Figure 12: East elevation of Building 2, with the Tribunal's annotated dimension of the proposed building height above NGL (marked as 'original ground line'), extracted from the PNPE9 plans.

1. The applicant relies on the evidence of Mr Blades, who states the proposal responds to the design objectives of DDO12 by following the natural landform of the undulating Yarra Ranges,[16] rather than preserving the topography established by the quarry.[17]
2. Mr Blades recommends further revisions to delete the large upper floor cantilever of Townhouses 05-07, shown in Figure 12 above, which was introduced as a consequence of shifting built form to accommodate the retention of trees in the south-east corner. Mr Blades is of the opinion the cantilevered section of the building will be more visible in direct views from Maroondah Highway above the roofline of Building 1, reduces the extent of perceived built form separation between Buildings 1 and 2, and reduces the sense of openness experienced by pedestrians within the central at-grade car parking area.[18]
3. The applicant invites the Tribunal to include conditions in the permit requiring resolution of the cantilever in the manner recommended by Mr Blades.
4. The applicant indicates the proposed building height was primarily set by the desire to achieve at-grade secluded private open space ('SPOS') on Level 3 of the dwellings, utilising the NGL of the area between the existing cut and the southern boundary. The applicant submits this approach is desirable as it minimises the extent of further cut or works within the tree protection zone of the trees to be retained.
5. Following the accompanied site inspection, I asked the applicant about the height of the western end of Building 2 (generally containing Townhouses 1 and 2). I find the western end of the building will be more visible from Maroondah Highway, as it is located at the terminus of the vehicle entry, so is not obscured by Building 1 from some vantage points.
6. The applicant acknowledges the finished surface level of the SPOS of Townhouses 1 and 2 is less constrained by tree protection zones than the SPOS of the other proposed townhouses. Consequently, the applicant advises that if the floor-to-ceiling height of the First Floor is reduced by 1.0 metre (from 3.4 metres to 2.4 metres) the finished floor level of the Second Floor can be lowered from 96.8 metres to Australian Height Datum ('AHD') to 95.8 metres to AHD, reducing the overall height of Townhouses 1 and 2 by 1.0 metre. The effect of which is the west elevation of Building 2 would have a maximum height of approximately 5.9 metres above NGL.[19]

Figure 13: Streetscape elevation of Buildings 1 & 2, showing Townhouses 1 & 2 reduced in height by 1 metre, extracted from the plans circulated by the applicant on 26 February 2025, prepared by Jager Group, dated 25 February 2025.

Figure 14: West Elevation of Building 2, showing reduced First Floor floor-to-ceiling heights, lowered Second Floor finished floor levels and reduced overall height of Townhouses 1 and 2, with the Tribunal's annotated dimension of maximum overall height above NGL, extracted from the plans circulated by the applicant on 26 February 2025, prepared by Jager Group, dated 25 February 2025.

1. The applicant submits such a modification is not necessary but can be accommodated by conditions in the permit. The Council and respondents submit that if a permit is to be granted, it must contain a condition requiring this modification to Townhouses 1 and 2.

Will Building 2 be 'easily discernible from the opposite side of the street'?

1. DDO12 does not require any third floor to be invisible when viewed from the opposite side of the street. Rather, it seeks any third level to not be 'easily discernible'. This term is unique in the Scheme. The Council submits it means any third level must not be easily perceived or noticeable, and that given the openness of the view lines towards the subject land, and the expanse of the Healesville Walk car park, Building 2 'would be easily discernible as the built form moves up the hill and will be a discordant element in the streetscape'.[20]
2. DDO12 contemplates two-storey built form on Maroondah Highway, built sheer against the street edge. DDO12 also contemplates a third storey and relevantly states:[21]
   • Building heights should not exceed two storeys (7.5 metres). A third level may be permitted where the overall height of the building will match that of an adjacent building or where it is set back so as not to be easily discernible from the opposite side of the street.

For the purpose of this schedule 'Building height' means the vertical distance between the highest point of the building and the natural ground level immediately below that point. It does not include architectural features and building services.

1. Clause 11.03-1L-02 (Healesville) seeks to 'encourage development that makes a positive contribution by respecting the existing scale, building form, height and significant trees within the town centre.'
2. DDO12 also seeks the retention of views from the main street to surrounding trees. Contemporary designs that complement the scale and detail of existing buildings in the town centre are preferred.
3. I have found that for the purposes of DDO12, NGL is depicted as 'original ground line' in the application plans. Consequently, no part of the proposal exceeds two storeys above NGL, so is consistent with the design requirement's expression of the preferred maximum building height in storeys.
4. I accept Mr Blades' evidence that the cantilever will be prominent in the streetscape, above the roofline of Building 1, owing to its height and closer proximity to Building 1. The cantilevered sections of Townhouses 5, 6 and 7 have a maximum height of approximately 8.1 metres above NGL, which exceeds the design requirement's expression of the preferred maximum height in metres, by approximately 0.6 metres.

Figure 15: Sightline diagram depicting the extent of Townhouse 7 that would be visible from the opposite side of Maroondah Highway, extracted from the PNPE9 plans.

1. The sightline diagram, above, shows the top half of the second-floor façade of Townhouse 7 will be visible from the opposite side of the road. It appears the top portion of the north-facing lounge room window would be visible. As Townhouses 5 and 6 are proposed to have the same cantilever projection as Townhouse 7, they would have the same extent of visibility above the roofline of Building 1, save that Townhouse 6 has a lower, flat roof form, rather than a gable roof form. I find the extent of visibility of these dwellings to be an outcome that will undermine the distinctive streetscape characteristics of the town centre because they will be easily discernible on the hill rising at the rear of the subject land, rather than maintaining the appearance of the wooded hills.
2. Having accepted Mr Blades' evidence that the extent of visibility of Townhouses 5, 6 and 7 in the streetscape is unacceptable, I have considered how the parties say it ought to be addressed.
3. The Council submits the first floor of Building 1 should be sited to provide a hard street edge, as that is what is sought by the DDO12 design requirements relating to interfaces with public places.[22] Mr Blades prefers to delete the cantilever because he says doing so improves the pedestrian realm within the central at-grade car parking area, in addition to addressing the streetscape concern. He says the public realm interface is adequately activated by providing a zero-lot line on the ground floor, with clear-glazed windows and multiple shop tenancy entrances facing onto the street, with a verandah over the footpath where presently there is no weather protection.
4. Mr Blades acknowledged the inclusion of a setback from the street frontage to the first floor of Building 1 has the effect of revealing more of Building 2, behind. However - subject to the deletion of the cantilever - he says the extent of visibility will not be easily discernible, so is acceptable.

Figure 16: Comparison of the Building 2 East Elevation with the cantilever as provided in the PNPE9 plans (L) and without the cantilever (R), extracted from Mr Blades' evidence statement at page 29.

