That views of development from the Yarra River and adjacent public open space, bicycle and shared paths and bridge crossings are minimised.

1. As a result, only some of the applicable decision guidelines from SLO1 are relevant to this proceeding. They include the following:

Whether the scale, form, siting and design of new buildings, including materials, colours and finishes, are sensitively integrated with the natural landscape setting of the river corridor.

Whether the spacing between buildings allows for the planting of appropriate vegetation and canopy trees to filter views of the development.

1. The part of the 'river corridor' from which views of the review site are visible is not a pristine riverine environment. While the open space on the southern side of The Boulevard happens to be contiguous with the open space adjacent to the Yarra River, it appears as any other public open space one might find throughout the municipality, dotted with the odd large tree and used for passive recreation. The natural landscape setting of this part of the river corridor therefore consists of a relatively standard open space area interfacing with a residential precinct of urban qualities.
2. The two key natural components of this landscape setting is the topography and the vegetation coverage. This proposal will not unduly impact the characteristic topography of this setting. While the dwelling will be partly constructed into the slope of the land, that is not unusual in this neighbourhood. Further, the extent of cut and fill proposed will not impact on one's appreciation of the undulating topography that gradually rises from the river corridor in this location. Also, this proposal will in the long term have a positive impact on the extent of vegetation coverage, and its presence when viewed from the river corridor. While I explore this issue in further depth in a separate assessment below, the proposal will replace smaller trees positioned largely to the side or rear of the existing dwelling, with larger canopy trees that will sit in front of the proposed built form. The result will ultimately be a positive impact on the presence of canopy trees in this neighbourhood, and its role in filtering views of development.
3. The proposed dwelling on the review site will sit comfortably within this interface environment, and not present an unreasonable extent of built form to the Yarra River corridor and nearby open space. The proposed dwelling will be setback in excess of 10.0 metres from the front boundary, and will be further separated from the open space corridor by the width of The Boulevard. Further, the proposed dwelling will not be of a scale that could be said to overwhelm or detract from the sizeable areas of open space located on the southern side of The Boulevard. This is due to the size of the open space areas, the separation distances involved, and the relative scale of the proposed dwelling, which I explore below. As such, I find the proposal to be consistent with the relevant policy framework, including that repeated below:
   • Ensuring that the appearance of development is subordinate to the local landscape setting, with any views of development being filtered through vegetation.
   • Ensuring that the siting and design of buildings avoid contrast with the local natural landscape and environmental character.
4. I am also not persuaded by the submissions of Mr Harsley that this proposed dwelling will be significantly larger or more prominent than others along this interface. The proposed dwelling will have wall heights to the first floor of around 36.0AHD. This compares to a surveyed gutter height on the adjoining property to the west at 283 The Boulevard of 35.5AHD, and is also comparable to the height of the dwelling further west at 281 The Boulevard. Both of these adjoining properties to the west are developed with two storey forms sited above garages, and therefore each present as three storeys in part to the street. The proposed development for the review site takes on a similar form.
5. Where the proposed development does differ from those adjacent examples is with the extent of first floor scale, and its prominence in the streetscape. To this end I explored with Ms Cincotta during the course of the hearing the prospect of making two relatively minor changes to the proposed built form, which I anticipate will have a noticeable impact on the presence and scale of the proposed upper level. The first change is to remove the first floor void that sits in front of the library/retreat area, and its associated roof form. The second change is to reduce the width of the eave that is positioned over the front balcony at first floor level. Ms Cincotta confirmed that both of these changes are possible, and I will implement them by way of conditions.
6. Finally, the potential prominence of this proposed dwelling will be reduced by the extent of canopy tree planting that will occur within the front setback area of the review site, a matter which I will explore in more detail later in these reasons.
7. For these reasons I find that the proposed dwelling, with some relatively minor changes, will present a built form and visual presence that will achieve the outcomes sought by the relevant policy framework, and SLO1. It is my finding that a permit should be granted for the proposed construction of a building, and to construct and carry out works.

