1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

110U, 115U, 120U, 201U, 202U, 203U, 300U, 201U, 302U, 501U, 502U, 801U, 802U, 803U and 901U

1. In application P665/2024 the decision of the responsible authority is affirmed.
2. In planning permit application 747/2023/03P no permit is granted.

Russell Hocking, town planning consultant of Cityshire Planning

Construction of 5 double storey dwellings (4 x 3 bedrooms and 1 x 2 bedrooms) housed in two separate modules.

Application under section 77 of the Planning and Environment Act 1987 (Vic) - to review the refusal to grant a permit.

Activity Centre Zone - Schedule 1 Eltham Activity Centre ('ACZ1').

Significant Landscape Overlay - Schedule 1 ('SLO1').

Clause 37.08-5 - Construct a building or construct or carry out works in the ACZ1.

Clause 42.03-2 - Construct a building or construct or carry out works within 5 metres from the base of any substantial tree in the SLO1.

Clause 42.03-2 - Remove, destroy or lop any substantial tree in the SLO1.

Clauses 02.01, 02.02, 02.03, 11, 12, 15, 16, 18, 52.06, 53.18, 55, 65 and 71.02.

This rectangular shaped 753.2sqm site has a frontage of 17.37m and maximum depth of 43.38m. It is located on the south side of Cecil Street, two lots west of Bible Street. The site is developed with a single storey weatherboard dwelling and outbuildings are located at the rear. The site is elevated above street level with a retaining wall across the frontage. It also has a considerable fall from the rear south-east corner towards the front north-west of more than 4.5m.

1. This is an application to the Tribunal for the review of the Nillumbik Shire Council's decision to refuse a permit for a five dwelling development.
2. At the start of the hearing, amended plans of the proposal were substituted for an earlier version of plans upon which council's decision was based.
3. The council and respondent remain opposed to the proposal in its now amended form.

1. All parties referred to a past decision of the Tribunal in Gilbert v Nillumbik SC [2021] VCAT 768 ('previous decision') from July 2021 in relation to the review site. The Tribunal affirmed the council's decision to refuse a permit for six 3-storey dwellings.
2. The previous decision is a relevant consideration in the determination of this proceeding in light of long established principles and case law related to repeat administrative reviews[2] that I have considered and adopted.
3. In brief, these principles include that the Tribunal is not bound by precedent, earlier decisions should not be reversed unless a change in circumstances warrants a different view and a new application must be considered de novo.
4. The Court[3] has also held that the weight to be given to earlier decisions is essentially a matter for the decision maker to determine. Assessment of the significance of correcting features in the context of a proposed use and development is also pre-eminently a planning and not a legal matter'.[4]
5. In relation to the well-established principles that refer to changes in circumstances, these relate to:
   1. the circumstances of the land and its surrounds;
   2. the planning scheme including policies, controls and provisions;
   3. the interpretation of the facts or law relevant to the Tribunal's consideration; and
   4. significant changes in the application itself.
6. Overall, the previous decision remains relevant and is to be given some weight in the consideration of this proceeding for the following reasons.
7. There have been no material change to the circumstances of the land and its surrounds. Planning scheme controls remain the same.
8. There have been some change to planning scheme policies, notably the translation of local policies to the format consistent with the Victoria Planning Provisions[5] and Ministerial direction on the Form and Content of Planning Schemes. The overall strategic framework for use and development in the Eltham Major Activity Centre does however remain consistent with the policy framework that previously applied.
9. Other planning scheme changes of note relate to the introduction of changes to the requirements of clause 55 comprising the introduction of 'deemed to comply' provisions for 13 objectives.
10. The most relevant change in circumstance relates to the features of the current proposal. It is materially different from the proposal refused in the previous decision.
11. In particular, the previous proposal had:
    • six 3-storey dwellings all attached and sited one behind the other in a continuous single building module;
    • more compact dwellings, each with two bedrooms providing a combined total of 12 bedrooms compared to 14 bedrooms in the current proposal;
    • one shared driveway (and cross-over) running for a length of more than 40m along the west side boundary fringed by a landscape bed mostly ranging in width from 1m to 1.5m;
    • larger minimum front boundary setbacks at ground and first floor levels of least 5.12m and 5.3m respectively (compared to the current proposal of 2.89m and 4.16m);
    • retaining walls up to 2m in height at the rear of the site;
    • provision of only one portion of built form on a boundary (east side adjacent to the neighbouring carport) compared to three portions in the current proposal;
    • greater minimum ground and first floor building setbacks at the rear (formerly 2.8m now 1.8m) and except for Unit 1 from the east boundary;
    • greater overall building heights, most at least 9m above natural ground level (compared to overall maximum height now proposed of about 7.2m).
12. In summary, the Tribunal's reasons for refusal of a permit were:
    • excessive building bulk and visual dominance, particularly in oblique views from the street and east and west, due to a combination of:[6]
      • the site's elevated position in the landform, relative to street level;
      • the design and extent of cantilevered forms of the two upper levels, particularly over the driveway; and
      • the continuous attached form and building length with a height ranging from approximately 9m to 9.8m on the west side spanning a distance of over 32m, together with screening devices to balconies.