1. Mr Blades says there are a number of urban design benefits as a result of providing a first-floor northern setback to Building 1 that outweigh any perceived negative impacts associated with the resultant visibility of Building 2. These include that it provides modulation of the building mass, that it allows for more visibility of the tops of the oak trees at the rear of the subject land and that Building 1 'will appear more diminutive to Temora House', to the west. I accept that maintaining a hard street edge at the ground floor and provision of a first-floor setback, on balance, provides an acceptable response to DDO12 and the heritage significance of Temora House. I return to this, later.
2. I find the extent of visibility of the glazed living room façades of Townhouses 5, 6 and 7, as proposed with a large cantilever, will cause it to be easily discernible from Building 1 in the foreground, and a discordant element in the streetscape.
3. I asked the applicant about the information the sightline diagrams are based on and what the effect would be if Mr Blades' recommendation, that the Building 2 cantilever be deleted, is adopted.
4. In response, the applicant advised:
   • If Mr Blades' recommendation is adopted, the maximum height of the east elevation above NGL would be reduced to 7.4 metres,[23] which complies with DDO12.
   • The sightline diagram was prepared using a survey point in the Plan of Survey submitted with the application that plots the level to AHD of the top of the kerb adjacent to the subject land (i.e., the southern kerb). The sightline diagram is not based on surveyed levels of the northern footpath level - the architect extrapolated the survey data for the southern kerb and prepared the sightline diagram based on an assumption the northern footpath level matches the level of the southern kerb.
5. The parties agree the northern footpath appears to be at a lower level than the surveyed southern kerb. This is consistent with my observations during the accompanied site inspection and is supported by the photos appended to the Council's submissions.
6. Further, the parties agree the southern end of the Healesville Walk car park appears to be an additional 0.5 - 0.8 metres lower than the northern footpath.

Figure 17: Council's photo of the road reserve, taken from the northern kerb, opposite the subject land, which shows the northern footpath (right) is lower than the southern kerb (left). The level of the Healesville Walk car park (far right) is lower again.

1. In response to my questions, Mr Milner gave evidence that the effect of the northern footpath being lower than is shown in the sightline diagram that forms part of the application material is the extent of visibility of Building 2 from that vantage point is decreased. However, Mr Milner cautioned that the extent of visibility as a person moves throughout the Healesville Walk car park is not a constant, because of the car park's topography and depth. He said as a person moves deeper into the car park, further away from the subject land, distance would have the effect of revealing more of Building 2. However, Mr Milner was of the opinion this was an acceptable outcome under DDO12 as the greater distance and separation from the development ensured it would not be a looming or dominating element in the streetscape.
2. The applicant submits the sightline diagrams submitted with the application are conservative in their depiction of the extent of visibility of Building 2 and likely overestimate its extent of visibility from the opposite side of the street. In addition, the applicant submits the extent of visibility of Building 2 would be further reduced when viewed from the southern end of the Healesville Walk car park, due to its lower ground level.
3. I accept Mr Milner's evidence that the third floor will not be dominating in the streetscape, given the setback of approximately 31 metres from the northern boundary to the Level 3 northern balcony-edge of the townhouses, following the deletion of the cantilever.
4. I am not persuaded by the Council that because it is heavily utilised, the Healesville Walk car park is an important vantage point in the public realm. It is a transitory and utilitarian, privately-owned space. I have required the cantilever to be deleted, consistent with Mr Blades' recommendation. I am satisfied that by virtue of the proposed setback and height and as a consequence of the lower level of the car park relative to the subject land, Building 2 - as amended to adopt Mr Blades' recommendation - will not be easily discernible above the roof form of Building 1.
5. The architect has adopted an alternating gable and flat roof form for the townhouses. This gives Building 2 a residential vernacular, creates visual interest and enhances the dwellings' sense of identity and address. It is the alternating gable ends of Townhouses 3, 5 and 7 that will be visible rising behind Building 1. I am satisfied these gable roof forms will appear to blend in or merge with the roof form of Building 1 when viewed from the opposite side of the street, so will not be easily discernible.
6. I accept the evidence of Mr Blades that, in the context of this heritage streetscape, it is appropriate to provide a first-floor setback for Building 1 because it maintains sightlines and causes the building to be deferential to Temora House.
7. I now turn to the western part of Building 2.
8. Townhouses 1 and 2 are located at the end of the vehicle accessway, so are not screened by Building 1 to the same extent as the other townhouses.
9. The Council is critical of the western interface with Temora House, because the height of the eave and roof pitch of Building 2 exceeds the height of Temora House, which has a contributory-grading in HO428.
10. Clause 15.03-1L (Heritage) seeks to 'avoid development that dominates a precinct'.[24] Within commercial areas, this is to be achieved by avoiding 'development that exceeds the height of adjoining contributory or significant buildings' and maintaining 'the prominence, architectural integrity and character of ... contributory heritage buildings'.[25]

Figure 18: Architect's render of the proposal, which shows Townhouses 1 & 2 (right) at the rear will be the most visible part of Building 2 from the public realm. Extracted from the applicant's submissions.

1. Applying my findings in relation to NGL and how building height is to be measured under DDO12, only two floors of Building 2 are proposed above NGL. However, when standing directly opposite the proposed driveway, all three floors of Building 2 will be visible from the opposite side of the street. DDO12 discourages 'big box structures with bland facades, and building bulk that is out of proportion with other elements of the town centre'.[26] Owing to their greater visibility and less site constraints (such as tree protection zones), I find DDO12 and the relevant heritage policy require a different design response for Townhouses 1 and 2.
2. With the removal of the large cantilever, Building 2 is essentially a large rectangular mass, somewhat modulated by applying alternating flat and gable roof forms together with alternating colours and materials to the facades of the townhouses. However, the building bulk remains out of proportion with other buildings in the main street. This is largely tempered by siting the building at the rear, so it is largely obscured from the public realm by Building 1. However, Townhouses 1 and 2 remain prominent.
3. I have required Townhouses 1 and 2 to be modified in accordance with the plans circulated by the applicant, dated 25 February 2025 and depicted at Figure 14 and Figure 21, which lowers the overall maximum height of those dwellings by 1.0 metre, to approximately 5.9 metres.[27] This is well under the preferred maximum height of 7.5 metres above NGL specified in the provisions of DDO12 and provides a reduction in the mass for that part of the building that will be most visible from the public realm. The modification creates a break in the height and volume of Building 2, adding visual interest.
4. I accept Mr Milner's evidence that, although the height of the eave of Building 2 would be taller than the height of the eave of Temora House, it is an acceptable response to the heritage significance of the place, because 'it won't compete with Temora House'.
5. I am not persuaded by the Council that existing buildings in the main street of Healesville are 'not elevated or imposing'.[28] Temora House has a commanding presence in the street by virtue of its elevated position and proximity to the footpath. Building 2 is sited entirely behind the rear wall of Temora House and is set back from the common boundary.
6. Subject to the reduction in height that I have required for Townhouses 1 and 2, and the deletion of the cantilever for Townhouses 5, 6 and 7, Building 2 will read as an acceptably recessive, discrete form that is not out of keeping with the rural town environs.

Figure 19: Photo of Temora House, abutting the western boundary of the subject land, extracted from the Council's submissions.

1. For all these reasons, the proposed building is an acceptable design response with the changes required to reduce the height of Townhouses 1 and 2, and delete the cantilever of Townhouses 5, 6 and 7.

1. Both the Council and the respondents submit the proposal does not provide sufficient car parking, with an identified key issue being that car parking surveys were not undertaken by the applicant on a Friday or Saturday, or during the school holiday period. The respondents and Council submit there is an influx of weekend and public holiday tourist traffic in Healesville, as it is a popular tourism destination.
2. Further, the respondents rely on data from Yarra Ranges Tourism that 'by 2033 day trips to the region will double from 4.5 million to 9 million per annum'.[29] Consequently, the respondents submit 'this future doubling of day trips to the region will require considerably more parking, therefore a parking waiver in this instance is not appropriate'.
3. The Council did not refer to any objective or strategy of relevance in this matter, however reference was made to the purposes of cl 52.06, including 'to ensure the provision of an appropriate number of car parking spaces having regard to the demand likely to be generated, the activities on the land and the nature of the locality'.
4. Car parking provision for dwelling residents meets the Scheme requirement at cl 52.06-5.
5. The proposal seeks a car parking reduction of 12 car spaces, comprising 11 retail spaces and one residential visitor space.
6. In the applicant's submission, based on Mr Walsh's evidence, the car parking reduction sought is justified and will meet the car parking demands of the proposal.
7. The evidence, in-part, relies on surveys contained in the permit application traffic report.[30] Those surveys were conducted on five occasions,[31] recording on-street car parking in Maroondah Highway and off-street car parking in the Healesville Walk and Healesville Library car parks. This comprised car parking within approximately 400 metres of the subject land and found the area contains approximately 450 car parking spaces.
8. These surveys highlighted that the busiest day was on Sunday 12 November 2024, at 4.00pm. Mr Walsh says the survey shows parking is well utilised at this time, but there was still a minimum of 48 car spaces available.[32]
9. The surveys conducted on Saturday 17 June 2024 and Wednesday 21 June 2024 show there were never fewer than 122 car spaces available.
10. Mr Walsh's firm undertook further surveys of this area, plus of car parking in Wilson Street and Badger Creek Road, on Thursday 30 January 2025 (11.00am - 2.00pm) and Sunday 1 February 2025 (1.00pm - 6.00pm). The expanded survey area contained 511 - 523 car parking spaces identified as 'suitable for general parking'.[33]
11. The applicant's further surveys show there were never fewer than 140 and 255 car spaces available, respectively.[34]
12. According to the evidence, the car parking reduction is acceptable for the following reasons:
    • the five on-site car spaces for the shops are expected to meet the demand for staff.[35]
    • the proposed shops will have a similar floor area to the existing shops on the land, which generate customer car parking in the surrounding road network and are expected to generate a similar level of demand.[36]
    • the shops will draw a portion of their patronage from nearby residents, commuters and customers of other businesses in the area.[37]
    • the car parking surveys demonstrate there is sufficient capacity to accommodate customer and residential visitor demand.
13. Mr Walsh's evidence was tested through cross-examination by the Council and respondents. Questions were raised regarding the reliance on off-street car parking in the Healesville Walk car park, given it is subject to 3-hour timed restrictions so may not be suitable for staff parking.
14. The shortfall of 12 car spaces can be accommodated in the public car parking of the activity centre. I accept Mr Walsh's evidence that staff demand will be met on-site and will not rely on on-street car parking. However, even in the event of staff car parking demand exceeding five car spaces, I accept Mr Walsh's evidence there is sufficient long-term parking available in Badger Creek Road and River Street.
15. The activity centre context of the subject land, and the resultant mix of land uses in the area, means there is demand for on-street car parking, including in residential streets. This is not an unexpected outcome in an activity centre. The short-term parking in the surveyed area is appropriate for use by customers and residential visitors and allows for a turnover to occur for the duration of the day.
16. The evidence is that the proposal will generate 10 vehicle movements in each of the peak hours, equivalent to an average of one vehicle movement being generated every six minutes during the peak hours.[38] This volume of traffic is relatively minor and, as confirmed by the evidence, can be accommodated by the surrounding street network without adverse impact on its operation or efficiency.
17. Policy encourages an intensification in locations such as this, within an activity centre.[39] With such intensification will come additional demands on car parking and increased traffic, which will need to be assessed and managed. The evidence has demonstrated that the impacts of this particular development, however, are acceptable.
18. It is proposed to utilise the existing vehicle crossing, with no physical modifications to vehicle access proposed. Right-hand turns are prevented out of the subject land as Maroondah Highway is divided by a solid double line. I accept the evidence of Mr Walsh that there would be benefit in providing a sign at the accessway advising of the no-right turn restriction.

IS THE TREE REMOVAL AND LANDSCAPING PROPOSED ACCEPTABLE?

1. The Council and respondent submit the English Oak trees at the rear of the subject land make a strong contribution to the landscape character of the main street of Healesville, and the surrounding area. The English Oaks are noted on the application plans as trees 9 - 13, with heights ranging between 13 - 14 metres. Tree 9 is proposed to be removed; the remainder are to be retained.
2. It is also proposed to retain Trees 3 and 4, which are recorded as a 6 metre high eucalypt and Spotted Gum, respectively. These trees are located adjacent to the proposed driveway entrance.
3. The Council acknowledges the amended application shows increased tree retention but says insufficient detail has been provided to demonstrate the English Oak trees can be retained in a manner that ensures their ongoing health and stability, noting their location on the edge of the steep embankment and the extent of encroachment by the development into the tree protection zone of some of the trees to be retained.
4. The applicant submits the development positively contributes to the landscape character of the Healesville town centre through the retention of established trees and vegetation that will also soften the proposed built form. The applicant relies on the landscape evidence of Mr Spaull and the urban design evidence of Mr Blades in support of their submission. Mr Spaull's evidence statement includes as an attachment an 'Arboricultural Letter of Advice' prepared by Kylie May [40] which states she attended the subject land on 22 January 2025 to review the English Oak trees. Ms May is a Director/Consulting Arborist, of Mr Spaull's firm.
5. Ms May states:

In summary, while the proposed buildings represent a major encroachment (as defined by AS4970-2009) into the TPZs of Trees 10, 11 and 12, existing conditions, including a steep, rocky embankment, are likely to have resulted in the majority of roots being concentrated at the top of the embankment away from proposed areas of excavation. The required excavation and construction of the building is therefore not expected to negatively impact the trees. Decks have been designed to enable above grade construction and provided footings are located to avoid roots >50mm diameter and existing soil levels are maintained below, these are not expected to impact the trees. Irrigated garden beds with a maximum fill of 150mm good quality garden soil are likely to improve conditions for the trees over conditions which currently exist. While some pruning will be required for Trees 10, 11 and 12, this is not expected to negatively impact the trees and will also result in adherence to vegetation management requirements within a BMO. A smaller, somewhat suppressed Oak is proposed to be removed with no permit requirements for its removal. Preparation of a Tree Management Plan is recommended to direct works around the protection of all trees to be retained on and neighbouring the site.

1. The Council submits the amended plans do not accurately show the tree protection zones of the English Oak trees, or the extent of excavation proposed within the tree protection zone of trees 10 and 11.
2. Having considered the submissions from the parties, the landscape evidence and the letter of advice prepared by Ms May, Scheme provisions and my site inspection, I find the landscape response is appropriate.
3. I have given weight to the retention of important existing vegetation within the subject land, particularly the English Oak trees grouped at the rear which will be visible in long-range views as a backdrop to the development. This is an important design and character outcome that will contribute positively to the 'classic, attractive country town character' sought by DDO12.
4. Indigenous planting will also be introduced as shown in the landscape plan accompanying Mr Spaull's evidence statement. I am satisfied the plan provides further opportunity to integrate the development in a landscape setting.
5. I have been persuaded by the landscape evidence of Mr Spaull. I find the existing and proposed landscape design will produce an acceptable landscape setting. I am satisfied the ongoing health and stability of the retained trees can be managed. I accept the applicant's submission that, owing to their location on a steep, rocky embankment, Trees 10, 11 and 12 are likely to have the majority of their roots concentrated at the top of the embankment, away from the proposed areas of excavation. I have included conditions in the permit requiring the preparation of a Tree Management Plan and Tree Maintenance Management Plan, consistent with the recommendations of Ms May.
6. I have also required the tree protection zones of the trees to be retained to be accurately shown on the plans.

1. The respondents made detailed submissions concerning what they describe as disabled access non-compliances under Australian Standard AS1428.1-2009 Design for access and mobility.
2. The applicant submits that disabled access compliance is not strictly relevant to the Tribunal's considerations in this proceeding, as it is an obligation that arises under different legislation. However, the applicant invited me to adopt the evidence of Mr Walsh, who was of the opinion the matters raised by the respondent can be addressed by way of permit conditions.
3. Mr Walsh's recommendations are depicted in an annotated plan circulated by the applicant on 26 February 2025, shown in Figure 20 below, that include:
   • Access ramps with a gradient of 1:14 for a length of 4.2 metres and 9.0 metres, respectively, along the eastern boundary.
   • An access ramp with a gradient of 1:14 and a length of 4.15 metres along the rear of Shop 5, with a landing adjacent to the Shop 5 rear door.
   • Setbacks sufficient for wheelchair circulation where the pedestrian path changes direction at the eastern boundary intersections with the southern façade of the shops and the northern façade of the townhouses.
   • The rear door of the residential lobby in Building 1 to open inward and be widened to at least 950 millimetres.

Figure 20: Ground Floor plan with annotations by Mr Walsh of modifications that could be made to provide compliant disabled access, circulated by the applicant on 26 February 2025.

1. I accept the applicant's submission that the Tribunal, in this review proceeding made under s 77 of the PE Act, is not tasked with determining compliance under the Disability Discrimination Act 1992 (Cth). However, cl 15.01-1L (Urban design in activity centres) includes a strategy requiring development to be designed to provide accessibility, including accommodating motorised scooters, wheelchairs and prams.
2. Given cl 15 is a relevant consideration under the decision guidelines of the C1Z,[41] I am therefore satisfied accessibility is a relevant consideration in this proceeding.
3. I have included permit conditions requiring the modifications recommended by Mr Walsh.

1. The application submitted to the Council did not seek permission to create or alter access to Maroondah Highway under cl 52.29-2. The applicant advises that it reluctantly formally amended its application to seek permission under this clause following advice from the Council in its s 54 'request for information' that permission was required.
2. Clause 52.29-2 relevantly states:

• Create or alter access to:
  • - A road in a Transport Zone 2.
  • - Land in a Public Acquisition Overlay if a transport manager (other than a municipal council) is the acquiring authority and the acquisition is for the purpose of a road.

1. Council referred the permit application to the Head, Transport for Victoria pursuant to s 55 of the PE Act.[42]
2. Correspondence dated 15 September 2023, from the Department of Transport and Planning (acting under delegation from the Head, Transport for Victoria), to the Council states:

The Head, Transport for Victoria has considered this application and does not object to the grant of a permit is subject to the following conditions:

1. All vehicles must enter and exit the site in forward direction at all the times.
2. In its written submissions, Council states that a planning permit is required to alter the access to Maroondah Highway,[43] however those submissions do not provide any reasons supporting this conclusion. The Council delegate's request for further information[44] states:

The buildings are proposed to be constructed on the front boundary and this comprises a physical alteration of access (doors are also in different locations and extents).

A permit is required to create or alter access to a road in a Transport Zone 2. The planning and environment act (sic) defines road as: "road" includes highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not;" at a minimum pedestrian access is proposed to be altered to the road and a planning permit is required for this (you will note that clause 52.29 relates to access not vehicle access). I also note that there are changes of use proposed (including dwelling and function centre which is also an alteration of access) and that the vehicle accessway grades and widths adjacent to the front boundary appear to be altered (also changing access to the land to the west). There is no extra fee by a S50 amendment is required. You will note DTP's response under S55 (referred under Clause 52.29 and Clause 66.03):

Thank you for your referral dated 21 August 2023 of the above application to the Head, Transport for Victoria under Section 55 of the Planning and Environment Act 1987.

The Head, Transport for Victoria has considered this application and does not object to the grant of a permit is (sic) subject to the following conditions:

1. All vehicles must enter and exit the site in forward direction at all the times.

Please forward a copy of any decision to this office as required under the Planning and Environment Act 1987.

A lack of objection has no relevance on determining whether a planning permit and / or referral is required.

1. The Council submits that although no physical alteration to the vehicle access from Maroondah Highway is proposed, Council officers interpret the new pedestrian access points as physically altering access for the purposes of the clause.
2. I do not agree with the Council's submission that planning permission is required for changes in the nature of the way the access is used. I agree with and adopt the findings of the Tribunal, in Curie v Mornington Peninsula SC (Part Redacted) [2022] VCAT 1052 ('Curie'), which found that changes in the nature of traffic access to a road, either in terms of volume, frequency or type of traffic, does not give rise to the need for a permit under cl 52.29.[45]
3. I will now turn to the question of whether the creation or alteration of pedestrian access requires planning permission under cl 52.29. The Tribunal's decision in Curie states:[46]

...as a matter of statutory interpretation, when considering the relevant context in which the words 'create or alter access' is to be construed, regard should be given to the whole of clause 52.29 in which those words appear.

...

The purpose of clause 52.29 is as follows -

To ensure appropriate access to the Principal Road Network or land planned to form part of the Principal Road Network.