1. Mr Harsley submits that the proposal to remove all of the existing trees on the review site is contrary to the guidance provided by the Banyule Planning Scheme. He argues that at least four trees should be retained, consisting of two Photinias in the front yard (tree 3), and a Lilypilly (tree 22) and Jacaranda (tree 23) in the rear yard. Mr Harsley submits that these four trees make such a contribution to the landscape character of this neighbourhood that they should be retained as part of the development of the review site.
2. The site is covered by Schedule 3 to the Vegetation Protection Overlay (VPO3). Under the provisions of VPO3, a planning permit is required to remove seven trees from the review site, being trees 3 (which are in fact two trees), 22, 23, 26, 27 & 29. These trees are:

1. Trees 3 is a pair of Chinese Hawthorn that are seven metres in height; 2. Tree 22 is a Lilly Pilly that is seven metres in height;

1. Tree 23 is a Jacaranda that is seven metres in height;

1. Tree 26 is a Lilly Pilly that is four metres in height; 2. Tree 27 is an Irish Strawberry Tree that is five metres in height; 3. Tree 29 is a Chinese Hawthorn that is seven metres in height.
2. The site is also affected by SLO1, however that schedule requires a permit for fewer trees, as those under 6 metres in height do not require a permit to be removed.
3. VPO3 contains the following objectives:
   • To retain and enhance the vegetation, and in particular the tall trees in the area, that contributes to the identified character of the area.
   • To ensure that prior to removal of tall trees all alternatives are considered, including redesign of proposed buildings and associated works.
   • To ensure that where a tree to be removed, comprehensive landscape plans are prepared and provision is made for substantial vegetation and trees elsewhere on the site.
   • To protect and enhance the area as a habitat for local flora and fauna.
4. With reference to these objectives, I make the following findings:

1. The trees proposed to be removed are not tall trees, with none over seven metres in height. Further, all but Tree 3 are located in the side or rear yard, and so make a minimal contribution to the extent of vegetation that characterises this area on views from the public realm. While Tree 3 does make a contribution, its contribution is limited given it is overawed by taller vegetation in the front yard of the adjacent property to the west. Further, due to the positioning of this tree adjacent to the western boundary, it provides limited filtering of the built form of the existing dwelling on the review site on views from the public realm. Finally, insofar as the environs of the Yarra River are valued for their indigenous vegetation, of the trees proposed for removal only the two Lilly Pillys are native trees. As such, the removal of these trees will have limited impact on the character formed by indigenous vegetation. 2. As set out above, I do not consider any of the trees proposed to be removed to be tall trees. In any case, it is a reasonable expectation that new replacement housing will be larger in order to provide the expected level of accommodation on a block of these proportions and in this context. The larger replacement housing will necessitate the removal of some existing vegetation, particularly where this currently exists close to the existing building footprint. Given the height and significance of the trees to be removed, I do not consider that alternatives to retain the trees need to be insisted upon.

1. A comprehensive landscape plan has been prepared. This proposes the planting of three large trees in the front setback, that will grow to between 10 and 15 metres in height at maturity. These three trees will be a positive overall outcome, having regard to the proposal to remove two seven metre high trees (in one group) from the front of the site. In the side setback, where a number of trees are proposed to be removed, new tree plantings are proposed which will grow up to nine metres in height. In addition, a large tree that will grow up to 10 metres in height is proposed for the very rear of the site.

1. The parties did not make submissions that the trees to be removed are a habitat for local fauna. In any case, I expect the proposed tree plantings to replace any lost habitat over time. In terms of lost flora, as explored above most of the vegetation to be removed is of exotic species, and therefore not the type of flora habitat encouraged in this location.
2. VOP3 also contains the following decision guidelines:

Before deciding on an application, the responsible authority must consider whether:

• The vegetation contributes to the visual amenity and character of the Garden Suburban Area and the preferred future character of the Neighbourhood Character Precinct GS3, as described in the Residential Neighbourhood Character Policy at Clause 22.02.
• The removal or lopping of the vegetation will result in an undesirable change or contribute to a cumulative undesirable change in the character of the area.
• All alternatives for the design of buildings and works that would avoid the need for vegetation removal, destruction or lopping have been considered.
• There is a comprehensive landscape plan accompanying the application which identifies the planting of substantial vegetation and replacement trees of similar ultimate size.
• Any native vegetation contributes to the conservation of habitat links for local flora and fauna and the implementation of the Wildlife Corridor Program, Banyule City Council, 2000.

1. With reference to these decision guidelines, I make the following findings:

1. As identified above, the existing vegetation contributes marginally to the valued components of the vegetated character of this area, and the proposed canopy tree planting will, over time, make a far more valued contribution. 2. For the reasons set out above, I do not consider that the extent of vegetation removal proposed will result in an undesirable change to the character of the area, including cumulative change. The proposal as a whole will, over time, bring about positive change to the character of canopy vegetation in this area.

1. As described above, I do not consider there to be a need to consider alternatives to the removal of vegetation.

1. As set out above, a comprehensive landscape plan has been prepared, which will provide for the planting of canopy trees. 2. This issue has been addressed above.
2. Finally, Schedule 1 to the Significant Landscape Overlay contains the following decision guidelines that are relevant to the application to remove vegetation:
   • The reasons for removing vegetation and whether there are other alternative options which do not require its removal.
   • The effect of the removal of vegetation on the natural landscape character, habitat protection, wildlife movement and long term viability of remnant and revegetated areas.
   • Whether sufficient vegetation and canopy trees of appropriate species are to be planted to replace the removal of the existing vegetation and mature canopy trees.
   • Whether the location and extent of the buildings or works encroaches into the critical root zone of mature canopy trees.
   • The ability for proposed vegetation species to be matched to the local plant communities.
   • Whether mature, dead and dying native vegetation should be maintained as habitat for native fauna or removed to avoid a risk or safety hazard.
3. I consider that most of these matters have already been addressed in my analysis of the proposal against the provisions of the VPO. In relation to the one new matter raised, the arboricultural evidence presented at the hearing persuades me that the proposed development will not unreasonably encroach into the critical root zone of existing mature canopy trees on neighbouring properties.
4. For these reasons I find that the proposed removal of trees is appropriate, and that a permit should be granted for the removal of vegetation. I also find that the proposed replacement vegetation will achieve a positive landscape outcome for the site over the medium to long term. For this reason, I do not support the condition sought to be imposed by Council, which would reduce the extent of hard paving in the rear yard of the review site, in favour of additional landscaping areas. While I accept that such a condition will enable the provision of additional landscaping, I do not regard such additional landscape as necessary in order to achieve an acceptable and reasonable outcome, having regard to the relevant statutory framework.

1. A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I summarise my conclusions as follows:

1. Mr Harsley made submissions on Day 1 of the hearing about suggested additional conditions. I am satisfied that the condition that seeks works within the Tree Protection Zone of a neighbouring tree to be above grade is appropriately addressed by Conditions 1(c) and 12. I will however amend Condition 12 to require it to also cover the tree protection measures set out in Mr Molloy's evidence in this proceeding. 2. In respect of the other requests by Mr Harsley, I find that additional tree retention is not necessary for the reasons already set out, and that a survey of completed floor heights is not necessary as a condition of permit, as such checks need to occur through the building permit process.

1. I have seen it fit to amend Condition 2 to require a future landscape plan to be generally in accordance with that which was the subject of expert evidence at this hearing. I also consider that this condition should require the provision of a garden bed above the retaining wall between the driveway and the eastern boundary of the site, as recommended in the evidence of Mr Thompson.

1. I have also seen fit to delete the part of Condition 2 that specifies where canopy trees are to be planted on site, as I have been persuaded by the evidence of Mr Thompson that the location of canopy trees depicted on the plan appended to his evidence is an appropriate basis for a future landscape proposal.

1. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

• To construct a building and construct or carry out works
• Removal of vegetation

1. Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans submitted with the application but modified to show:
   • (a) Deletion of the entire void at first floor level that sits south of the library/retreat, and subsequent reduction of the extent of roofed area to the first floor, and increase in roofed area to the ground floor;
   • (b) Reduction in the width of the eaves over the first floor south facing balcony, to match the width of eaves provided elsewhere to this floor;
   • (c) A notation that the driveway must be constructed above grade where within the TPZ of Tree #4;
   • (d) Landscaping as required by Condition 2 of this permit;
   • (e) The Tree Preservation Fencing in accordance with Condition 12 of this permit;
   • (f) A schedule of external building materials and colours, including details of cladding and roofing materials; the schedule should be presented on a separate sheet and must include colour samples.
2. The development permitted by this permit must not be commenced until a satisfactory detailed landscaping plan is submitted to and approved by the Responsible Authority. Such plan must be generally in accordance with the plan prepared by Justin Hutchison Pty Ltd (Revision B Dated 9 February 2017) and prepared by a person suitably qualified or experienced in landscape design and shall include:
   • (a) Details of planting within the front setback and secluded outdoor living areas;
   • (b) The identification of existing vegetation (which is not intended to be removed), and nomination of vegetation for removal throughout the site;
   • (c) Provision of formed garden beds with edging around the landscape zone within the front setback to prevent cars parking within those areas;
   • (d) Planting adjacent to driveways and within landscaping zones to consist of varying heights and species;
   • (e) Trees species are to be selected from the following lists:

1. Acer rubrum - red maple varieties
2. Eucalyptus cinerea - argyle apple
3. Eucalyptus leucoxylon - yellow gum
4. Eucalyptus melliodora - yellow box
5. Eucalyptus polyanthemos - red box
6. Magnolia grandiflora - bull bay
7. Zelkova serrata - Japanese zelkova

1. Melia azedarach Australian white cedar
2. Brachychiton populneus kurrajong
3. Fagus sylvatica - copper beech
4. Jacaranda mimosifolia - jacaranda
5. Parrotia persica - Persian ironwood
6. Ulmus parvifolia - Chinese elm

(f) An indigenous and/or drought tolerant planting theme;

(g) 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;

(h) The provision of a 200mm wide garden bed at the top of the retaining wall, between the driveway to the dwelling and the eastern boundary of the review site.

1. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.
2. Unless otherwise agreed in writing by the Responsible Authority the development permitted by this permit must not be commenced until the tree protection measures required by The Tree Protection Plan as required by Condition 12 of this permit are installed to the satisfaction of the Responsible Authority.
3. 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).
4. Stormwater must not be discharged from the subject land other than by means of an underground pipe drain to a Council nominated point of discharge. The drainage system within the subject land must be designed to the requirements and satisfaction of the relevant Building Surveyor. Any connection to Council's drainage system
   • (a) within the road reserve must be carried out under a Memorandum of Consent for Works; and/or
   • (b) Other than within a road reserve must be carried out under a Drainage Connection Permit;

This is to be carried out under Council supervision and to the satisfaction of the Responsible Authority

1. Effluent or polluted drainage must not be allowed to discharge beyond the boundaries of the subject land onto other land or any street or road or directly or indirectly into any watercourse.
2. 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.
3. 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.
4. 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 naturestrip 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.
5. Except with the further written consent of the Responsible Authority, no vegetation (other than that indicated on the endorsed plan, or exempt from planning permission under the provisions of the Banyule Planning Scheme) shall be damaged, removed, destroyed or lopped.
6. Prior to the commencement of construction (including demolition) an Arboricultural impact Assessment and Tree Protection Plan must be submitted to, and endorsed by, the Responsible Authority. These documents must be prepared in accordance with AS 4970-2009 (Protection of tress on development sites) and AS4373-2007 (Pruning of Amenity Trees), must be authored by a qualified consulting arborist, and must detail:
   • (a) The tree protection measures outlined in the evidence of Mr Molloy, dated 7 February 2017.
   • (b) Trees located on adjoining property and an assessment of the construction impact the proposal will have on these trees;
   • (c) Provide specific comment on the suitability of the proposed TPZ intrusion / driveway to the west of Tree #4. The Report will only be endorsed if it demonstrates the suitability of the proposed intrusion to the satisfaction of the Responsible Authority.
     1. Any design alterations required to suitably reduce the impact of construction on the vegetation in question must be shown on amended construction plans endorsed by the Responsible Authority.
     2. Any additional tree protection measures required to protect the vegetation in question must be instated to the satisfaction of the Responsible Authority prior to the commencement of construction.
     3. The need for subsequent planning approval and/or owner-consent for additional works affecting the vegetation in question must be pursued by the applicant.
   • (d) Measures proposed to suitably protect trees on adjoining property during and beyond the construction process; and
   • (e) The extent and suitability of any canopy and root pruning required to construct and maintain necessary clearances.

Any excavation that is required to investigate tree roots must be undertaken by hand digging or by other non-destructive techniques such as hydro or air excavation.

