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

Jake Burrow Architecture (architectural); Human Habitats (landscape).

A01 to A07 all Revision C; LCP01 and LCP02, both Revision A.

1. In application P1158/2024 the decision of the responsible authority is affirmed.
2. In planning permit application P/2024/6035 no permit is granted.

Alex Gelber, barrister instructed by Russell Kennedy lawyers. Expert evidence was called from:

• Andrew Hill, ecologist from Ecology and Heritage Partners.
• Gokhan Kharpat, urban designer of Ratio Consultants.
• Matthew Furness, town planner of Ratio Consultants.
• Darren Atkinson, landscape architect of Human Habitats.

Construction of a shed and works associated with an existing dwelling.

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

Clause 35.04-5 - to construct or carry out buildings or works associated with a use in Section 2 of Clause 35.04-1.

Clause 42.03-2 - to construct a building or to construct or carry out works.

Clause 42.01-2 - to construct a building or to construct or carry out works.

The subject site is located to the south-west corner of Wellington Road and Glen Road in Lysterfield. It is an irregular 'L' shape, with frontages of approximately 67 metres to Wellington Road and approximately 233 metres to Glen Road. It has an overall area of 2.736 hectares. There is a fall of approximately 13.5 metres from the south-west (rear) to the north-east (front). The site contains a dwelling located centrally on the site, adjacent to the west boundary. A dam is located towards the north-eastern corner of the site. A vehicle accessway from Wellington Road to a large gravel parking area exists adjacent to the west boundary.

1. This proceeding concerns a review by the applicant of the decision of the council to refuse to grant a planning permit for the construction of a shed and associated earthworks.
2. The council's grounds of refusal can be summarised as follows:
   1. Contrary to policy related to landscaping and the built environment.
   2. Contrary to the purpose of the Green Wedge Zone (GWZ).
   3. Non-compliance with the purpose and environmental objectives of the Environmental Significance Overlay.
   4. Non-compliance with the purpose and landscape character objectives of the Significant Landscape Overlay (SLO1).
3. A dwelling currently exists on the site and the applicant said that the shed would be used for storage purposes associated with the domestic use of the dwelling. This is the basis upon which the council determined the permit application and upon which it proceeded at the hearing.
4. As part of the permit application process, notification of the application occurred to nearby landowners and occupiers. A total of five objections was received. Some of those objectors ('the respondents') are party to this proceeding, attended the hearing, and made submissions to the Tribunal against the proposal. Their grounds were similar to those of the council, but other matters were raised such as removal of native vegetation, characterisation of the shed as a contractor's depot, broader earthworks across a large part of the site, and whether the existing dwelling had existing use rights or not.
5. The applicant disputed the grounds by the council, as well as the other claims made by the respondents. It called expert evidence to support its case in the fields of ecology, visual amenity (photo montages), urban design and town planning, and landscape architecture.
6. On balance, in this case the relevant provisions and policy of the Knox planning scheme do not support this proposal. It is a very large building, that proposes a large benched curtilage and a significant site cut. It will be highly visible from many vantage points in an area where policy does not encourage or support such outcomes. I explore the reasons for my decision in more detail below.

1. The proposal is to construct buildings and works for a shed and will include associated earthworks. Much of the earthworks have already occurred, however, the shed has not yet commenced construction.

Aerial photograph of the site, with existing dwelling marked with red star. Shed site is below the dwelling.[2]

Panoramic view of part of the area where works have already been undertaken, looking west.[3]

View looking south-west towards shed site.[4]

1. Details of the proposed shed are as follows:
   1. Located towards the south-west corner of the site.
   2. Dimensions of 24 metres in width and 40 metres in length, with a total area of 960 square metres.
   3. Height of 6.9 metres above the floor level and a maximum height of 7.7 metres above the existing ground level (east elevation).
   4. Six roller doors providing access to the northern elevation and one roller door along the southern elevation.
   5. Metal cladding (Colorbond 'Basalt').
2. Other details are as follows:
   1. Concrete paving is to extend around the shed with a dimension of 10 metres to the north and south, 2.8 metres to the west and 6 metres to the east.
   2. Stepped retaining walls (maximum 900mm high with a total height of 1.8 metres) are proposed along the southern and western edges of the concrete slab.
   3. A 10,000 litre rainwater tank is proposed to the south-east of the shed.
   4. Access is proposed via an accessway from a proposed crossover and 4 metre wide accessway from Glen Road to the east.
   5. Maximum proposed cut for the shed will be 3.8 metres at the south-western corner. The overall area of works to accommodate the shed is approximately 53 metres x 75 metres (approximately 3790 square metres).
   6. Earthworks over a large portion of the site.

