G3 Projects Pty Ltd v Nillumbik SC [2019] VCAT 263 (22 February 2019)

1. Schedule 1 to the Significant Landscape Overlay (SLO1); and, 2. Clause 58.
2. In the decision of Eltham Outlook Pty Ltd v Nillumbik SC [2017] VCAT 675 the Tribunal recently analysed to some depth the planning framework that applied at that time, and which largely continues to apply to this day.[3] We will not seek to repeat that analysis here, but rather rely on it and repeat the following learnings from that analysis:

1. We consider that these statements have particular relevance here, given the context of the review site abutting the residential component of the activity centre to its south and east, and considering the extent of landscaping achieved and approved in the nearby developments to the east and north-east of the review site.
2. These nearby developments provide significant landscaping opportunities, including to the interface to Circulatory Road. An existing townhouse development is found at 31 Dudley Street, on the opposite side of Circulatory Road from the southern half of the review site. This development is setback from Circulatory Road for the entire length of the development, with some larger setbacks provided for the planting of canopy vegetation. Our inspection reveals a very different picture to that painted by Mr Blades, where in response to questions from the Tribunal he described the development at 31 Dudley Street as built sheer to Circulatory Road.
3. Another townhouse development is approved for 28 Arthur Street, which occupies the opposite side of Circulatory Road from the northern half of the review site. We have been provided with the endorsed plans for this development. They depict the provision of ground floor setbacks of between 1.55 and 3.0 metres from Circulatory Road, with a large rear setback provided to retain an existing tree. The endorsed landscape plans, while a little unclear due to the quality of the scanning and printing, appear to depict the planting of seven canopy trees and a range of other vegetation in the setback to Circulatory Road. The largest of these canopy trees is a Red Box gum tree in the north-western corner of that site. It is evident that this extent of landscaping appears on the endorsed plans due to changes required by way of an interim decision issued by the Tribunal in Flory Pty Ltd v Nillumbik CC No.2 [2017] VCAT 252.
4. The final nearby development is the three and four storey apartment building approved at 26, 28 & 30 Pryor Street and 27 & 29 Arthur Street, in the decision of Eltham Outlook Pty Ltd v Nillumbik SC [2017] VCAT 675. The endorsed plans for this project, which is under construction at the time of this hearing, depict a range of setbacks to Circulatory Road which are unfortunately not dimensioned. However, it is clear that a range of setbacks are provided, including a very deep recess in each building, which provide setbacks of around 7.5 and 8.5 metres respectively from Circulatory Road, in order to plant canopy trees. In addition, a central break is provided between the two approved buildings which enable further planting of trees, and part of the southern building has been provided with setbacks to enable the protection of a large tree in Circulatory Road. The landscape plans show that this will allow the planting of nine canopy trees along the setbacks to Circulatory Road, in addition to the retention of the existing canopy tree.
5. Having now described both the physical and planning context of the review site, we come to assess the proposal that is before us. We need to acknowledge at the outset that the proposed development for the review site achieves many of the outcomes specifically sought by both the policy framework and the ACZ1. These include the activation of the three street frontages to each of the sites, the provision of a good range of commercial floor spaces, including office floor space, at the ground floor of the development, the provision of appropriate setbacks to both Dudley and Arthur Streets, the retention of native trees on the review site, and the achievement of additional housing in a well serviced location in a higher order activity centre.
6. The ACZ also contains a specific precinct objective for Precinct 1 as follows:

1. The first element is the proposed height of the two buildings. The starting point for a consideration of height is the guidance provided by the ACZ1 that this precinct has a discretionary height limit of 17.5 metres, or five storeys. In comparison, the proposed development of the review site adopts overall heights of between 19.24 and 21.28 metres for the Arthur Street building, and between 20.19 and 20.84 metres for the Dudley Street building. We arrive at these heights by comparing the overall heights of the roof ridges of each building, with the comparative natural ground level below each of those ridge points where they occur along the western elevation of the upper building form, as taken from the site survey plan provided at the hearing. As such, we have adopted the same methodology as that employed by Ms Prunotto in her questioning of the architect Mr Holland, and by Mr Holland in his answers to Ms Prunotto's questions.
2. In addition to these heights, the proposed development will, in part, present as a six-storey built form, mainly due to the significant fall on the land.
3. As set out above, the height limits contained in the ACZ1 are discretionary, and therefore can be exceeded on this site and others within this precinct. However, we also consider that we should be cautious about approving a building that sits above the discretionary height limit. On this point we adopt the following remarks in the Tribunal decision of Athedim (Vic) Pty Ltd v Moonee Valley CC (No 2) [2010] VCAT 1091: