Despite any other provision of this planning scheme, in determining applications to which this clause applies, the responsible authority is exempt from and is not required to consider:

• The Municipal Planning Strategy and Planning Policy Framework, unless an applicable decision guideline specifies otherwise.
• The purpose or decision guidelines of the relevant zone, unless an applicable decision guideline specifies otherwise.
• The decision guidelines in Clause 65, unless an applicable decision guideline specifies otherwise.

If there is any inconsistency between the requirements of this clause and another provision of this planning scheme, this clause prevails.

An application to which this clause applies is exempt from the requirements of:

• Section 60(1)(b), (e), (f), (1A) and (1B) of the Act; and
• Section 84B(2)(b) to (jb) of the Act.

1. These exemptions apply to the permission required pursuant to clause 32.09-7, being the provisions of the NRZ1,[7] and set the parameters of the decision-maker's discretion in deciding whether a permit should be granted.
2. The exemptions do not apply to the permission required pursuant to the provisions of the SLO3.
3. The question of whether there is an inconsistency between the requirements of clause 55 and the provisions of SLO3 was raised in respect of the tree canopy cover, which I consider in a later section of these reasons.

1. In addition to implementing the Municipal Planning Strategy and the Planning Policy Framework, the purpose of the Significant Landscape Overlay is:
   • To identify significant landscapes
   • To conserve and enhance the character of significant landscapes.
2. Pursuant to clause 42.03-2, a permit is required to construct a building or carry out works. This does not apply if a schedule to the overlay specifically states that a permit is not required.
3. At clause 3.0, the schedule to SLO3 states:

A permit is not required to construct a building or carry out works provided all the following requirements are met:

• The height of any part of a building is no more than 7.5 metres above the natural surface of the ground directly below it.
• The building or works are at least 5 metres from the base of any substantial tree.

For the purpose of this clause a substantial tree is defined as vegetation that has a trunk circumference greater than 0.5 metre at one metre above ground level.

1. It is common ground that the proposed dwellings are not more than 7.5 metres in height. It is also common ground that the proposal requires a permit pursuant to clause 42.03-2 as works are proposed within 5.0 metres of trees T29[8] and T30[9] that are located on an adjoining property.
2. While council questioned whether permission was also required to construct works within 5.0 metres of tree T1[10] located on the subject land, the applicant advised that these works are approved under an existing permit[11] and no further permission is being sought in respect of works within 5.0 metres of this tree. That permit was issued at the direction of the Tribunal in Len Constructions Pty Ltd v Nillumbik SC.[12] ('Len Constructions').
3. Clause 42.03-5 provides decision guidelines which must be considered, in addition to the decision guidelines at clause 65, before deciding on an application. Among these is the statement of the nature and key elements of the landscape and the landscape character objective contained in the schedule to the overlay. These are detailed in a later section of these reasons, where consideration also includes relevant decision guidelines.

1. There are two previous Tribunal decisions in respect of the subject land, which were referred to in the submissions and evidence.
2. In Lordan v Nillumbik SC,[13] the Tribunal considered a proposal to subdivide the land into three lots. One lot was to contain the existing dwelling; the other two lots were to be vacant. Council has refused a permit. The Tribunal affirmed council's decision and a permit was not granted.
3. The proposal that was the subject of the application considered by the Tribunal in Len Constructions was a two-lot subdivision and works within 5.0 metres of substantial trees. Council has refused a permit.
4. In setting aside council's decision and granting a permit,[14] the Tribunal found:

1. 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.

5. 1 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.
6. 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.
7. 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.
8. 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.

9. 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.
10. The applicant advised that the driveway extending along the eastern boundary of the subject land has been constructed in accordance with Planning Permit 329/2020/14P. Council did not dispute this. Council advised that the plan of subdivision has been certified under the Subdivision Act 1988 (Vic) but it has not been registered.

IS THE DEVELOPMENT AN ACCEPTABLE RESPONSE TO THE SLO3 AND THE LANDSCAPE CHARACTER?