To ensure appropriate subdivision of land adjacent to Principal Road Network or land planned to form part of the Principal Road Network.

1. The policy at cl 18.02-4S (Roads) relevantly includes the following strategy:

Protect and develop the Principal Road Network to:

• Provide high mobility for through traffic and the efficient movement of freight by facilitating adequate movement capacity and speeds.

• Limit access points to high-volume, high-speed roads by utilising urban design techniques such as service roads and internal connector roads.

1. I understand the reference to 'through traffic', 'high-volume' and 'high-speed' in this clause to be references to vehicle traffic.
2. I reject the Council's interpretation of cl 52.29. My reasons follow.
3. Considering cl 52.29 and relevant transport policy as a whole, I find that changes to access in the context of cl 52.29-2 are confined to physical changes to vehicle access, and do not include the creation or alteration of pedestrian access such as a new pedestrian door in a shopfront that abuts the road reserve. This interpretation is consistent with the strategies at cl 18.02-4S, which seek to limit the impact of access points on traffic flow and speed.
4. Consequently, I find the proposal does not require planning permission under cl 52.29-2 as it does not propose the creation or alteration of vehicle access to Maroondah Highway.
5. As a result of this, the Head, Transport for Victoria is not a referral authority for this application. I nonetheless accept the evidence of Mr Walsh that that there would be benefit in imposing a condition to the effect of that sought by the Head, Transport for Victoria.

Will the development result in any unacceptable impacts on the amenity of adjoining or nearby properties?

1. The Council raises concerns in relation to the setback of the southern wall of TH1, because it says it does not comply with Standard B17 in cl 55[47] and will be detrimental to the amenity of the adjoining dwelling to the south, at 43 Symons Street.
2. The decision guidelines for buildings and works in the C1Z[48] includes that the responsible authority must consider, as appropriate, the objectives, standards and decision guidelines of cl 55.
3. TH1 has a maximum height of approximately 5.1 metres above NGL, measured to the apex of the roof gable. The southern wall of the dwelling is setback 1.0 metre from the southern boundary. Standard B17 requires a setback of 1.45 metres.
4. As a consequence of the modifications I have required to TH1 and TH2, the height of the gable of TH1 is reduced by 1.0 metre, to approximately 4.1 metres. As a result, the minimum setback to meet Standard B17 is 1.15 metres.
5. The objective of cl 55.04-1 (Side and rear setbacks objective) is:

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 or small second dwellings.

1. As the standard is not met, the following decision guidelines must be considered:
   • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • The design response.
   • The impact on the amenity of the habitable room windows and secluded private open space of existing dwellings or small second dwellings.
   • Whether the wall is opposite an existing or simultaneously constructed wall built to the boundary.
   • Whether the wall abuts a side or rear lane.
2. Relevantly, cl 4.0 of DDO12 includes the following design requirement, under the heading, 'Interface with public places and residential areas':
   • New buildings abutting a residential property should meet the side and rear setback objectives in Clauses 54.04-1 and 55.04-1, and the overshadowing open space objectives in Clauses 54.04-5 and 55.04-5 of this planning scheme.
3. The proposal seeks a minor variation to the standard. I agree with the applicant that the variation sought is acceptable and satisfies the objective of cl 55.04-1 for the following reasons:
   • The interface for the setback is between residential and commercially zoned land, where different amenity and built form outcomes are to be expected.
   • The encroachment is by the apex of a gable roof to a component of the building that is single-storey.
   • The proposed built form outcome is consistent with the preferred character outcomes sought by DDO12.
   • The dwelling at 43 Symons Street is set back approximately 28 metres from the common boundary. The secluded private open space of the dwelling contains large trees and vegetation in the intervening space that will screen the proposal.

Figure 21: South Elevation of Building 2 depicting the height of TH1 (far left) and TH2 reduced by 1 metre. Extracted from the plans circulated by the applicant on 25 February 2025.

1. I have amended the proposed draft permit conditions prepared by the Council to reflect some of the matters discussed during the hearing. This includes the deletion of the northern cantilever in Building 2, reducing the height of TH1 and TH2 by 1.0 metre, requiring the preparation of a Tree Management Plan for the retained trees and incorporating Mr Walsh's recommendations relating to accessibility.

1. The form and design of the development is of a scale that I find is commensurate with the lands' Commercial 1 zoning and is acceptable to the main street of Healesville. The retention of the English Oaks at the rear provides an attractive backdrop that makes a positive contribution to the distinctive rural character of the town. While there are some aspects of the proposal that require further resolution, I am satisfied they can be addressed through permit conditions.
2. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

To use land for accommodation (dwellings) where the frontage at ground floor exceeds 2 metres.

To construct a building or construct or carry out works.

To construct a building or construct or carry out works for any use in Section 2 of clause 36.04-1.

To construct a building or construct or carry out works, including:

• - Domestic services normal to a dwelling if the services are visible from a street (other than a lane) or public park.
• - A solar energy system attached to a building that primarily services the land on which it is situated if the system is visible from a street (other than a lane) or public park and if the schedule to this overlay specifies the heritage place as one where solar energy system controls apply.
• - A rainwater tank if the rainwater tank is visible from a street (other than a lane) or public park.
• - A fence, if the fence is visible from a street (other than a lane) or public park.
• - A verandah.
• - Non-domestic disabled access, excluding a non-domestic disabled access ramp if the ramp is not visible from a street (other than a lane) or public park.

To construct a building or construct or carry out works.

To construct a building or construct or carry out works associated with accommodation and retail premises.

To remove, destroy or lop native vegetation and any plant species that does not occur naturally in the locality that is greater than 5 metres in height, in the Commercial 1 Zone.

To reduce (including reduce to zero) the number of car parking spaces required under cl 52.06-5.

1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the plans will be endorsed and form part of the permit. The plans must be drawn to scale with dimensions and a digital copy must be provided. The plans must be generally in accordance with the application plans (Drawings A00, A01, A01a, A01b, A03, A04, A05, A06, A07, A08, A09, A10, A11, A12, A13, A14, A15, A16, A17, A18, A19, A20 & A21, Revision R- and Drawing A02, Revision R1, all dated 16 January 2025, prepared by the Jaeger Group) but amended to show:

a) Deletion of the Level 3 northern cantilever to TH05, TH06 and TH07 generally in accordance with plans dated 31 January 2025, prepared by the Jaeger Group, appended to the evidence statement of Brodie Blades in Victorian Civil and Administrative Tribunal proceeding P1045/2024 and dated February 2025.

b) A minimum 1.0 metre reduction in the overall height of TH01 and TH02 generally in accordance with plans dated 25 February 2025, prepared by Jaeger Group.

c) Provision of a 300mm culvert, 10.5 metres in length located along the eastern boundary (within the drainage easement) under bedroom 3 of TH7.

d) The leasable floor area of the shop tenancies to be shown consistently throughout the plans.

e) A minimum 1.8-metre-high paling fence along the south, east and west boundaries where they abut secluded private open space.

f) Dimensions annotated showing the extent of cut and fill proposed in all elevations and sections.

g) The location and height of proposed retaining walls.

h) Minimum 1.7m high screening (maximum 25% openings) between balconies and minimum 1.7 high internal fencing between secluded private open space.

