1 Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by including permissions pursuant to Clause 42.03 of the Nillumbik Planning Scheme for works within 5m of substantial trees.

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

3 In application P37/2021 the decision of the responsible authority is set aside.

4 In planning permit application 329/2020/14P a permit is granted and directed to be issued for the land at 91 John Street Eltham VIC 3095 in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

• Subdivision of land into two lots and creation of an easement.
• Works within 5m of significant trees (Tree #1 and #2) in a Significant Landscape Overlay.

The following witnesses were called to give evidence:

• R Galbraith, Arborist
• S D'Amico, Town Planner

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

Neighbourhood Residential Zone - Schedule 1, Nillumbik Neighbourhood Residential Areas (NRZ1)

Significant Landscape Overlay - Schedule 3, Bush Garden Character (SLO3)

Clause 42.03 works within 5m of Significant trees (Tree #1 and #2) in SLO3

Clauses 2, 11, 12, 15, 16, 18, 19, 32.09, 42.03, 52.02, 56, 65 and 71.02

The review site is located on the north side of John Street in Eltham. It has an area of 2759 square metres and is occupied by a single storey dwelling and outbuildings. Surrounding properties are generally developed in the form of single dwellings.

1 The applicant seeks to subdivide the land into two allotments. Lot 1 will contain the existing dwelling on the review site and Lot 2 will be a vacant lot. A carriageway easement is proposed over land forming part of Lot 2 in favour of Lot 1 to provide for shared access[2]. The proposal also includes retrospective works within 5m of two substantial trees. The permit applicant says that the proposal is an acceptable response to the provisions of the planning scheme and will provide for modest change within this residential area.

2 Council does not support the proposal. Council says that the layout of the subdivision is not consistent with the character of the area. Council submits that the access arrangements to create Lot 2 are unacceptable and will create a poor interface to adjoining Council reserve land at the end of John Street. The respondents support Council's position.

3 I must decide if a permit should be granted and if so, what conditions should apply. I am required to balance conflicting objectives in favour of net community benefit and sustainable development in accordance with Clause 71.02-3 - Integrated Decision Making of the Nillumbik Planning Scheme (planning scheme).

4 I am satisfied that the proposal meets relevant provisions and objectives of the planning scheme for residential subdivision subject to conditions. These include the creation of a building exclusion zone at the front of Lots 1 and 2, increased landscaping at the interface with the reserve and a building envelope for Lot 2. Conditions also address the construction details of the proposed driveway. My reasons follow.

5 There is a long and complex history to this application which has proceeded over several years and through a change in land ownership. Importantly, this is not the first proposal for the review site to be considered by this Tribunal. In Lordan v Nillumbik SC [2019] VCAT 1758 (previous decision), the Tribunal considered an application to subdivide the land into three allotments. In that application:

• Lot 1 was a vacant 529 square metre lot in front of the existing dwelling;
• Lot 2 would accommodate the existing dwelling with an area of 1672 square metres.
• Lot 3 was to be a vacant lot with an area of 558 square metres at the rear of the property.

6 Lots 1 and 2 were to have access to John Street. Lot 3 was to have access from a road reserve that abutted the site to the rear and connects to Bridge Street. In affirming the decision of the Council to refuse to grant a permit, the Tribunal found that the proposal was not an acceptable response to the neighbourhood character.

7 The consideration of the new access to be created by Bridge Street for Lot 3 was subject to a separate permit application and considered by the Tribunal in Lordan v Nillumbik SC [2019] VCAT 1757. That decision pertained solely to the construction of the vehicle crossover and driveway for Lot 3 where the works where within 5m of a substantial tree under the SLO3. In considering the limited ambit of discretion before it, the Tribunal found that it was not satisfied that the impact on the tree had been addressed and that no permit should issue. The decision included a legal opinion on the ambit of discretion which found that crossover and access works beyond the site boundary did not require town planning approval.

8 There are several accepted principles regarding repeat appeals which were referred to by the parties. A detailed discussion of these principles can be found in Zumpano v Banyule City Council [2016] VSC 420. In summary, I must consider:

• Significant or material changes to the application itself which address the primary reasons for the previous proposal being refused;
• Significant or material changes in the circumstances of the land or its surrounds;
• Significant or material changes in planning controls and policy; and/or
• Significant or material changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

9 The parties agreed that there were no significant or material changes to the law relevant to my consideration.

10 There have been some material changes to the planning controls and policy in the planning scheme. The review site remains zoned Neighbourhood Residential-Schedule 1. A permit is required for subdivision. There is no minimum lot size specified in Schedule 1. An application for subdivision must meet the requirements of Clause 56. A two-lot subdivision application must meet all of the objectives and should meet all of the standards of Clauses 56.03-5, 56.04-2, 56.04-3, 56.04-5, 56.06-8 to 56.09-2. Decision guidelines are found in the zone and at Clause 65. A permit is also required for works within 5m of a substantial tree under the provisions of the SLO3.