1. As detailed earlier, a decision guideline of the Significant Landscape Overlay requires consideration of the statement to the nature and key elements of the landscape and the landscape character objective contained in a schedule to the overlay. For SLO3, these are as follows:

Statement of nature and key elements of landscape

The Shire of Nillumbik Neighbourhood Character Study identifies the importance of vegetation and the relationship between the buildings and the landscape to the character of an area. The areas covered by this overlay have a bush garden character that is dominated by mature native and indigenous trees and planted bush style gardens. Dwellings in these areas are set among the trees and are sited so as to minimise disruption to the landform and vegetation. Buildings maintain the patterns of orientations and setbacks of adjoining properties and the streetscape. There is usually little or no delineation of front property boundaries.

The key elements of this landscape are:

• the visual dominance of vegetation including large native and indigenous trees and bush garden planting.
• the way in which the majority of development sits within the landscape with minimal excavation, and dwellings are partly obscured from view
• the hillsides appear to be covered by trees even when developed with houses.
• dwellings with colours that blend with the landscape.
• a general lack of front fencing.

Landscape character objectives to be achieved

To retain the dominance of vegetation cover in keeping with the bush garden character.

To ensure that development is compatible with the scale, setbacks and character of existing development.

To ensure that development is sensitive to the natural characteristics of the land including slope, terrain, services and any existing vegetation.

To ensure that development does not penetrate the tree canopy.

To ensure that the health of existing trees is not jeopardised by new development.

1. Council did not raise any particular concerns regarding the scale and appearance of the dwellings. Respondents consider that the dwellings, in particular Dwelling 1 at the front of the site, will present unacceptably in the streetscape and wider neighbourhood.
2. These submissions were primarily focussed on the two-storey height, the scale/mass of the dwelling, the extent of earthworks and the materials and colours palette. In addition, respondents submitted that the proposed dwellings are not sufficiently respectful of the retained mudbrick dwelling. Reference was made to the proposed built form presenting unacceptable bulk.
3. A landscape character objective is to ensure development is compatible with the scale and character of existing development. A further objective is to ensure that development does not penetrate the tree canopy. The two-storey height of the development ensures that the latter is met.
4. A decision guideline is whether the development conforms to the preferred character of the area as stated in the relevant Shire of Nillumbik Neighbourhood Character Study Brochure for the area. In this instance, that is the brochure for Precinct BG4.
5. That brochure provides a 'preferred future character statement' which identifies that development is sited so that it minimises disruption to landform and building forms respond to topographic and vegetation contexts. Large bulky dwellings that dominate the landscape and penetrate the tree canopy are identified as a threat to this character. A design objective is to ensure that buildings and extensions do not dominate the streetscape and the wider landscape setting. Design responses include designing new buildings and extensions so as not to exceed the predominant tree canopy height; and using simple elevational treatments which complement rather than dominate the bush setting.
6. Clause 15.01-5L provides the local neighbourhood character policy.[15] It is a policy that was addressed in both submissions and evidence. With respect to built form in all precincts, it has an objective to ensure buildings do not dominate the streetscape. For the 'bush garden' precinct, strategies include designing dwellings to have earthy tones and low hipped or split gabled roof forms; and minimising the visibility of dwellings from the street.
7. Strategies at clause 15.01-2L-01[16] for materials and surface finish encourage muted tones for external surfaces and avoiding bright or contrasting colours; and encourage the use of alternative building materials such as mudbrick and rammed earth construction.
8. Clause 15.01-2L-01[17] has strategies which include:

Encourage medium density housing development that is designed and sited to appear of a single dwelling when viewed from the street.

Avoid continuous building lines and blank walls.

Encourage building lines and walls that are articulated, contain visual features or are otherwise varied.