1. The location of any rooftop plant or equipment. All rooftop plant or equipment screened from view (from pedestrian eye-level on the footpath on the opposite side of Maroondah Highway), with the colour and material of any screen to be integrated with the roof form, colour and material.

j) A minimum of 6 cubic metres of externally accessible, secure storage space for each dwelling.

k) Accurate representation of the Tree Protection Zone of all trees to be retained, consistent with the arboricultural report prepared by dB Horticulture Pty Ltd, dated 27 March 2024.

1. Details (including but not limited to detailed section plans and deck footing plans) of any buildings or works, including cut or fill, within the Tree Protection Zone of Trees 3, 4, 10, 11, 12 and 13.

m) Environmentally Sustainable Design measures consistent with those required by the approved Sustainability Management Plan shown or annotated on the plans, including but not limited to:

1. Minimum 20,000 and 10,000 litre rainwater water tanks harvesting roof water of both buildings to be used for toilet flushing.
2. double glazing (or better) for all dwellings.
3. clothesline for each dwelling.
4. location of separate meters.
5. electric hot water systems.
6. vehicle charging point/s.
7. Minimum 10 kW solar photovoltaic system on the roof of Building 1 (the northern building) and minimum 14kW solar photovoltaic system on the roof of Building 2 (the southern building).

n) Signage to identify shop staff and residential visitor car spaces.

o) A minimum of five car spaces identified as 'staff parking', inclusive of the disabled car space.

p) Provision of signage requiring left-turn-only egress from the subject land.

q) Intercom to dwellings provided at the boom gate for visitor access.

r) The provision of wheel stops to car spaces 2-9.

s) Modifications to the Ground Floor generally in accordance with the recommendations of Mr Walsh as shown in the annotated plan (marked G36201, TFX, TA (11292) 25/02/2025), including:

1. Access ramps with a gradient of 1:14 for a length of 4.2 metres and 9.0 metres, respectively, along the eastern boundary.
2. An access ramp with a gradient of 1:14 and a length of 4.15 metres along the rear of Shop 5, with a landing adjacent to the Shop 5 rear door.
3. Setbacks sufficient for wheelchair circulation where the pedestrian path changes direction at the eastern boundary intersections with the southern façade of Building 1 and the northern façade of Building 2.
4. The rear door of the residential lobby in Building 1 to open inward and be widened to have a minimum clear width of 950 millimetres.

t) Water tanks required by the approved Bushfire Management Plan shown and labelled for Country Fire Authority purposes, with Country Fire Authority vehicle distances annotated.

u) Any modifications required by the approved Bushfire Management Plan.

1. The development as shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.
2. Once the development starts, the development must be carried out and completed to the satisfaction of the responsible authority.

1. Concurrent with the submission of plans required by Condition 1 of this permit, a Waste Management Plan to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the Waste Management Plan will be endorsed and form part of the permit. The Waste Management Plan must be generally in accordance with the Waste Management Plan submitted with the application (prepared by Graeme Johnson Doc no 202311 V2 dated 26/7/23) but amended to show:

a) Deletion of reference to a restaurant use. > > b) Demonstrate the means by which garbage and recyclables will be stored on the site. > > c) What waste services will be provided (i.e. cardboard paper plastic and metals recycling or comingled waste, general waste and even organic waste). > > d) Types of bins. > > e) Types of collection vehicles. > > f) Frequency of collection. > > g) Times of collection. > > h) Location of collection point for vehicles.

1. Collection for the dwellings to be undertaken by a private contractor.

j) Collection for the shop tenancies to continue to be undertaken by the Council, along the Maroondah Highway frontage.

Waste storage and collection must be undertaken in accordance with the endorsed waste management plan and must be conducted in such a manner as not to affect the amenity of the surrounding area and which does not cause any unreasonable interference with the circulation and parking of vehicles on abutting streets, to the satisfaction of the responsible authority.

1. Before the development starts, a Construction Management Plan to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the Construction Management Plan will be endorsed and form part of the permit and must be implemented to the satisfaction of the responsible authority. The Construction Management Plan must address the following:

a) Measures to ensure all construction workers and contractors are aware of the requirements in the approved Tree Protection Plan and Tree Management Plan. > > b) A traffic management plan for the site, including when or whether any access points would be required to be blocked, an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services, preferred routes for trucks delivering to the site, queuing/sequencing, excavation and swept-path diagrams. > > c) The location for the parking of all construction vehicles and construction worker vehicles during construction. > > d) Construction times, noise and vibration controls. > > e) Fully detailed plan indicating where construction hoardings would be located. > > f) A waste management plan including the containment of waste on site: disposal of waste and stormwater treatment. > > g) Containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build-up of matter outside the site. > > h) Site security.

1. Restoration of any Council assets removed and/or damaged during construction.

j) Remediation of any damage to road and other infrastructure caused by the construction activities. > > k) An emergency contact that is available 24 hours a day for residents and the responsible authority in the event of relevant queries or problems experienced.

1. Traffic management measures to comply with the relevant Australia Standard.

m) Measures to ensure all contractors associated with the construction of the development are aware of the contents of the approved Construction Management Plan. > > n) Details of crane activities, if any. > > o) Discharge of any polluted water. > > p) Erosion control measures. > > q) Sediment control measures.

1. Concurrent with the submission of plans required by Condition 1 of this permit, an amended Landscape Plan to the satisfaction of the responsible authority and prepared by a suitably qualified person must be submitted to, and be approved by, the responsible authority. When approved, the Landscape Plan will be endorsed and will then form part of the permit. The plan must be drawn to scale, fully dimensioned and a digital copy must be provided. The plan must be generally in accordance with the plan prepared by John Patrick Landscape Architects Pty Ltd (Job No. 25-016, Drawing No. VCAT-01, dated February 2025) but amended to show:

a) The tree protection zone of all retained trees. > > b) The planting of a Pin Oak (Quercus Palustris) in the landscape bed within the road reserve or alternative species to the satisfaction of the responsible authority. > > c) Details of water efficient landscaping in accordance with the approved Sustainability Management Plan. > > d) Planting to be in accordance with the approved Bushfire Management Plan defendable space when mature, including 5 metre tree canopy separation of plantings (excluding existing trees to be retained), 2 metres ground clearance, plant heights / distances from windows, no shrubs under trees, canopies clear of buildings. > > e) Buildings and trees (including botanical names, trunk location, trunk diameter and canopy spread) on neighbouring properties where the Tree Protection Zones of such trees fall within the subject site as calculated in accordance with Australian Standard 4970-2009 Protection of Trees on Development Sites or its successor. > > f) Details of surface finishes of pathways and driveways, with paving colours and materials of the pedestrian access and dwelling uncovered tandem car spaces to differ to those in the common car park and access aisles. > > g) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant. All species selected must be to the satisfaction of the responsible authority. > > h) A minimum of one small canopy tree (2 metres high at the time of planting) reaching a minimum mature height of 5 metres within the rear secluded private open space of TH03.

