Figure 2: Proposed streetscape with the site in the centre.

1. As mentioned by the parties, this is the second application to come before the Tribunal to develop the site.
2. The Miao case was determined by Member Taranto in 2023 and involved a similar development comprising three (3) double storey dwellings on the site. The previous proposal was refused by Council, and the Tribunal affirmed its decision. However, the current proposal now has attracted the support of Council. During the hearing, the parties have variously referred to Member Taranto's decision in their submissions.
3. The Council referred to the principles of 'repeat appeals', articulated in many Tribunal decisions and re-stated in Zumpano v Banyule CC [2] and Sprut Pty Ltd v Stonnington CC.[3] Relevant factors to consider when reviewing an application that is similar to a proposal that has been the subject of previous Tribunal findings are:
   • significant changes in the application itself;
   • changes in the circumstances of the land and its surrounds;
   • changes in planning policy; and/or
   • changes in the interpretation of the facts or law relevant to the Tribunal's consideration.
4. As set out in Sprut, proceedings described as 'repeat appeals' are not determined by whether the proposal would have satisfied the earlier (and perhaps differently constituted) Tribunal, nor by summarily determining the matter solely by reference to the usually-applied principles or factors. Rather, the Tribunal must consider the new application before it on its merits. The Tribunal is not bound by the previous Tribunal decision but, in considering the merits of the new proposal, great weight should be given to the Tribunal's decision on the earlier application having regard to principles that have evolved for this purpose.
5. In respect of this matter, it is in the nature of a 'correcting' repeat appeal in that the proposal has made various changes in an attempt to address the earlier Tribunal's reasons for refusing to grant a permit.
6. I acknowledge that regarding the relevant factors of 'repeat appeals', there have been no significant changes in the circumstances of the site or to the interpretation of the facts or law relevant to the Tribunal's consideration. However, there have been changes to the provisions of the planning scheme and in the proposal itself.
7. In this case, the relevance and weight to be given to the previous decision must consider what changes have occurred to the planning scheme and to the proposal.
8. I note that the planning scheme has recently been subject to significant amendments aiming to facilitate additional housing under Amendments VC243 gazetted on 22 September 2023, VC267 gazetted on 6 March 2025 and VC276 gazetted on 2 April 2025.
9. Relevant to this matter, these statewide amendments have made various changes to the provisions of Clause 55 relating to 'Two or more dwellings on a lot and residential buildings' and the Neighbourhood Residential Zone Schedule 3 - 'Low Scale, Low Residential Areas' ('NRZ3') of the planning scheme.
10. Amendment VC243 amongst other things, codified residential development standards under Clause 55 so that where an application meets the numerical standard in relevant clauses, the objective associated with that standard is deemed to have been met. Amendment VC243 codified the following standards under Clause 55:
    • Street setback B6.
    • Building height B7.
    • Site coverage B8.
    • Side and rear setbacks B17.
    • Walls on boundaries B18.
    • Daylight to existing windows B19.
    • North facing windows B20.
    • Overshadowing open space B21.
    • Overlooking B22.
    • Daylight to new windows B27.
    • Private open space B28.
    • Storage B30.
    • Front fences B30.
11. Amendment VC267 implements new residential development planning assessment provisions and introduced a deemed to comply assessment pathway to support faster decisions and greater certainty for townhouses and apartment buildings up to three storeys under Clause 55. In addition, another change made by Amendment VC267 was to amend one of the purposes of the NRZ3 to replace reference to 'respect' to now read:

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

1. Although I am required to consider the planning scheme as at the date of when I determine the matter, I note that VC267 included transitional provisions for permit applications lodged before its gazettal to provide for them to be continued to be assessed under the previous version of the Clause 55 provisions. I have considered these provisions accordingly including Clause 55 as it existed prior to the gazettal of VC267.
2. Amendment VC276 was gazetted to make corrections following Amendment VC267. Included in the changes was the deletion of variations to some of the Clause 55 provisions under the schedules to the residential zones. It has no effect for this matter because the NRZ3 contained no variations to Clause 55 provisions.
3. In relation to changes to the proposal, I note the Tribunal in Miao refused the earlier proposal relating to a number of design elements which, when combined, had the potential to undermine the recognized leafy and spacious neighbourhood character. These design elements included:
   • A front setback of 7.55 metres which failed to comply with Standard B6.
   • The provision of two driveways to the site frontage with a common accessway along the southern boundary and a vehicle crossover on the north-west corner of the site.
   • A tandem car parking space for Dwelling 1.
   • Limited recession of the upper storey to all dwellings including a sheer wall form on the west elevation of Dwelling 1, south elevation of Dwellings 1, 2 and 3 and north elevation of Dwellings 1 and 3.
   • The absence of an appropriate landscaping response along both sides of the common driveway.
   • A poorly resolved landscape response that:
     • Failed to take into account the extent of excavation and retaining walls required along the north and east boundaries.
     • Failed to respond to the site features and surrounds.
     • Limited information depicting proposed finished site levels.
     • No information provided as to how the row of ornamental trees along the rear site boundary can be retained.
     • No arboricultural assessment of the proposal's impact upon the neighbouring hedge of pittosporum trees close to and along the north boundary.
     • No retention of Tree 2, a crepe myrtle located within the front yard.
   • The siting of entries to Dwellings 2 and 3 not clearly distinguishable.
   • The size and nature of windows offering little activation and engagement with the internal streetscape.
   • The location of the garage to Dwelling 3 on the southern boundary with upper storey set back 2.5 metres from that boundary.
4. Changes made with the current proposal to address the earlier refusal include:
   • Deletion of the second vehicle crossover / driveway, resulting in improvements to the front setback including additional permeability, more soft landscaping, the ability to accommodate additional trees, and the retention of another on street parking space.
   • Increased front setback of Dwelling 1 ranging between 7.9 metres to 8.27 metres and 8.4 metres to 8.9 metres. There is a variation due to the height of the front porch which is proposed to be conditioned to be reduced which would achieve compliance.
   • Increase in area of Dwelling 1 setback from 58 square metres to 89 square metres.
   • Increase in setback of Dwelling 3 from the eastern boundary from a minimum of 1.9 metres to 2.8 metres and 4.8 metres.
   • Prominence of entry to Dwelling 2 given that it is now centrally located on the northern wall to that building whilst the entry to Dwelling 3 adjoins the garage.
   • Reduction in the overall height of Dwelling 1 from 8.4 metres to 8 metres as viewed from the street. The overall height of Dwelling 2 reduced from 8.4 metres to 8.1 metres as viewed from the southern elevation and a reduction in overall height of Dwelling 3 from 8.6 metres to 8.4 metres when viewed from the southern elevation.
   • Reduction in overall site coverage from 372.5 square metres to 363.5 square metres, with the total site coverage proposed at 42.5% (below 60%).
   • Improved landscaping, including along the shared accessway along with adjustments to the building envelope to accommodate additional tree planting opportunities. Council advised this is supported by its Arborists together with the proposed planting as detailed in the landscape plan submitted with the permit application. The landscape plan provides for 17 trees and large shrubs to be planted along with smaller shrubs and ground cover.
   • Improved passive surveillance to the shared driveway has been provided with an increase in number and size of windows located along the southern elevation of Dwellings 1 and 2.
5. My decision considers the proposal before me on its merits, assessed against the relevant provisions and policies in the planning scheme. The question before me is, does the proposal represent an acceptable planning outcome on its merits, such that a permit should be granted?

1. Following the conclusion of the hearing, Amendment VC283 was gazetted on 2 September 2025. According to the Explanatory Report:

Amendment VC283 to the Victoria Planning Provisions and all planning schemes is required to update the Planning Policy Framework to implement Plan for Victoria (Department of Transport and Planning, 2025). The amendment updates and introduces policy, removes references to Plan Melbourne 2017-2050: Metropolitan Planning Strategy and makes general drafting improvements and clarifications.

