1. This proceeding follows on from previous Tribunal decisions made with respect to the Subject Land that include Beveridge and Child 2022 to which the applicant submits great weight should be given. Given this, the concept of 'repeat appeals' arises.
2. As a separate matter, I was taken to Amendment C219morn that is currently awaiting approval from the Minister for Planning, which, if approved, will impose an amended DDO18 and rezone the Subject Land to the Neighbourhood Residential Zone - Schedule 20 ('NRZ20').
3. Having regard to the applicant's concerns, the key issues in the assessment of the Amendment Application are:
   1. Is this a repeat appeal and if so, how does this impact upon the assessment of the Amendment Application?
   2. Does the Amendment Application appropriately respond to the design objectives of the DDO18 in terms of impact upon streetscape and neighbourhood character?
4. I then address the applicant's concerns regarding the impact upon the carriageway easement E-4 that will be caused by condition 1A of the NOD.
5. Having heard the submissions of the parties and having considered the material before the Tribunal, I have determined to vary the NOD. My reasons follow.

1. There was no dispute between the parties as to the principles that apply to repeat appeals. However, there was a dispute between the parties as to whether this is a repeat appeal.
2. I note that the Council considers that there have been changes in the circumstances of the Subject Land and its surrounds, as well as changes in its planning context, since the earlier decisions. However, the Council also submits that the Tribunal's findings in previous cases with respect to the crossover 'are perhaps not as decisive as they might appear to be at first blush'.[12]
3. Beveridge was the Tribunal decision that resulted in the granting of the Permit. The proposal before the Tribunal was for both proposed dwellings to share a common driveway and for the driveway and crossover to the existing dwelling on the Land to be reinstated.[13]
4. From my review of Beveridge, it is apparent that whilst the common driveway was not imposed by the Tribunal, it was one of the reasons as to why the Tribunal found that the proposal will result in:[14]

an acceptable development outcome respectful of neighbourhood character and consistent with the planning policy framework.

1. This was because the Tribunal referred to the impact of the change to the streetscape caused by the additional dwelling being minimised by the reliance on a single driveway entrance.[15]
2. Further, the Tribunal found that the proposed landscape solution would lead to an enhanced landscape character for Hamersley Court, and, on my reading,[16] the landscape plan would have included landscaping in the front setback around the common driveway and single crossover.
3. However, notably Beveridge resulted in the issue of the Permit rather than a refusal of the application for specified reasons. Further, I regard the Tribunal in Beveridge to have just assessed the merits of the proposal that was before it at that time and found it to be an acceptable planning outcome; the Tribunal did not change the proposal and impose certain requirements in order to make the proposal acceptable.
4. Child 2022 was a Tribunal decision dealing with the respondent's proposal to construct ground and first floor additions to their existing dwelling, together with a new pool house in the rear yard, and the applicant's objection to the Council's support of that proposal. The Tribunal set aside the Council's Notice of Decision to Grant a Permit for that proposal.
5. Notably, Child 2022 states that the applicant's concerns in that case included that:[17]

Works, such as the reinstated crossover and driveway in the southeast corner, were accepted by Council as existing conditions but have not been approved nor included in this permit application.

1. The Tribunal in Child 2022 considered that whilst the proposal before it was acceptable in principle, the design had shortcomings that resulted in a proposal that did not warrant approval.[18] The Tribunal included a section in its reasons entitled 'Driveway' that discussed the respondent's actions in reconstructing the crossover in the southeast corner of the Land:[19]

... without local law approval and contrary to the conditions in the permit issued in 2008. The original driveway has also been reinstated and the driveway across the front of the site utilising the shared crossover has been removed.

1. The Tribunal made observations regarding that situation, stressing that it was not dealing with an enforcement proceeding but stating that:[20]

... the existence of the original driveway and crossover is relevant from a neighbourhood character perspective and the provisions of DDO18.

1. Notwithstanding the respondent's submissions in that case, the Tribunal found that it did not have the power in that proceeding to change the conditions of the Permit to formalise the southeastern crossover.[21] In any event, the Tribunal stated that it did not support that additional driveway and crossover:[22]

Retention of the southeastern crossover and driveway flies in the face of that desire to minimise changes to the rhythm of dwellings and spaces between dwellings along Hamersley Court, and is not one I support. Despite the slope of the land, there is no physical reason why a driveway cannot connect with the shared crossover as was the case depicted in the 2015 aerial photo included earlier in my reasons.