1. A minimum 1200 millimetre organic mulch diameter around any retained or proposed trees in lawn areas.

j) The provision of notes regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements. > > k) The location of any tree protection zones and protection measures including for street trees accurately drawn to scale, labelled and notations referring to any endorsed Tree Management and Protection Plan, and/or Arboricultural Report.

1. Sloping areas on the east and west boundaries, outside the tree protection zone of trees to be retained, generally terraced with retaining walls and level landscaping beds with site levels and sections provided.

m) Replacement of the area marked 'Turn Around Area' on the Ground Floor Level 1 Plan with a garden bed containing a canopy tree with underplanting.

1. Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the responsible authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the responsible authority.

1. Concurrent with the submission of plans required by Condition 1 of this permit, a Tree Protection Plan (drawing) and Tree Management Plan (report) to the satisfaction of the responsible authority and prepared by a suitably qualified and experienced arborist must be submitted to, and be approved by, the responsible authority. When approved, the Tree Management Plan and Tree Protection Plan will be endorsed and will then form part of the permit and must be implemented to the satisfaction of the responsible authority. The Tree Management Plan and Tree Protection Plan must set out measures for the management and protection of Tree Nos. 1, 2, 3, 4, 6, 8, 10, 11, 12, 13, 15, 16, 17, 18, 19 & 20 (as identified in the Arboricultural & Impact Assessment Report, dated 27 March 2024, prepared by DB Horticulture Pty Ltd) and detail the following to ensure that all retained trees remain healthy and viable during construction:

a) A Tree Protection Plan (drawing) drawn to scale and appropriately notated that shows: > > 1. The Tree Protection Zone (TPZ) and Structural Root Zone (SRZ) of Tree Nos. 1, 2, 3, 4, 6, 8, 10, 11, 12, 13, 15, 16, 17, 18, 19 & 20 (as identified in the Arboricultural & Impact Assessment Report submitted with the permit application, dated 27 March 2024, prepared by DB Horticulture Pty Ltd). > 2. Tree protection fencing, or ground protection where required. > 3. An annotation that all excavation works within the Tree Protection Zone of Trees 10, 11, 12 and 13 are to be supervised by a AQF 5 level arborist. > 4. The type of foundation/s (illustration or notation) within each tree protection zone. > 5. The location of any service to be located within the tree protection zone and a notation that all services will either be located outside the tree protection zone, bored under the tree protection zone, or installed using hydro excavation under the supervision of the project arborist. > 6. A notation to refer to the Tree Management Plan for specific detail on the actions required within a tree protection zone. > > b) A Tree Management Plan that sets out: > > 1. specific recommendations in accordance with the Australian Standard AS4970-2009 - Protection of Trees on Development Sites (or its successor). > 2. all required tree protection and management actions during each stage of the development (Demolition, Excavation, Construction and Landscaping). > 3. how excavation impacts, including soil level changes, within the tree protection zone of trees to be retained will be managed. > 4. proposed tree protection measures including fencing or ground, trunk or branch protection as required during each stage of the development. > 5. any pruning to be undertaken being in accordance with Australian Standard 4373-2007 or its successor. > 6. how the canopy of trees shown on the Tree Protection Plan will be protected or managed during each stage of the development. > 7. appropriate signage on any tree protection fencing. > 8. any non-destructive root investigation previously undertaken to determine the location and distribution of roots of trees nominated on the Tree Protection Plan/s. > 9. proposed footings and construction methods for any buildings or structures (including but not limited to, driveways, paths retaining walls or other hard infrastructure) within the tree protection zones nominated on the Tree Protection Plan/s. > 10. details of suitable driveway/path materials and construction methods (i.e., permeable paving above grade) and the timing of works within the tree protection zones. > 11. stages of development at which inspections are required to ensure the tree protection measures are adhered to. > 12. methods of certification by a suitably qualified arborist of the required tree protection measures during the development including details of site visits, actions and photographic evidence. > 13. the process that will be followed if any damage occurs to a protected tree, including reporting of damage to any Council owned tree. > 14. any other measures required to demonstrate the successful ongoing retention and viability during and post-construction of any trees nominated on the Tree Protection Plan.

Tree Maintenance Management Plan - English Oaks

1. Concurrent with the submission of plans required by Condition 1 of this permit, a Tree Maintenance Management Plan for the retained English Oak trees (Tree Nos. 10, 11, 12 and 13, as identified in the Arboricultural & Impact Assessment Report, dated 27 March 2024, prepared by DB Horticulture Pty Ltd) to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the Tree Maintenance Management Plan will be endorsed and then form part of the permit and must be implemented to the satisfaction of the responsible authority. The Tree Maintenance Management Plan must be prepared by a suitably qualified and experienced arborist and must include:

a) Recommendations for the regular, ongoing care and maintenance of the retained English Oak trees by a suitably qualified and experienced arborist. > > b) A schedule for maintenance and management of the retained English Oak trees. > > c) A protocol for gaining access into the secluded private open spaces of TH04, TH05, TH06 and TH07 for the purposes of care and maintenance of the retained English Oak trees.

1. Concurrent with the submission of plans required by Condition 1 of this permit, a Sustainability Management Plan to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the Sustainability Management Plan will be endorsed and will form part of the permit and must be implemented to the satisfaction of the responsible authority. The Sustainability Management Plan must be generally in accordance with the Sustainability Management Plan prepared by Ascot Consulting Engineers, dated 27 July 2023, but amended to:

a) Demonstrate compliance with cl 15.01-2L of the Yarra Ranges Planning Scheme for developments over 10 dwellings. > > b) Provide a Green Travel Plan. > > c) Provide for Food Organics and Garden Organics (FOGO) in Built Environment Sustainability Scorecard (BESS). > > d) Commit to full electric building (no gas connection). > > e) Provide dedicated electric vehicle charging to each garage space.

Certification of implementation of Sustainability Management Plan

1. Before the development is occupied, a report to the satisfaction of the responsible authority from the author of the approved Sustainability Management Plan, or similarly qualified person or company, must be submitted to the responsible authority. The report must certify that all sustainability measures specified in the approved Sustainability Management Plan have been implemented.

1. Air-conditioning units must be positioned to limit noise disturbance to occupiers of adjoining properties to the satisfaction of the responsible authority. Any roof top unit must be screened to the satisfaction of the responsible authority.
2. All external lighting must be designed, baffled and located to limit light spill beyond the boundaries of the subject land to the satisfaction of the responsible authority.
3. Before the development is occupied, security lighting must be installed at all entrances to the development and within the car parking area and pedestrian access way on the premises to Australian Standards and thereafter maintained, all to the satisfaction of the responsible authority.
4. Any alarm systems must be the silent type to the satisfaction of the responsible authority.
5. Before the development is occupied, or by such later date as approved in writing by the responsible authority, all new on-boundary walls must be constructed, cleaned and finished to the satisfaction of the responsible authority.
6. Before the development is occupied, or by such later date as approved in writing by the responsible authority, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts to the satisfaction of the responsible authority.