Earthworks proposed. Cut shown in shades of purple. Fill shown in shades of brown.

1. There was some dispute about the height of the proposed building.
2. The applicant said the maximum height of the building is proposed at 7 metres, based on the RL level of 115.300 along the eastern elevation, with a peak ridge height of the shed to be 122.300.
3. However, the council said the contours on the site plan differed from the RL of 115.300 shown on the elevations, and showed a natural ground level of 114.600 at the location of the ridge at its eastern most extent. So, by deduction, it said that with a ridge height of 122.300, and a natural ground level of 114.600, the overall height was 7.7 metres.
4. The applicant submitted that a permit is triggered under the SLO1 regardless of whether the shed height is 7 metres or 7.7 metres in height.
5. I prefer the council's calculations, as the site plan shows the existing contours and these are the plans the applicant has relied upon in this proceeding. The contours differ from the RL levels shown in the plans.
6. Whilst the overall height of the shed is a factor in my decision, whether it is 7 metres or 7.7 metres is not significant in isolation to my decision. The height is one of a number of factors why I find the proposal unacceptable.

Proposed east elevation, with Tribunal mark-up in green circle.

Partial site plan, with Tribunal mark-up in green circle.

1. The respondents submitted that native vegetation existed on the review site immediately prior to the works occurring which form part of this proposal (retrospective).
2. In support of these submissions, the Green Wedge Coalition ('GWC') stated that observations had been made that native species had existed on the site prior to the works. The GWC stated that because there was such extensive earthworks across a substantial proportion of the site, it is logical that most of the vegetation in the areas disturbed would have been destroyed.
3. However, no evidentiary material was provided to the Tribunal for this proceeding that indicates what vegetation was removed or destroyed, where abouts on the site it was located, and whether it was native or exotic.
4. On the contrary, Mr Hill's evidence was that it was highly unlikely that any native vegetation was destroyed as part of the works that have occurred.
5. Although Mr Hill did not inspect the site prior to the works occurring, his opinion was based on observations made on the site in areas immediately abutting the areas where the works have occurred, and observing that there were no native species in those locations. Therefore, he concluded that it could be deduced that no native vegetation would have been located nearby and therefore removed.
6. No evidence or material that supported the claims by the respondents was provided to the Tribunal. Aerial images do not show any trees in any recent times in the locations of where the proposed works are to occur, and there was no evidence that the lower level vegetation, such as grass, is evident as either native or non-native.
7. The GWC also submitted that two large trees were removed from part of the site between the existing dwelling and the adjoining dwelling to the north at 1460 Wellington Road.
8. Based on the amended plans, the location of the alleged trees is in area denoted as 'Area excluded from permit application'. This location is also remote from where the proposed shed and other works are located. Therefore, because the proposed shed and works do not rely upon the removal of the said trees, and this area of the site is not the subject of this application, the alleged removal of these trees is not relevant in this proceeding.
9. Whilst it is possible that some native species existed prior to the excavation and other works, there is insufficient evidence or material before me to find that this was the case.

