Both parties provided written submissions and neither party requested a further hearing. So, these submissions together with the other information already tabled and presented have been considered in the making of this decision.

1. David Costa and Bask (Vic) Pty Ltd (the Applicant) seek a review of Banyule City Council's (the Council) decision to refuse to grant a permit for the development of two double storey dwellings on the land at 18 Boyce Avenue, Briar Hill (the/this site).

1. The Council acknowledges the site is suitable for 'sensitively designed' medium density dwellings that respects the neighbourhood character, including creating new opportunities for vegetation on the site.
2. However, the Council has refused this proposal because it considers this proposed design and particularly the side-by-side arrangement is uncharacteristic and creates visual bulk amenity impacts on the neighbouring lots and the character setting. The Council is also concerned about the proposal to have two driveways and two crossovers. It says this is contrary to its adopted vehicle crossing policy and results in an excessive area of hard surfacing in the front setback that encroaches on available area for landscaping.
3. This decision focuses upon the design issues of concern to the Council, and I accept other aspects of the proposed design that are not in dispute are acceptable. Having considered the design and the Council's concerns in light of the relevant legislation, the relevant planning scheme policies and provisions and the Council adopted vehicle crossing policy, I have decided that a permit should issue subject to conditions requiring some changes to the design. The reasons why I have reached this decision are explained below.

1. The Council submits this proposal to include two driveways and associated single-width crossovers across the site's frontage is contrary to its adopted vehicle crossing policy and results in an excessive area of hard surfacing in the front setback that encroaches on the available area for landscaping. I do not share this concern.

1. The Council's submission presented at the hearing elevates or inflates the significance of its Residential Vehicle Crossing Policy 2012 (vehicle crossing policy) in planning decision making. The written submission tabled before the hearing indicates the vehicle crossing policy is incorporated into the planning scheme and 'must' be considered. During the hearing, the Council acknowledged that this policy is not incorporated in the planning scheme and that the use of the word 'must' regarding the relevance of considering it was a poor choice of language.
2. This vehicle crossing policy is a Council adopted policy. As such, it is a 'policy statement' that s 60(1A) of the Planning and Environment Act 1987 (Vic) (the PE Act) states may be considered 'if the circumstances appear to so require' before deciding on an application.
3. This vehicle crossing policy is listed as a 'background document' in the schedule to clause 72.08 of the planning scheme. It is cross-referenced in this schedule as being relevant to Amendment C68 and a series of clauses in the planning scheme. Amendment C68 introduced the Preferred neighbourhood character policy into the planning scheme in 2013. Of the clauses mentioned in the clause 72.08 schedule, the only clause relevant to the planning permissions required for this proposal is clause 15.01-5L-01, being the Preferred neighbourhood character policy.
4. Clause 72.08 explains what a background document is:

• Have informed the preparation of, or an amendment to, this planning scheme.
• Provide information to explain the context within which a provision has been framed.
• Assist the understanding of this planning scheme.

A background document does not form part of this planning scheme.

1. So, what the vehicle crossing policy is in this case is background to the preparation of the Preferred neighbourhood character policy. Reading the vehicle crossing policy may provide information to explain the context to the way in which the Preferred neighbourhood character policy is framed. The part of the Preferred neighbourhood character policy focussed upon in the hearing was the following:

All areas policy guideline

Consider, as relevant:

• Designing developments with only one single-width vehicle crossing.

1. The introduction to the vehicle crossing policy provides (in part) information that explains the context within which this policy guideline has been framed:

In Banyule, landscaping, vegetation and trees make a prominent contribution to preferred streetscapes and neighbourhood character. Incremental increase of inappropriately sited, designed and constructed vehicle crossings, including double width crossings, can have a significant impact on these preferences.

