1. The decision of the Responsible Authority is set aside. In permit application P07/0844 a permit is granted and directed to be issued for the land at 6 Hamersley Court, Mount Eliza. The permit allows:
   • (a) construction of a second dwelling on the land;
   • (b) associated vegetation removal and;
   • (c) subdivision of the land into two lots

in accordance with the endorsed plans and subject to the conditions in Appendix A.

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for construction of a dwelling and 2 lot subdivision at 6 Hamersley Court, Mount Eliza. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
   1. The proposed development and subdivision does not meet the objectives of Design and Development Overlay 4 as it does not have proper regard for the established Character and development pattern in the area.
   2. The approval of second dwellings in this area which do not have proper regard for the established development pattern in terms of building siting, and density would result in a cumulative adverse effect on the "woodland" setting of the local residential environment which is dependent on retaining a low density of dwellings and is strongly valued by existing residents.
   3. The proposal is not consistent with Amendment C87 to the Mornington Peninsula Planning Scheme which is a seriously entertained planning proposal.
2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is located on the north side of Hamersley Court. The land has a frontage of 55.95 metres, an average depth of 57.78 metres and a site area of 3105 square metres. The land slopes from the west to the east falling approximately 8 metres across the site.
2. There is an elevated single storey dwelling on the land near the east boundary and setback approximately 20 metres from the street frontage. The area around the dwelling was be levelled out when the house was constructed and there is a swimming pool, shed and private open space area to the western side of the dwelling. The land is rather sparsely vegetated.
3. The pattern of development in Hamersley Court comprises large single dwellings set on large lots in undulating topography. Setbacks to the street vary as does the extent of vegetation. Some dwellings are effectively screened from view due to vegetation whilst others are quite prominent.
4. The review site and surrounds are part of a wider area known as the Mt Eliza Woodlands Estate.
5. Hamersley Court is located in precinct 2 in The Mt Eliza Woodland Neighbourhood Character Study. The description of this precinct contained within the study is a good description of the character of Hamersley Court.

This area is distinctive for its native bushy vegetation, including understorey, more undulating topography and large front and side setbacks. Dwellings are a mix of 1970s-1990s style houses, most of which are large buildings set within grounds. Lot sizes are 2600m2 or greater, with a number of larger lots having been subdivided. Generally houses are surrounded by gardens with native canopy trees and mixed species of shrubs. Dwellings occupy in the order of 7.5% of the site area. Streetscapes have a natural, woodland feel, with scattered clusters of native trees and shrubs and informal or no footpaths.

1. The proposal is for the construction of a second single storey dwelling on the land, associated vegetation removal and subdivision of the land into two lots.
2. The proposed dwelling is a conventional three bedroom brick dwelling with a pitched, tiled roof located to the west of the existing dwelling. The garage is a basement garage, accessed from the side of the dwelling, taking advantage of a sharp transition in the slope of the land. Both dwellings will share a common driveway with the driveway and crossover to the existing dwelling to be reinstated.
3. The proposed subdivision will create two lots of almost equal area with a similar frontage width of approximately 28 metres.

1. The subject land is zoned Residential 1. A permit is required for the construction of a second dwelling and for subdivision of land and the requirements of Clause 56 must be considered.
2. A Design and Development Overlay (DDO4) and a Vegetation Protection Overlay (VPO1) applies to the land. .
3. The Design and Development Overlay (DDO4) seeks to protected the low density bushland character of existing residential development by quite restrictive development provisions. In particular, under the DDO the minimum lot size is 2500 square metres. However this requirement can be varied in association with integrated development. Integrated development is an application in which subdivision is proposed in conjunction with an application for the development of more than one dwelling on a lot provided that no more than two lots are created for every 2600 square metres of site area.
4. Amendment C87 to the Scheme proposes to amend the Design and Development Overlay (DDO4). The amendment proposes the removal of the option of integrated development and will have the effect of requiring a minimum lot size of 2500 square metres for any new lot within the Mt Eliza Woodland area.
5. Submissions in respect of the proposed amendment were referred to an independent panel. The panel did not support the proposed prohibition of subdivision to create lots less than 2500 square metres by the removal of the integrated development option. The panel supported a discretionary approach based on new performance measures.
6. The council has since adopted the amendment largely as exhibited, disregarding the recommendations of the panel. The adoption of the amendment makes it a seriously entertained proposal, and therefore a matter to be considered in the decision making process. However, the adoption of the amendment has not impinged strongly upon my decision in this case, because:
   1. The stated purpose of the amendment is to avoid the adverse consequences of incremental change over time. The influence of individual changes are in most case imperceptible, so therefore a decision either way in this particular case cannot be said to significantly affect the underlying objectives of the planning scheme amendment, and;
   2. The adoption of an amendment in a way which is significantly inconsistent with the recommendations of an independent panel, casts doubt upon the final outcome in respect of this planning scheme amendment process.

