TP00, TP01, TP02, TP03, TP04, TP05, TP06, TP07, TP08, TP09 & TP10, all Revision D, job no. 4532-TP

1. In application P2/2025 the decision of the responsible authority is varied.

In planning permit application YR-2024/236 a permit is granted and directed to be issued for the land at 24 Eastwood Crescent Mooroolbark VIC 3138 in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

Construct a dwelling if there is at least one dwelling existing on the lot in the Neighbourhood Residential Zone Schedule 1.

Extend a dwelling if there are two or more dwellings on the lot.

Remove one tree (Blue Atlas Cedar) in the Significant Landscape Overlay Schedule 23.

Kavita Mandaviak, town planner, Yarra Ranges Shire Council, with Jericho Perez, town planner, Yarra Ranges Shire Council

Jason Sumner, town planner, Apex Town Planning, with Andrew Mangan

Construction of a two-storey dwelling to the rear of the existing single-storey dwelling and removal of a Blue Atlas Cedar tree, located within the front yard.[1]

The existing, retained dwelling, is to be modified by demolishing the garage located on the western boundary. A single carport is to be constructed for the dwelling, located parallel with the driveway that provides access to the proposed rear dwelling.

The proposed dwelling comprises three bedrooms, with a double garage and ground-level living and dining area. The dwelling is provided with approximately 112 square metres of secluded private open space, including an area of 25 square metres with dimensions of 4.5 metres by 6.24 metres, accessible from the living room.

Garden area equivalent to 42.19 percent of the site area is provided.

Application under section 82 of the Planning and Environment Act 1987 (Vic) - to review the decision to grant a permit.

Neighbourhood Residential Zone Schedule 1 - Incremental Residential Areas: Mooroolbark, Chirnside Park, Kilsyth and Lilydale

Clause 32.09-7 - Construct a dwelling if there is at least one dwelling existing on the lot in the Neighbourhood Residential Zone Schedule 1.

Clause 32.09-7 - Extend a dwelling if there are two or more dwellings on the lot.

Clause 42.02-2 - Remove one tree (Blue Atlas Cedar) in the Significant Landscape Overlay Schedule 23.

The subject land is located on the southern side of Eastwood Crescent, with a concave curved frontage width of approximately 20.11 metres and a maximum depth of approximately 43.98 metres, for a site area of approximately 864 square metres.

The land is developed with a single storey, brick dwelling with a tiled, hipped roof. The dwelling is set back a minimum of 11.1 metres from the northern boundary, a minimum of 3.1 metres from the eastern boundary and is constructed abutting the western boundary.

The land rises sharply from the footpath (by up to 1.45 metres), with the front yard and dwelling sited on a central plateau. At the rear, the land displays a more moderate but still substantial crossfall to a low point in the south-west corner (a fall of approximately 4.27 metres).

An unaccompanied inspection of the site and surrounding area was undertaken prior to the hearing, on 15 July 2025, as advised to the parties.[2]