1. With respect to Child 2022, whilst it is clear that the additional crossover and accessway on the Land were not supported by the Tribunal, those things were also not before the Tribunal for approval in that application.
2. I find that the present case is not a repeat appeal of Beveridge or Child 2022. This is because Beveridge was an approval of the proposal that was before the Tribunal absent any specific changes that were required by the Tribunal to make it acceptable, whereas in Child 2022, whilst the Tribunal was not supportive of the on-the-ground changes made, those changes were not before the Tribunal for approval.
3. However, even if I am wrong about this and this application is a repeat appeal of both or either Beveridge and Child 2022, I am not bound by either of those decisions and I am still to consider the proposal before me on its merits; it is just that I might give weight, to varying degrees, to the Tribunal's findings in those previous cases if this was a repeat appeal of those cases.

DOES THE AMENDMENT APPLICATION APPROPRIATELY RESPOND TO THE DESIGN OBJECTIVES OF THE DDO18 IN TERMS OF IMPACT UPON STREETSCAPE AND NEIGHBOURHOOD CHARACTER?

1. With respect to the DDO18, the Council acknowledges that although that provision contains a non-mandatory requirement that the development of two dwellings on a lot are to share a single crossover, its applicability is 'highly questionable'[23] because the other requirements in the provision refer to a two dwelling development reading as if it were only a singular development and in this instance the Permit allowed the creation of two distinct and separate lots.
2. Further, the Council submits:[24]

... character in this case should be informed by not only the matters identified in the DDO18, but also by the actual, 'on-ground' character of Hamersley Court. It would be an unusual (and, Council notes, ultimately unsupportable) approach to the assessment of the planning merits if the existing physical conditions of the Land (highly visible from the public realm) were to be regarded as irrelevant to (or even as secondary to) the character considerations in DDO18.

1. Separately, the Council explained that as the Amendment Application involves the proposed amendment of a planning permit that was issued in 2008, when the Council assessed the application it did so under the transitional provisions in the GRZ1 for Amendment VC136. To this end, the Council submits that it assessed the proposal as acceptable under Standard B14 of clause 55.03-9 of the Scheme because the combined width of the two crossovers occupy less than 33% of the combined street frontage, there is no more than one single width crossover provided per dwelling and the additional crossover does not have a substantial impact on on-street car parking.[25]
2. The applicant submits that the proposal fails to respond appropriately to the decision guidelines in the DDO18 because it will:[26]
   1. fail to provide substantial areas for new landscaping and open space, in an appropriate location on the Subject Land;
   2. not encourage a vegetation-dominated landscape setting;
   3. not have proper regard for the established streetscape and development pattern; and
   4. not reflect the existing rhythm in the spacing of dwellings or maintain a sense of spaciousness, particularly as a result of the side setback with the common property boundary.

1. The respondent submits that the proposal is appropriate because:
   1. the NOD conditions, including condition 1A, ensure that development on the Land will sit comfortably within a landscaped setting and the character outcome sought by the DDO18 will be achieved;[27]
   2. no vegetation is proposed to be removed and no change to existing buildings is sought;[28]
   3. the rhythm and spacing between dwellings in the streetscape and sense of spaciousness discussed in Beveridge is not undermined by the proposal;
   4. landscaping will adequately filter views to the dwelling on the Land resulting in minimal impact in the streetscape, having regard to the Proposed Landscape Plan,[29] submitting that the landscaping now proposed is an improvement on what was approved in the endorsed plans under the Permit;[30] and
   5. the proposal and the NOD conditions will result in an enhanced contribution to the landscaped setting 'creating the impression of buildings within a landscape rather than landscaping around buildings'.[31]

1. The design objectives of the DDO18 include:[32]

To recognise the character of the Mt Eliza woodland area, where substantial vegetation cover is a dominant visual and environmental feature of the local area, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space.

...

To reflect the existing rhythm in the spacing of dwellings in the streetscape and to maintain a sense of spaciousness by requiring generous front and side setbacks.

