutting allotment facing the front street or 9 metres, whichever is the lesser.

If there is no building on the abutting allotment facing the front street, 6 metres for streets in a Transport Zone 2 and 4 metres for other streets.

Front walls of new development fronting the side street of a corner site should be setback at least the same distance as the setback of the front wall of any existing building on the abutting allotment facing the side street or 3 metres, whichever is the lesser.

Side walls of new development on a corner site should be setback the same distance as the setback of the front wall of any existing building on the abutting allotment facing the side street or 2 metres, whichever is the lesser.

1. As the parties agree the standard is not met, whichever numerical measure they have used, the decision guidelines in clause 55.03-1 must be considered to determine if the objective is met. These are:
   • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • The design response.
   • Whether a different setback would be more appropriate taking into account the prevailing setbacks of existing buildings on nearby lots.
   • The visual impact of the building when viewed from the street and from adjoining properties.
   • The value of retaining vegetation within the front setback.
2. The phrase 'front wall' is not defined in the scheme, Planning and Environment Act 1987 (Vic) or PPN27: Understanding the residential development provisions. I prefer the approach adopted by Ms Hooper, being a measurement to a front wall, not a pier to a porch. Even if that is wrong, I find that the design response for Unit 1 as it presents to David Street is acceptable.
3. The part of the dwelling at No. 10 David Street that abuts the subject land is a double-width garage, with a setback from the street of 7.96 metres. The strong porch feature associated with that adjacent dwelling is setback 6.09 metres excluding the eave. The front wall of proposed Unit 1 is 6.5 metres, excluding the porch which is 200mm higher than 3.6 metres. The upper level front wall has a shallow recess (set back of 6.65-7.15 metres) with the western wall set back from the common boundary with No. 10 David Street by 3.0 metres, recessed from the ground floor by 1.8 metres.
4. I find this the proposal is an acceptable design response, without unreasonable visual impact when viewed from the street and adjoining properties. There is evident variation in dwelling setbacks, rather than uniformity. I observe that the substantial street tree is retained, and will influence how the building is perceived in the streetscape.
5. The non-compliance to Nichol Street relates to the wall of one room in Unit 1. This setback dimension is 1.89 metres from the street, not 2 metres as Standard B17 requires.[10] Having regard to the decision guidelines in clause 55.03-1, I am satisfied that the variation is acceptable. Relevant is the minor numerical extent of the shortfall, being 0.11 metre or 11 centimetres for a wall length of 4.12 metres, and without demonstrated impacts in terms of visual bulk or preferred character, the relationship with other existing building setbacks, nor the ability to achieve landscaping around this part of the development.

1. The side and rear setbacks objective in clause 55.04-1 is:

To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.

1. Standard B17 provides that walls of buildings should be set back from streets:

A new building not on or within 200mm of a boundary should be set back from side or rear boundaries:

At least the distance specified in a schedule to the zone, or

If no distance is specified in a schedule to the zone, 1 metre, plus 0.3 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres.

Sunblinds, verandahs, porches, eaves, fascias, gutters, masonry chimneys, flues, pipes, domestic fuel or water tanks, and heating or cooling equipment or other services may encroach not more than 0.5 metres into the setbacks of this standard.

Landings having an area of not more than 2 square metres and less than 1 metre high, stairways, ramps, pergolas, shade sails and carports may encroach into the setbacks of this standard.

1. If the standard is not met for one wall of the proposed development, the decision guidelines in clause 55.03-1 must be considered to determine if the objective is met. These are:
   • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • The design response.
   • The impact on the amenity of the habitable room windows and secluded private open space of existing dwellings or small second dwellings.
   • Whether the wall is opposite an existing or simultaneously constructed wall built to the boundary.
   • Whether the wall abuts a side or rear lane.
2. Unit 1's side setback along western portion of the first floor, associated with a bedroom, is 3 metres. This is less than the required setback of 3.32 metres under Standard B17. The wall is approximately 3 metres in length.
3. This part of the proposed development aligns with a boundary garage to the west at No. 10 David Street. Having regard to the decision guidelines in clause 55.03-1, I am satisfied that the variation is acceptable. Relevant is the numerical extent of the shortfall, being 0.32 metre or for a wall length of 3 metres, and without demonstrated impacts in terms of visual bulk or preferred character, nor the relationship with existing building setbacks.