1. The street and wider neighbourhood are characterised by a mix of single-storey and two-storey dwellings, including split-level homes constructed in response to the sloping topography. There is no prevailing architectural style, form or scale. Siting is variable with no apparent consistency in either the front setbacks or the setbacks from other boundaries. In part, this appears to be a function of, or response to, the irregular subdivision pattern.
2. As sought by policy, the development will appear as a single dwelling when viewed from the street. This is principally due to the siting of this building and the fall of the subject land, which largely act to conceal views of Dwelling 2 and Dwelling 3 from the streetscape and public realm. While these dwellings will be evident in some views, including from the adjacent reserve, these will not be the prevailing experience.
3. Although Dwelling 1 is a relatively large building, it is of a domestic height and scale, reflective of dwellings in the wider neighbourhood. Its height is acceptable, as it is below the 7.5 metre 'trigger' for a permit in the SLO3 and it will not penetrate the tree canopy. It has an acceptable residential character, adopting regular forms and pitched roof. The wall planes display variable setbacks, achieving a modulation which, together with fenestration and design detail, avoids the presentation of unacceptable bulk. Notably, for approximately two-thirds of the frontage, it will have the appearance of a single-storey building. Within the subject land, the two-storey scale of Dwelling 1 will be apparent, as it will be also to the neighbouring properties to the east. This is acceptable given the two-storey dwellings form part of the area's character.

1. Council and respondents submitted that the dwelling siting, in conjunction with the extent of hard pavement proposed does not allow sufficient opportunities for planting to respect the prevailing sense of space and 'bush garden' landscape character.
2. In submitting the proposal represents an unacceptable design response, council referred to the paving associated with the driveway in the front setback area; the passing bay proposed adjacent to the eastern boundary toward the front of the site; the attached form of Dwellings 2 and 3; the third car parking space for Dwelling 1; and the swimming pools of Dwellings 1 and 3. Respondents echoed council's concerns regarding the resultant landscaping opportunities.
3. The applicant submitted that the layout of the development creates an acceptable response to the area's landscape character. The submission highlighted the proposal's compliance with relevant clause 55 standards, identified as those of site coverage, site permeability and tree canopy cover. Specifically, the applicant emphasised the following:
   • 27.6% site coverage is proposed, as compared to the maximum 60% specified in standard B2-5 at clause 55.02-5;
   • 48.25% site permeability is proposed, as compared to the minimum 20% specified in standard B5-1 at clause 55.05-1;
   • proposed canopy cover of 47.4% is more than double the tree canopy cover of 20% specified in standard B2-7 at clause 55.02-7; and
   • a garden area of 49% is proposed, in excess of the minimum 35% required by clause 32.09-4.
4. In response to council's submissions that the proposal provides insufficient tree canopy cover to achieve the desired landscape character outcome, the applicant argued that the operation of clause 55 means that requirements with standard B2-7 prevail where there is an inconsistency with another provision of the Planning Scheme. It was submitted that the tree canopy cover is acceptable given it complies with (or exceeds) the requirements of standard B2-7.
5. Council did not agree, submitting that standard B2-7 is a requirement that forms part of the neighbourhood character provisions of clause 55 and that the provisions of SLO3 relate to landscape character, which is a different consideration.
6. The evidence is that the SLO3 had its genesis in the Nillumbik Character Study, as confirmed by its reference in the 'Statement of nature and key elements of landscape' of the schedule, and also by its provisions addressing neighbourhood character outcomes. The evidence is that this 'ties back' to clause 15.01-5L where the site is in the 'bush garden' precinct, which is referenced in the title of SLO3 as 'bush garden character'. The evidence supports the applicant's position that compliance with standard B2-7 prevails in circumstances where there is an inconsistency with the provisions of SLO3. According to the evidence, in proposing a tree canopy cover of 47.4%, the development does significantly more than what is required under B2-7 and is sufficient to satisfy the requirements of SLO3.
7. In the circumstances of the subject land and the application, I do not need to make a finding whether the tree canopy requirements of clause 55 prevail. The proposed tree canopy cover of 47.4% is sufficient to meet the requirements of standard B2-7 and is also an acceptable response to SLO3.
8. I say this in respect of SLO3 having regard to the species selection, the fact that tree canopy will cover almost 50% of the subject land, the location of the trees throughout the site (including the adjacent, or proximate to, all property boundaries and within the central portions of the property) and the outcome which will be consistent with, and contribute to, the bush garden character of the area.
9. That said, I agree with council that the external car space for Dwelling 1 and the associated paved driveway area, if deleted, would provide a further opportunity for landscaping adjacent to the dwelling. The car space is not required to meet the requirements of clause 52.06-5, as two car spaces are accommodated in a double garage. The replacement of the car space and associated driveway would allow for the provision of a garden bed to contribute the landscape setting of the development and would represent a positive outcome.
10. I do not share council's concerns regarding the implications for landscaping opportunities of retaining the existing swimming pool and constructing a new swimming pool. These features are within a landscape setting that includes canopy trees, shrubs, groundcovers and lawn. The planting is sufficient to contribute to the landscape character and I have not been persuaded the deletion of the swimming pools, or their reduction in size, is warranted.
11. The treatment of the front setback area is consistent with what is approved by Permit 329/2020/14P. Specifically, this is referring to the inclusion of a 9.0 metre 'building exclusion zone', to the extent and configuration of the driveway, and the opportunities for landscaping. Indeed, the front setback of Dwelling 1 is 13.6 metres (12.9 metres to the porch). This is notably beyond the 9.0 metres.
12. Where there is a change from the existing permit is the provision of a passing bay in the driveway which provides access to Dwellings 2 and 3. That passing bay is located adjacent to the eastern boundary, and it is beyond the 9.0 metre 'building exclusion zone'. It has dimensions of 6.1 metres (width) by 7.0 metres (length). Council expressed concerns regarding the visual impact of the hard pavement associated with the passing bay, and the limitation it places on landscaping opportunities in this part of the subject land.
13. The applicant, supported by the evidence, submitted that the inclusion of the passing bay still allows for sufficient planting to contribute to the area's landscape character, and that the extent of paving is acceptable. It was further submitted that the passing bay is not a requirement of the Planning Scheme,[18] but is nonetheless provided to assist vehicle movements along the driveway, responding in part to the effect of the topography.
14. In consideration of the change in direction of the driveway in this location, the gradient of the driveway further to the north, and the resultant difficulties opposing vehicles would face in reversing to allow the other vehicle to pass, the passing bay should be provided. The landscaping opportunities proximate to this area are sufficient to achieve an acceptable outcome, displaying a mix of canopy trees, shrubs, groundcovers and lawn.