1. The respondents submitted that the proposed shed is beyond a scale that could be considered associated with a dwelling on the land. They said the overall size, area, height, number of doors and paved areas abutting it or gravel curtilage indicate that it is likely to be used for purposes other than associated with the dwelling.
2. It was also said that the site has been used in the past for the storage of vehicles and equipment associated with the applicant's civil construction business, although they accepted these vehicles and equipment have now been removed.
3. Photographs were presented indicating some of these vehicles and equipment being present on the site in the past.
4. The respondents said that when taken together, the past occurrences and the attributes of the proposed buildings and works indicate there is a likelihood that the shed is proposed to be used for purposes other than associated with a dwelling, such as a contractor's depot.
5. The proposal before me is for a building and works associated with a dwelling. It is not for any other purpose. I must determine the proposal before me. If approved, and if the shed were to be used for purposes other than what a permit has been granted for, and a permit is required for that use, then that is a matter for the council, in the first instance, to enforce its own planning scheme.
6. I can understand the concerns of the respondents to an extent, given the previous storage of vehicles and equipment, and the size of the building proposed with large curtilage and multiple roller doors of significant dimensions. This could be viewed as excessive for a shed associated with a dwelling.
7. In this case, however, I am unable to find that past actions give rise to future actions, particularly when a permit has been sought for something unrelated to past occurrences, and in this instance the applicant agreed to a condition limiting the use of the building to be associated with a dwelling, if a permit were to be issued.
8. Whilst it is understandable that neighbours might be concerned about whether the attributes of the proposed shed give rise to it being used for purposes other than associated with a dwelling, the application proposes it to be associated with a dwelling. In the event a permit was granted, the applicant had offered the inclusion of a permit condition that the shed be restricted in the way it is to be used.

1. The visual impact of the proposal is the key matter for determination in this case.
2. The applicant relied on the evidence of Mr Kharpat, Mr Furness and Mr Atkinson in supporting its position that the proposal would be an acceptable outcome in its context.
3. The applicant submitted that the mere fact that buildings and works are permissible in the GWZ, implies that some visible impact will result and will be acceptable. It accepted that it was a large building but that it nevertheless would sit comfortably in its context, is tucked into the landscape, and can barely be seen.
4. Mr Furness said the proposed shed would not penetrate skyline except for one limited view from Glen Road, towards the southern end of the property. Otherwise, he said it would be seen with the backdrop of the hilly topography to the south-west which rises well above the review site. He also recommended colour change for the external finish so as to be a better match with the surrounding environment.
5. Mr Atkinson said views would be filtered through the proposed vegetation, as well as the relatively recently planted cypress hedging around the southern portion of the site. Mr Atkinson relied, in part, on these cypress plants, which he said would provide relatively rapid growth and a screening effect.
6. The council said that the proposed shed should be able to stand on its own merit without landscaping, and that landscaping should be complementary, rather than a primary method of screening to make the proposal appear acceptable. It said that the size of the shed and the extent of works proposed would be excessive in the context and that the proposed landscaping, whilst an acceptable outcome generally in isolation, should not be a substitute for an appropriate built form outcome.
7. The council said the proposal needs to be assessed by a combination of the size of the shed, including its height, as well as the cut and other works and curtilage proposed, nearing 4000 square metres in area in total, in an area where sheds and outbuildings are substantially lesser in scale and extent than what is proposed here.
8. The GWZ and SLO both seek to implement relevant planning policy.
9. The GWZ is not a zone that seeks to encourage development in the way other zones do. It does seek to encourage use and development that is consistent with sustainable land management practices. However, it also aims to protect and enhance the character of open rural and scenic landscapes, as well as protect and conserve green wedge land for its landscape attributes.
10. The SLO1 is entitled "Lysterfield Valley and Lysterfield Hills Rural Landscape". It sets out that:

The landscape is centred on the enclosed Monbulk Creek Valley. Monbulk Creek Valley is where the urban area has given way to rural, and no indication exists of the proximity of the suburbs. Views within the valley are of rolling rural landscapes that are mainly pastoral. Hills on either side of the valley are bare or very lightly treed, with this openness contrasting with the treed slopes of the Dandenong Ranges. The character of this landscape is unique and is particularly sensitive to further subdivision and development/