• Facade articulation and detailing,
• Window and door proportions,
• Roof form, and
• Verandahs, eaves and parapets,

should respect the existing or preferred neighbourhood character.

Garages and carports should be visually compatible with the development and the existing or preferred neighbourhood character.

1. The design detail objective at clause 55.06-1 is:

To encourage design detail that respects the existing or preferred neighbourhood character.

1. Having regard to the decision guidelines in clause 55.06-1, I am satisfied the objective is met. This is for reasons given earlier. I do not accept submissions on behalf of the applicant and interested parties that the overall size, massing and design of the proposal introduces unreasonable visual bulk and is an overdevelopment of the site. I find the development responds to the expectations of the scheme, when understood and read in its context, such that it respects the existing neighbourhood character and contributes to the preferred neighbourhood character. It will not, therefore, introduce a discordant element to the streetscape. It sufficiently responds to the open, low-scale atmosphere of the precinct when also having regard to other components and outcomes within the preferred character statement.

1. The applicant and interested parties do not contend the proposal has any unacceptable off-site amenity impacts by the two non-compliances with Standards B6 and B17.
2. They also accept all other 'deemed to comply' numerical standards in clause 55.04 are met, such as overshadowing (Standard B21) and overlooking (Standard B22).
3. The only issue raised by the amended grounds is with respect to the location of an air conditioning unit for Unit 4. This equipment is shown in the substituted plans, with the concern being its proximity to a bedroom at No. 1 Nichol Street.
4. Referencing Standard B24 of clause 55.04-8, the respondent has explained the intent for this equipment to be low to the ground, at ground floor level, such that the fence would assist as a barrier to limit noise. Further, Condition 1(g) in the Notice, which is not opposed by the respondent, addresses the location of any proposed air-conditioners. This includes Condition 1(g)(iii) which states 'air conditioners located as far as practicable from neighbouring bedroom windows or acoustically screened'.
5. Further, the respondent refers to clause 62.02-2 that states a permit is not required for domestic services normal to a dwelling. The phrase 'Domestic services normal to a dwelling' is defined at clause 73.01 of the scheme to include (inter alia) air conditioners, cooling or heating systems.

1. I noted at the hearing that the air conditioner in issue is not shown in plan elevation/s. It is appropriate for this detail to be required by a permit condition (added to Condition 1(g)). I will require that for Unit 4, where on the elevation of the north side of Unit 4, the air-conditioner unit must be low to the ground such that the boundary fence and/or an acoustic screen provides a line of sight barrier to adjoining bedroom/s at No. 1 Nichol Street.
2. There is less concern with respect to other air conditioning units for Units 1-3 given, for example, the proximity of a garage wall to the west of the subject land, rather than bedrooms. The location of these units can be addressed through conditions already contained in the Notice.

1. A large, mature melaleuca street tree abuts the western site boundary. The plans show it is to be retained, with a permeable pathway to Unit 1 and fencing being part of the streetscape response in this portion of the land.
2. The tree is important in character terms. The applicant and interested parties express concern about the potential loss of this tree. This was raised in the context of the alleged overdevelopment of the land. Their written submission questioned whether the impacts upon the tree had been properly assessed in the arborist's report that accompanied the permit application, including encroachment into the tree protection zone.
3. At the hearing, the Council's representative provided further advice about the protection of the tree, taking account of the amended grounds that introduced concerns about impacts on the tree.[11] This arborist advice explained the basis for calculating the encroachment into the tree protection zone. Based on that material, which I do not recite, Ms Hooper accepted this as 'credible' advice and accepted the Council's position.