1. As quoted in paragraph 10 above, the policy to consider as relevant 'only one single-width vehicle crossing' applies to 'all areas' contained in the policy. The Preferred neighbourhood character policy is broken down into 'all areas' objectives, strategies and policy guidelines followed by individual area preferred neighbourhood character types and their respective objectives, strategies and policy guidelines. 'All areas' is a significant portion of the municipality. It includes the Neighbourhood Residential Zone, General Residential Zone, Rural Conservation Zone, Low Density Residential Zone, and Precinct 5 of Schedule 1 to the Activity Centre Zone as identified on the Neighbourhood Character Area Map forming part of clause 15.01-5L-01. Hence, there is a need to be satisfied that this policy guideline is a relevant matter to consider in the neighbourhood character of this site. The Council considers it relevant given its grounds of refusal and reliance upon it, so I have decided to consider it without specifically turning my mind to whether it is a relevant matter in the neighbourhood character of this site.
2. This desire for one single-width vehicle crossing is a policy guideline. There is no explanation in the Preferred neighbourhood character policy about what the difference is between objectives, strategies and policy guidelines. During the hearing, the parties acknowledged it appears to be indicative of a cascading level of significance of consideration, i.e. that the objectives are of most significant and the policy guidelines come last in significance. Reviewing the planning scheme content after the hearing accords with this approach. Clause 71.02 of the planning scheme explains the operation of the planning policy framework generally and clause 71.02-2 explains what a planning policy is, including the following:

A planning policy provides guidance for decision making and can help the community to understand how the responsible authority will consider a proposal.

1. Clause 71.02-2 also has a subheading 'Policy guidelines' and this section states:

A planning policy may include policy guidelines. Policy guidelines indicate how objectives can be met and how strategies can be implemented.

A responsible authority must take a relevant policy guideline into account when it makes a decision under this planning scheme, but is not required to give effect to it. If the responsible authority is satisfied that an alternative approach meets the objective, the alternative may be considered.

1. The 'all areas objectives' do not specifically require only one crossover or only one single-width crossover. The objectives are:

To encourage the retention and planting of canopy trees and understorey vegetation to soften the appearance of dwellings, enhance landscape settings, and improve existing wildlife and habitat links.

To ensure buildings and extensions do not dominate the streetscape, the building, or the outlook and amenity of neighbouring dwellings.

To protect and enhance the dominant continuous tree canopy and natural vegetated appearance of ridgelines.

To ensure that household services, vehicle access and storage facilities are not visually prominent features of streetscapes.

1. This site is in a Bush Garden Area and the objectives for this character type also include ensuring trees and understory vegetation dominate the streetscape and longer distance views.
2. The 'all areas strategies' that may be relevant to driveways and crossings include:

Provide offset planting of indigenous or native trees with adequate space for it to grow to a mature height similar to the mature height of any trees to be removed.

Plant native and indigenous trees and understorey vegetation throughout sites.

Design new developments and extensions that follow the natural topography of the land.

Minimise cut and fill throughout the site.

In areas other than Bush Woodland areas, locate dwellings, additions and associated structures, in line with the predominant front setback of dwellings along the street, with sufficient space for tree and understorey planting.

Provide landscaping, such as large shrubs and trees, in the front setback and in garden beds along driveway edges to discourage car parking in this location.

Include curves and bends in driveways that provide sufficient room for landscaping at varying heights.

1. The Bush Garden Area strategies include minimising excavation and paving providing separation between dwellings to plant small to medium trees and understorey vegetation; and providing space in front setback areas enabling the planting of at least one large tree and understorey vegetation. The Bush Garden Area policy guidelines seek a building site coverage not exceeding 40%, one medium to large indigenous or native tree per 200 square metres of site area, and at least one large tree in the front setback area. The proposed design achieves these strategies and policy guidelines.
2. This proposal contains two crossovers that are single width. The western crossover for Dwelling 1 is the existing crossover. The eastern crossover for Dwelling 2 is a new crossover. The two driveways are well separated. Council assessed the proposal as necessitating the removal of two juvenile street trees that have been recently planted. However, during the hearing, the parties agreed that only the eastern juvenile street tree would need to be removed and replaced. This is not opposed by the Council. It is a very young street tree and currently makes no contribution to the landscape character of the street. Hence, I agree with the Council that the removal and replacement of this tree is an acceptable outcome.