11 Key outcomes sought by State policy were outlined in the previous decision. However, the planning policy framework has now changed. Clause 15.01-3L contains policy for subdivision design and Clause 15.01-5L policy for neighbourhood character. The area remains identified as part of the urban township of Eltham and is included as an area for minimal change (reflected in the application of the Neighbourhood Residential Zone). Importantly, the site remains within the "Bush Garden Precinct 4" neighbourhood character area as in the previous decision.

12 There have been significant changes to the application and the facts in relation to the site, particularly the reduction to two lots and the change in road access arrangements (discussed below). In terms of site context there has been the approval of a second dwelling at #83 John Street in the decision of Lordan v Nillumbik SC [2020] VCAT 215.

13 The proposal before me is different to that before the Tribunal in the previous decision, not just in respect to the number of allotments sought but more importantly in terms of how the lots are to be accessed. In the previous decision the site enjoyed two abuttals to unmade road reservations, one extending to Bridge Street to the north and one extending to John Street to the south. As set out above, this remained the case when the current permit application before me was lodged with Council (2020). The application to Council originally sought access to Lot 2 from the unmade extension to John Street via a gate in the southeast corner of the review site. It was this proposition that the Council made its decision on.

14 Subsequently the Council sought to rezone the unmade roads to reflect their use as Council reserve land. Access is no longer available to either unmade street with Bollards erected at the point of transition (See Figure 1). Amendment C126nill rezoned the land to Public Park and Recreation Zone and was gazetted during this proceeding[3]. It is understood that Council is presently undertaking consultation as to the future landscaping and upgrade of these areas.

15 The formal creation of these two areas of Council reserve land represents a significant change in the circumstances of the review site since the previous decision.

16 On day 1 of the hearing in November, the applicant sought to substitute amended plans which realigned the access for Lot 2 across the frontage of Lot 1 to meet the existing crossover and driveway. This plan was P800821X Revision H and relied solely on the existing crossover and access point to the land. The result is that the "frontage" of the land as defined at Clause 73 of the planning scheme[4] to John Street is significantly reduced. The frontage of Lot 1 is 6m along the western boundary, returning 3m along the southern boundary and the frontage of Lot 2 is confined to the width of the driveway (as existing driveway is to be part of Lot 2).

Figure 1: Existing access with new bollards erected defining the Council reserve land (photo: Tribunal's own)

17 At the commencement of the hearing in November, I queried whether the new alignment would result in works within 5m of substantial trees including trees #1, #2 and #3. As a result, the permit applicant sought and was granted an adjournment of the proceeding to allow this to be investigated.

18 During the adjournment, the alignment of the proposed lot boundaries was adjusted 3m to the east to remove any requirement for works within 5m of tree #3 located at the site frontage[5]. The applicant also sought to amend the application to include works within 5m of trees #1 and #2. The further amended proposal is set out in the amended plans substituted at the commencement of the March hearing and includes:

• An amended plan of subdivision P800821X Revision 01K showing a two lot subdivision (no building envelopes are proposed)- see Figure 2.
• An amended landscape plan 21-504-VCAT prepared by John Patrick Landscape Architects Pty Ltd.
• Revision B traffic swept path diagrams.

19 The tree removal appears to have occurred on the review site between 19 April 2019 and 11 September 2019 (review of Nearmap imagery). In the previous decision, the Tribunal did not undertake an assessment of Tree Removal, noting that it had not been applied for:

27 I have not undertaken an assessment of any tree removal as this does not form part of the application. That said, I note that selected trees are exempt from the need for a permit pursuant to clause 52.12 and observe that the development of a further two dwellings on the land may potentially necessitate the removal of trees, depending on the siting and design of the buildings.

20 The Bushfire Exemptions at Clause 52.12 referred to above no longer apply to the review site.

21 Further tree removal appears to have occurred between 28 April 2020 and 7 September 2020 (review of Nearmap imagery- see Figure 3 below). Council advised that where planning approval was required for the removal of substantial trees (understood to number four only), that Council has taken appropriate action in the Magistrates Court. At the commencement of day 2 of the hearing the applicant confirmed that that proceeding had resulted in application of a penalty.

22 The previous tree removal is not before me as part of this application but does represent a change in circumstances since the previous decision. The loss of the trees allows the proposed east-west section of access to be free of substantial trees, thereby not requiring town planning approval under the SLO3.

Figure 3 Comparative Nearmap imaging 28 April 2020 and 7 September 2020.

23 Since the time of the previous decision, earthworks have been undertaken on the review site to construct a vehicular accessway along the eastern boundary of the review site leading to a gate in the south-east corner of the land (see Figure 3 above). It is understood that these works were intended to reflect the original access proposal for Lot 2 from the unmade portion of John Street and were undertaken by the previous owner of the land.