...

To maintain open, informal and well landscaped street frontages as a key characteristic of the area.

To ensure that new buildings or extensions do not dominate the streetscape or wider landscape setting.

To maintain relatively low site coverage to ensure that adequate space is available on private land for the retention and planting of vegetation.

1. The DDO18 directs consideration to the specific requirements for design and built form and the decision guidelines include (relevantly):[33]
   1. whether the works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area;
   2. whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area; and
   3. the layout and appearance of areas set aside for car parking, access and egress.
2. Given the above, central to the assessment under the DDO18 is how the proposal will respond to the design objectives of the DDO18 as well as how it will integrate with the existing streetscape and neighbourhood character of the area.
3. I find that the Subject Land is located in a neighbourhood character context that is urban yet substantially vegetated and rather spacious. This was evident during my inspection of the Subject Land and Hamersley Court from the public realm, and is consistent with the imposition of the DDO18 and what is described and sought in the design objectives for the Mount Eliza Woodland Area contained in clause 1.0 of Schedule 18 to the DDO.
4. The vegetation in Hamersley Court is a mix of native vegetation and exotic species planted both in private front and side setbacks and in the road reserve, noting that there are no pedestrian pavements so there is no clear divide between the public and private realms.
5. The appearance of the vegetated road reserves and front setbacks in Hamersley Court is contributed to by the sections on either side of Hamersley Court that intersect Kackeraboite Creek, where those sections contain dense vegetation that continue deep into the creek reservation on either side. The overall impression is of an urban court but which is densely vegetated in parts, including through introduced species in private realm landscaping.
6. Dwellings and associated built form and works are evident and visible from the road reserve but are generally either nestled within, or located behind, well landscaped frontages. However, Hamersley Court is still an obvious urban street, with formed concrete kerb and channel and residential development, notwithstanding the generally larger lots and greater spacing between built form than in many other urban areas.
7. To this end, I note that the Tribunal in Beveridge observed at that time that:
   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 [sic] 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.
8. Further, the Tribunal in Child 2022 observed with respect to those comments in Beveridge and changes that had occurred since then that:
   1. I acknowledge that circumstances have moved on since the commentary made in 2008, both because of new development that has occurred in the neighbourhood and because of changes to the planning provisions.
   2. In addition to the dwelling constructed at No 1/6 Hamersley Court, parties also referred to other developments including new dwellings at No 13 Hamersley Court and No 271A Canadian Bay Road. Ms King drew attention to various aspects of these approvals including site coverage, driveway configuration and dwelling spacing and setback.
9. The Amendment Application seeks approval of the second accessway and second crossover that is constructed on the Land. As a consequence, those areas where the second accessway and second crossover are located are not available for landscaping, although the area where the fork driveway approved under the Permit is located would become available for landscaping.
10. In line with the accepted approach to retrospective applications, whilst the presence of the works is of assistance in understanding the appearance of the works in context, the presence of those works neither supports nor impedes the Tribunal's ultimate decision on the merits of the approval sought.
11. Given what was approved by the Permit and what has subsequently been constructed on the Land and the Applicant's Land (other than the second accessway and second crossover), it is clear that the Land and the Applicant's Land are two separate properties that have two separate identities. If not for the street numbering and a knowledge of the history of the Subject Land, it would not be apparent that these two properties were 'related' by being numbers one and two of 6 Hamersley Court. To this extent, they are not dissimilar to any other neighbouring allotments in Hamersley Court.