1. This matter has been resolved by the Council's assessment and proposed permit conditions. I accept the Council is satisfied on this matter.

1. Varied permit conditions from those in the Notice were provided by the Council to take account of the substituted plans.
2. I have added a part to Condition 1(g) consistent with my earlier findings.
3. I have not included a new condition sought by the Council that 'Not more than four (4) dwellings must be constructed on the land'. The endorsed plans are part of the permit and will show the number of dwellings.

1. I find that the proposed development represents an acceptable planning outcome for this location and, based on the standards set by the scheme, will not unreasonably adversely affect the amenity of neighbouring properties.
2. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to varied conditions.

1. Before the development 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 this Permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application, identified as TP 3 - 5 of 13, revision dated 20/01/2025, prepared by Clovis Architectural Plans & Permits, but modified to show:

(a) The provision of a low permeable front fence to be of a design, colour and quality of material (not timber palings) that matches the character of the development. The fence must be no higher than 0.9 metres in the visibility splays. A streetscape elevation is to be provided for both the David and Nichol Street frontages.

(b) Internal fences between each dwellings secluded private open spaces be specified as having a minimum height of 1.8 metres.

(c) Notation that the proposed obscure glazing be fixed obscure glazing (not film) with a maximum transparency of 25% to a minimum height of 1.7 metres above finished floor level.

(d) East facing shading devices to be oriented to be flat from the operable portion of the proposed first floor windows.

(e) All habitable room windows (except kitchen splash back windows) to be operable. Window operation must not increase overlooking of adjoining secluded private open space and/or habitable room windows. Casement, sliding and sash windows must be used for habitable room windows.

(f) Roof colour to be specified as a colour with a solar absorption of 0.6 or less, or solar reflectivity of 50% or greater.

(g) The location of any proposed air-conditioners. These are to be:

1. co-located where possible;
2. located or screened to be minimally visible from the public realm;
3. air conditioners located as far as practicable from neighbouring bedroom windows or acoustically screened;
4. integrated into the design of the building; and
5. where on the elevation of the north side of Unit 4, the air-conditioner unit must be low to the ground such that the boundary fence and/or an acoustic screen provides a line of sight barrier to adjoining bedroom/s at 1 Nichol Street.

(h) The location of water and electricity meters. Where meters would be visible from the public realm, these are to be:

1. co-located where possible;
2. positioned on a side boundary or adjacent to the accessway; and
3. screened from view using either landscaping or durable screening that integrates with the development.

(i) Any window with proposed obscure glazing to be notated to specify fixed obscure glazing (not film) with a maximum transparency of 25% to a minimum height of 1.7 metres above finished floor level.

(j) Any fencing visible from the street, other than fencing along common boundaries shared with an adjoining site, to be of a design, colour and quality of material (not timber palings) that matches the character of the development.

(k) Any modifications required as a result of the Landscape Plan required by Condition No. 3 of this Permit.

(l) Annotations detailing Tree Protection Zone(s), associated tree protection fencing and tree protection measures in accordance with the requirements of Conditions No. 4 and 5 of this Permit.

(m) Any modifications required as a result of the Sustainable Design Assessment (SDA) required by Condition No. 7 of this Permit including:

1. Removal of references to gas in accordance with the commitment to electrification as part of BESS 2.6 Electrification.

(n) The provision of a Stormwater Management System Plan, including an amended Water Sensitive Urban Design Plan. Refer to Condition No. 8 of this Permit.

(o) The 'Ned Kelly' bike racks changed to 'towel hitch' and be located away from car door areas and the front of vehicles.

(p) The Dwelling 4 storage area corrected to be 6 cubic metres in total area.

When approved, the plans will be endorsed and form part of this Permit.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. Before plans are endorsed under Condition No. 1 of this Permit, a Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Landscape Plan will be endorsed and will then form part of this Permit. The Landscape Plan must be prepared by a suitably qualified person and drawn to scale with dimensions. The Landscape Plan must incorporate:

(a) Tree protection measures in accordance with Conditions No. 4 and 5 of this Permit.