24 These earthworks have passed close to trees #1 and #2[6] on the review site and the application before me has been amended to reflect works within 5m of these trees pursuant to the provisions of the SLO3. Tree # 1 is a large Eucalypt located centrally along the driveway that has been constructed and is opposite tree # 2 a multi trunked Honey Myrtle (see Figure 4).

25 Mr and Ms Cook and Ms Farrugia in their written decision questioned whether it was appropriate to consider these retrospective works as part of this application. The Tribunal has consistently found that the permit applicant ought not be put at a disadvantage but nor should an advantage be derived from this circumstance. However, the presence of such works can assist in understanding the impact it would have if permitted[7]. I have assessed the merits of this proposal with these principles in mind. I have had the benefit of viewing the works in situ on my site inspection. I note the applicant's submission that the works were undertaken by the previous owner of the review site with the present owner obtaining title on 25 June 2021 and that this application has now been amended to reflect required permissions.

Figure 4: Trees #1 and #2 (Source: Evidence of Mr Galbraith)

26 The history of works on this site outlined above has resulted in considerable concern in the community and has not assisted the progress of this application. However, the proposal before me is a new application which must be considered on its merits. In making my decision, I find that the earlier decision carries considerable weight and remains highly relevant to my assessment of this latest proposal.

27 Unlike the proceeding in Lordan v Nillumbik SC [2020] VCAT 215 there is no proposal before me for the future development of the vacant lot created. This is solely an application for subdivision. Likewise, the applicant has not proposed the application of building envelopes or the like that would provide some certainty to the community as to the likely built form outcomes that may arise from the subdivision.

28 Use of land for a single dwelling on a lot greater than 300m2 within the Neighbourhood Residential Zone does not require town planning approval, although its form may be tempered by the provisions of the SLO3 which would require a permit for any development exceeding 7.5m in height or within 5 metres of a significant tree as defined by the overlay. Any further tree removal may also require a permit under the SLO3.

29 However, if the above provisions are met, then the resulting built form of any new dwelling on either lot would only be subject to the building approval process. This is what the planning scheme envisages for larger lots and is also the case at present. As a single dwelling on a large lot, currently extensive works and changes can occur to the existing dwelling on the review site and to other dwellings within these same controls without the need for any planning approval. Such changes can have a significant impact on the character of an area.

30 Two large lots would be consistent with the identification of the area for minimal change. The key question is whether the proposed lot layout and resulting potential for future development ensure appropriate siting of a dwelling and an acceptable response to preferred neighbourhood character. Protection of vegetation and opportunities for landscaping are also important considerations in the bush suburban area.

31 For reasons I have set out below, I find that the subdivision should be subject to a building exclusion zone and building envelope, together with conditions to ensure that the outcome of the subdivision is one which is an acceptable response to neighbourhood character.

32 Council and the respondents submit that the proposal is a poor response to the preferred bush garden character. Council says that the access arrangement for Lot 2 will result in an unacceptable interface to the new Council reserve land:

The subject shares the largest frontage to the pocket park. The interface with the pocket park will be dominated by driveways, retaining walls, the driveway to Lot 2 and an exposed fence along the eastern boundary. This is a poor response to the streetscape and the character of the area. Critically, it is uncharacteristic.

33 The respondents submit that John Street has a distinct character that differs from other parts of the broader bush garden precinct, in part due to the history of its subdivision as outlined by Mr Pearce and Mr Schumann. I note that there are two individually listed heritage properties within this section of the street[8]. Mr Schumann submitted that:

The Eastern end of John Street is distinctly different from most of the BG4 area. It is particularly distinct even from the rest of John Street. A change of neighbourhood character is observed as one moves East from street number 57 to 61 on the North side, whilst number 59 would probably be considered transitional. Over the road on the South side, there is a change between street number 60 and 62.

He suggested that greater landscaping to the front of the site and abutting the reserve was required and could be achieved by realigning the accessway.

34 The applicant says that the proposal acceptably responds to the bush suburban character. The landscape plan proposes a 1.5m width of landscaping across the reserve interface. The applicant submitted that the landscape treatment proposed in the landscape plan would assist the integration with the reserve. The evidence of Mr D'Amico was that there will be sufficient room on each lot for landscaping and that the access arrangements, together with the provision of 1.5m landscaping against the Council reserve will acceptably address this interface. The evidence of Mr D'Amico was that views of the new accessway to Lot 2 would be constrained due to the topography and landscaping.:

The new vehicular access arrangement will not result in the dominance of an accessway as the front garden space for Lot 1 is significant and the reserve to the south adds to the vegetation in the locality. In addition, the shared accessway reduces crossovers.

35 Having inspected the site and its surrounds, I agree with the respondents that there is a difference between the character of the broader Bush Garden precinct and that of this part of John Street. It is distinct and noticeable immediately as you enter the street with its unmade verges and blurring of the public and private realms as illustrated in Figure 5. It is entirely different to the character experienced within Bridge Street for example.