1. Concerns were expressed regarding the extent of earthworks proposed. On a sloping site such as this, some excavation and fill is to be anticipated in order to accommodate development. The location, nature and extent of the proposed earthworks are confined to that necessary to construct the dwellings and their appurtenant open space areas. In an environment where dwellings are constructed in split-level form to respond to the topography, where manipulation of the ground level is commonplace and where retaining walls are evident, the earthworks will not appear uncharacteristic in this context, nor will they impact on the landscape character. Once established, the planting throughout the site will assist in integrating the built form into the terrain.
2. The applicant, and the evidence, confirmed that the driveway has been constructed in accordance with the existing permit and that finished levels shown on the application plans match those on the endorsed plans forming part of that permit. The driveway surface will be crushed bluestone. Section drawings of the driveway do not form part of the application plans. A condition will require that these be shown and that they are identical to those on the endorsed plans of Permit 329/2020/14P.

1. Works are proposed within 5.0 metres of Trees 29 and 30, both situated on adjoining land to the east. These works, as shown on the plans, comprise the crushed bluestone driveway, and the bin storage area and clothesline (gravel surface) associated with Dwelling 3. The works were assessed by a consultant arborist on behalf of the applicant. That report identified the following:
   • drainage works, including a 1.5 metre deep trench, have occurred proximate to the eastern boundary, within the Nominal Root Zones[19] ('NRZ') of Trees 29 and 30;
   • the bulk of the proposed works are located to the west of the drainage trench. Any roots that extend into this area would have already been severed;
   • the driveway and bin storage area can be constructed above existing soil levels and permeable surfaces are proposed;
   • the encroachments into the NRZs of Trees 29 and 30 are expected to have minimal, if any, impact, on the viability of these trees; and
   • any electrical service line for the proposed bollard lights should be installed using hydro-excavation or similar, undertaken under the supervision of an arborist and must be installed beneath existing roots as much as possible. Root damage must be minimised and no roots greater than 40mm diameter are to be cut unless approved by council.
2. The applicant confirmed that the bollard lights are solar powered and will not require an electrical service line.
3. While not disputing or questioning the assessment of the consultant arborist, council queried whether services for Dwelling 3 will require works within 5.0 metres of Trees 1, 29 and 30. The applicant submitted that there are no plans to run services through the common driveway, these will be in the garden areas of the dwellings. It was further submitted that, if services are required in the driveway, the drainage works that have been undertaken demonstrate that installation can be achieved without detriment to the trees.
4. Based on the advice of the consultant arborist, and in the absence of any evidence or information to the contrary, the works shown on the plans will not result in an unacceptable impact on Trees 29 and 30, subject to permit conditions. Should further works be required for any services, then any relevant permission would need to be sought.