1. Relevant Objectives of the SLO1 include:
   • To protect the broad scale pastoral landscape character and the open, bold hillsides of the Lysterfield Valley.
   • To protect and enhance the scenic, visual, cultural and environmental values of the Lysterfield Valley, including the contrast between this area and the forested slopes of the Dandenong Ranges.
   • To ensure that development is located and designed to avoid inappropriate visual intrusion or other detrimental effects on the Lysterfield Valley and the key characteristics of the Valley's landscape, having regard to bushfire risk.
2. There are numerous decision guidelines under the SLO1 which are relevant in this case. I do not set them out in the body of these reasons but have attached them at Appendix A, and I have had regard to them in coming to my decision.
3. In summary, they ask the decision maker to consider the visual impact of development, whether development is sympathetic to the landscape qualities of the area, whether development preserves the identified landscape qualities, whether vegetation will be planted to screen buildings and whether development has avoided the need for earthworks.
4. Relevant policy for this proposal has also been included at Appendix A. This includes clauses 11.01-1R, 12.05-2S, 12.05-2L and 15.01-6S.
5. Whilst some aspects of policy encourage development in green wedge areas, this is qualified encouragement, that generally seeks the protection or enhancement of the landscape qualities and character of the area.
6. There is no doubt that the proposed shed is of significant size. At 960 square metres, it will be one of the largest buildings in the surrounding landscape. At over 7 metres in height, it will also be one of the taller buildings in the landscape.
7. The extent of the works associated with the shed is approximately 3,500 square metres in area. This area includes the cut and fill, retaining walls and the shed itself.
8. I agree with the applicant that because buildings and works are permissible, there is likely to be some visual impact, and such an expectation arises because of the control itself. However, whether the proposed buildings and works are acceptable, is reliant upon an assessment of the proposal against the relevant controls and policies, and in the physical context the site is located within.
9. The weight of the planning considerations in this case sway heavily in favour of low-key, subdued built form outcomes. In my view, this proposal could not be described as such.
10. In my view, the combination of the height and overall size of the shed, the extent of works proposed, and the amount of cut proposed, along with the location of the shed site at the highest point of the land result in an unacceptable outcome.
11. Whilst the proposal will have minimal impact on any skyline views, it will be visible from several vantage points, both close by and further afield. The extent of overall development will be visible and a dominant feature in the local landscape. Such an outcome does not derive benefit from the relevant policy, which seeks the opposite - to minimise dominant built form features in the landscape.
12. I agree with the council that the proposal effectively needs to 'stand on its own two feet' in terms of whether it is an acceptable outcome, and that landscaping should be complementary. In this case, I find that the proposal does not achieve an acceptable overall outcome from a policy perspective, where development needs to essentially fit with the existing landscape and achieve the protection and enhancement of the landscape values that the SLO1 and associated policy seek.
13. In terms of landscaping, apart from the reliance on the extensive planting of cypress trees around part of the property perimeter, I have no concern with the landscaping response insofar as it relates to that part of the site that is the subject of this permit application.
14. The landscape plan displays a relatively informal arrangement of indigenous species of varying dimensions, which is generally cognisant of the existing landscape character and with what policy seeks.
15. The proposed landscaping will provide some level of screening of the proposed shed and its associated works. However, much of what is proposed is somewhat remote from the shed, because of the extensive curtilage immediately surrounding it, and so its effect will be somewhat mitigated as a result.
16. Whilst I accept the evidence of Mr Atkinson that the surrounding area supports large cypress or other similar exotic windrows, these tend to be located on land that appears as larger, more rural type landholdings, not smaller rural living type lost such as the subject site. They are also generally located on the northern side of Wellington Road. Such formal arrangements of windrows are not as evident or as extensive as what is relied upon on the subject site. So, to the extent these cypress trees were relied upon by Mr Atkinson, even though they are existing, I find the degree to which they have been used is excessive in this case.

Water flow between 1450 Wellington Road and the subject site

1. Issues relating to altered water flow between 1450 Wellington Road which abuts the southern portion of the western boundary, and the subject site were raised at the hearing. It was said that a small bund had been constructed on the review site but close to this boundary and therefore caused accumulation of water on the adjoining property, which created certain issues for that landowner.
2. Issues of water flow between properties is not a matter that is relevant to this proceeding, under the provisions of the PE Act.