Extract from the Applicant's photos of the juvenile street trees, with the righthand tree being the eastern street tree to be removed and replaced

1. The design features a landscaped area in the front section of the site that comprises the front garden of both dwellings and the internal side setback area of each dwelling (as illustrated in the extract of the proposed landscaping plan on the following page).
2. The layout of the driveways and front garden areas incorporate the slope of the land and there is only one small retaining wall on the eastern side of the frontage. The front garden landscaping has sufficient space for multiple trees to be planted as well as understorey planting, and this is acknowledged by the Council. Narrow landscaped areas are proposed along the side boundary edge of each driveway, which is greater than what is found on some other properties in the street. An existing characteristic in this neighbourhood is a driveway alongside or very close to the side boundaries with no landscaping. For example, the Applicant's photographs highlight this existing characteristic on this site and at 20, 22 and 24 Boyce Avenue as well as limited landscaping alongside a driveway or car space at 30, 17 and 12 Boyce Avenue. As such, this proposal contributes to and enhances the landscaping opportunities in the neighbourhood (as sought by policy) because it includes new landscaping along the side boundaries of each driveway.

1. Whilst DDO8 does not directly refer to the vehicle crossing policy as a reference (background) document in the planning scheme, DDO8 can have some relevance to the neighbourhood character considerations about the inclusion of two single-width crossovers. This proposal achieves DDO8 design objectives that are relevant to the Council's concerns about two driveways because:
   1. The proposal maintains a vegetation dominated streetscape;
   2. The proposed dwellings minimise cut and fill in their front setback areas and achieve a large front garden area (encompassing land associated with both dwellings); and
   3. The driveways with the new buildings and works fit within the topography and enhance the landscape character along the street.
2. For these reasons, the inclusion of two driveways and two single-width crossovers is an acceptable design response.

Visual bulk and landscaping in the middle of the site

1. The Council considers the side-by-side arrangement of the two dwellings is uncharacteristic and creates visual bulk impacts on the neighbouring lots and the character setting. In this regard, the Council's key concern is the lack of landscaping opportunities, particularly in the middle section of the site. There are trees and other vegetation proposed in the front and back gardens of this proposal, but the middle of the development is located close to the side boundaries preventing the opportunity for any meaningful landscaping. With only a one metre setback, Mr Patrick's opinion is this is insufficient for landscaping and a path that can accommodate a wheelbarrow. In Mr Patrick's view, a minimum setback of 1.5-1.6 metres is necessary to create both a path and a 600mm wide garden bed that could accommodate shrubs and create a landscape screen.
2. During the hearing, I advised the parties that I could see the design has endeavoured to create space between the two dwellings as they are separated by at least 2.0 metres at ground level and 5.48 metres at first floor level. However, this siting means each dwelling is located close to the site's side boundaries. Each dwelling has a minimum ground floor setback of 1.34 metres from each of the site's side boundaries.
3. The proposal meets clause 55 standards B17 (side and rear setbacks) and B18 (walls on boundaries), and Council agrees with this. At the time the Council made its decision on the permit application, a consideration of neighbourhood character was still undertaken as this forms part of these relevant clause 55 objectives - that the location, length and height of a wall on a boundary and the height and setback of a building from a boundary respects the existing or preferred neighbourhood character. The Council's visual bulk and landscaping concerns are focussed upon the acceptability of this proposed design response from a neighbourhood character perspective, and the consequential unacceptable amenity impact for the adjoining properties (both of whom objected to the permit application).