1. All tree pruning is to be carried out by a trained and competent arborist who has a thorough knowledge of tree physiology and pruning methods. Pruning must be carried out in accordance with Australian Standard AS4373 Pruning of Amenity Trees. Tree pruning is to be restricted to the removal of no greater than 15% of the total live canopy of individual trees.
2. Unless otherwise agreed in writing by the Responsible Authority, the landscaping areas shown on the endorsed plans must used for landscaping and no other purpose and any landscaping must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
3. This permit as it relates to development (buildings and works) 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. I, Deputy President Mark Dwyer, was nominated pursuant to Clause 66(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, as the member who is a legal practitioner to provide an opinion on a question of law arising in the proceeding.

[1] Does the following transitional provision set out at Clause 32.09-14 which exempts from the control at Clause 32.09-9 on the maximum number of storeys:

• A planning permit application for the construction or extension of a dwelling or residential building lodged before the approval date of Amendment VC110

apply to the current planning permit application made under the Significant Landscape Overlay to construct a building and construct or carry out works associated with a dwelling, and removal of vegetation, and where no planning permit is required to construct or extend a dwelling under the Neighbourhood Residential Zone?

[2] Alternatively, does the proposal subject of the proceeding in P1641/16 have the benefit of any of the other transitional provisions set out at Clause 32.09-14 in relation to the control within the Neighbourhood Residential Zone on the maximum number of storeys?

1. I will state at the outset that I consider that the answer to the first question is 'Yes' and, alternatively, the answer to the second question would also be 'Yes'.
2. The questions of law relate to the operation of the transitional provisions in the Neighbourhood Residential Zone (NRZ), following changes to the zone controls introduced through Amendment VC110 on 27 March 2017.

1. The permit applicant Goran Veljanovski proposes to construct a part two- storey and part three-storey dwelling on the land, together with associated works and vegetation removal. Under the NRZ, as it existed prior to Amendment VC110, a planning permit was not required for the construction of the dwelling.
2. The land is also subject to a Significant Landscape Overlay - Schedule 1 (SLO-1), and a Vegetation Protection Overlay - Schedule 3 (VPO-3). By virtue of the overlay controls, a planning permit is required for the construction of a building in excess of 6 metres and for certain vegetation removal.
3. Mr Veljanovski made application for such a permit in November 2015. In July 2016, Banyule City Council (Council) gave Notice of Decision to grant a permit, with that decision being the subject of the current VCAT review proceedings brought by an objector Gary Harsley.
4. The hearing on 24 February 2017 was complicated by the introduction that same day of changes to the SLO, through Amendment GC48. The changes to the SLO are not directly relevant to the questions of law before me, although it is perhaps important to note that the SLO-2 that existed prior to Amendment GC48 (pursuant to which the Council had decided the application) and the SLO-1 that existed following Amendment GC48 (now relevant to the VCAT proceeding) both contain a planning permit requirement for the construction of a building in excess of 6 metres. The application for a planning permit here thus clearly includes the construction of a building, and not just vegetation removal.
5. The changes to the SLO nonetheless led to a further hearing being scheduled on 5 April 2017. By that time, Amendment VC110 had also been introduced.
6. Under the NRZ, as it exists following Amendment VC110, a three-storey dwelling is prohibited on the land. The permit applicant concedes that the currently proposed dwelling is partly three-storey (arising primarily through a lower-level garage on a sloping site), albeit that the dwelling is below the overall mandatory height limit under the NRZ. But for the operation of transitional provisions included as part of Amendment VC110, the proposed development that is the subject of the application for review would now be prohibited.
7. On the second hearing day on 5 April 2017, the objector raised questions of law as to the potentially ambiguous wording of the transitional provisions, and whether the proposed development is indeed now prohibited. The parties were given the opportunity to file written submissions, with the permit applicant and the Council contending that the proposed development does have the benefit of the transitional provisions.