12. The streetscape of Hamersley Court contains crossovers and accessways at various spacings and the proposal for the second crossover and accessway to the Subject Land is not at odds with what exists in Hamersley Court; it will not be out of keeping with the streetscape for each property to have its own crossover and accessway.
13. Further, given the frontage of the Applicant's Land is approximately 27.40 metres and the frontage of the Land is approximately 28.55 metres,[34] a crossover and accessway being provided to each property will not present as a dominant feature in the streetscape. Rather, this situation presents as quite a 'normal' outcome for the street.
14. I acknowledge that allowing the second crossover and accessway will result in those areas not being available for landscaping. However, I regard the landscaping that will occur in the previous forked driveway area to be not just a suitable replacement but, in some respects, perhaps a preferable outcome. This is because I regard the landscaping that can occur in front of the dwelling on the Land, between the dwelling and Hamersley Court, will filter views of the dwelling from the public realm compared with the previous design whereby the forked accessway, in effect, cut across the front setback, removing that area from landscaping.
15. I find that the layout of the proposal will be consistent with the design objectives of the DDO18 and will also enable landscaping that is in keeping with the existing landscaping of the streetscape through its density and ability to filter views of the dwelling from the public realm. In this way, I agree with the respondent that this landscaping will create the impression of the dwelling on the Land being within a landscape rather than landscaping being around the dwelling on the Land.
16. In making this finding I have had regard to landscaping shown in the landscape plan endorsed under the Permit as well as what is shown in the Proposed Landscape Plan. For the reasons explained in the following section, I have disregarded the landscaping shown in the carriageway easement E-4 area. To this end, for the reasons explained below, I have varied the NOD by varying condition 1A(b) of the NOD.
17. There will be no change to the pattern or spacing of built form as a consequence of this access alteration and, as discussed above, the vegetation that can be planted in the front setback where the forked driveway was located will filter views of the built form obtained from the public realm. As such, this access alteration will not impact upon the existing rhythm or spacing of dwellings nor impact upon perceptions of spaciousness in this part of Hamersley Court.
18. If the Scheme changes as sought by Amendment C219morn, the Subject Land will be rezoned to the NRZ20 'Mount Eliza Woodland Precinct - Area 2' and will be subject to an amended DDO18.
19. Amendment C219morn was adopted by the Council in August 2024 and remains with the Minister for Planning pending a decision. I acknowledge the point made by the applicant that in the NRZ20 containing amendments to the requirements of clause 54 and clause 55, along with the references to the Standards of clause 55, Amendment C219morn contains content that is contrary to what can be amended following Amendment VC267.
20. The proposed DDO18 and the NRZ20 have similar objectives to those in the current DDO18, through seeking to ensure that new development does not dominate the streetscape but maintains the landscaped surrounds, maintaining the spacious setting of the precinct, and ensuring development does not dominate the streetscape and minimises the dominance of car parking access.
21. If Amendment C219morn is approved in its current form, I am satisfied that what is proposed in the Amendment Application is not inconsistent with the broad objectives of what is sought through the amended DDO18 and the NRZ20.
22. Overall, for the above reasons, I find that what is proposed in the Amendment Application appropriately responds to the design objectives of the DDO18 in terms of impact upon streetscape and neighbourhood character.