1. Council is not satisfied that the objective of clause 55.05-1, Permeability and stormwater management, and the related standard B5-1 are met. It further considers that the proposal does not comply with clause 53.18, Stormwater Management in Urban Development.
2. The objective of clause 55.05-1 reads:

To reduce the impact of increased stormwater run-off on the drainage system and downstream waterways.

To facilitate on-site stormwater infiltration.

To encourage stormwater management that maximises the retention and reuse of stormwater.

To contribute to urban cooling

The site area covered by the pervious surfaces is at least 20 percent of the site.

The development includes a stormwater management system designed to:

• Meet the best practice quantitative performance objectives for stormwater quality specified in the Urban stormwater management guidance (EPA Publication 1739.1, 2021) of:
  • - Suspended solids 80% reduction in mean annual load.
  • - Total phosphorus and Total Nitrogen 45% reduction in mean annual load.
  • - Litter 70% reduction of mean annual load.

Note:

A certificate generated from a stormwater assessment tool including Stormwater Treatment Objective - Relative Measurement (STORM), Model for Urban Stormwater Improvement Conceptualisation (MUSIC) or an equivalent product accepted by the responsible authority may be used to demonstrate the performance objectives for stormwater quality are met.

• Direct flows of stormwater into treatment areas, garden areas, tree pits and permeable surfaces, with drainage of residual flows to the legal point of discharge.

1. The purpose of clause 53.18 is to ensure that stormwater in urban development, including retention and reuse, is managed to mitigate the impacts of stormwater on the environment, property and public safety, and to provide cooling, local habitat and amenity benefits.
2. Pursuant to clause 53.18-3 an application to construct a building or to construct or carry out works:
   • Must meet the objectives of clauses 53.18-5 and 53.18-6
   • Should meet all the objectives of clauses 53.18-5 and 53.18-6
3. Clause 53.18-5, Stormwater management objectives for buildings and works, reads:

To encourage stormwater management that maximises the retention and reuse of stormwater.

To encourage development that reduces the impact of stormwater on the drainage system and filters sediment and waste from stormwater prior to discharge from the site.

To encourage stormwater management that contributes to cooling, local habitat improvements and provision of attractive and enjoyable spaces.

To ensure that industrial and commercial chemical pollutants and other toxicants do not enter the stormwater system.

Standard W2

The stormwater management system should be designed to:

• Meet the current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999).
• Minimise the impact of chemical pollutants and other toxicants including by, but not limited to, bunding and covering or roofing of storage, loading and work areas.
• Contribute to cooling, improving local habitat and providing attractive and enjoyable spaces.

1. Clause 53.18-6, Site management objectives, reads:

To protect drainage infrastructure and receiving waters from sedimentation and contamination.

To protect the site and surrounding area from environmental degradation prior to and during construction of subdivision works.

Standard W3

An application should describe how the site will be managed prior to and during the construction period and may set out requirements for managing:

• Erosion and sediment.
• Stormwater.
• Litter, concrete and other construction wastes.
• Chemical contamination.

1. The planning evidence included advice from a drainage engineer as an attachment ('the attachment'), which includes the following summary:

The site is proposing the construction of two new dwellings and associated impervious surfaces. This will increase the stormwater runoff generated from the site than what is currently experienced.

The increase in the proposed stormwater flows expected in storms up to and including the 20% AEP will not impact the existing drainage infrastructure as it has suitable capacity to convey the increases expected.