1. This design response results in a building whose horizontal and vertical proportions and overall volume will occupy a substantial envelope. It will read as one very large rectilinear building. I find this response to be too inconsistent with the built form outcomes sought for this precinct in the ACZ1 and whose objectives ask for a transition in built form scale between the core commercial area and adjoining residential areas. The proposal's proportions and unbroken form would not have a domestic quality that responds to the residential character of the area as sought by the precinct guidelines at clause 5.22 in the ACZ1. Nor would it have a form that avoids excessive bulk and nor is it modest and compact in scale as expressed in the statement of preferred character. It would not meet the neighbourhood character objective at clause 55.02-1 and design detail objective at clause 55.06-1.
2. While some change to the built form character of this location is clearly envisaged by the planning scheme, I consider that the proposed response is too aggressive for this elevated, mid-block location at the periphery of the activity centre boundary.

• Extent of earthworks with extensive amounts of excavation and retaining walls throughout the site that would not be responsive to the natural topography;[7]
• Internal amenity concerns due to the extent of screening to balconies and windows;[8]
• Visually harsh presentation of the internal streetscape due to the 'the combined amount of hard paving and number of garages in succession. The design of dwelling entries will offer limited transitional space and a sense of personal address, contrary to the dwelling entry objective at clause 55.05-2;[9]
• A landscape response that is not proportional to the intensity of development and built form sought for this strategic context. Spaces along the driveway were found not to not allow the establishment of suitably scaled canopy trees in a way that is integrated with the total development and which provides for the softening of built form.[10]

16 In submissions for the applicant, the shortcomings with the earlier proposal were said to have been carefully reviewed by the applicant to ensure that an acceptable planning outcome is now achieved.

1. The current proposal includes various features that go some way towards correcting some shortcomings identified by the Tribunal in the previous decision. These include that the proposal now comprises two separate building modules of two storeys rather than one continuous three storey scaled built form, resulting in reduced levels of visual bulk.
2. However, some matters have not been resolved. Importantly, when assessed on its merits, I have found this latest proposal also gives rise to new considerations whose effects would not produce an acceptable planning outcome.

1. In deciding whether to grant the permissions sought, I have considered the provisions of the ACZ1 and SLO1 including, as relevant, zone purposes and decision guidelines, the Statement and nature of key elements of landscape in Schedule 1 to the SLO and statement of preferred character.
2. I note that exemption from notice and third party review rights apply in the ACZ but not in relation to the permissions required under SLO1 for buildings and works within 5m of eight trees all of which are located on neighbouring land, and for the removal of one tree at the front of the site - a Desert Ash (known as Tree 21).
3. As set out in paragraph 36 of the previous decision, for the purposes of the ACZ1, the site and surrounding land is in sub-precinct 2A and a mandatory maximum building height limit of 3 storeys (10.5m) applies which cannot be varied with a permit.
4. A preferred minimum setback of 5.5m in ACZ1 is also specified for precinct 2A which is met by this proposal, noting that for the purposes of this schedule, the front setback is measured from the roadside kerb.
5. At clause 4.3 of Schedule 1 to the ACZ1, in Precinct 2 an application for two or more dwellings on a lot less than five storeys must meet the requirements of clause 55.
6. My assessment has also been informed by my consideration of relevant planning scheme policies which I do not recite here but whose central themes and objectives remain similar to those in the previous decision.
7. I otherwise adopt the summary in the Tribunal's previous decision at paragraphs 45 to 58.