1. Amendment VC243 recently made changes to clause 55 to 'codify' some of the standards, including standards B17 and B18. This means that where these standards are met, the objective is deemed to have been met and the associated decision guidelines are not required to be considered.
2. The Applicant relies on the findings in a recent Tribunal decision by Member Deidun in D'Andrea v Boroondara CC (the D'Andrea decision)[4] that compliance with standard B17 'now fully resolves all relevant assessments of the height and setback of a building from a boundary'[5] and it means that a proposal has achieved 'an acceptable amenity outcome'[6].
3. The D'Andrea decision considers 'the issue of visual bulk and neighbourhood character of the proposed development on the interface to the side and rear boundaries of the review site'[7]. It refers to the Amendment C243 Explanatory Report and expresses the view that the codifying of certain clause 55 standards 'removes the discretion associated with a qualitative assessment informed by the relevant objective and decision guidelines, coupled with the context of a review site and the merits of a design response'[8]. The D'Andrea decision goes on to identify what it considers are the remaining aspects of a design that still require consideration:
   1. ... compliance with Standard B17, and deemed compliance with the objective, can only mandate that a proposal achieves acceptable neighbourhood character and amenity impacts arising from the height and setback of the building from a boundary. It cannot and does not seek to deal with other aspects that relate to how a building is viewed across a side or rear boundary, including the length of walls, articulation in the built form, and the use and arrangement of colors [sic] and materials. Those aspects are not covered in either the Side and rear setbacks objective or Standard B17, and so are still before a decision maker, even where Standard B17 is achieved. Neighbourhood character and amenity related policies are still relevant where Standard B17 is achieved, but only insofar as they relate to the aspects of a built form that are still before the discretion of a decision maker, including the length of walls, articulation in the built form, and the use and arrangement of colors [sic] and materials.
4. I am not persuaded the considerations are now limited to these aspects of a built form. Amendment VC243 is a very recent amendment to the Victorian Planning Provisions, so its implications for decision-making are still unfolding. The amendment is certainly intended to make gaining a planning permit for medium density housing clearer and easier by codifying various aspects of the permissible built form. I agree with the D'Andrea decision that simply because a proposal complies with standard B17 and is therefore deemed to meet the associated objective (for example) does not mean that a planning permit must be granted for a proposal. The planning permission requirement is found in the relevant zone provisions, and not in clause 55. There is a general discretion to be exercised in deciding whether to grant a planning permit under the zone provisions. As such, it is possible that a permit may not be granted even when the codified clause 55 standards are met.[9]
5. Many of the standards that are now codified relate to amenity matters associated with a building form. However, it has long been recognised through clause 55 and its predecessors[10] that standard built form controls across Victoria do not recognise specific features of a site or its surrounds including the character of the neighbourhood. In other words that one design solution (as is provided for in a codified design) may not necessarily be an acceptable design outcome on every site in every neighbourhood in every municipality. If that were the case, the Victoria Planning Provisions would have been modified to remove consideration of the neighbourhood character or to codify the consideration of neighbourhood character in clause 55.
6. The D'Andrea decision considers that it would be illogical and impossible to have no discretion over neighbourhood character outcomes and then to go ahead and apply that discretion and carry out an assessment. I do not share this opinion. Planning decision-making can be challenging, and this situation is evidence of this. There are multiple objectives throughout clause 55 that require consideration of neighbourhood character. Accepting some clause 55 objectives are met because the relevant standard is met does not negate the need to consider the remaining clause 55 objectives and exercise the general discretion that applies through the zone provisions.
7. The planning scheme acknowledges the potential for complexity in decision-making. Clause 71.02-3 acknowledges the Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision-making. It instructs decision makers to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. So, there is acknowledgement of the potential for conflicting objectives in the planning scheme, and this is now evident in clause 55. For example, meeting standard B17 means that the objective at clause 55.04-1 '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' is met. Yet, a design must also meet the following neighbourhood character objectives at clause 55.02-1 that are not codified:

To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.

To ensure that development responds to the features of the site and the surrounding area.

1. So, in this case, whilst codified standards such as B17 and B18 are met, I am still required to consider and determine whether the neighbourhood character objectives (and other non-codified objectives) are met. The Council submits its position in this proceeding has not been altered by Amendment VC243 as the content of its policies have not changed and the Council continues to seek an acceptable and appropriate neighbourhood character response.

The features of the site and the surrounding area

1. The Council highlights the site is in a topographically hilly area and there is notable fall across the site. The land falls towards the rear (the north) by about 4m and has a cross-fall from the southeast to the northwest corner, falling steeply to the west side. The Council identifies that the site is within 10 metres of the ridgeline, so planning provisions relevant to ridgeline locations apply here.

Extract from Council's submission illustrating topography and ridgelines

1. The north side of the street has lower topographical ground levels than the elevated south side of the street. The Applicant submits Boyce Avenue features a one to two storey built form scale in a garden setting. Many of the existing houses immediately surrounding this site are single storey, including the houses on either side of this site. The sloping land means the rear of these houses are often elevated and have a building height of one and a half to two storeys.