(b) Any modifications relating to landscaping required as a result of the Sustainable Design Assessment required by Condition No. 7 of this Permit.

(c) Any modifications relating to landscaping required as a result of the Water Sensitive Urban Design Plan/Report required by Condition No. 8.

(d) Details of all existing trees to be retained and all existing trees to be removed, including overhanging trees on adjoining properties and street trees within the nature strip. The genus, species, height and spread of all trees must be specified. All existing trees to be retained must be retained and protected in accordance with Australian Standards.

(e) A planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity, pot size and quantities of all plants.

(f) A diversity of plant species and forms.

(g) The following canopy tree plantings:

1. Four (4) medium sized canopy trees with a minimum height of 8 metres within the private open space of the Development.
2. Four (4) small sized canopy trees with a minimum height of 8 metres within the private open space of the Development.

All canopy trees must have a minimum height of 1.6 metres in 40 litre containers at the time of installation and must have the following minimum widths at maturity: small canopy (4 metres), medium canopy (6 metres), large canopy (10 metres).

(h) Annotated graphic construction details showing all landscape applications and structures including tree and shrub planting, retaining walls, raised planter bed and decking.

(i) Type and details of all surfaces including lawns, mulched garden beds and permeable and/or hard paving (such as pavers, brick, gravel, asphalt and concrete) demonstrating a minimum site permeability of 20%. Percentage cover of permeable surfaces must be stated on the plan. Where paving is specified, material types and construction methods (including cross sections where appropriate) must be provided.

(j) Hard paved surfaces at all entry points to dwellings.

(k) The location of all plant and equipment as shown (including air conditioners, letter boxes, garbage bins, lighting, clotheslines, tanks, storage, bike racks and the like).

(l) Type and details of edge treatment between all changes in surface (e.g. grass (lawn), gravel, paving and garden beds).

(m) An outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences.

(n) The location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided.

(o) Clear graphics identifying trees (deciduous and evergreen), shrubs, grasses/sedges, groundcovers and climbers.

(p) Scale, north point and appropriate legend.

(q) Landscape specification notes including general establishment and maintenance requirements.

The requirements of the endorsed Landscape Plan must be complied with and implemented to the satisfaction of the Responsible Authority.

The development must not be occupied, unless otherwise approved by the Responsible Authority in writing, until the landscaping works shown on the endorsed Landscape Plan are completed to the satisfaction of the Responsible Authority.

No later than seven (7) days after the completion of the landscaping, the permit holder must advise Council, in writing, that the landscaping has been completed.

The landscaping shown on the endorsed Landscape Plan must be maintained to the satisfaction of the Responsible Authority, including by replacing any dead, diseased, dying or damaged plants to the satisfaction of the Responsible Authority.

All landscaped areas must be provided with an appropriate irrigation system to the satisfaction of the Responsible Authority.

1. Before the development (including demolition) starts, tree protection fencing (TPF) must be erected in accordance with the following requirements to provide a Tree Protection Zone (TPZ):

Tree 5 - Melaleuca styphelioides (Prickly-leaf Paperbark)

*as defined in Arboricultural assessment and Report, dated 22 February 2024 and prepared by Glen Waters.

1. The following tree protection measures must be implemented for trees identified in the table to Condition No. 4 of this Permit:

(a) Tree protection measures must be in accordance with Australian Standard AS4970 - 2009: Protection of trees on development sites or as otherwise approved in writing by the Responsible Authority.

(b) Tree protection fencing must be constructed of star pickets and chain mesh (or similar) with a minimum height of 1.8 metres to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until construction is completed or unless otherwise agreed by the Responsible Authority in writing.

(c) The tree protection fencing must be maintained at all times and may only be moved the minimum amount necessary for approved buildings and works to occur within a Tree Protection Zone (TPZ). The movement of the fencing to allow such buildings and works shall only occur for the period that such buildings and works are undertaken, after which time the full extent of the fencing must be reinstated.