The increased stormwater flows expected in storm events up to the 1% AEP will not adversely affect surrounding properties as the flow increase is negligible and expected to be captured and conveyed in the existing subsurface drainage system.

The site is adopted stormwater quality devices to facilitate reuse of the stormwater, provide treatment to the stormwater runoff, encourage filtration and infiltration of stormwater runoff and assist to promote urban cooling.

The proposed stormwater quality management for the site meets the current best practice pollutant reduction targets and achieves the stormwater runoff requirements of the General Environmental Duty for the site.

The site complies with all stormwater management requirements outlined in the relevant Victorian Planning Provisions. [sic]

1. Council's written submissions did not address this issue. Rather, council made oral submissions and, in doing so, relied on an email from its engineer, which responded to the advice provided in the attachment.
2. In summary, council submitted:
   • the proposed stormwater flow will exceed the pre-development level and on-site detention is required in the form of underground tanks. The application does not disclose whether such tanks are proposed and, if they are, what their/size capacity will be and where it is proposed to locate them;
   • the placement of underground detention tanks may impact the built form and/or landscaping; and
   • council is reluctant to have this addressed by a permit condition as the outcome is uncertain.
3. The email from council's engineer states that the attachment does not provide sufficient information to demonstrate compliance with clauses 53.18 and 55.05-1. According to the engineer's comments:
   • reducing the impact of stormwater on the drainage system, as required by clause 53.18, is typically achieved by restricting the development's discharge to the pre-development flow by use of an on-site detention system. No on-site detention is proposed. The absence of a detention system and the discharge of flows in excess of pre-development flows is not acceptable;
   • the attachment does not include catchment areas, drainage pipe levels, drainage calculations or model outputs to support its figures. It is unclear whether the claim that the existing drainage system has spare capacity to accommodate additional flows is correct;
   • while the existing drainage pipe can just accommodate the 20% AEP design flow, council analyses indicate that it cannot accommodate the 15 AEP design flow. Any increase in flow due to the development will increase adverse impacts to downstream properties. On-site detention is required to mitigate these impacts and this would be conditioned in the permit;
   • the MUSIC tool is typically used for larger and more complex proposals and does not include any MUSIC inputs/outputs to support the quoted figures and demonstrate the tool is appropriate for the development;
   • the MUSIC modelling is based on rainwater tanks being plumbed to enable use for toilet flushing. This should be a permit condition; and
   • the proposed raingardens and infiltration areas must be maintained to ensure they remain functional. A section 173 agreement to ensure ongoing maintenance and effectiveness of these is required and could be included as a condition.
4. Neither council nor the applicant called evidence from a drainage engineer or similar expert. It has not, therefore, been possible to examine in any detail the drainage requirements that should apply to the development.
5. Relying on the comments in the attachment that an acceptable stormwater drainage can be provided, and having regard to the comments of council's engineer that this matter can be addressed by permit condition, I have included a condition requiring drainage to be provided to council's satisfaction. The drainage is to include on-site detention. A further condition will require that the on-site detention be shown in a location on the site that is to council's satisfaction, to allow for consideration of any implications for the site layout, built form and/or landscaping.

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

Carry out works that are less than 5.0 metres from the base of a substantial tree.

1. Before the development commences, 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 will then form part of this permit. The plans must be generally in accordance with the plans identified as DR-01, TP-01, TP-04, TP-03 & TP-05, prepared by Design Matters National, dated 05.09.2025, VCAT Amended Plans, but modified to show:

(a) section drawings of the driveway. The drawings must be in accordance with the section drawings shown on the endorsed plans which form part of Planning Permit 329/2020/14P;

(b) the location of the on-site detention device/system (refer to Condition No. 13)

(c) removal of the third car space and associated hardstand to the north of Garage 1 and its replacement with landscaping;

(d) no part of Dwelling 3 (including eaves) encroaching north of the building envelope;

(e) a notation stating that the proposed 1.9 metre high paling fence on the northern boundary be constructed prior to development commencing

(f) all plant species shown to be consistent with the Landscape Plan (refer to Condition No. 2);

(g) a comprehensive schedule of construction materials, colours and finishes, which must be in muted 'earthy' tones and of low-reflectivity. This must include details of the type and quality of materials, showing their application, appearance and durability.