Extract from the Applicant's photos of the steeply sloping northwest corner of the site with the elevated single storey house next door due to the topography.

1. The houses either side of this site are generally located in the centre of their respective lot and have no canopy vegetation in the side setbacks. However, grassed areas, small trees and hedges are evident in some of the side setbacks on these and other lots further to the east and west as illustrated below.

Extract from the Council's delegate report showing the location of the houses and vegetation on lots, including the site in the centre of the image at 18.

1. The proposed layout of the dwellings includes the two storey form generally aligns with the location of the single storey house on 20 Boyce Avenue (to the west), but extends beyond the house and adjacent to part of the rear outdoor area on 16 Boyce Avenue (to the east). An extract of the first floor plan below illustrates this. I asked the Applicant to address me further about the closeness of the proposed dwellings to the side boundaries during the hearing. The Applicant submits there is no vegetation along either side of the west side boundary now, and the east side has a grassed area, but it is not principal secluded private open space or an area with a high degree of sensitivity.

Extract of first floor plan, illustrating the length and location of the first floors relative to the single storey houses on the adjoining lots.

1. The Preferred neighbourhood character policy encourages:
   • Site layouts with space around dwellings to allow for trees and vegetation;
   • New developments that follow the natural topography of the land;
   • Recessed first floor levels from ground level walls;
   • Minimising the height of first floor levels; and
   • Sufficient space between dwellings to allow for small to medium trees and understorey vegetation.
2. The proposal is challenged by the topography of the land, meaning that the rear of each of the two storey dwellings is elevated above the natural ground level. This contributes to the height of the first floor levels at the rear have a visual presence in the surrounds (an extract of the relevant side elevations is provided below). The west side of Dwelling 1 has overall building heights of around 8.15 to 8.388 metres, triggering the need for planning permission under DDO8 as well. DDO8's design objectives include ensuring development does not penetrate the tree canopy. DDO8's decision guidelines include considering the need to ensure new buildings fit within the landscape and topography of the land.

1. I asked the Applicant to address me further during the hearing about what changes could be suggested to the design to create a minimum setback of at least 1.5-1.6 metres to enable some landscaping as suggested by Mr Patrick. The Applicant suggests the side setbacks could be increased by 300mm to 1.64 metres. In turn, the setback to the internal boundary fence would be reduced from 1.99 to 1.69 metres and the pool widths would also be reduced. These changes are a preferable and acceptable design response to the features of the site and surrounds and the neighbourhood character having regard to:
   • The existing feature of some landscaping in side setbacks on some of the lots that are in the surrounds of this site;
   • DDO8's consideration of new buildings over 8 metres in height fitting within the landscape and topography of the land; and
   • The Preferred neighbourhood character for layouts of dwellings with space around them for landscaping, including sufficient space between dwellings to allow for small to medium trees and understorey vegetation.
2. The Applicant suggests the first floor setbacks could also be adjusted, but I am not persuaded this is necessary. The design aspiration is to achieve some landscaping opportunities along the side boundaries, so it is the ground floor setback and the eave overhang that are the critical components that need to change to enable this design outcome to be acceptably achieved.

1. For these reasons, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

The development of two dwellings, the removal of two trees, building and works within the dripline of three trees, building over 8 metres in height above the natural surface, construction of a retaining wall within 10 metres of the front boundary and construction of two outdoor swimming pools in accordance with the endorsed plans.

1. Before the development permitted by this permit commences, 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 and be submitted in an electronic format acceptable to the Responsible Authority. The plans must be substantially in accordance with the advertised plans submitted 14th November 2022 but modified to show:

(a) The ground level setback of the ensuite, pantry, kitchen, living room and rear deck area of each dwelling from the west and east side boundaries of the site increased by 300mm and slightly more for the rear deck area to achieve a minimum side setback of 1.64 metres. In turn, the setback to the internal boundary fence is reduced from 1.99 to 1.69 metres, the pool widths reduced, and the eaves overhanging the ground floor reduced and/or setback to create an open area available for landscaping.