1. Broadly, council submits that the proposal leans too heavily on the 'Activity Centre Zone's impetus for change, without adequate regard to the equally important design, layout and character objectives it seeks'.
2. Council summarises its position by reference to the following key issues in its written submissions:
   • The failure of the design to appropriate manage its various site constraints;
   • The lack of regard given to third party trees protected by the SLO1;
   • The lack of detail in driveway gradients and transitional ramps on what is a steep driveway where all four garages have different RL's [sic.];
   • The highly compromised internal amenity to a number of dwellings, and particularly dwellings 2 and 3;
   • The lack of suitable planting locations commensurate with the scale of the built form and the zone and overlay expectations; and
   • The scale and intensity of the built form as presented to the street and adjacent properties.
3. For the applicant, it is submitted that greater weight should be attached to the fact of the site's inclusion within the ACZ1 than the SLO1. It is contended that the type of development expected in this location must necessarily give rise to very different built form and landscape outcomes than that which may be expected to occur in, for example a General Residential or Neighbourhood Residential Zone.
4. Notwithstanding, the applicant asserts that the current proposal provides for meaningful setbacks and a considered architectural response that will produce an acceptable built form and landscaping outcome that not only addresses the shortcomings identified in the previous decision but which is acceptable when assessed afresh. No unreasonable impacts on vegetation are said to arise, subject to the evidence and recommendations of Mr Howe on arboricultural matters.

1. This location remains suited to an increased density of housing and that much is not in dispute. The review site is within the Eltham Major Activity Centre and both the ACZ1 and planning scheme policies support additional housing in this well serviced, established location near a train station and a range of other services and facilities. This will necessarily bring about a discernible degree change to the area's character.
2. This proposal clearly aligns with the ACZ1 objective that seeks 'To promote and increase' the amount and diversity of housing by providing medium density housing, albeit I find that the proposed dwelling layouts, with the possible exception of Unit 2, are not likely to be suited to one and two person households given their size.
3. This proposal remains on a site of 753sqm in area whereas lot consolidation is encouraged as an objective in clause 2.0 of schedule 1 to the ACZ so as to '... create lots of a size sufficient to accommodate the visual and amenity impacts associated with more intense development'. In precinct 2, these objectives that encourage larger lot sizes is supported by the guideline for 'consolidated development sites of 1500sqm or greater' in consideration of increased residential densities. While minimum lot sizes are certainly not a mandatory requirement, the stated objectives and guidelines together with the deliberate inclusion of the SLO1, provide for an assessment framework that does not seek increased housing densities at the expense of identified built form and landscape character features.
4. Thus, while there are aspects of the ACZ1 and SLO1 that pull in different directions, their provisions also have areas of overlap.
5. How the particular design responds in an acceptable way to the very extensive guidance offered by other ACZ1 objectives for built form, character and landscaping and the provisions of the SLO1 therefore remains at issue.
6. In short, the siting and design of proposed buildings and works including space for suitable landscaping in the context of the permissions required under both the zoning and overlay controls remain as central issues for determination in this proceeding. Specifically, the proposal's response to its topographical features and proximity to neighbouring trees are highly relevant considerations.
7. I have found that there are a number of design features which are not met by this proposal. When combined, these are of a magnitude that outweigh acceptable features of this proposal, for reasons that I explain below.