1. This is an application to the Tribunal for a review of the Yarra Ranges Shire Council's ('Council') decision to grant planning permit no. YR-2024/236 to allow the construction of a two-storey dwelling to the rear of the existing dwelling, to construct an extension to the existing dwelling comprising a carport, and to remove a Blue Atlas Cedar tree (identified as tree no. 6 in the application documents), at 24 Eastwood Crescent, Mooroolbark ('subject land').
2. The grounds of review refer to neighbourhood character and the impact on the amenity of the adjacent dwellings to the east and south, at 22 Eastwood Crescent and 8 Sunburst Court, respectively, as a result of overlooking, overshadowing and visual bulk.
3. Before the hearing, Andrew Mangan ('respondent') prepared and circulated amended plans of the proposal. Among other modifications, the plans show:
   • Modifications to windows in the south elevation of the proposed dwelling to address overlooking concerns.
   • Deletion of the existing retaining wall to the rear of the proposed dwelling and the finished surface level of the land in the southern setback to be lowered to match the level of the base of the existing rear boundary fence.
4. The applicants maintain their opposition to the grant of a permit.
5. After having heard from the parties, considered their written and oral submissions, having undertaken a site inspection and taken a brief adjournment, I gave an oral decision. What follows are the reasons given, with minor edits.
6. Details of the subject land and its context were set out in the parties' submissions, supplemented by extensive reference to photographs. I will not repeat the parties' submissions, other than to provide the following summary:
   • The subject land has an area of approximately 864 square metres.
   • The land is developed with a single storey, brick veneer dwelling with a tiled, hipped roof. The dwelling is set back a minimum of 11.1 metres from the northern boundary, a minimum of 3.1 metres from the eastern boundary and is constructed abutting the western boundary.
   • The land rises sharply from the Eastwood Crescent footpath by up to 1.45 metres, with the front yard and dwelling sited on a central plateau. At the rear, the land displays a more moderate but still substantial crossfall to a low point in the south-west corner (a fall of approximately 4.27 metres).
   • There are level differences between the subject land and the applicants' properties, with the land to the east being more elevated than the subject land and the land to the west being lower. The land to the rear (south) is positioned downslope from the subject land.
   • The site is within an established residential area characterised by a predominance of single dwellings with examples of medium density housing present. The single dwellings are detached, sited proximate to the frontage and have large open space areas to the rear. Car accommodation is typically located to the side or rear of the dwellings. Where front fences exist, they are predominantly low timber retaining walls - a byproduct of the undulating topography. There is a presence of canopy trees, comprising both street trees and planting in the open space areas of properties. Medium density housing includes examples of two dwelling developments.
   • All lots adjoining the subject land support single-storey dwellings.
7. The relevant policies and provisions of the Yarra Ranges Planning Scheme[4] ('Scheme') were detailed in the Council and respondent's submissions. Again, I will not repeat them here, but provide the following summary:
   • The land is zoned Neighbourhood Residential Zone Schedule 1 ('NRZ1'). The purpose of the NRZ1 includes:

To recognise areas of predominantly single and double storey residential development.

To manage and ensure that development is responsive to the identified neighbourhood character, heritage, environmental or landscape characteristics.

• The relevant schedule to the zone does not contain any variations to clause 55 standards or any neighbourhood character objectives. It does, however, provide the following decision guidelines:
  • Development respects existing residential character and responds to the attributes of the established neighbourhood. Development within the metropolitan incremental change areas should cover no more than 40% of the site in keeping with the established character of the area.
  • Development adds to the diversity of the existing housing stock.
  • Consideration of the geographic constraints of a location with preference to infill development where people can easily access community services and transportation facilities.
• The land is also within the Significant Landscape Overlay - Schedule 23 ('SLO23'). A permit is required for the removal of tree no. 6, a Blue Atlas Cedar, located in the front yard.
• Clause 02.04-2 of the Municipal Planning Strategy (Strategic framework plan - urban) locates the subject land and surrounds within an Incremental Growth Area.
• Clause 16.01-1L provides the following strategies for residential land use within incremental change areas:

Retain a predominantly low residential density in areas identified as Incremental Change Areas in the map to this clause.

Support additional housing that is consistent with the existing character of the neighbourhood in areas with access to services.

Accommodate incremental development in identified locations within metropolitan residential areas and in rural and foothill townships.

• Clause 15.01-5L (Neighbourhood character) details objectives and strategies for built form. In summary, these include:
  • Encouraging siting and design of development to respond to the characteristics of the site and surrounds.
  • Retain extensive tree canopy cover and native vegetation.
  • Support the establishment of substantial trees.
• In the applicants' submission, the development is inconsistent with the preferred future character of the neighbourhood due to its two-storey scale and the absence of this scale of development in the streetscape.
• The key issue in dispute is whether the proposal results in an acceptable built form outcome in respect of visual bulk, overshadowing, overlooking and drainage.
• The relevant objectives and standards in respect of visual bulk, overshadowing and overlooking are set out at clause 55.04-1 (Standard B17 - Side and rear setbacks objective), clause 55.04-5 (Standard B21 - Overshadowing open space objective) and clause 55.04-6 (Standard B22 - Overlooking objective).
• Clause 55 provides that if a development meets standards B17, B21 and B22, it is deemed to meet the objective for that standard, and where the objective is met, the decision guidelines for that standard do not apply to the application.