36 The preferred neighbourhood character for this area of a bushy setting to dwellings requires careful consideration to the design and integration of landscape with dwellings. The key differences relate to the public realm driven by the narrow road pavement, unmade verges, informal boundary between lots and the road reservation, the broader extent of landscaping, topography and the spaces between dwellings. I must balance this different character against the broader character area noting that change can occur in a manner that is respectful of this character. The approval of the development at #83 John Street is an example of this.

Figure 5: Photo looking east along John Street (Soure: Submission of Mr Pearce)

37 The previous decision found that the three-lot subdivision was not an acceptable response to neighbourhood character:

22 The retention of the existing dwelling is a constraint. The configuration of the lots around this central area results in an outcome which will not facilitate development that will achieve the landscape setting sought by policy. This is particularly the case with Lot 3 which is awkwardly configured adjacent to the existing swimming pool. I agree with the Council that the subdivision will likely result in built form outcomes that will occupy the majority of each proposed lot with a lack of spacing. This is due to the configuration of the lots and their area. Further, the need to accommodate driveways and car accommodation will also reduce the area available for landscaping and the planting of trees. Such an outcome may reflect what has occurred to the east of the review site (within Hartington Avenue) or further west along John Street which have a more suburban character. However, it will not integrate with the evident bushland character which distinguishes the eastern end of John Street from its surrounds and within which the review site is located. The proposed subdivision is not in keeping with this character and will not contribute to the preferred character of the Bush Garden precinct.

38 Tribunal's concerns around the configuration of lots centrally has been addressed through the reduction from three to two lots. Despite this change, the subdivision remains awkwardly configured due to the reliance on the existing works that have occurred along the eastern boundary. The proposal creates two lots with a very narrow frontage to the end of John Street. Lot 2 has an unusual "U shape" wrapping around Lot 1 and annexing the existing access point. The existing dwelling remains a constraint on this site, although its retention which minimises impact to the western interface which I note primarily abuts the existing access to #83 John Street.

39 I am not persuaded by the evidence of Mr D'Amico that views of the new section of accessway across the site will be minimal. I find that the proposed accessway will create a scar across the landscape that will be appreciable from both the street and the Council reserve. The proposed landscaping shown in the landscape plan assists this but does not provide a depth of planting that reflects the character of the area and does not address the views down from the end of John Street. The accessway is shown to be wider than would normally be required, connecting to the 4m wide existing works along the eastern boundary. The proposed access will also result in loss of new landscaping planted in the front setback of the existing dwelling.

40 For the proposal to be an acceptable response to the reserve and the neighbourhood character, I find that a significantly greater area of new landscaping across the frontage of both Lots 1 and Lot 2 should be provided. Council suggested a 5m setback in the draft conditions, however, I have required provision of a 9m building exclusion zone to ensure that trees #3, #4 and #5 are included and protected. Directly abutting the reserve, I find that the landscaping should be increased to a minimum of 2.5m and the driveway realigned or narrowed. I have also required additional landscaping along the eastern boundary to soften the exposed boundary fencing (which was not objected to by the permit applicant). In addition, I have required fencing to be managed along the reserve interface as suggested in the evidence of Mr D'Amico.

41 It is concerning that there was no detailed consideration of gradients and the extent of further cut and fill that may be required across the frontage to construct the access. The existing fall across the site is significant and to provide the additional landscaping on the south side of the access, there will need to be more detailed consideration of how the new access can connect to the existing works. It may be that the driveway needs to be narrowed. It may need to be quite steep. Attention to minimising site cut and fill will be required, including limiting level changes close to the eastern boundary fence. It is unlikely that the driveway will be able to accommodate a semi rigid vehicle as submitted, rather the design should adopt the B99 standard.

42 I considered whether the lack of this information was fatal to the application. On balance, I find that provided the new landscaping is implemented that the driveway design can be addressed through a permit condition to the satisfaction of the responsible authority. This will need to be resolved upfront in order for the subdivision to proceed. If the achievement of satisfactory grades results in the need for new works to the existing section of driveway located within 5m of Trees #3, #4 and #5 then separate planning approval will be required under the SLO3.

43 With these conditions I am satisfied that the informal well landscaped setting of the streetscape can be retained post subdivision and there is a sufficient buffer to the Council reserve land.

44 There was no dispute between the parties that a new dwelling can be accommodated on Lot 2. A dwelling on any lot over 500sqm will not be subject to a planning permit for a future dwelling under the zone provisions, although may be tempered by the SLO3. A building permit is required and I agree that some matters of amenity such as overlooking will be considered at the building approval stage.

45 However, there is the potential for this new dwelling to be constructed very close to the boundaries of the review site under the building regulations. The need to achieve access and garaging arrangements from the eastern accessway make this more likely.