1. The overall massing of the proposal is broken into two modules and reduced in height to two rather than three storeys. I find these elements of the design to be acceptable when viewed from the street in front-on and oblique views on the west side. These aspects of the proposal also respond positively to the Tribunal's findings in the previous decision.
2. I also acknowledge that two larger landscaped areas are provided in driveway areas near the entries to Units 4 and 5 and are positive aspects of the proposal.
3. There are a number of design and siting features that I find are either not acceptable or are not properly resolved to enable a positive conclusion about the proposal's overall acceptability.
4. Schedule 1 to the ACZ sets out various land use and development objectives to be achieved for the Eltham Activity Centre. These call for high quality designs and sensitive siting of buildings and works. These include:
   • To encourage more intensive development in a variety of high quality forms and design responses that respond to the Eltham form and character ... .
   • To ensure building heights, setbacks and form have regard to and seek to be compatible with the surrounding development and the character of the locality in which the development is situated.
   • To ensure that development sites with front, side or rear setbacks are extensively landscaped with indigenous vegetation so as to contribute to the Eltham form and character.
   • To ensure buildings are of a high quality design and construction and include the use of materials and colours of muted tones that blend in with the surrounding environment.
   • To ensure that the health of existing canopy trees is not unnecessarily jeopardised by buildings and works.
   • To ensure that new development contributes to the achievement of the preferred character through additional landscaping, particularly canopy trees.
   • To reinforce the indigenous planting regime within the Eltham.
   • To ensure new car parking areas are provided with landscaping with canopy trees where appropriate.
   • To ensure the design of parking and access areas is safe, practical and attractive.
5. In relation to vegetation, the above objectives are to be read in conjunction with the permissions required under SLO1 for buildings and works within 5m of significant trees.
6. I should add that I accept Mr Howe's evidence in support of removing the Desert Ash tree at the front of the site - an invasive species.
7. Overall, I find that the proposal has not demonstrated how the design would meet the above objectives for reasons that stem, in large part from the proposed site layout including the siting the proposed dwellings, their garages and driveways.

1. In addition to the objective of achieving attractively designed parking and access areas, the objectives and decision guidelines in the ACZ1 and design requirements for Precinct 2 place a considerable emphasis on high quality standards of architecture, landscaping and urban design that is site responsive. In Precinct 2, a specific guideline is that:

Main pedestrian entrances should be clearly legible from the street and demarcated with strong architectural and landscape features.

1. Related to the legibility of dwelling entries is the dwelling entry objective at clause 55.05-2 which asks for each dwelling to be provided with its own sense of identity. Corresponding measures in Standard B26 refer to the following:

Entries to dwellings and residential buildings should:

Be visible and easily identifiable from streets and other public areas.

Provide shelter, a sense of personal address and a transitional space around the entry.

1. I find that the internal driveway areas and entries will have a harsh visual presentation and have not acceptably addressed the Tribunal's findings in the previous decision on this matter.[11] While the length and height of continuous built form and garaging has been reduced along the west side, these areas will be dominated by garage doors and driveway paving. At the interface with Unit 5, I also find that the two storey form of Unit 3's south elevation together with the amount of hard paved areas in between will contribute to poor levels of on-site amenity.
2. The design of dwelling entries will offer limited transitional space and a sense of personal address, and would not meet the dwelling entry objective at clause 55.05-2. The entries for Units 2, 3 and 5 are not clearly legible from the street being concealed behind built form. In doing so, this response would not meet the relevant guideline in precinct 2 set out above and the objective in the ACZ1 that also calls for pedestrian entrances into buildings that are clearly visible from the street.

1. The proposal meets the numeric height requirements for Precinct 2A and preferred front setback. However, the proposal does not achieve a number of the development objectives and precinct guidelines and decision guidelines of the ACZ1. Elements of the proposal also respond poorly to the preferred character expressed in the statement and nature of key elements of landscape in the SLO1 of providing 'building forms that are modest and compact in scale' and which 'avoid excessive bulk when viewed from surrounding land' to the east and west.
2. The following features of the proposal lead me to this conclusion:
   • The size of proposed side setbacks at ground and upper levels combined with proposed portions of boundary walls in relation to Units 1, 2, 3 and 5 on the east side and Unit 4 on the west side 'does not have regard to and seek to be compatible with the surrounding development and the character of the locality;'
   • Extensive landscaping in side and rear setbacks including the provision of canopy trees is either unlikely to be practically achievable given the proportions and function of the available spaces or has not been appropriately demonstrated. I say the latter given the absence of information about proposed finished site levels and in turn the effect of any retaining walls, their design and impact on landscaping opportunities, particularly in the private open space area east of Unit 3 and along the rear boundary south of Units 4 and 5;
   • The extent of cantilevered upper levels whose form, detailing and bulk is at odds with the preferred character aspirations for this location;
   • The proposed provision of two driveways, combined with the proposed front building setbacks and location of retaining walls. Together these design features will constrain the ability to achieve canopy tree planting that contributes to the achievement of the preferred landscape qualities of the area.
3. In relation to Unit 5's east wall on the boundary, this would encroach into the Tree Protection Zones of two neighbouring trees - Tree 5 and Tree 6 by 27% and 33% respectively. These are major encroachments and it was Mr Howe's evidence that this wall should be set back from the boundary by 1m to mitigate the development's impacts upon these trees. While a major encroachment of 13% would still remain for Tree 5, it is unclear how this setback could be achieved without further compromising Unit 5's entry and address which is already a poor response.