1. This is the second proposal for integrated development of the subject land to come before this Tribunal. In Beveridge v Mornington Peninsula SC[1] another division of this Tribunal refused to grant a permit for a similar proposal for integrated development, in which a marginally larger dwelling located closer to the south boundary of the land was proposed. It was submitted on behalf of the applicant that this new application revisits site planning in a way which is responsive to the earlier decision of the Tribunal. I agree that the Tribunal in the earlier case was primarily concerned about the siting of the proposed dwelling and that the issue to be resolved is whether or not the current proposal satisfactorily resolves issues in relation to neighbourhood character and amenity.
2. It is my observation that cases before the Tribunal in respect of integrated development within the Mount Eliza Woodlands Estate, are essentially cases which are decided on the basis of neighbourhood character. Ms Haydon in her submission referring to the strong local support for Amendment C87 says:

MEWRA has determined that only one third of the 406 responses received by Council in support of Amendment C87 came from MEWRA members. This result has once more endorsed our impression that support for the maintenance of 2600m2 blocks is widespread amongst residents. Over and over again supports of C87 stated how much they enjoyed their bush blocks and the flora and fauna these bush blocks are able to support.

1. However, this "bush block" attribute of the valued character of the Woodlands Estate is not strongly evident in Hamersley Court. There are allotments within Hamersley Court which clearly possess a bush block character, but at the same time there are others allotments within the court, which have a clearly suburban character. The subject land sits somewhere between these two extremes of local character.
2. An advantage of integrated development, is that it brings with it the possibility of permit requirements in respect of the creation of a new landscape, or the management of an existing landscape for the enhancement of the valued landscape character of the Woodlands Estate. It is the possibility of an appropriate landscape setting which is central to the question of whether or not an integrated development respects neighbourhood character.
3. Considering the proposed site plan, the scale and architecture of the proposed dwelling, and the landscape concept plan it is my opinion the proposed integrated development will result in an acceptable development outcome respectful of neighbourhood character and consistent with the planning policy framework. General indicators of such an outcome include the separation distances between dwellings on adjoining lots, the site coverage of dwellings, frontage setbacks, and the rhythm of buildings and spaces between dwellings within the streetscape. In this particular case:
   • The distance between the existing dwelling at 5 Hamersley Court, and this proposed dwelling will be 16 metres. The distance between the proposed building, and the existing dwelling on the land will be 12 metres. These separation distances are well within the separation distances evident elsewhere in the court;
   • The proposed site coverage is approximately 15%, again well within the range of site coverages evident within the court[2];
   • The proposed frontage setback of 15 metres, creates an appropriate relationship between the proposed dwelling and the existing dwellings to the east and west, and is within the range of frontage setbacks found within the court;
   • The rhythm of dwellings and spaces between dwellings is changed as a consequence of the development of the proposed new dwelling, but the impact of this change is minimised by the absence of front fences, the integration of the landscape, and the reliance on a single driveway entrance.
4. The proposed dwelling is a modest dwelling, the existing dwelling is a small dwelling by comparison to other dwellings within the court, the proposed site layout results in the opportunity to create a landscape setting which is entirely consistent with the objectives for the Woodlands Estate. I am satisfied that properly implemented, the proposed landscape solution will lead to an enhanced outcome in respect of the landscape character of Hamersley Court. I recognise that the proper implementation of the landscape plan requires a commitment by the applicant and the vigilant assistance of the council.
5. The proposed dwelling sits on the edge of a minor escarpment which divides the subject land. As a consequence, the north east façade of the proposed dwelling is elevated above natural ground level. It was argued that this façade would be unduly prominent, and unduly dominant, from within the Hamersley Court streetscape. I am satisfied that this façade will be neither unduly prominent, nor unduly dominant within this streetscape. Views to the façade are limited, the proposed landscape will provide further screening, and elevated facades as a consequence of topography are commonplace within the court.
6. In the last application for review the Tribunal was concerned about the impact of the proposed dwelling on the amenity of Mr and Mrs Woollard at 5 Hamersley Court. At the hearing Ms Woollard placed a particular emphasis on the spaciousness which they enjoyed and which they wished to preserve.
7. The separation distance between the proposed dwelling and the Woollard dwelling at 5 Hamersley Court is 16.3 metres. The proposed dwelling is located downslope from the Woollard dwelling with the result that the eave line of the proposed dwelling, will be at about the floor level of the Woollard dwelling. The pitched roof of the proposed dwelling rises to a transverse ridge which is only 9 metres long.
8. It is clear that the construction of the proposed dwelling will change the outlook enjoyed from the Woollard dwelling, but the parameters of that change are clearly not unreasonable in this neighbourhood context. As I have observed on many occasions, planning is not concerned to preserve the status quo, but rather it is concerned to manage change to achieve reasonable amenity outcomes.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

The permit allows construction of a second dwelling on the land, associated vegetation removal and subdivision of the land into two lots in accordance with the endorsed plans and subject to the following conditions:

1. Before the development starts, or any trees or vegetation removed, amended plans (three copies) shall be submitted to and approved by the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to include a landscape plan generally in accordance with the plan by Walbink Consulting (Drawing 1201TP1) showing;
   • (a) A survey of all existing vegetation and natural features.
   • (b) The areas set aside for landscaping including the provision of landscaping which will provide a suitable landscape buffer to adjoining land and assist in visually integrating the dwelling into he landscape.
   • (c) A schedule of all proposed trees, shrubs and ground cover, which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified.
   • (d) The planting of at least ten canopy trees which are of a species indigenous to the locality including at least 6 between the dwelling and the Hamersley Court frontage.
   • (e) All plantings must be of a species indigenous to the locality.
   • (f) The driveway to the existing dwelling on the land must be removed and the area landscaped.
2. The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority
3. All areas of the development shall be drained via an underground system of stormwater drainage to the Council underground drainage system to the satisfaction of the Responsible Authority. The drainage system must include siltation control measures of a permanent nature and during construction.
4. Before the occupation of the approved dwelling starts a vehicular crossing must be constructed to the road to suit the proposed driveway to the satisfaction of the responsible authority and the existing crossing must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the responsible authority.
5. Before the occupation of the approved dwelling starts, the area set aside within the site for the parking of vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:
   • (a) Constructed of an all weather surfaced driveway.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Drained and maintained.

1. Before the occupation of the approved dwelling starts vegetation in accordance with the landscape plan endorsed as part of this permit must be planted to the satisfaction of the Responsible Authority.
2. All planting must be maintained in a healthy condition to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible.
3. Tree protection measures described in the report of Mark Reynolds, Arborist, June 2007, must be implemented prior to and during construction (as appropriate) to the satisfaction of the responsible authority and in particular:
   • (a) Before the development starts, a tree protection fence must be erected 3.5 metres from the base of any tree within 10 metres of the proposed buildings and works to define a 'Tree Protection Zone'. The fence should be rigid (chain link or similar) and should not be less than 1.8 metres high. The fencing should be firmly attached to a removable concrete or similar base. Alternatively, star pickets (1.5 metres spacing) and para-webbing may be used for the fencing to the satisfaction of the responsible authority. The tree protection fence must remain in place until construction is completed. The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the responsible authority
   • (b) No construction activity must occur within the Tree Protection Zone without approval or supervision by a qualified arborist. Any excavation within this zone must be undertaken by hand under the supervision of a qualified arborist. The arborist must approve of and undertake any and all root severance within the tree preservation zone.
   • (c) No parking of vehicles or stockpiling of soil/materials is to occur within the Tree Protection Zone. Nothing should be attached to any tree in the Tree Protection Zone (excluding tape to identify a tree to be protected.)
   • (d) Before the initial occupation of the development approved by this permit, landscaping works as shown on the endorsed plans must be completed and then maintained in a healthy condition, to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible. The area set aside for landscaping must be used for no other purpose.
4. If an approved or permitted development is not commenced on the land within two years of the removal of the vegetation, the site must be completely revegetated in accordance with the endorsed landscape plan to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority.
5. All disturbed surfaces on the land resulting from the development must be revegetated and stabilized to the satisfaction of the Responsible Authority.

1. The subdivision as shown on the endorsed plan must not be altered or modified without the consent in writing of the Responsible Authority.
2. Prior to the submission of a Plan of Subdivision to the Responsible Authority for certification, an amended plan generally in accordance with this application but modified to show appropriate drainage easements to enable the lots to be properly drained. This amended plan must be submitted and approved to the satisfaction of the Responsible Authority and when approved such plan will become the endorsed plan under this permit.
3. The subdivider must provide a reinforced concrete or segmental paving vehicle crossing to the new driveway indicated on the endorsed plans to the satisfaction of the Responsible Authority prior to the commencement of the works.
4. Prior to the issue of a Statement of Compliance, drainage must be constructed in accordance with plans and specifications approved by the Responsible Authority. The subdivider must maintain all drainage works for a period of three months after the completion of the works.
5. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
6. All existing and proposed easements and sites for existing or required utility service and roads on the land must be set aside in the plan of subdivision submitted for certification in favor of the relevant authority for which the easement or site is to be created.
7. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
8. Prior to the issue of a Statement of Compliance, the subdivider must create a restriction of the certified plan, satisfactory to the Responsible Authority, that ensures that any dwelling constructed on Lot 2 resulting from this subdivision is in general accordance with the development plan endorsed as part of Permit P06/1082.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development is not commenced within two (2) years from the date of issue of this permit;
   • (b) the development is not completed within four (4) years from the date of this permit

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] Beveridge v Mornington Peninsula SC [2006] VCAT 1929

[2] The proposed site coverage exceeds the 8% guideline proposed as part of Amendment C87, however an 8% site coverage has no relationship to the local context.