1. Before the development starts, a Landscape Plan 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 this permit. The Landscape Plan must be to the satisfaction of the responsible authority and must be generally in accordance with the Landscape Plans identified as VCAT-01, VCAT-02 & VCAT-03, prepared by John Patrick Landscape Architects Pty Ltd, dated 05/09/2025.
2. Before the development starts, a Construction Management Plan must be submitted to, and be approved by, the responsible authority. When approved, the Construction Management Plan will be endorsed and will then form part of the permit. The Construction Management Plan must be to the satisfaction of the responsible authority, and must detail (but is not limited to) the following:

(a) measures to control erosion and sediment and sediment laden water runoff including the design details of structures;

(b) where any demolition and construction wastes, equipment, machinery and/or earth is to be stored/stockpiled during construction. Demolition and construction waste bins must not be dropped off, stored, or picked up on or near Bridge Street, Plumtree Close or the pedestrian footpath to the rear of the subject site. Demolition and construction waste bins are to be dropped off and picked up via John Street;

(c) where access to the site from John Street for construction vehicle traffic (including where workers personal vehicles will be parked) will occur. Bridge Street and Plumtree Close must not be used for the parking of construction vehicles or construction workers personal vehicles;

(d) Nominal Root Zones (Tree Protection Zones);

(e) the location and details of a sign to be erected at the entrance of the site advising contractors that they are entering a 'sensitive site' with prescribed tree protection zones and fences;

(f) the location of trenching works, boring, and pits associated with the provision of services;

(g) the location of any temporary buildings or yards; and

(h) measures designed to ensure the orderly management of the construction site, including complaint procedures and contact details in the event of a received complaint relating directly to construction works.

The development must be undertaken in accordance with the endorsed Construction Management Plan to the satisfaction of the responsible authority.

1. The development as shown on the endorsed plans must not be altered unless with the prior written consent of the responsible authority.
2. Before the development is occupied, all visual screening measures shown on the endorsed plans must be installed to the satisfaction of the responsible authority. Any screening measure that is removed or unsatisfactorily maintained must be replaced to the satisfaction of the responsible authority.
3. Unless with the prior written consent of the responsible authority, before the development is occupied, the landscaping works shown on the endorsed plans must be carried out, completed and maintained to the satisfaction of the responsible authority.
4. No vegetation must be removed, destroyed, felled, lopped, ringbarked, uprooted or otherwise damaged except with the prior written consent of the responsible authority.
5. Before the development starts (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 Nominal Root Zone (Tree Protection Zone) to the satisfaction of the responsible authority. The fencing associated with this Nominal Root Zone (Tree Protection Zone) must meet the following requirements:

The tree protection fencing is to be provided to the extent of the Nominal Root Zone (Tree Protection Zone), calculated in accordance with Australian Standard AS 4970.2025), Protection of trees on development sites.

If works are shown on any endorsed plan of this permit within the confines of the calculated Nominal Root Zone (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 Nominal Root Zone (Tree Protection Zone).

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 Nominal Root Zone (Tree Protection Zone) and tree protection fencing must be irrigated during the summer months with 1.0 litre of clean water for every 1.0 cm of trunk girth measured at the soil/trunk interface on a weekly basis.

All services (including water, electricity, gas and telephone) must be installed underground, and located outside of any Nominal Root Zone (Tree Protection Zone), wherever practically possible. If underground services are to be routed within an established Nominal Root Zone (Tree Protection Zone), they must be installed by directional boring with the top of the bore to be a minimum depth of 600mm below the existing grade, to the satisfaction of the responsible authority.

Bore pits must be located outside of the Nominal Root Zone (Tree Protection Zone) or manually excavated without damage to roots, to the satisfaction of the responsible authority.

(f) Access to Nominal Root Zone (Tree Protection Zone)

Should temporary access be necessary within the Nominal Root Zone (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).