1. The proposal continues to rely upon a reverse living arrangement in relation to units 2, 3, 4 and 5. There is a need for screening of multiple habitable room windows and balconies oriented towards either existing or proposed areas of secluded private open space. For Units 2 and 3 which also include a sun shade device, the outlook, daylight access and amenity of indoor areas will be unreasonably compromised, particularly in relation to Unit 2. Like the previous proposal, these remain poorly resolved elements of the design.

1. The council has not been satisfied that the design standards of clause 52.06-9 have been met by the proposal.
2. One of its grounds of refusal is:

The proposal does not meet the objectives of clause 52.06 (Car parking) in relation to car parking and vehicle access due to an overreliance on corrective manoeuvres, unresolved ramp grades and encroachment of waste bins within car spaces.

1. The proposal provides the required number of car parking spaces under clause 52.06 and is not a permission that requires determination. However, clause 52.06-8 provides that:

Plans must be provided to the responsible authority under Clause 52.06-8 wherever Clause 52.06 applies, whether or not a permit application is being made under Clause 52.06-3 or any other provision of the planning scheme.

1. Even if these provisions of clause 52.06 were found not to apply, works are required in relation to the construction of not just the buildings but also driveway areas. The associated impacts of required works is a relevant consideration in the context of permissions required under the ACZ1 and SLO1 and their respective objectives, provisions and decision guidelines.
2. Further, the application requirements at clause 37.08-7 refer to the provision of plan details, as appropriate, that include:
   • Construction details of all drainage works, driveways, vehicle parking and loading areas.
3. Such construction details have not been provided with the permit application in either their originally considered or now amended form.
4. This is regrettable, particularly in the context of landscaping outcomes which include the retention and planting of canopy trees in both the ACZ1 and SLO1. Decision guidelines at clause 37.08-9 also refer to 'movement systems through ... the site', 'access to parking spaces' while an objective of Schedule 1 is:
   • To ensure the design of parking and access areas is safe, practical and attractive.
5. From a functional perspective, the plans show only scant details of proposed finished driveway levels. A general driveway gradient of 1:9.3 is of little assistance in demonstrating the acceptability and practicality of the vehicle access and parking design in response to the above objective of the ACZ1.
6. The amended plans and revised swept path diagrams do not provide an adequate level of information, to demonstrate that the design of parking areas is safe and practical. There are, for example, no cross-sections for each of the driveway portions or proposed finished driveway levels throughout the site where ramping and grade transitions are likely to be necessary.[12]
7. It is also regrettable that the plans provide little to no information about the relationship between proposed finished floor levels and proposed finished site levels including, as noted above, finished driveway levels. Unfortunately, of the two cross-sections provided, one is based on the now superseded design while the other through units 4 and 5 does not show the relationship at the critical junction between garage entries and driveway paving.
8. Nor is there any traffic engineering evidence that supports the acceptability of the proposed parking and access arrangements.
9. On a sloping site of this size that has a considerable fall of more than 4.5m from the rear to the front, the provision of information of this kind assumes a very high level of importance.
10. The poor resolution of vehicle access arrangements is particularly acute in the shared driveway for the following reasons:
    • a driveway grade no steeper than 1:10 for the first 5m at the site entry is normally required to satisfy traffic engineering design standards for developments of more than three dwellings.[13] Levels from the survey plan indicate that the existing driveway grade is almost double this (approximately 1:5) on the west side;
    • a level difference of 0.5m is proposed in the finished floor levels of abutting garages for Units 2 and 3 which share a party wall with no plan details of how this variation in levels will be mediated in the driveway;