1. All vehicles must enter and exit the site in a forward direction.
2. Car parking spaces must be provided on the land in accordance with the endorsed plans and allocated in the following manner, unless varied with the written consent of the responsible authority:

a) Dwelling residents - a minimum of: > > 1. 1 or 2-bedroom dwellings: 1 car space per dwelling. > 2. 3-bedroom dwellings: 2 car spaces per dwelling. > > b) Dwelling visitors: 1 car space. > > c) Shop employees: 5 car spaces, inclusive of 1 accessible car space.

Section 173 Agreement

1. Before the development starts, including vegetation removal, the owner must enter into an agreement with the responsible authority under s 173 of the Planning and Environment Act 1987 (Vic). The agreement must provide that except with the prior written consent of Council:

a) The English Oak trees (identified as Tree Nos. 10, 11, 12 and 13 in the Arboricultural & Impact Assessment Report, dated 27 March 2024, prepared by DB Horticulture Pty Ltd) must not be removed or destroyed and the ongoing care and management of the trees is the joint responsibility of the owners of dwellings TH04, TH05, TH06 and TH07 and must be undertaken in accordance with the Tree Maintenance Management Plan approved under planning permit no. YR-2023/577.

This agreement must be registered on the title to the land in accordance with s 181 of the Planning and Environment Act 1987 (Vic). The owner must pay the responsible authority's costs to prepare, review, execute and register the s 173 agreement.

1. The site must be drained to the satisfaction of the responsible authority.
2. Stormwater runoff exiting the site must be designed and constructed to meet the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999) as follows:
   • 80% retention of the typical annual load of suspended solids.
   • 70% reduction of the typical annual load of gross pollutants.
   • 45% retention of the typical annual load of total phosphorous.
   • 45% retention of the typical annual load of total nitrogen.

Conditions required by the Country Fire Authority

1. Concurrent with the submission of plans required by Condition 1 of this permit, a Bushfire Management Plan to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the Bushfire Management Plan will be endorsed and will form part of the permit and must be implemented to the satisfaction of the responsible authority. The Bushfire Management Plan must be generally in accordance with the Bushfire Management Plan prepared by Millar Merrigan (29857_BMP1, Dated July 2023) but modified to replace the conditions for Defendable Space with:

a) Defendable space for a distance of 50 metres around the proposed building (or to the property boundary, whichever is the lesser distance) must be provided where vegetation (and other flammable materials) will be modified and managed in accordance with the following requirements: > > 1. Grass must be short cropped and maintained during the declared fire danger period. > 2. All leaves and vegetation debris must be removed at regular intervals during the declared fire danger period. > 3. Within 10 metres of a building, flammable objects must not be located close to the vulnerable parts of the building. > 4. Plants greater than 10 centimetres in height must not be placed within 3 metres of a window or glass feature of the building. > 5. Shrubs must not be located under the canopy of trees. > 6. Individual and clumps of shrubs must not exceed 5 square metres in area and must be separated by at least 5 metres. > 7. Trees must not overhang or touch any elements of the building. > 8. The canopy of trees must be separated by at least 5 metres - with the exception of trees 10, 11, 12 and 13 as shown on this plan. > 9. There must be a clearance of at least 2 metres between the lowest tree branches and ground level.

2. The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.

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

a) The development is not started within two years of the issue date of this permit, or > > b) The development is not completed within four years of the issue date of this permit.

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

[1] Planning Scheme Amendment VC267 ('VC267') was gazetted on 6 March 2025 and came into operation on 31 March 2025. The parties were provided with the opportunity to make written submissions addressing any implications for this proceeding arising from VC267. Submissions were received from the Council and applicant. Each state there are no significant implications for this proceeding arising from the amendment. I have considered the submissions and agree with the parties.

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

[5] Council's submissions, at [141] and oral submissions.

[6] Healesville Street Trees and Streetscape Statement of Significance, HO159.

[7] The remains of the large tree stump were still visible on the accompanied site inspection.

[9] Planning Scheme Amendment C212yran proposes to introduce a new local policy and new Schedule 21 to the DDO applying to Monbulk Town Centre. The amendment consequently proposes to amend DDO12 so that it no longer applies to Monbulk. The amendment commenced exhibition on 18 March 2025.

[14] Applicant's closing submission, dated 27 February 2025, at [23].

[15] Planning permit 381/86, issued by Shire of Healesville, dated 24 February 1987 and associated plans endorsed on 2 June 1987, allowing erection and use of five shops on the subject land.

[16] Evidence statement of Mr Blades, page 20.

[17] Applicant's closing submission, at [31].

[18] Evidence statement of Mr Blades, at [64].

[19] Based on the Tribunal's digital scaling and dimensioning of the West Elevation, dated 25 February 2025, measured from 'original ground line'.

[20] Council oral submissions, day 1 of the hearing.

[21] Clause 4.0, Schedule 12 of the DDO, 'Town centre character'.

[22] 'New buildings should be constructed with zero setbacks from the main street frontage'.

[23] Applicant's closing submission, at [18c] and [21].

[25] Clause 15.03-1L, Heritage, Strategies, Commercial.

[26] Clause 4.0, DDO12, Design requirements.

[27] The revised maximum height of TH1 would be approximately 5.9 metres on its west elevation and approximately 4.1 metres on its south elevation.

[29] Respondent's PowerPoint presentation, slide 33.

[30] Traffic Impact Assessment Report, Project No. 220854, dated 1 December 2023, prepared by Trafficworks.

[31] Saturday 17 June 2023, 9:00am-6:00pm, Wednesday 21 June 2023, 9:00am-6:00pm, Friday 10 November 2023, 6:00pm-midnight, Saturday 11 November 2023, 6:00pm-midnight and Sunday 12 November 2023, 9:00am-midnight.

[32] Mr Walsh's evidence statement, at [68].

[33] Mr Walsh's evidence statement, at [71].

[34] Mr Walsh's evidence statement, at [72].

[35] Mr Walsh's evidence statement, at [60].

[36] Mr Walsh's evidence statement, at [74]-[77].

[37] Mr Walsh's evidence statement, at [78]-[80].

[38] Mr Walsh's evidence statement, at [41]-[42].

[39] For example, at clauses 11.03-1S, 11.03-1L-01 and 17.04-1S.

[41] At cl 34.01-8 (Decision guidelines, General) which includes a requirement to consider, as appropriate, the Municipal Planning Strategy and the Planning Policy Framework.

[44] Extracted from the applicant's response, dated 11 December 2023, to the Council's request for information.

[47] As in force immediately before the approval of VC267.