1. The transitional provisions in cl 32.09-14 of the NRZ provide, amongst other things, that the 'number of stories requirements of Clause 32.09-09 introduced by Amendment VC110 do not apply to ... A planning permit application for the construction or extension of a dwelling or residential building lodged before the approval date of Amendment VC110'.
2. On a plain reading of the transitional provision, it would seem to apply. Mr Veljanovski had applied for a planning permit for the construction of a dwelling in November 2015, well before the introduction of Amendment VC110 in March 2017.
3. Although the permit trigger under the SLO related to a 'building' in excess of 6 metres, rather than a 'dwelling' per se (as referred to in the transitional provision), I consider that little turns on this. By reference to the definition of a 'dwelling' in Victorian planning schemes, it is clearly a form of building. Moreover, by reference to the specific application for planning permit in this proceeding, the application made by Mr Veljanovski was expressed to be for a 'proposed dwelling' and the removal of vegetation. The Council's Notice of Decision refers expressly to 'buildings and works for the development of a new dwelling including wall heights greater than 4.5m and building height greater than 6.0m above ground level and associated tree removal'.
4. Despite this, the objector Mr Harsley submits, in effect, that the transitional provision exists only in the NRZ and applies only to a pre-existing application for a planning permit lodged under the NRZ itself, whereas the permit application here was made under the SLO. He says that the drafters could have expanded the wording of the transitional provision to expressly refer to a planning application lodged 'under any other requirement of the scheme' if that had been the intent.
5. Although Mr Harsley's contention emphasises the absence of words that might have clarified the intent of the transitional provision, his own submission also relies, in effect, upon implying the existence of words that are not in the provision. What he is really saying is that the transitional provision only applies to a planning permit application for the construction of a dwelling lodged 'under this zone'.
6. I accept that there may be cases where there is a necessary implication that a planning scheme provision only applies to the zone control within which it is found, and that the inclusion of words such as 'under this zone' might be redundant. However, as in all matters of statutory construction, the proper interpretation of the transitional provision here is to be ascertained by reference to its purpose and context.
7. In this regard, I prefer the interpretation put by the permit applicant's advocate, and supported by the Council. When has one has regard to the nature of Amendment VC110, and the transitional provision read as a whole, including clauses other than those relied upon here, it is clear that the transitional provision was intended to cover pre-existing planning applications for the construction of the dwelling generally, that might otherwise be caught by the Amendment, including applications that might be made under other provisions of the scheme. This is not particularly surprising, as Amendment VC110 was in some cases introducing a new or additional permit trigger where none had previously existed in the NRZ, and where there could be no pre-existing application for a planning permit for the construction of a dwelling under the NRZ.
8. In this case also, there are also other relevant and contemporaneous documents that clearly evidence this purpose and context, and which militate against the narrower construction contended for by Mr Harsley. In particular, the permit applicant's advocate referred me to the following:
   • The Minister's reasons for exercising his powers to intervene in the preparation and approval of Amendment VC110 included the following:

"Amendment VC110 offers comprehensive exemption and transitional provisions to ensure that no individual is unjustly impacted by the changes. All existing planning permit applications and proposals for building permits will be covered by the transitional provisions"

• the Information Fact Sheet on transitional arrangements issued by the relevant department (DELWP) in March 2017 included the following:

"Transitional arrangements are in place to ensure development proposals currently being considered are not unfairly disadvantaged by the new building height and garden area requirements in the Neighbourhood Residential Zone and General Residential Zone"

1. These matters bolster the view that the transitional provision was intended to have a broader application to all pre-existing permit applications for the construction of a dwelling affected by the changes, rather than only to applications made under the NRZ itself. A contrary interpretation of the transitional provision would lead to the unfair disadvantage or unjust impacts that the explanatory material suggests are intended to be avoided. This view is further bolstered by additional transitional provisions dealing with 'substantial progress' that I will refer to in the second question of law.
2. I consider that the plain wording of the relevant transitional provision, its purpose and context, and the additional contemporaneous documents that relate to its approval, all lead to the view that the transitional provision covers the planning permit application currently before VCAT relating to the construction of a dwelling. This is the case despite the fact that the application was made under the SLO rather than the NRZ, and on the basis that no pre-existing permit trigger existed under the NRZ in force immediately prior to the approval of Amendment VC110.