    • a level difference of at least 0.9m appears to exist over a distance of 8.6m between the garages of Units 3 and 4, with no plan details of ramp transitions and how this variation in levels will be mediated;
    • the applicant's swept path diagrams show that entry and egress movements to some garages are already constrained. For example, reversing movements are indicated for entry to three of the seven car spaces while correcting movements are required for two other spaces. While in some other circumstances this may be acceptable, I agree with council's submissions based on advice from its traffic engineers that high ramp gradients makes reversing movements more challenging and reduces sight lines, resulting in reduced safety and lesser levels of convenience. Thus, I am unable to conclude that an acceptable outcome will be achieved; and
    • use of the shared driveway for pedestrian access to dwelling entries for Units 2, 3, 4 and 5 is necessary. The proposal has not demonstrated how the accessibility objective at clause 55.05-1 will be met. This objective encourages the consideration of the needs of people with limited mobility in the design of developments.
11. I therefore agree with council's submissions that these features lead to uncertainty about other aspects of the design and the proposal's acceptability as a whole. This includes the likely need for additional earthworks and retaining walls whose height, type and location throughout driveway areas are unknown. For example:
    • Will retaining walls along driveway areas additionally constrain vehicle manoeuvres and further diminish the achievement of practical and safe parking and access?
    • Will additional earthworks, particularly excavation be required to achieve appropriate driveway grades? Will these works have consequential adverse impacts on the health of significant neighbouring trees. In particular, what will be the proposal's likely impacts on trees 17 and 17A in view of Mr Howe's evidence that the new driveway should adopt the same levels as the existing driveway with no disturbance below the existing sub-grade?
    • Will consequential modifications be required to the design of the internal streetscape and dwellings? Will these affect other features of the proposal such as the amount of space for landscaping and the design of dwelling entries?
12. I am unable to conclude with any certainty that the proposal will achieve a site responsive outcome that meets landscaping related objectives of clause 2.0 in Schedule 1 to both the SLO and ACZ. These include the identically drafted objective in both schedules to these controls that seek to:
    • 'Recognise protect, retain and enhance the contribution provided by canopy trees, particularly native trees, to the existing and preferred character of...' Eltham (ACZ1) and the Eltham Town Centre (SLO1).
13. In the case of the ACZ1, carparking and accessways have not been designed to demonstrate their ability to meet the objective seeking to 'Ensure that the health of existing canopy trees is not unnecessarily jeopardised by buildings and works'.
14. Nor am I able to conclude that the proposed design would meet objectives of the ACZ1 seeking high quality design outcomes.

1. I conclude that there are too many elements of the proposal that are not responsive to the particular site features of slope, lot size and surrounding vegetation. I also find that the proposal would not achieve the built form and character objectives that are sought for this location through the controls set out in the ACZ1 and SLO1.
2. I concur with the council's submissions that these are not matters that should be deferred to a secondary consent process.
3. They involve design shortcomings of such a magnitude as to outweigh the proposal's positive contribution to additional housing provision in this activity centre.
4. I therefore conclude that a permit must not be granted.
5. The decision of the responsible authority is affirmed.

[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] See in particular Zumpano v Banyule City Council [2016] VSC 420 ('Zumpano').

[3] Zumpano v Banyule City Council [2016] VSC 420.

[4] Ibid. [27] - [30]. The Court in Zumpano cites with approval the findings of the Court in Rozen v Macedon Ranges Shire Council [2010] VSC 583 [172] that 'The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme but is essentially a matter for the decision maker'. Also cited with approval in Boroondara City Council v 1045 Burke Road [2015] VSCA 27 [32], [102].

[11] [2021] VCAT 768 [95]

[12] Such as those described in clause 52.06-9 for accessways, car parking space and gradients.

[13] Such as those described in clause 52.06-9.