1. As stated earlier, the applicant's fundamental concern revolves around the requirement in condition 1A(b) for landscaping within the carriageway easement E-4.
2. The respondent did not seek condition 1A and the Council does not press condition 1A; that is, the Council does not state that it would not have approved the Amendment Application but for condition 1A, or more specifically, condition 1A(b).
3. I acknowledge that the landscape plan endorsed under the Permit shows landscaping within the carriageway easement E-4 area, as follows:

Figure 13 - extracts from the landscape plan endorsed under the Permit, showing landscaping to occur in the carriageway easement E-4

1. However, I agree with the applicant that there is a difference between something being shown in an endorsed landscape plan and a condition of a planning permit specifically requiring planting and mulching to be undertaken in the parts of the carriageway easement E-4 other than the existing driveway alignment, as is required by condition 1A(b) of the NOD.
2. I also acknowledge that the Proposed Landscape Plan includes planting in the carriageway easement E-4 area, as follows:

Figure 14 - extract from Proposed Landscape Plan showing landscaping to occur in the carriageway easement E-4

1. Given the purpose of a carriageway easement is to be available for carriageway, or access, by the dominant tenement (in this case, the Applicant's Land) over the servient tenement (in this case, the Land), it is at odds with the carriageway easement E-4 for there to be a condition on the Permit that specifically requires planting in that carriageway easement E-4 area. This is because planting in that area with canopy trees, shrubs or even groundcover plantings is contrary to that area being available for carriageway access by the Applicant's Land; these plantings will potentially physically prevent access over the carriageway easement E-4 to the Applicant's Land.
2. In saying this, I am not making an assessment as to the extent of the carriageway easement E-4 that is required by the applicant to access the Applicant's Land, nor whether what is presently, or previously, in or on the carriageway easement E-4 amounts to a substantial inconvenience or a mere inconvenience. Rather, I am saying that in circumstances where the carriageway easement E-4 is registered on the title to the Land as an encumbrance, and where this is an easement for carriageway (as opposed to, for instance, an easement for drainage or sewerage), I am not prepared to impose a permit condition that, through its implementation, will limit the extent of that carriageway easement and, by extension, that property right.
3. Therefore, for the above reasons, I have varied the wording of condition 1A(b) of the NOD by:
   1. deleting the requirement in condition 1A(b) for planting and mulching to be undertaken in the parts of the carriageway easement E-4 other than the existing driveway alignment; and
   2. replacing that requirement with a condition that the plans are to show the balance of the land in the carriageway easement E-4 as not containing any landscape plantings other than lawn.
4. The reason I have made an exception for lawn is because lawn can be traversed over to provide carriageway access whereas trees, shrubs or groundcover plantings cannot be traversed over.
5. I have retained the requirement in condition 1A for the existing driveway alignment on the Land to be shown on all plans because this importantly records the access that is provided to the Applicant's Land from the public realm, which occurs across the Land. In this respect, I note the applicant's submissions that the endorsed plans for the Applicant's Permit depict an accessway layout that is different to what is presently shown in the endorsed plans for the Permit. As condition 1A requires the existing driveway alignment to be shown on all plans this might result in consistency between the two permits although I also acknowledge that there appears to be an ongoing, and separate, dispute about the accessway across the carriageway easement E-4 that may need to be addressed elsewhere.[35]
6. I have also amended the following references in the opening words of condition 1A:
   1. 'this permit' (with reference to the date) to be 'this amended permit', to more accurately reflect the time by which the amended plans are to be submitted to and approved by the Council; and
   2. 'the application' (with reference to submitted plans) to be 'the amendment application' to more accurately refer to the plans in issue.
7. Finally, given that condition 1A requires landscaping and works to be undertaken, it is appropriate to include a timeframe by which that is to occur. Given the dwelling is already occupied, a different timeframe is required. To this end, I have added a new condition 1B, as follows:

1B Within 3 months of the date of the approval of the plans in condition 1A, any landscaping and works required in order to comply with the plans approved in condition 1A must be completed to the satisfaction of the Responsible Authority.

1. The effect of condition 1B is to require the landscaping and works shown in the plans endorsed under condition 1A, being the removal of all landscaping from the carriageway easement E-4 area other than lawn, and the planting of any lawn, as desired by the respondent, in the carriageway easement E-4 area, to be completed within three months of the approval of the condition 1A plans.

1. For the reasons given above, the decision of the responsible authority is varied. Planning permit P07/0844.02 is granted subject to the conditions as amended by this order.

[1] The submissions 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 practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Through Planning Permit P00/1919 that was issued at the order of the Tribunal in Beveridge v Mornington Peninsula SC & Ors [2002] VCAT 1253.

[3] [2008] VCAT 216.

[4] Through Plan of Subdivision PS618284N.

[5] Nearmap image 4 May 2025; the search could only be undertaken for '6 Hamersley Court'.

[7] Landscape Plan prepared by Habitat Landscape and Environmental Design Consultants, February 2025.

[8] Notwithstanding that the buildings and works permission under the DDO is now under DDO18 and not DDO4.

[10] Outline of Submissions on behalf of Applicant for Review, [33].

[11] [2022] VCAT 747.

[12] Submission on behalf of the Responsible Authority, 20 June 2025, [140].

[16] Noting that no images of plans were included in the Tribunal's reasons.

[23] Submission on behalf of the Responsible Authority, 20 June 2025, [168].

[26] Outline of Submissions on Behalf of Applicant for Review, [45].

[27] Outline of Submissions on Behalf of the Respondent, 23 June 2025, [30].

[32] Clause 1.0 of Schedule 18 to the DDO.

[34] Based on the measurements in Plan of Subdivision PS618284N.

[35] Depending on the outcome of any separate dispute, further changes to either or both permissions might be required but that is not before me in this proceeding.