1. Having decided the first question of law in the affirmative, it is not entirely necessary that I decide the second question of law. However, even if I was wrong in relation to the first question of law, I consider that the permit applicant would then have the benefit of an alternative limb of the transitional provisions. Although the second question of law calls for a consideration of 'any of the other transitional provisions set out at Clause 32.09-14', there is really only one that is of potential relevance.
2. The transitional provisions in cl 32.09-14 of the NRZ also provide, amongst other things, that the 'number of stories requirements of Clause 32.09-09 introduced by Amendment VC110 do not apply to' the circumstance 'Where a planning permit is not required for the construction ... of a dwelling' and were a building permit has already issued or 'A building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the construction or extension of a dwelling for residential building before the approval date of Amendment VC110. A building permit must be issued within 12 months of the approval date of Amendment VC110'.
3. This transitional provision is poorly drafted and contains some anomalies beyond those relevant to this proceeding. However its underlying purpose and context appears to be to cover a situation where there was no pre-existing application for a permit for the construction of a dwelling prior to the introduction of Amendment VC110 because none was previously required. That would cover the scenario, for example, where there was no permit trigger under the former NRZ and no separate or additional permit trigger for the construction of a dwelling that had arisen under another planning scheme control (such as under the SLO-1 here).
4. In such a circumstance, the transitional provision is intended to cover a situation where a building permit has already issued for the dwelling construction, or substantial progress has been made towards that end. That purpose is also made clear by the contemporaneous documents I have referred to earlier, which related to the approval process for Amendment VC110. The introduction, without prior notice, of a prohibition on three-story development was not intended to unfairly disadvantage people that had already made substantial progress towards the design and construction of such a dwelling on their land.
5. The permit applicant has produced a letter dated 19 April 2017 from Michael Flanagan, a registered building practitioner and building surveyor with Metro Building Surveying. The letter has been specifically prepared in the context of the transitional provisions. Mr Flanagan certifies that, pursuant to clause 32.09-14 of the Banyule Planning Scheme, he is satisfied that substantial progress had been made on the design of the construction of the proposed dwelling referred to in the current planning permit application and VCAT proceeding, before the approval date of Amendment VC110. Additionally, Mr Flanagan indicates that his 'satisfaction' is illustrated by documentation having been provided to his office on 21 October 2015.
6. What comprises 'substantial progress ... on the design of the construction' may be a matter of fact and degree, and a matter of debate in some proceedings. There is also a perhaps an unresolved issue, given the wording of the transitional provision, as to whether the Council (or VCAT) can look behind a certification of a building surveyor's satisfaction in that regard.
7. That difficulty does not really arise here. Because of the need to obtain a planning permit under the SLO and VPO, plans for the proposed development were clearly in existence, and being actively pursued, by the time of the planning permit application in November 2015 at the latest. Metro Building Surveying had been involved since mid-October 2015. Architect's plans, prepared by Frank Sinopoli & Associates and dated November 2015, were lodged in the VCAT proceeding. The VCAT proceeding itself was also part-heard at the time of the introduction of Amendment VC110 in March 2017. On any objective basis, it is clear that substantial progress had been made on the design of the construction by that time, irrespective of the ultimate outcome of the VCAT proceeding.
8. If Mr Veljanovski is successful in the VCAT proceeding (about which I express no view), then there is a good prospect that he would also be able to meet the secondary condition of the transitional provision, and obtain a building permit by 27 March 2018 (i.e. within 12 months of the approval of Amendment VC110).

1. I am of the opinion that the answer to the first question of law is 'Yes'. The transitional provision in Clause 32.09-14 which exempts the new control at Clause 32.09-9 on the maximum number of storeys, where a planning permit application for the construction of a dwelling was lodged before the approval date of Amendment VC110, does apply to the current planning permit application that is the subject of the VCAT proceeding.
2. Alternatively, I am of the opinion that the answer to the second question of law is 'Yes'. If the answer to the first question of law had been 'No', there is a building surveyor who is satisfied, and has certified, that substantial progress had been made on the design of the construction prior to the approval date of Amendment VC110. To the extent required, there is good evidence in this case to objectively support the building surveyor being satisfied in this regard.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Clause 21.02-1 of the Banyule Planning Scheme

[4] The Middle Yarra River Corridor Study - Recommendations Report (Department of Environment, Land, Water and Planning, October 2016) and the Lower Yarra River Corridor Study - Recommendations Report (Department of Environment, Land, Water and Planning, November 2016).