1. Once erected to the required standard, the tree protection fencing must be maintained in good condition and must only be removed upon completion of all development works, to the satisfaction of the responsible authority.
2. The following actions must not be undertaken in any Nominal Root Zone (Tree Protection Zone), to the satisfaction of the responsible authority:

(a) materials or equipment stored within the zone;

(b) servicing and refuelling of equipment and vehicles;

(c) storage of fuel, oil dumps or chemicals;

(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);

(f) changes to the soil grade level;

(g) temporary buildings and works; and

(h) unauthorised entry by any person, vehicle or machinery.

1. Before the development starts, a Waste Management Plan must be submitted to, and be approved by, the responsible authority. When approved, the Waste Management Plan will be endorsed and will then form part of the permit. The Waste Management Plan must be to the satisfaction of the responsible authority, must be generally in accordance with the Waste Management Plan prepared by LEN Constructions titled '91 John Street Eltham, 3-Dwellings, Waste Management Plan v2' and show:

(a) with respect to bin placement in Plumtree Close location, the bins must be located out of the "T" of the court and on the straight section leading out of Bridge Street for collection; and

(b) clear identification on the Plumtree Close bins with address stickers indicating the number and street name where the bins are from.

The storage and collection of waste and recyclables must be undertaken in accordance with the endorsed Waste Management Plan 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.
2. Below-ground stormwater detention must be provided for Dwellings 1 and 2. (Note: partial above-ground detention for Dwelling 3 may be considered if it can be demonstrated that below-ground cannot be achieved with the levels of the existing Council drainage).

The on-site detention device must be designed by a qualified engineer and checked and approved by a registered professional engineer, with the name and registration number to be provided on each plan.

The engineer designing the on-site detention device must obtain tc and tso figures from the responsible authority. The detention must be calculated using the Swinburne Method of On Site Detention Calculation. 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.

Except with the prior written consent of the responsible authority, before the development starts, drainage plans must be submitted to, and be approved by, the responsible authority. When approved, the drainage plans will be endorsed and will then form part of this permit.

1. Before the development is completed. an on-site detention device must be installed, at no cost to the responsible authority, in accordance with the endorsed plans and must connected to the nominated point of stormwater discharge. Construction of the on-site detention device must be carried out under the supervision of the responsible authority, in accordance with the endorsed plans and specifications and under an Infrastructure Works Permit.
2. The vehicular driveway must be properly formed and constructed, and to such levels to ensure that it can be utilised at all times. Appropriate transitions with a maximum change in grade of 1 in 8 must be provided to enable access by all types of vehicles. The driveway must be drained, constructed in concrete, asphalt or similar surface and maintained in a continuously useable condition. All works must be carried out to the satisfaction of the responsible authority.
3. This permit will expire if one of the following circumstances applies:

(a) The development is not started within three (3) years of the issued date of this permit.

(b) The development is not completed within five (5) years of the issued date of this permit.

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

[1] A planning permit has been issued for the construction of a second dwelling on the adjoining property to the west, at 83 John Street.

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

[3] Provisions regarding tree canopy, entry and room depth.

[4] Nillumbik Neighbourhood Residential Areas.

[5] [2023] VCAT 201.

[6] This is with the exception of standard B2-7, which I have made findings on.

[7] That is, the permission to construct two or more dwellings on a lot.

[8] Cupressus macrocarpa - Monterey cypress

[9] Melaleuca stypheliodes - Paper bark

[10] Eucalyptus viminallis - Manna gum

[11] Planning Permit 329/2020/14P. The permit allows 'Subdivision of land into two lots and creation of an easement and Works within 5m of significant trees (Tree #1 and #2) in a Significant Landscape Overlay, in accordance with the endorsed plans.in accordance with the endorsed plans. [sic]

[12] [2022] VCAT 408.

[13] [2019] VCAT 1758.

[15] Neighbourhood character - Nillumbik.

[18] Clause 52.06-9, design standard 1 - accessways, states that a passing area is required if the accessway serves ten or more car spaces and is either more than 50 metres long or connects to a road in a Transport Zone 2 or Transport Zone 3. These circumstances do not apply to the application.

[19] Formerly referred to as 'Tree Protection Zones'.