1. In relation to the works that are proposed as part of this application but not directly associated with the construction of the shed, I make no findings except as set out further below, as I have refused the whole of the application for the reasons set out above.
2. The works closer to the Glen Road frontage are, to a large degree, greater than 1 metre in height and up to 1.4 metres in some locations. This effectively provides a visual barrier along this road frontage which I find is contrary to providing open vistas and broader views of the landscape that the GWZ and associated policy seeks. The works appear to have no beneficial purpose as far as policy is concerned.

1. The proposed shed, the associated works and the extent of works along the Glen Road frontage give the appearance of a proposal that has had scant regard for the relevant controls and policies that apply in this instance. If a shed for storage of personal items and the like is something that will be further pursued, then a more subdued proposal would be necessary to gain support under the current planning scheme.
2. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

• Whether the proposed development will impact upon the views of the valley from the surrounding area, particularly the Dandenong Ranges and significant ridgelines.
• Whether the proposal promotes low intensity development which is sympathetic to the landscape qualities of the area.
• ...
• Whether the proposed development and proposed landscaping are compatible with a rural area.
• Whether the proposed development and proposed landscaping will ensure that identified landscape qualities are preserved.
• ...

• Whether the proposed development will utilise non-reflective materials maintained in muted colours that blend with the landscape on external surfaces, including roofs of all buildings but excluding solar panels, to reduce its visual impact.

• Whether vegetation will be retained and planting used to screen buildings.

• Whether the siting and design of development will follow the topography, avoid the need for earthworks and integrate with the landscape features of the area.
• Whether buildings will be sited on relatively low-lying positions.
• Whether buildings will be dispersed to allow trees to be planted among them.

02.01 - Context

Knox is situated between the Dandenong Creek Valley, Lysterfield Hills and the Dandenong Foothills. These regionally significant environmental and landscape features define the character and image of Knox and provide recreational and open space benefits.

02.02 - Vision

Knox's natural environment is protected and enhanced to ensure sustainability for future generations.

02.03-1 - Green wedges

Green wedge land in Knox contributes to the significant landscapes that shape the overall identity and character of the municipality.

Green wedges strategic directions:

• Protect the Dandenong Foothills, Sites of Biological Significance, and other areas of significant biological and landscape value from inappropriate development.
• Protect existing and potential aesthetic, biodiversity, landscape, amenity, cultural and agricultural values of green wedge land.

02.03-2

Significant environments and landscapes

The most significant landscape characteristic of Knox is its suburban area set in a larger natural and rural landscape.

Canopy trees, including trees in suburban backyards, are an integral component in Knox's natural environment and maintaining its green skyline and leafy green landscape character.

The Dandenong Foothills provide a scenic backdrop to views from the eastern suburbs of Melbourne. They are a major defining element of Knox's character and identity.

The Dandenong Foothills have high environmental and social values of metropolitan significance. Residential development and urban consolidation objectives must not outweigh the environmental and landscape objectives for the Foothills.

....

Rural land in Knox contributes to its significant landscapes. The residential areas located within the Dandenong Foothills also contribute to the significance of this landscape.

Knox has identified significant road corridors. 'Bush Boulevards' are arterial roads with wide reservations planted with informal avenues of native trees. In the Foothills the roads become 'Paths into the Hills', with roadside verges containing understorey and canopy vegetation. Buildings along these roads contribute to this landscape character with setbacks from the street, and canopy tree planting. These road corridors link the suburbs of Knox to the landscape character of the Dandenong Foothills. They also provide environmental benefits, supporting local biodiversity, providing wildlife corridors, enhancing remnant native bushland and mitigating the effects of climate change.

'Gateways' in Knox are entry points into the City that intersect with the significant landscapes of the Dandenong Foothills, the Lysterfield Valley and the Dandenong Creek Valley. 'Dandenong Creek Valley Gateways' have a sense of openness and views into the creek valley, promoting the City's green landscape identity. 'Tourist Gateways' are on the tourist route for visitors to the Dandenong Ranges.