(d) Except with the written consent of the Responsible Authority:

1. No vehicular or pedestrian access, trenching or soil excavation is to occur within a TPZ, save for that allowed to complete the approved development.
2. No storage or dumping of tools, equipment or waste is to occur within a TPZ.

(e) Any pruning works must be carried out in accordance with the Australian Standard AS4373 - 2007: Pruning of Amenity Trees and undertaken by a suitably qualified arborist.

(f) The buildings and works within a TPZ must be undertaken under the supervision and direction of a qualified arborist.

(g) All underground service pipes/conduits including stormwater and sewerage must be diverted around the Tree Protection Zone (TPZ) of any retained tree, or bored underneath with a minimum cover of 600mm to the top of pipe/conduit from the natural ground surface to the satisfaction of the Responsible Authority. All pits, holes, joints, and tees associated with the installation of services must be located outside the TPZ, or the project arborist must demonstrate works in the TPZ will not impact viable tree retention to the satisfaction of the Responsible Authority.

(h) Where applicable to a nature strip tree, a TPZ is confined to the width of the nature strip.

(i) Where applicable to a tree on a neighbouring lot, a TPZ only applies where within the site.

(j) Before any development (including demolition) starts, all existing vegetation shown on the endorsed plan(s) to be retained must be marked and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

1. Before the development starts, a Canopy Offset Fee of $5937 must be paid in full to the Responsible Authority for the planting of a replacement street tree within the nature strip adjacent to the frontage of the site or elsewhere within the Municipality.

The existing street tree within the nature strip adjacent to the frontage of the land on Nichol Street approved to be removed, must be removed by the permit holder at their own cost, to the satisfaction of the Responsible Authority.

All removal works must be undertaken by a suitably qualified professional to the satisfaction of the Responsible Authority.

1. Before plans are endorsed under Condition No. 1 of this Permit, a Sustainable Design Assessment (SDA) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the SDA will be endorsed and will then form part of this Permit. The SDA must be prepared by a suitably qualified professional and must:

(a) Detail the sustainable design strategies to be incorporated into the development.

(b) Outline proposed sustainable design initiatives within the development including energy efficiency, water conservation, stormwater quality, waste management and material selection.

(c) Include a NatHERS assessment.

(d) Amended BESS report including:

1. Water: Irrigated area connected tank to reflect the proposed landscaped areas to be irrigated by the water tanks.
2. Urban Ecology 2.1 Vegetation: site percentage corrected to reflect the proposed landscaped areas.

The requirements of the endorsed SDA must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before plans are endorsed under Condition No. 1 of this Permit, a detailed Stormwater Management System Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Stormwater Management System Report will be endorsed and will then form part of this Permit. The report must include:

(a) Details of how the stormwater management system is designed to meet the current best practice performance objectives for stormwater quality contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999), including;

(b) Amended STORM Report with Unit 1 to have the correct number of bedrooms;

(c) The type of water sensitive urban design (WSUD) stormwater treatment measures to be used and details of these treatment measures including cross sections, materials, plants and drainage directions;

(d) The location of stormwater treatment measures in relation to buildings, sealed surfaces, neighbouring properties and landscaped areas;

(e) Amended WSUD Plan generally in accordance with the WSUD Roof Catchment Plan identified as TP10, dated 16/05/2024 and prepared by Clovis Architectural Plans & Permits. Including:

1. Roof fall directions.
2. Details on how the lower roofs to Nichol Street will be connected to the water tanks.

(f) A construction and maintenance schedule;

(g) Details of how the stormwater management system contributes to cooling, improving local habitat and providing attractive and enjoyable spaces;

(h) Consideration of how the WSUD stormwater treatment measures will integrate with on-site detention requirements;

The requirements of the endorsed Stormwater Management System Report must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Prior to the issue of a Building Permit in relation to the development approved by this permit, a Site Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Site Management Plan will be endorsed and will then form part of this Permit. The Site Management Plan must be generally in accordance with Melbourne Water's Keeping Our Stormwater Clean - A Builder's Guide (2002) and must describe how the site will be managed prior to and during the construction period, including requirements for:

(a) Erosion and sediment.