1. The applicants submit that notwithstanding the proposal's compliance with the relevant standards, the special circumstances of the land to the south warrants further reducing the impact of the development. As the applicant's property at the rear is to the south, and lower than the subject land, the applicants submit the development will cause significant overshadowing of his secluded private open space ('SPOS') on dates other than 22 September. The applicants submit the most regularly used area of his SPOS is on the northern side of his dwelling, being the area that will be most affected by overshadowing. The eastern SPOS, which will continue to receive solar access, was described as a 'dead area' of his open space.
2. The applicants invited me to require the respondent to produce shadow diagrams for other times of the year, such as winter, for my consideration.
3. Additional matters raised in submissions were:
   • Overlooking from the south-facing ground and first floor windows into the abutting SPOS and habitable room windows.
   • Drainage concerns from increased hard-stand area.
4. The respondent submits the development is an acceptable response to the site and its context having regard to the existing pattern of development and to the relevant policies and provisions of the Scheme. In summary, the respondent submits:
   • The proposed dwelling is located at the rear of the existing dwelling so will have a limited presence in the streetscape. By virtue of its setback from the street cannot be said to be visually dominant.
   • There are numerous examples of medium density housing in the neighbourhood.
   • There are no detrimental off-site amenity impacts.
   • The extent and duration of overshadowing is acceptable as the development complies with standard B21.
   • The development will not cause unacceptable overlooking as the development complies with standard B22. To the extent that could be said to be unclear or not comply, the respondent invites the Tribunal to address this by permit conditions.
   • The development will not cause unacceptable visual bulk, as the development complies with standard B17.
   • As these are 'deemed to comply' standards, the relevant objectives of clause 55 are deemed to be met.
   • It is not open to the Tribunal to direct the production of shadow diagrams for a date other than 22 September, as there is no relevant provision in the Scheme that calls for it.
   • It is not open to the Tribunal to require a modification to the proposal to address an issue arising from a clause 55 standard that has been deemed to comply with the relevant objective.
5. My assessment and conclusion are that the development is an acceptable response to the character of this neighbourhood. The retention of the existing single storey dwelling ensures the streetscape presentation is largely unchanged.
6. The maximum height of the dwelling complies with standard B7 at clause 55.03-2. Pursuant to clause 55,[5] where standard B7 is met, the objective to ensure that the height of buildings respects the existing or preferred neighbourhood character is deemed to be met.
7. In respect of the northern, southern and western interfaces, the development has been sited to comply with standard B17 at clause 55.01-4 and is well recessed from adjoining sensitive interfaces. Pursuant to clause 55, where standard B17 is met, the objective 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 dwellings is deemed to be met. Consequently, the ground floor and first floor are sufficiently recessed from the adjoining sensitive interfaces.
8. Shadow diagrams form part of the application plans. Submissions confirmed that the extent of overshadowing complies with standard B21 at clause 55.04-5 (Overshadowing of open space). Consequently, the related objective, 'to ensure buildings do not significantly overshadow existing secluded private open space', is deemed to be met, and the overshadowing is acceptable.
9. All habitable room windows which have an outlook towards the SPOS of the neighbouring properties or would allow views into the habitable room windows of the adjacent dwellings, have minimum sill heights of 1.7 metres above finished floor level, in compliance with standard B22 at clause 55.04-6, or are to be fixed and fitted with obscure glazing. Where standard B22 is met, this is deemed to meet the objective to 'limit views into existing secluded private open space and habitable room windows'. Accordingly, there will not be any unacceptable overlooking.
10. I have imposed conditions requiring the elevations to be modified to clearly depict those windows that are to be fitted with obscure glazing. I have not required the south-facing toilet, ensuite and bathroom windows to be screened as they are not habitable rooms, and I find it is not open to me to require further privacy screening where the relevant standard is met.
11. The proposal is an acceptable response in an area identified for incremental change. It is respectful of the generally low-density residential character which has arisen from the prevailing single dwelling development, although this is progressively changing with the introduction of infill medium density housing. Subject to conditions, it will not manifest any unacceptable amenity impacts, both to the adjoining lots and more broadly. The development is of a scale which is consistent and compatible with the landscape and neighbourhood character.
12. The decision of the responsible authority is varied. A permit is granted subject to conditions.

Construct a dwelling if there is at least one dwelling existing on the lot in the Neighbourhood Residential Zone Schedule 1.

Extend a dwelling if there are two or more dwellings on the lot.