Significant environments and landscapes strategic directions:

• Retain canopy trees as the single most important factor in defining Knox's landscape character and its natural environment.
• Strengthen Knox's green and leafy streetscapes and its identifiable landscape character.
• Maintain the unique landscape character, amenity and natural values of Knox's significant landscapes, including the Dandenong Foothills, Lysterfield Valley and the Dandenong Creek Valley.
• Protect the heavily treed canopy and unique character of the Dandenong Foothills as a landscape of metropolitan significance by avoiding additional residential development and urban consolidation.
• Maintain views of the Dandenong Foothills from within the municipality and around metropolitan Melbourne by:
  • Retaining canopy trees.
  • Designing and siting buildings and works to sit below the dominant tree canopy height.
• Create attractive road corridors that link the suburbs with the landscape of the Dandenong Foothills.
• Enhance landscape-dominant gateways that uniquely identify the City of Knox.
• Provide landscape character and a green skyline, particularly along ridgelines and creek valleys, within major views and vistas and as a backdrop to urban and rural areas.
• ....

02.03-3 Natural resource management

Natural resource management

Agriculture

Rural land shapes the overall identity and character of the municipality, and is predominantly located in the foothills of the Dandenong Ranges, including the Lysterfield Valley.

Agriculture strategic directions:

• Protect existing and potential aesthetic, biodiversity, landscape, amenity, cultural and agricultural values of rural land.

11.01-1R - Green wedges - Metropolitan Melbourne

Objective

To protect the green wedges of Metropolitan Melbourne from inappropriate development.

Strategies

• Promote and encourage the key features and related values of each green wedge area.
• Support development in the green wedge that provides for environmental, economic and social benefits.
• Consolidate new residential development in existing settlements and in locations where planned services are available and green wedge values are protected.
• Plan and protect major state infrastructure and resource assets, such as airports and ports with their associated access corridors, water supply dams, water catchments and waste management and recycling facilities.
• Protect important productive agricultural areas such as Werribee South, the Maribyrnong River flats, the Yarra Valley, Westernport and the Mornington Peninsula.
• Support existing and potential agribusiness activities, forestry, food production and tourism.
• Protect areas of environmental, landscape and scenic value such as biodiversity assets, national and state parks, Ramsar wetlands and coastal areas.
• Protect significant resources of stone, sand and other mineral resources for extraction purposes.
• Provide opportunities for renewable energy generation.

Landscapes

Objective

To protect and enhance significant landscapes and open spaces that contribute to character, identity and sustainable environments.

Strategies

• Ensure significant landscape areas such as forests, the bays and coastlines are protected.
• Ensure development does not detract from the natural qualities of significant landscape areas.
• Improve the landscape qualities, open space linkages and environmental performance in significant landscapes and open spaces, including green wedges, conservation areas and non-urban areas.
• Recognise the natural landscape for its aesthetic value and as a fully functioning system.
• Ensure important natural features are protected and enhanced.

12.05-2L

Objective

To protect and strengthen treed character and landscape values, including natural areas of significance, significant landscapes and the 'Bush boulevards', 'Paths into the hills' and 'Gateways'.

General strategies

Protect views of the Lysterfield Valley as a pastoral landscape.

Minimise the visual dominance of development in:

• Minimises the impacts of development to the health and viability of existing vegetation.
• Responds to the landscape values of the site and local area.
• Incorporates the planting of new vegetation, including canopy trees.

'Paths into the hills' strategies

Support built form that does not dominate landscape character.

Encourage development outside activity centres and high bushfire risk areas to be setback and screened with a thick buffer of native vegetation and canopy trees to minimise visibility from the road.

15.01-6S - Design for rural areas

Objective

To ensure development respects valued areas of rural character.

Strategies

Ensure that the siting, scale and appearance of development protects and enhances rural character.

Protect the visual amenity of valued rural landscapes and character areas along township approaches and sensitive tourist routes by ensuring new development is sympathetically located.

Site and design development to minimise visual impacts on surrounding natural scenery and landscape features including ridgelines, hill tops, waterways, lakes and wetlands.

[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] Document 1 of the council's attachments, page 2.