(b) Stormwater.

(c) Litter, concrete and other construction wastes.

(d) Chemical contamination.

The requirements of the endorsed Site Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority or the Responsible Authority without the prior written consent of the Responsible Authority and/or any relevant authority with vested interest in the easement
2. Before the use starts, an automatic external lighting system capable of illuminating the entry to each unit, access to each garage and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.
3. The external lighting must be designed, baffled and located to prevent any adverse effect on adjoining and nearby land to the satisfaction of the Responsible Authority.
4. The land must be drained to the satisfaction of the Responsible Authority.
5. All guttering, rainheads, pipes including downpipes, fixtures, fittings and vents servicing any building on the site including those associated with a balcony must be:

(a) concealed in service ducts or otherwise hidden from view; or

(b) located and designed to integrate with the development,

to the satisfaction of the Responsible Authority.

1. No plant, equipment, services or structures other than those shown on the endorsed plans are permitted above the roof level of the buildings without the prior written consent of the Responsible Authority.
2. Before occupation of the development, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

(a) constructed;

(b) properly formed to such levels that they can be used in accordance with the plans;

(c) surfaced with an all-weather sealcoat;

(d) drained;

to the satisfaction of the Responsible Authority.

1. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose unless with prior written approval from the Responsible Authority.
2. Before development (including demolition) starts, the existing street tree within the nature strip adjacent to the frontage of the land on Nichol Street must be removed by the permit holder at their own cost, to the satisfaction of the Responsible Authority.
3. All removal works must be undertaken by a suitably qualified professional to the satisfaction of the Responsible Authority.
4. Before the occupation of the development all vehicular crossings must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. The redundant crossing on Nichol Street including, crossing openings or parts thereof must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.
5. Prior to the issue of a Building Permit in relation to the development approved by this permit, a Community Infrastructure Levy and/or Development Infrastructure Levy must be paid to Darebin City Council in accordance with the approved Development Contributions Plan Overlay.
6. This Permit will expire if either:

(a) The development does not start within three (3) years from the date of this Permit; or

(b) The development is not completed within five (5) years of the date of this Permit.

As relevant, the Responsible Authority may extend the times referred to if a request is made in writing:

(a) Before this Permit expires;

(b) Within six (6) months after the expiry date; or

(c) Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the Tribunal's practice, not all of this material will be cited or referred to in these reasons. My decision also takes account of responses to my interim order, dated 11 March 2025, inviting submissions in relation to the implications of VC267, gazetted after the hearing on 6 March 2025, to the determination to be made. At the hearing, I also asked the representatives about any implications with respect to the recent Plan for Victoria 2025.

[2] The applicant and interested persons are not pursuing a wide range of grounds included in the original application including parking, traffic, flooding, sunlight, family life and privacy.

[3] Knox City Council v Tulcany Pty Ltd [2004] VSC 37.

[4] Written submission, at paragraph 18.

[5] Using 6.89 metres stated on the plans. The building permit plans for the dwelling to the west refer to 6.82 metres.

[6] Clause 02.03-5 states 'Encourage housing development in Minimal Housing Change Areas that is consistent with the type, scale, style and prevailing character of the area and allow for minimal housing growth and change over time'.

[7] Noting the illustrations are examples.

[8] Mavrikis v Darebin CC [2024] VCAT 646, [12], [66]-[68]. The subject land comprised four lots, mid-block, in a different character precinct F, and where two rows of dwellings (total of 14) were applied for.

[9] The older dwelling at No. 14 David Street is a different example to the contemporary dwellings.

[10] Since the hearing, when I have measured the plans, it appears that this Nichol Street setback may be 2 metres (and therefore compliant) given the line at which the dimension is taken, inside the lot boundary. However, I have assessed the submissions presented by the parties.

[11] Arborist advice, dated 28 February 2025, provided to all parties.