46 There is existing high fencing to the Bridge Street pathway and adjoining built form is visible and proximate. The approved dwelling at #83 Bridge Street is also angled close to the road. However, this permit included a requirement for a landscaping plan which could demonstrate how the proposal would integrate with the preferred future character.

47 While not required by Clause 52.04-2, I find that the proposal should provide for a building and driveway envelope for Lot 2. Council in the draft conditions recommended a 6m setback to the eastern boundary and 4m to the northern boundary. The permit applicant submitted that these setbacks were excessive but agreed that some landscaping could be provided across the northern boundary.

48 I find that with additional landscaping to the rear that an envelope that adopts a minimum 3m setback to the northern boundary and 2m to side boundaries is sufficient allowing for some driveway transition and consideration of protection of trees on the abutting properties. I am satisfied that these setbacks will assist a future built form outcome that will respect the role that landscaping and spaces around dwellings play in the preferred bush garden character. In addition I have required that the fencing to the reserve be considered as recommended by Mr D'Amico.

49 I have not required a height envelope to be established given that this matter would be addressed through the SLO3 provisions.

50 The proposal includes retrospective approval for works undertaken within 5m of trees #1 and #2 to create the existing access along the eastern boundary. The proposal is a major encroachment within the Tree Protection Zone of each tree and will also affect the Structural Root Zone. In respect of tree #1, the evidence of Mr Galbraith concluded that:

Given that the works of site cut, retaining wall construction, addition of fill, driveway and construction of the stormwater drain all occurred some two years ago, there would be obvious signs if Tree 1 had suffered substantial and debilitating root loss. These would include foliar thinning and die-back. Apart from minor die-back in the lowest echelons of the crown, the tree has responded well after initial shock to be fully foliated. I would suggest that this can only be due to the fact that the overall root loss inflicted to the tree has been minor and that the existing conditions for root growth and function remain sound.

51 In relation to tree #2, Mr Galbraith found that there had been extensive works close to this tree associated with the provision of Council drainage and that the tree appeared unaffected.

52 Mr and Ms Cook and Ms Farrugia submitted that these trees were important in the context of the now limited substantial vegetation on the review site and noted that there was no advice as to the future impact of a constructed driveway with regular traffic or to future tree management requirements.

53 I find that the impact on Tree 2 is acceptable, considering the extent of works that were undertaken for Council drainage. I also accept the evidence of Mr Galbraith that Tree #1 appears to be in good health and that a tree management plan can assist its retention. In the event that the tree declines in time, the additional landscaping that I have required will in part assist the review site to continue to contribute to the character of the area.

54 The residents raised several issues associated with construction management. Mr D'Amico in his evidence supported a requirement for a construction management plan. Given the nature of John Street including its narrow width I find that this is acceptable and have included conditions addressing traffic at the eastern end of the street.

55 Mr Schumann raised concerns about the noise of cars along the new driveway. I find that movements associated with a single dwelling would be acceptable within a residential context. There is no evidence that the traffic generated by an additional house cannot be accommodated in John Street and the nearby road network. I have included conditions requiring new landscaping which could include creeping plants to extend above the fence height. I have also included conditions to ensure that the design of the driveway minimises fill adjacent to the eastern boundary and transitions to provide 1 2m setback to the east. I note that any new works over the easement along the eastern boundary will require Council consent.

56 Concerns were raised by Mr Pearce about the collection of waste from the site and the storage of bins. The driveway is very long and steep, but I find that the location of waste bins would be a matter for the future owners of Lot 2. I understand that collection is constrained at the end of John Street, but this is a matter for Council.

57 The respondents expressed concerns about the potential further subdivision of Lot 1. This is not before me and would be a separate application to be assessed on its own merits.

58 Mr Schumann raised the issue of the location of the rear fence (northern boundary) which I understand to presently encroach within the former road reserve. This will need to be addressed as a separate process, but it is enough the new subdivision boundaries will need to accord with the land title boundaries.

59 In determining the conditions of permit, I have had regard to the draft conditions provided by the Council and discussed at the hearing, the submissions of the parties and the matters raised in my reasons above.

60 There was some discussion about whether conditions need to be implemented through a Section 173 Agreement under the Planning and Environment Act 1987 or a restriction on the plan of subdivision under the Subdivision Act 1988 was sufficient.

61 The applicant did not support requirements within a Section 173 Agreement, despite this forming part of the written submission. The respondents were supportive of a Section 173 Agreement. Council fairly acknowledged that the matters may be suitable for a restriction. I am satisfied that this is a case where an agreement is an appropriate tool given the range of matters to be addressed.

62 The applicant sought that tree protection fencing not be required in the John Street Road reserve. I have required that tree protection fencing not impede access to the review site.

63 For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• Subdivision of land into two lots and creation of an easement.
• Works within 5m of significant trees (Tree #1 and #2) in a Significant Landscape Overlay.