(b) All habitable room windows on the upper level of Dwellings 1 and 2 must (as applicable):

1. Have sill heights of at least 1.7 metres above floor level; or
2. Have fixed, obscure glazing in any part of the window below 1.7 metre above floor level or
3. Have permanently fixed external screens to at least 1.7 metres above floor level and be no more than 25 per cent transparent.

as required to comply with Standard B22 (Overlooking Objective).

(c) Indicate dimensions for both accessways and driveways.

(d) Tree removal that accords with the trees to be removed on the endorsed landscape plan.

(e) The TPZs, SRZs and tree numbers of all trees shown to be retained on and adjoining subject site, including street trees.

(f) Existing street tree planting must be included on plans (with TPZ & SRZ) and numbered.

(g) Any separate structure containing electrical meters or other site services must not exceed 1.5 metres in height and must be located behind the front line of the dwelling facing the street or adjacent to the side boundary fence.

(h) The mailboxes located in accordance with Australia Post guidelines with elevations and details of design.

(i) Both driveways to be constructed of concrete/permeable material with muted colours.

(j) Corner splays on each side of the accessway in accordance with Design Standard 1 of Clause 52.06.

(k) The location and dimensions of shading devices, to be provided to all north facing windows as external fixed horizontal overhangs and to all east and west facing windows as adjustable external shading devices eg. louvres, screens, external blinds/shutters, (unless shaded by adjacent buildings or fences), to the satisfaction of the Responsible Authority.

(l) A schedule of external building materials, colours and finishes, including details of cladding and roofing materials; the schedule should be presented on a separate sheet and must include colour samples.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. Before the development permitted by this permit commences, Development Drainage Plans must be submitted to and approved by the Responsible Authority. The plans must be prepared by a suitably qualified engineer and provide drainage including having regard to trees 12-17 and 20 and their tree protection zones and structural root zones as contained in the arborist report submitted with the permit application and authored by Graeme Lewis dated June 2022, providing an on-site stormwater detention system and connecting to the nominated legal point of discharge to the satisfaction of the Responsible Authority.

1. Before the development permitted by this permit commences, an amended Landscape Plan must be submitted to and approved by the Responsible Authority. The plan must be prepared by a suitably qualified landscape architect. The plan must be generally in accordance with the Landscape Plan prepared by John Patrick dated August 2023 but modified to include:

(a) Amendments required by Condition 1 of this permit.

(b) A path and a 600mm wide garden bed that could accommodate shrubs and create a landscape screen along the east and west side boundaries, generally adjacent to the ground floor ensuite, pantry, kitchen, living room and rear deck area of each dwelling.

(c) The identification of existing vegetation (which is not intended to be removed), and nomination of vegetation for removal throughout the site.

(d) Provision of formed garden beds with edging along the front property boundary and within the front setback to prevent cars parking on landscaped areas.

(e) Planting adjacent to driveways and within landscaping zones to consist of varying heights and species.

(f) Provision of the following minimum plantings:

1. (2) large canopy tree(s) (mature height of at least 12m) in the front setback;
2. (1) large canopy tree(s) (mature height of at least 12m) in the northwest lawn area within the rear setback;
3. (1) medium canopy tree(s) (mature height of at least 8m) in the rear setback;
4. (4) small canopy tree(s) (mature height of at least 5m) planted throughout the site.

(g) Eucalyptus Melliodora along the northwest corner must be relocated in the lawn area for Dwelling 1 so it is not in the existing easement.

(h) Allocasuarina littoralis adjacent to Dwelling 1 swimming pool must be relocated and replaced with Elaeocarpus reticulatus' or another species as agreed with the Responsible Authority, and be outside the existing easement.

(i) An indigenous and/or drought tolerant planting theme.

(j) A note to avoid black coloured mulch, as it promotes heat build up and evaporation of irrigated areas.

(k) A schedule of all proposed trees, shrubs and ground cover, which includes 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.

(l) Location and details of paving, steps, retaining walls, water tanks, clotheslines, fence design details and other landscape works including cut and fill.

(m) Location, details and cross section drawings of all Water Sensitive Urban Design features in accordance with the endorsed Sustainable Design Assessment and STORM report, with reference to connection details on the engineering plans.

