1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions as set out in the Appendix of this order.

• Development of more than one dwelling on a lot and alterations to the existing dwelling;
• Works within the dripline of a protected tree; and
• Works within a Special Building Overlay.

1. Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans prepared by Dwelling on Design substituted at the VCAT hearing of P2182/2019 on 12 October 2020, including those marked as Revision C and dated 8 September 2020, but modified to show:

(a) Relocation of clothesline and the associated hard paved area at the southeast corner of Unit 2 and this area to be landscaped so that the rear boundary is a continuous landscaped area;

(b) The design of the single width open carport in the front setback area modified to present a simpler building by replacing the hipped roof by a flat roof or rafters;

(c) Corner splays on each side of the driveway in accordance with Design Standard 1 of Clause 52.06;

(d) Gas and Water metres screened and located to minimise their visual impact to the satisfaction of the responsible authority.

(e) The mail boxes located in accordance with Australia Post guidelines;

(f) At least 6 cubic metres of externally accessible storage for each dwelling;

(g) Dwelling 2's south facing 3rd bedroom window altered to comply with ResCode Standard B22;

(h) A schedule of external building materials and colours, including details of cladding, roofing and driveway materials;

(i) All sustainable design features indicated in the submitted Sustainable Design Assessment (SDA). Where sustainable design features outlined in the SDA cannot be visually shown, include a notes table providing details of the requirements (i.e. energy and water efficiency ratings for heating/cooling systems and plumbing fittings and fixtures, etc.);

(j) Storage areas for at least three 250 litre bins per dwelling;

(k) Landscaping as required by Condition 2 of this permit;

(l) The Tree Preservation Fencing in accordance with Condition 20 of this permit;

(m) Engineering plans showing a properly prepared design with computations for the internal drainage and method for of disposal of stormwater from all roofed areas and sealed areas including:

1. The use of an On-site Stormwater Detention (OSD) system;
2. The connection to the Council nominated legal point of discharge;
3. The specified flood level for the property;
4. The integration, details and connections of all Water Sensitive Urban Design features in accordance with the endorsed Sustainable Design Assessment and STORM report and include drainage details as a result of landscaping;
5. The SRZ and TPZ of Trees #2, #3, #5, #6, #7, #8, #9, #10, #26, #27 and #28as identified in the Arboricultural Report (Prepared by - Tee Designs professional tree care, Submitted on - 18/1/2019).

Please note the Engineering plans must show all protected and/or retained trees on the development site, on adjoining properties where tree canopies encroach the development site and along proposed outfall drainage and roadway alignments (where applicable) and every effort must be made to locate services away from the canopy drip line of trees and where unavoidable, details of hand work or trenchless installation must be provided.

1. The development permitted by this permit must not be commenced until a satisfactory detailed landscaping plan is submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design. The plan must be generally in accordance with the landscape plan prepared by Habitat Issue B and relied on by Robert Thompson in his evidence at the VCAT hearing on 12 October 2020, but modified to show and shall include:

(a) Any changes required to maintain consistency with the plans submitted in accordance with the requirements of Condition 1 of this permit;

(b) Any changes required by condition 1(a) and the planting of at least two trees;

(c) A plan notation indicating that no building works or facilities are to be provided within the dedicated landscape areas.

1. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.
2. Unless otherwise agreed in writing by the Responsible Authority the development permitted by this permit must not be commenced until:

(a) The tree protection measures required by Condition 20 are installed to the satisfaction of the Responsible Authority.

Unless otherwise agreed in writing by the Responsible Authority the development permitted by this permit must not be occupied until the development has been completed to the satisfaction of the Responsible Authority in accordance with the permit and endorsed plans (including, but not limited to built form and layout, parking, landscaping, drainage, street numbering, replacement of street trees).

1. The unit 2 dwelling must be constructed with finished floor levels set no lower than 69.30 metres to Australian Height Datum (AHD), which is 300mm above the applicable flood level of 69.0m to AHD.
2. The setbacks between unit 1 and unit 2 must be maintained as per submitted plans.
3. The carport at unit 2 must be constructed with finished surface levels no higher than 68.6m AHD and remain open for the life of the structure. No doors are to be used on this structure
4. The paving is to be constructed no higher than the levels on Water Technology Report Figure 7-1, dated 20 December 2018.
5. Melbourne Water requires any new building/structure including footings, eaves etc. to be set a minimum of 2 metres from the eastern property boundary and outside of the easement along the southern property boundary.
6. Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

1. Any new fencing/gates must be of an open style of construction (minimum 50% open) to allow for the passage of overland flows.
2. All open space outside the building envelope must be set at existing natural surface level so as not to obstruct the passage of overland flows.

1. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
2. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

Provision of an arboricultural impact assessment and tree protection plan

1. Prior to the commencement of construction (including demolition) an arboricultural impact assessment and tree protection plan must be submitted to, and endorsed by, the Responsible Authority. These documents must be prepared in accordance with AS 4970-2009 (Protection of tress on development sites) and AS4373-2007 (Pruning of Amenity Trees), must be authored by a qualified consulting arborist, and must detail:

(a) Trees located on adjoining property and an assessment of the construction impact the proposal will have on these trees;

(b) Measures proposed to suitably protect trees on adjoining property during and beyond the construction process; and

(c) The extent and suitability of any canopy pruning required to construct and maintain necessary clearances.

1. Except with the further written consent of the Responsible Authority, no vegetation (other than that indicated on the endorsed plan or exempt from planning permission under the provisions of the Banyule Planning Scheme) shall be damaged, removed, destroyed or lopped.

1. All buildings and works for the demolition of the site and construction of the development (as shown on the endorsed plans) must not alter the existing ground level or topography of the land within the TPZ of any neighbouring/retained tree outside of the approved building envelop including but not limited to Trees #2, #3, #5, #6, #7, #8, #9, #10, #26, #27 and #28.

1. Where fencing is proposed within the TPZ of any neighbouring/retained tree, any and all excavations for posts must be undertaken by hand under the supervision of the suitably qualified project arborist (AQF Level 5). Final post locations must be flexible so they can be set away from any roots greater than 25mm in diameter. No roots greater than 25cm in diameter can be severed as part of the fence construction.

1. Unless otherwise agreed in writing by the Responsible Authority, prior to the commencement of works on the site Tree Preservation Zones and associated fencing must be established around Trees #2, #3, #5, #6, #7, #8, #9, #10, #26, #27 and #28. At least 14 days prior to the commencement of works you must provide a 'Statement of Compliance' which must include photographic evidence of the below requirements. This correspondence must be sent to enquiries@banyule.vic.gov.au. Once installed to the satisfaction below the Tree Preservation Zones must be maintained until the conclusion of works to the satisfaction of the Responsible Authority, and must meet the following requirements:

Tree Preservation Zones shall be provided in the following locations:

1. Neighbouring Trees #6, #8, #9, #27 and #28: to the extent of the calculated Tree Protection Zone (TPZ) where it occurs within the subject Land;
2. Site Trees #2, #3, #5, #7, #10 and #26: to the extent of the calculated Tree Protection Zone (TPZ) where it occurs within the Land outside of the approved building envelop.
3. Where there are approved works within a TPZ, it may only be reduced to the required amount by an authorised person, only during approved construction within the TPZ and must be restored in accordance with the above requirements at all other times.

1. A suitably qualified arborist (AQF Level 5) must supervise any activity within the calculated TPZ of a retained tree on or adjoining the subject site. The arborist must ensure no roots greater than 40mm in diameter are cut or damaged during any part of the construction process. In addition, the arborist must ensure that approved buildings and works do not have an adverse impact on the health or stability now or into the future of Trees #2, #3, #5, #6, #7, #8, #9, #10, #26, #27 and #28.
2. All and any excavations within the TPZ of retained trees must be undertaken by hand or by approved non-destructive techniques suitable in the vicinity of trees, and must be undertaken outside the calculated structural root zone of any tree unless otherwise approved.
3. Any root severance within the TPZ must be approved by the Responsible Authority and undertaken by the project arborist to their satisfaction using a clean sharp and sterilised tree root pruning equipment. There must be no root pruning within the SRZ.
4. The project arborist must supervise the site demolition and preparation works where those works occur within the TPZ of Trees #2, #3, #5, #6, #7, #8, #9, #10, #26, #27 and #28.
5. No roots greater than 40mm in diameter are to be cut or damaged. There must be no works undertaken within the TPZ other than those endorsed by the Responsible Authority.

1. Any weeds located within the Tree Preservation Zone are to be removed and the area mulched with 100mm of composted coarse grade woodchips.

1. Protective fencing must consist of chain wire mesh panels held in place with concrete feet. Fencing must comply with Australian Standard AS 4687-2007 Temporary fencing and hoardings.

1. Fixed signs are to be provided on all visible sides of the Tree Preservation Fencing, stating "Tree Preservation Zone - No entry without permission from the City of Banyule".