Remove one tree (Blue Atlas Cedar) in the Significant Landscape Overlay Schedule 23.

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 plans submitted with the application prepared by Cadox Building Design (Job No. 4532-TP, Revision D, dated May 2025) but amended to show the following:

(a) A minimum of 6 cubic metres of storage for Dwelling 2, relocated external to the garage.

(b) Window treatment in accordance with Standard B22 (as in force immediately before the approval date of Amendment VC267 on 31 March 2025) for the first floor, north-facing staircase and retreat windows in Dwelling 2.

(c) An annotation that the Eastwood Crescent street tree is to be retained and protected during construction.

(d) Removal of the Blue Atlas Cedar (identified as tree no. 6 in the Arborist report prepared by Landscapes by Design, dated 25 July 2023).

(e) The Dwelling 2 south-facing first floor retreat window to have a minimum sill height of 1.7 metres above finished floor level.

(f) The external wall height of the south-west corner of the first floor of Dwelling 2 dimensioned from natural ground level and the first floor setback from the southern boundary to comply with Standard B17 (as in force immediately before the approval date of Amendment VC267 on 31 March 2025).

(g) The demolition of the existing retaining wall located within the southern setback of Dwelling 2 and the maximum height of the finished surface level of the secluded private open space within the southern setback lowered to match the level of the base of the existing southern boundary fence.

1. The development as shown on the endorsed plans must not be altered or modified (unless the Yarra Ranges Planning Scheme specifies a permit is not required) 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.
3. All buildings and works must be maintained in good order and appearance to the satisfaction of the responsible authority.

1. Any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.

1. Prior to the commencement of any works as required by this permit, Development Stormwater Drainage Engineering Plans and Computations must be submitted to, and approved by, the responsible authority. Development Stormwater Drainage Engineering Plans and Computations must be in line with all the requirements of the approved point of discharge certificate.

1. Prior to the commencement of any buildings and/or works approved by this permit, temporary fencing must be erected around any tree shown for retention on the endorsed plans to define a Tree Protection Zone (TPZ) to the satisfaction of the responsible authority and must:

(a) Exclude access and construction activity within the TPZs assessed in the Arborist Report by Landscapes by Design, 07/10/2024. If trees have not been assessed, the TPZ is a circle with a radius equal to 12x the trunk diameter measured at 1.4 m above ground level, and

(b) Have a minimum height of 1.8 metres and comply with Australian Standard AS 4687 for temporary fencing and hoardings, and

(c) Not extend beyond the site boundaries except into roadside reserve and/or nature strip areas. Fencing within roadside reserves and/or nature strip areas must not prevent the use of a road or footpath, and

(d) Remain in place until all buildings and/or works are completed, unless with the prior written consent of the responsible authority.

Temporary fencing can be modified to accommodate encroachment into the TPZ of tree(s) as per the endorsed plans. Fencing must be modified in line with the footprint of the approved works only.

1. Concurrent with the submission of plans required by Condition 1 of this permit, a Water Sensitive Urban Design report 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 Water Sensitive Urban Design report will be endorsed and will then form part of the permit. The Water Sensitive Urban Design report must be generally in accordance with the Water Sensitive Urban Design & STORM report submitted with the application (dated 2 April 2024, prepared by SJF & Associates Civil Engineering & Survey Solutions).
2. Prior to the occupation of the permitted development piped drainage must be constructed to drain all impervious areas incorporating Water Sensitive Urban Design features, to the satisfaction of the responsible authority.
3. Prior to the occupation of the permitted development a detention system, must be constructed/installed to drain all impervious areas, to the satisfaction of the responsible authority.
4. Prior to the occupation of the permitted development the construction of all civil works within the site, including detention system must be fully completed and subsequently inspected and approved by a suitably experienced Civil Engineer at the arrangement and expense of the owner/developer. This person must supply written certification that the works have been constructed in accordance with this permit and to relevant standards to the satisfaction of the responsible authority.
5. Prior to the occupation of the permitted development the parking areas and vehicular access ways shown on the endorsed plan must be fully constructed, sealed, drained and delineated to the satisfaction of the responsible authority.
6. Prior to the occupation of the permitted development the existing vehicle crossing must be removed and a new concrete vehicle crossing must be constructed in accordance with Council Standard Drawing No.SD/ C1 and widened to 6.0 metres with the same rounded kerb transitions to the satisfaction of the responsible authority.