1 Before a plan of subdivision is certified under the Subdivision Act 1988, three copies of 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 this permit. The plans must be generally in accordance with the plan of subdivision P800821X Revision 01K and the landscape plan 21-504-VCAT prepared by John Patrick Landscape Architects Pty Ltd but modified to show or include as a separate plan:

(a) Building exclusion zones on both Lots 1 and 2 extending 9m from the southern boundary of the land (excluding the two driveways) together with adjusted lot boundaries and easements as required.

(b) A building and driveway envelope on Lot 2 with a minimum setback of 3m to the northern boundary, 2m to the western boundary and 2m to the eastern boundary, allowing for the existing accessway works to transition as required. The building and driveway envelopes must take into account the location of substantial trees on adjoining properties.

(c) An amended landscape plan showing:

1. The provision of a minimum of 2.5m of landscaping to the southern boundary of Lot 2 generally to replace the area shown as 1.5m on the landscape plan 21-504-VCAT prepared by John Patrick Landscape Architects Pty Ltd.
2. The provision of a minimum of 0.5m of landscaping along the eastern boundary where adjacent to the existing driveway works.
3. New landscaping within the 9m building exclusion zone/s including an additional three large new trees to be located outside the 2.5m landscaping strip on the southern boundary of Lot 2.
4. The provision of landscaping including 5 trees along the northern boundary of Lot 2.
5. The location and type of fencing proposed to the northern and southern boundaries (if any).
6. Location of mailboxes.

(d) Driveway plans for lot 2 showing:

1. The gradients required to transition from the existing accessway to Lot 1 down to the constructed access along the eastern boundary.
2. Appropriate transitions with a maximum change in grade of 1 in 8.
3. Minimisation of any fill placed along the eastern boundary to ensure no significant change in ground level adjacent to the eastern boundary fence.
4. Location and extent of all required retaining walls and/or batters.
5. Proposed paving materials.
6. Drainage requirements.
7. Traffic swept paths for a B99 vehicle.

(e) Location of substantial trees, their numbering and Tree Protection Zone measurements as per the Arboricultural Report prepared by Lets Talk About Trees, August 2021.

(f) Include the location of substantial trees, their numbering/identification and Tree Protection Zone within the Reserve located south of the site.

(g) Any changes required by the Tree Protection Plan (drawing) and Tree Management Plan (report) approved in Condition 6.

2 The development and subdivision as shown on the endorsed plans must not be altered unless with the prior written consent of the Responsible Authority.

3 Prior to the issue of a Statement of Compliance, the owner must enter into, and register on the titles, an agreement with the responsible authority and in accordance with Section 173 and Section 181 of the Planning and Environment Act 1987. The agreement must provide for:

The owner agrees that unless with the written consent of the responsible authority, the agreement must provide:

(a) Except with the written consent of the responsible authority, the permit holder will not construct any buildings or undertake any works within the identified Building Exclusion Zone/s on Lot 1 or Lot 2 except in accordance with the endorsed plans in planning permit 329/2020/14P

(b) Except with the written consent of the responsible authority, the permit holder will not construct any building or undertake any works on Lot 2, outside the building and driveway envelopes for this lot except in accordance with the endorsed plans in planning permit 329/2020/14P.

(c) Fencing along the northern and southern boundaries of the lots must be in accordance with the endorsed landscape plans in planning permit 329/2020/14P.

The owner must pay all costs (including Council's costs) associated with the preparation, execution, registration and (if later sough) cancellation of the Section 173 Agreement.

4 Prior to the issue of a Statement of Compliance the landscaping and fencing works shown on the endorsed plans on Lot 1 and 2 must be carried out and completed, to the satisfaction of the Responsible Authority and thereafter maintained to the satisfaction of the Responsible Authority, including that any dead, diseased, or damaged plants are to be replaced to the satisfaction of the Responsible Authority.

5 Before a plan of subdivision is certified under the Subdivision Act 1988, a Tree Protection Plan (drawing) and Tree Management Plan (report) must be submitted to and be endorsed by the Responsible Authority. The Tree Management and Protection Plan must be specific to the trees located on the site and within the Reserve to the south of the subject site. The Tree Management and Protection Plan must be in accordance with AS4970-2009, prepared by a suitably qualified arborist, in accordance with the recommendations at Section 5 of the Lets Talk About Trees arboriculture report prepared August 2021 and provide details of tree protection measures that will be utilised to ensure all trees to be protected remain viable post-construction. The Tree Protection and Management Plan must consist of:

1. The Tree Protection Plan (drawing) and must be drawn to scale, appropriately notated and reference the Tree Management Plan (report) and provide details of:
   1. The Tree Protection Zone (TPZ) and Structural Root Zone (SRZ), calculated in accordance with AS4970-2009, for all trees to be protected on site or neighboring properties where the Tree Protection Zone falls partially within the subject site and trees located within the Reserve south of the site.
   2. Tree protection fencing, or ground protection where required, provided in accordance with AS4970-2009.
   3. Any other specific measures such as site access points or material storage areas as required in the Tree Management Plan (report).
2. The Tree Management plan (report) must be prepared by a suitably qualified arborist, reference the Tree Protection Plan (drawing) and provide details of:
   1. Proposed footings and construction methods for any buildings or structures (including but not limited to, driveways, paths retaining walls or other hard infrastructure) within the Tree Protection Zones (TPZs) nominated on the Tree Protection Plan.
   2. Details of suitable driveway materials and construction methods (i.e. permeable paving above grade) and the timing of works within the tree protection zones.
   3. How excavation impacts, including soil level changes, within the TPZ of trees to be retained will be managed or minimised.
   4. Stages of development at which inspections are required to ensure tree protection measures are adhered to must be specified.
   5. Appropriate methods of certification by a suitably qualified Arborist of the required tree protection measures during the development including details of site visits, actions and photographic evidence.
   6. Appropriate signage on any tree protection fencing.
   7. Ongoing maintenance during construction of the tree protection measures.
   8. Any pruning to be undertaken being in accordance with AS4373-2007-Pruning of Amenity Trees.
   9. How the canopy of trees nominated on the Tree Protection Plan will be protected or managed; and
   10. Any other measures required to demonstrate the successful ongoing retention and viability post-construction of any trees nominated on the Tree Protection Plan.

6 Unless otherwise agreed in writing by the Responsible Authority all protection measures identified in the Tree Management and Protection Plan must be implemented and maintained in effective condition until completion of works, and development works undertaken on the land must be undertaken in accordance with the Tree Management and Protection Plan, to the satisfaction of the Responsible Authority.

7 Before the subdivision or development approved by this permit commences, the name and contact details of the Project Arborist responsible for implementing the Tree Management Plan must be submitted to the Responsible Authority or included on the Tree Management and Protection Plan.

8 Before the subdivision or development approved by this permit commences, including demolition or removal of vegetation, the Project Arborist must submit to the Responsible Authority a signed statement verifying that the Tree Protection Requirements outlined in the Tree Management and Protection Plan as approved under Condition 6 of this planning permit have been correctly installed in accordance the plan to the satisfaction of the Responsible Authority. The verification must include photographs of the relevant requirements, including fencing, signage, and any other measures as outlined in the plan to the satisfaction of the Responsible Authority.

9 Before the subdivision or development approved by this permit commences, the Responsible Authority must accept the Project Arborist statement as required by Condition 8 of this permit.

10 Prior to subdivision and development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the trees marked on the endorsed plans as being retained must have a Tree Protection Zone to the satisfaction of the Responsible Authority. The fencing associated with this Tree Protection Zone must meet the following requirements:

The tree protection fencing is to be provided to the extent of the Tree Protection Zone, calculated as being a radius of 12 x Diameter at Breast Height (DBH - measured at 1.4 metres above ground level as defined by the Australian Standard AS 4970.2009) to the satisfaction of the responsible authority.

Tree protection fencing should not impede access to the land.

If works are shown on any endorsed plan of this permit within the confines of the calculated Tree Protection Zone, then the Tree Protection Fencing must be taken in to only the minimum amount necessary to allow the works to be completed.

All tree protection fencing required by this permit must be erected in accordance with the approved Tree Protection Zone to the satisfaction of the responsible authority.

The Tree Protection Fencing must be erected to form a visual and physical barrier and must be a minimum height of 1.5 metres and of chain mesh or similar fence with 1.8 metre support posts (e.g. treated pine or similar) every 3-4 metres, including a top line of high visibility plastic hazard tape erected around the perimeter of the fence.

Fixed signs are to be provided on all visible sides of the Tree Protection Fencing clearly stating "Tree Protection Zone - No Entry", to the satisfaction of the Responsible Authority.

The area within the Tree Protection Zone and Tree Protection Fencing must be irrigated during the summer months with 1 litre of clean water for every 1cm of trunk girth measured at the soil/trunk interface on a weekly basis.

Unless with the prior written consent of the Responsible Authority, all services (including water, electricity, gas and telephone) must be installed underground, and located outside of any Tree Protection Zone, to the satisfaction of the Responsible Authority.

Services for Lot 2 are to be extended along the E1 easement and/or driveway. Within the Tree Protection Zone of Trees 1 or 2 all underground services must be installed using directional boring or water blasting to a minimum depth of 600mm.

Should temporary access be necessary within the Tree Protection Zone during the period of construction, the Responsible Authority must be informed prior to relocating the fence (as it may be necessary to undertake additional root protection measures such as bridging over with timber).

11 Prior to the commencement of the approved works (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the erected tree protection fences must be inspected and approved by the Responsible Authority.

Once erected to the required standard, the tree protection fencing shall be maintained in good condition and may only be removed upon completion of all development works, to the satisfaction of the Responsible Authority.