1. Before the development permitted by this permit commences, an amended Sustainable Design Assessment (SDA) must be submitted to and approved by the Responsible Authority. When approved, the amended SDA will be endorsed and will form part of this permit. The SDA must be generally in accordance with the SDA prepared by Northern Environmental Design dated 19th October 2022 but modified as considered necessary by and to the satisfaction of the Responsible Authority.

Environmentally Sustainable Development (ESD) Drawing

1. Before the development permitted by this permit commences, an amended Environmentally Sustainable Development (ESD) Drawing must be submitted to and approved by the Responsible Authority. When approved, the amended ESD Drawing will be endorsed and will form part of this permit. The ESD Drawing must be generally in accordance with the ESD Drawing prepared by Mount Eltham Building Design dated 18th October 2022 but modified as considered necessary by and to the satisfaction of the Responsible Authority.

1. Before the development permitted by this permit commences, a Water Sensitive Urban Design (WSUD) Drawing must be submitted to and approved by the Responsible Authority. When approved, the WSUD Drawing will be endorsed and will form part of this permit. The WSUD Drawing must include:

(a) All features nominated within the associated SDA Report identified under Condition 5;

(b) A Maintenance Schedule for stormwater treatment devices such as rainwater tanks, toilet connections and raingardens, including responsibility, key serviceable components and frequency of maintenance;

(c) STORM Report Rating Identifying a 100% pass mark without the use of SQID's, Buffer Strips and Raingardens where possible;

1. Unless otherwise approved in writing by the Responsible Authority, prior to the commencement of any building and or demolition works on the land, a Tree Protection Zone (TPZ) must be established and maintained during and until completion of all buildings and works including landscaping, around all trees shown to be retained on endorsed plans, including Trees #12-17 and #20 to the satisfaction of the Responsible Authority:

At least 14 days prior to commencement of works, you must submit a 'Statement of Compliance' (from a suitably qualified Arborist - AQF Level 5) which must include photographic evidence of the installed TPZ requirements. Submission must be made to enquiries@banyule.vic.gov.au referencing the address and planning permit number.

Tree protection zone measures are to be established in accordance with Australian Standard 4970-2009 as calculated within the arborist report submitted with the application authored by Graeme Lewis June 2022:

(a) Erection of solid chain mesh or similar type fencing at a minimum height of 1.8 metres held in place with concrete feet.

(b) Signage placed around the outer edge of perimeter fencing identifying the area as a TPZ. The signage should be visible from within the development, with the lettering complying with AS 1319.

(c) Mulch across the surface of a TPZ within the subject Land to a depth of 100mm and undertake supplementary watering in summer months as required.

(d) Where construction is approved within the TPZ, fencing and mulching should be placed at the outer point of the construction area.

(e) No excavation, constructions works or activities, grade changes, surface treatments or storage of materials of any kind are permitted within a TPZ unless otherwise approved within this permit or further approved in writing by the Responsible Authority.

(f) All supports and bracing for fencing should be outside the TPZ and any excavation for supports or bracing should avoid damaging roots where possible.

(g) Where there are approved works within the 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.

(h) For street trees, protection must be to the extent of the entire nature strip where the Calculated Tree Protection Zone (TPZ) occurs (not obstructing a footpath or cross-over).

(i) For neighbouring trees, protection must be to the extent of the calculated Tree Protection Zone (TPZ) where it occurs within the subject Land.

(j) Where necessary install trunk and limb protection to a minimum height of 2m in accordance with AS4970-2009.

(k) Ground protection must be laid down where access is required through a TPZ outside the fenced area. It must consist of a permeable membrane beneath a layer of mulch or crushed rock with rumble boards on top. 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.

Once installed a TPZ must be maintained until the conclusion of all works on site, including landscaping to the satisfaction of the responsible authority.

1. During the construction of any buildings or works, the following tree protection requirements must be carried out to the satisfaction of the responsible authority.

(a) A suitably qualified project Arborist (AQF Level 5) must ensure that any pruning, root severance or buildings and works within a TPZ does not adversely impact the health and or stability of any retained tree now or into the future.