1. The parking areas and vehicular access ways and drainage approved by this permit must be maintained to the satisfaction of the responsible authority.
2. The parking areas and vehicular access ways must not be obstructed or made inaccessible to the satisfaction of the responsible authority.
3. All vehicles entering and exiting Dwelling 2 must enter and exit the site in a forward direction.

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 Landscape Plan must be drawn to scale, fully dimensioned and a digital copy must be provided. The Landscape Plan must be generally in accordance with the Landscape Plan submitted with the application (Sheet A1, dated 20 March 2024, prepared by Landscapes by Design) but amended to show:

a) Removal of the Blue Atlas Cedar (identified as tree no. 6 in the Arborist report prepared by Landscapes by Design, dated 25 July 2023). > > b) A notation that Tree 4 (Ornamental Cherry) is to be removed but does not require permission under the Significant Landscape Overlay Schedule 23 as it is a species that appears in the Incorporated Document Yarra Ranges Council - List of Environmental Weeds 2019. > > c) Any necessary alterations to the layout of the buildings and works, to be consistent with the plans required by Condition 1 of this permit. > > d) One canopy tree, minimum 2.0 metres height when planted, located in the front yard of Dwelling 1. > > e) Tree species chosen from The Yarra Ranges Council's Vegetation Community No. 38.

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. The existing street tree must not be removed or damaged to the satisfaction of the responsible authority.
2. All underground service pipes/conduits including storm water and sewerage must be diverted around the TPZ of any retained tree, or bored underneath with a minimum cover of 600mm to top of pipe/conduit from natural ground surface to the satisfaction of the responsible authority. All pits, holes, joints, and tees associated with the installation of services must be located outside the TPZ, or the project arborist must demonstrate works in the TPZ will not impact viable tree retention to the satisfaction of the responsible authority.
3. The pruning of any tree must comply with the AS 4373-2007 Pruning of amenity trees to the satisfaction of the responsible authority. Pruning must be undertaken by an arborist with a minimum AQF level 3 qualification in arboriculture.
4. This permit authorises the removal of a Blue Atlas Cedar tree (identified as tree no. 6 in the Arborist report prepared by Landscapes by Design, dated 25 July 2023).
5. Replacement planting (as shown in the approved Landscape Plan required by this permit) must be conducted within first planting season (May to September) following the completion of the permitted buildings and/or works to the satisfaction of the responsible authority. The trees must be chosen from The Yarra Ranges Council's Vegetation Community No. 38. The planting must be maintained or replaced as necessary to the satisfaction of the responsible authority.

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

(a) The development is not started within two years of the date of this permit, or

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

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months of expiry of permit of the commencement date.

An extension of time to complete the development or a stage of the development may be requested if:

• The request for an extension of time is made within 12 months after the permit expires; and
• The development or stage started lawfully before the permit expired.

[1] It is also proposed to remove an Ornamental Cherry tree (shown as tree no. 4 in the permit application documents). Although this tree is of a size that would require permission for its removal under the Significant Landscape Overlay Schedule 23, the Council advises that the species appears in the Incorporated Document Yarra Ranges Council - List of Environmental Weeds 2019, so is exempt from requiring a permit under clause 3.0 of Schedule 23.

[2] At the conclusion of the parties' submissions, I advised that I would be taking a brief adjournment and returning to deliver an oral decision. I declined the applicants' request that I undertake a further site inspection and enter onto his property before delivering my decision. The matters that he has raised, regarding overlooking, overshadowing and the height and setback of walls from a side or rear boundary, are not before me in circumstances where the relevant standards under clause 55 have been met (which the applicants concede). Consequently, the relevant objectives are deemed to have been met, and so I have no discretion to apply as to whether the overlooking, overshadowing and the height and setback of walls from a side or rear boundary are appropriate or acceptable. In those circumstances, I would not be assisted by a further site inspection.

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

[4] Pursuant to the transitional provisions at clause 32.09-7, clause 55 as in force immediately before the approval date of Amendment VC267 on 31 March 2025 applies as the application for a planning permit was lodged before that date.

[5] Clause 55 provides that if a development meets standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32, it is deemed to meet the objective for that standard.