12 The following actions must not be undertaken in any tree protection zone as identified in this permit, to the satisfaction of the Responsible Authority:

b) Servicing and refuelling of equipment and vehicles;

d) Attachment of any device to any tree (including temporary service wires, nails, screws or any other fixing device);

e) Open cut trenching or excavation works (whether or not for laying of services);

h) Unauthorised entry by any person, vehicle or machinery.

13 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

14 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

15 The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

16 The owner of the land must enter into an agreement with:

(a) a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time; and

(b) a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

17 Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:

(a) a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time; and

(b) a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applica nt can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

18 Stormwater must not be discharged from the subject land other than by means of an underground pipe drain to the nominated point of stormwater discharge.

The nominated point of stormwater discharge is Council underground drainage system.

19 Before the development works commence, the permit holder must apply to the Relevant Authorities, in whose favour easement has been created, for a report and consent to do these works within the easement. A detailed plan showing the extent of the encroachment within the easement must be provided with an application.

A copy of the Relevant Authority response must be given to Council. Development must not proceed with the works until receipt of Council's written approval has been given.

20 Vehicular access and egress to the development site from the roadway must be by way of a vehicle crossing upgraded to the requirements of the Responsible Authority, to suit the proposed driveway and the vehicles that will use the crossing. The Responsible Authority must approve the location, design and construction of the crossing. All vehicle crossing works are to be carried out with Council supervision under an Infrastructure Works Permit.

The width of the driveway at property boundary must match the width of the vehicle crossing to the satisfaction of the responsible authority.

The vehicle crossing must comply to "Vehicle Crossing Policy" Version 1.0 January 2013 and to Standard Drawing (NS3000, NS3010, NS3020, NS3021 or NS3030 and NS3031) unless written approval has been granted from Council's Infrastructure Unit.

Vehicle crossing near other services assets may require permission from the relevant authority.

21 No polluted stormwater, effluent and/or sediment laden runoff from the development site is to be discharged directly or indirectly into Council's drains, Melbourne Water's drains or watercourses or adjoining private property during any stage of the construction. In this regard, sediment fencing and/or pollution/litter traps must be installed on site and serviced accordingly, all to the satisfaction of the Responsible Authority.

22 Prior to the issue of a Statement of Compliance, the vehicular driveway to each lot must be properly formed and constructed, and to such levels to ensure that it can be utilised at all times. The driveway must be constructed in accordance with the endorsed driveway plans and maintained in a continuously useable condition. All works are to be carried out to the satisfaction of the Responsible Authority. Any works over the existing Council infrastructure requires a Build Over Easement consent and constructed to the requirements of the Responsible Authority.

23 Prior to the issue of a statement of compliance the on-site detention device must be designed by a qualified engineer and plans submitted must be to the Responsible Authority for approval, (except with the prior written consent of the Responsible Authority). The engineer that is designing the on-site detention device must obtain tc and tso figures from Council. The permissible site discharge must be restricted to a pre-development flow rate for a 20% Average Exceedance Probability (AEP) and detained for a 10% (AEP) event. For the vacant block adopt 60% impervious area.

64 The on-site detention device must be installed, at no cost to Council, in accordance with the endorsed plans. The on-site detention system outlet must be connected to the Council nominated point of stormwater discharge.

Construction of the on-site detention device must be carried out under Council supervision, in accordance with the approved plans and specifications and under an Infrastructure Works Permit.

24 Prior to the subdivision and development commencing a Construction Management Plan (CMP) must be prepared to the satisfaction of the Responsible Authority and submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of this permit. The plan must provide for (but not limited to):

(a) details of how the tree protection requirements will be implemented during construction;

(b) works necessary to protect road and other infrastructure;

(c) containment of dust, dirt and mud within the land and method and frequency of clean up procedures to prevent the accumulation of dust, dirt and mud outside the land;

(d) arrangements for trucks delivering to the land or removing fill from the land, including delivery and unloading points and expected duration and frequency;

(e) measures to ensure that traffic at the T Head at the eastern end of John Street is not unduly restricted.

(f) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced.

The construction management plan must be complied with to the satisfaction of the responsible authority.

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

(a) The plan of subdivision has not been certified within two (2) years of the issue date of this permit.

(b) A statement of compliance is not issued within five (5) years of the date of certification.

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] 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] The application does not include permission under Clause 52.02 of the Nillumbik Planning Scheme for the creation of the carriageway easement. The applicant indicated at the hearing that this would be addressed separately.

[4] Frontage: The road alignment at the front of a lot. If a lot abuts two or more roads, the one to which the building, or proposed building, faces.

[5] The existing driveway pavement area is shown 5.54m from Tree #3, with the subdivision boundary 3m from the tree.

[6] It was confirmed through the evidence of Mr Galbraith that both trees would be substantial trees.

[7] Knox City Council v Tulcany Pty Ltd [2004] VSC 375

[8] Heritage Overlay Schedules 91 and 153.