1. The area must be irrigated during the summer months with 10 litres of clean water for every 1 cm of trunk girth measured at the soil / trunk interface on a monthly basis during summer (or a percentage thereof equivalent to the percentage of TPZ area occurring within the subject site).

1. No persons, vehicles or machinery are to enter the Tree Protection Zone except with the consent of the Responsible Authority;
2. No fuel, oil dumps or chemicals are allowed to be used or stored within the Tree Preservation Zone and the servicing and re-fuelling of equipment and vehicles must be carried out away from the root zones;
3. No storage of material, equipment or temporary building is to take place within the Tree Preservation Zone;
4. Nothing whatsoever, including temporary services wires, nails, screws or any other fixing device, is to be attached to any tree.

1. A permeable membrane beneath a layer of mulch or crushed rock below rumble boards must be laid down where the tree protection zone occurs outside the fenced area detailed in Condition 20(a). Rumble boards should be of a suitable thickness to prevent soil compaction and root damage. Ground protection must only be removed once all buildings and works have been completed.

1. Any underground service installations transecting a Tree Protection Zone of any retained tree must be bored beneath the entire TPZ to a depth of at least 600mm. Any excavation within the calculated TPZ of a retained tree required for the connection of services must be:

(1) Undertaken after written approval is received from the Responsible Authority; and,

(2) Undertaken by hand or by approved non-destructive techniques suitable in the vicinity of trees under the supervision of the project arborist.

1. Wherever the existing driveway is within the footprint of the proposed driveway it must be retained as is.
2. The remainder of the driveway within the TPZ of Trees #2, #3, #5, #6 and #7 must be constructed at the existing soil grade. The driveway must be constructed using porous materials approved by the Responsible Authority. The driveway treatment must allow water to penetrate through the surface and into the soil profile.
3. There must be no grade change within the TPZ of any retained/neighbouring tree and no roots are to be cut or damaged during any part of the construction process.
4. A suitably qualified arborist (AQF Level 5) must supervise the driveways construction within the calculated TPZ of Trees #2, #3, #5, #6 and #7. The arborist must ensure no roots are cut or damaged during any part of the construction process.

1. Requests for consent of the Responsible Authority (City of Banyule) pursuant to this Condition should be directed to Council's Arborist - Development Planning on 9457 9808. Consent for the conduct of further works within a Tree Protection Zone, where granted, may be subject to conditions. Such conditions may include a requirement that:

(a) Any further works that are approved are to be supervised by the project arborist, and a written component may be required also;

(b) All root excavation be carried out by hand digging or with the use of 'Air-Excavation' techniques;

(c) Canopy and Limb protection is provided in accordance with the guidelines detailed in AS4970-2009 Protection of Trees on Development Sites.

Or other conditions, as relevant, to ensure the ongoing health and stability of the subject tree/s.

1. Prior to the commencement of works, the project arborist must determine the canopy impact to trees on or adjoining the subject site that are shown to be retained on the endorsed plans including but not limited to Trees #2, #3, #5, #6, #7, #8, #9, #10, #26, #27 and #28 in regards to any pruning required to enable clearance from the proposed Buildings and Works (including any temporary scaffolding requirements), and advise council's Development Planning Arborists via email to enquiries@banyule.vic.gov.au marked "Attention - Development Planner" and including the planning application number. Following written approval from the Responsible Authority, all tree pruning must then be carried out by a suitably qualified arborist (AQF Level 3) in accordance with Australian Standard AS4373-2007 Pruning of Amenity Trees, and must be restricted to the removal of no greater than 15% of the total live canopy of individual trees unless otherwise agreed in writing by the Responsible Authority. Any requirement for excessive pruning may trigger the need for a Section 72 Amendment application in regard to the design of built-form or the retention of a tree.

1. Unless otherwise agreed in writing by the Responsible Authority, the landscaping areas shown on the endorsed plans must be used for landscaping and no other purpose and any landscaping must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

(a) The development is not commenced within two years of the date of this permit;

(b) The development is not completed within four years of the date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing:

• Before the permit expires, or
• Within six months afterwards, or
• Within 12 months afterwards if the development started lawfully before the permit expired.

[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 ractice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Clause 21.06-2 Residential Aresa Framework

[3] P381/2020 order dated 19 August 2020

[4] At Nos. 3, 6, 7, 8, 11 Mulgowrie Court, No. 9 Nulgarrah Crescent, and Nos. 2, 7 and 8 Congargo Crescent, and 11 Manooka Court