(b) Where the driveway is within the TPZ of Tree #7, it must be constructed at the existing soil grade. There must be no grade change within the TPZ and no roots are to be cut or damaged during any part of the driveway construction process.

(c) Where decking is proposed within the TPZ of a retained tree, all excavations for posts must be undertaken by hand under the supervision of the project arborist, and final post locations must be set away from the Structural Root Zone (SRZ) and any roots greater than 40mm in diameter.

(d) Any root severance within a TPZ must be undertaken by the project Arborist in accordance with the Australian Standard AS4373-2007 Pruning of Amenity Trees, using sterilised, specialised tree root pruning equipment. There must be no root pruning within the SRZ of any tree. There must be no works undertaken within the TPZ other than those endorsed by the responsible authority.

(e) Any tree pruning is to confirm to AS4373-2007 Pruning of Amenity Trees, all work is to be performed by a suitably qualified Arborist (AQF Level 3, minimum) 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.

1. The project arborist, site manager and builders must ensure that all conditions relating to Tree Protection Measures are being adhered to throughout the entire building process, including site demolition, levelling and landscape works.

1. Prior to the issue of Statement of Compliance or Occupation (whichever comes first), the owner or developer must notify Council's Development Planning section that the development is complete to allow for an inspection of ESD features as shown on the endorsed documents. Council will visit the site to inspect or require suitable evidence to be provided, to ensure ESD features have been installed, to the satisfaction of the Responsible Authority.

*Please retain all manufacturers stickers on window glazing, WELS and Energy Ratings for fixtures and appliances, hot water services, heating and cooling units for evidencing purposes*

1. 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. All external surfaces of the building elevations must be finished in accordance with the schedule on the endorsed plans and maintained in good condition to the satisfaction of the Responsible Authority.
2. Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.
3. Unless otherwise agreed in writing by the Responsible Authority, all telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.
4. The owner must ensure that the garden areas shown on the endorsed plan and schedule shall only be used as gardens and shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any plant be removed or destroyed it may be required to be replaced by a plant of similar size and variety.

1. Prior to the commencement of development, the permit holder must pay to Banyule City Council a development infrastructure levy and community infrastructure levy in accordance with the amount specified in Table 6 of the Banyule Development Contributions Plan 2016-17, September 2018. The contribution amount payable in the table will be adjusted annually from 1 July 2017, each year to cover inflation, by applying the Consumer Price Index for Melbourne (All Groups) as published by the Australian Bureau of Statistics.

Removal and Replacement of Council Street Trees - Payment

1. Prior to the commencement of development and removal of the easternmost street tree, the required fee for the removal and replacement for one tree (as necessary) must be paid to the Responsible Authority.

The planting of a street tree will be carried out as part of Council's works schedule and only during the May to August planting season.

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 and must be drained and provided with an all-weather seal coat. 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.
3. Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Council prior to occupation of the building. All vehicle crossing works are to be carried out with Council Supervision under a Memorandum of Consent for Works which must be obtained prior to commencement of works.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issue date of this permit.

(b) The development is not completed within four (4) years of the issue date of this permit.

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

[1] As identified in the Stem Arboriculture Arboricultural Assessment & Report dated 21 June 2022.

[2] As identified in the Stem Arboriculture Arboricultural Assessment & Report dated 21 June 2022.

[3] The submissions and evidence of the parties and the supporting exhibits given at the hearing 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.

[4] D'Andrea v Boroondara CC [2023] VCAT 1148.

[5] D'Andrea v Boroondara CC [2023] VCAT 1148 at [31].

[6] D'Andrea v Boroondara CC [2023] VCAT 1148 at [32].

[7] D'Andrea v Boroondara CC [2023] VCAT 1148 at [18].

[8] D'Andrea v Boroondara CC [2023] VCAT 1148 at [23].

[9] Refer to Belokozovski v Port Phillip CC [2015] VCAT 1046 for further analysis and explanation of this at [81]-[88].

[10] For example, the Victorian Code for Residential Development: Multi-dwellings 1993 (known as VicCode 2) and the Good Design Guide for Medium-Density Development 1995.