1. An order dated 3 September 2025 provided the parties the opportunity to make written submissions to the Tribunal addressing any implications arising from the Amendment for the matter.
2. In response, Council says Amendment VC283 has made numerous changes to the Planning Policy Framework ('PPF') of the planning scheme including the inclusion of 'Plan for Victoria' as a relevant background document. However, Council says the changes do not alter the planning provisions or permit requirements under the planning scheme relevant to the proposal.
3. The respondents say the changes arising from Amendment VC283 bolsters support for the proposal through reinforcing commitments to housing, sustainability and efficiency through Plan for Victoria and policy commitments towards additional housing including infill development.
4. In particular, the respondents say the proposal is consistent with policies supporting increased housing in areas close to services including public transport. They say the proposal will assist in contributing towards the 65,000 homes target sought under Clause 16.01-1S. They say the proposal aligns with landscaping policy through boosting tree canopy whilst fostering healthy neighbourhoods.
5. The applicants say the design fails to manage heat gain with the design of the dwellings and lacks space for canopy tree landscaping. They reiterate that the proposal seeks too much from the site.
6. I note that, amongst the changes, is the introduction of Clause 12.06-1S - 'Urban forests' and Clause 13.01-3S - 'Urban heat'.
7. Clause 12.06-1S seeks 'to protect and enhance tree canopy in urban areas'. The policy includes strategies to contribute to achieving an overall 30% tree canopy target for urban areas by encouraging the retention of existing canopy trees and promoting the planting of new canopy trees within the public realm and open space and on private land.
8. The applicants contend that, based on the landscaping plan, the proposal only achieves a tree canopy coverage on the site of 20.4% and fails to comply with the 30% requirement set out under the policy.
9. Clause 13.01-3S seeks 'to reduce urban heat and minimise impacts of urban heat on human health and wellbeing'. Relevant strategies to support the objective include supporting development that contributes to cooler environments and reference to measures such as planting canopy trees and other vegetation and using low heat absorbing materials.
10. With regards to these policies, I note the reference to the tree canopy target relates to urban areas and not to individual lots and to urban areas that include both the public and private realms. Accordingly, I do not consider the proposal results in an adverse impact on the achievement of the tree canopy target set out under the policy.
11. I also consider the proposal achieves an acceptable response regarding urban heat. There is a balance to be struck, and I consider the proposal achieves this through providing for passive heating with northern orientation of habitable rooms, provision of eaves, compliance with garden area requirements and landscaping that includes canopy tree planting.

1. The issues raised within the context of this review relate generally to the proposal's design responsiveness to the site and policy contexts of the area and particularly the design response to neighbourhood character. There are also issues around amenity associated with visual bulk impacts.
2. Having heard the submissions and inspected the site and locality, the key issues arising from this proposal are:
   • Does the proposal appropriately respond to the site and policy contexts of the area?
   • Are impacts on amenity unreasonable?
3. I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the planning scheme. Net community benefit is central in reaching a conclusion. Clause 71.02 - 'Integrated Decision Making' of the planning scheme requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
4. With this proposed development I must decide whether a permit should be granted and, if so, what conditions should be applied.
5. Having considered all submissions presented with regards to the applicable policies and provisions of the planning scheme, I find the proposal represents an acceptable outcome.
6. The proposal is a reasonable response to the previous Tribunal decision and the policy outcomes sought under the planning scheme with respect to its residential setting.
7. I have decided to vary the decision of Council and that a permit is granted subject to amended conditions outlined in Appendix A. My reasons follow.

DOES THE PROPOSAL APPROPRIATELY RESPOND TO THE SITE AND POLICY CONTEXTS OF THE AREA?

1. The site is in the NRZ3 and identified within a traditional suburban precinct designated for minimal change.[4] The zone recognises residential areas of predominantly single and double storey development and seeks to manage and ensure that development is responsive to the identified neighbourhood character.
2. Policy at Clause 02.03-5 relating to 'Housing' establishes a vision to facilitate a diverse range of housing in line with housing demand while ensuring the preferred character of established residential areas is achieved and residential amenity is maintained.
3. Supporting the above policy, Schedule 3 to the NRZ includes the following neighbourhood character objectives, which are required under Clause 32.09-1 to be achieved for the area:

To maintain the detached, one to two storey scale and spacious, suburban character of the area.

To protect and enhance the area's 'leafy' feel and the garden setting of dwellings.

To maintain the fine grain rhythm of streetscapes and to enhance the landscape character of the area.

1. The NRZ3 also requires the requirements of Clause 55 to be met while the decision guidelines in Schedule 3 requires consideration of:

The preferred character statement and design guidelines contained in the Boroondara Neighbourhood Character Precinct Statements 2013 (or as amended and adopted by Council from time to time).

1. Clause 15.01-5L - 'Neighbourhood character - Boroondara' is a local nuanced policy which seeks to ensure development retains and enhances the key character attributes that contribute to a precinct's preferred character. General strategies include:
   • Maintaining valued residential visual amenity including landscaped settings and leafy streets.
   • Avoiding loss of mature trees and gardens and ensuring development provides adequate space for new vegetation, particularly canopy trees.
   • Ensuring development respects, responds to and makes a positive contribution to the precinct's preferred character.
2. The policy includes specific reference to the NRZ3 and, of relevance, seeks to provide for development that maintains the spacious character including the consistent spine of backyards and low site coverage.
3. Relevant strategies under the policy include:
   • Setting development back from the front, side and rear boundaries, consistent with the preferred character of the precinct.
   • Retaining open space at the rear for canopy trees.
   • Avoiding attached dwellings one behind the other that provide no visual separation between built forms.
   • Recess upper levels at the rear and reduce the footprint compared to ground floors.

1. The site is located in Neighbourhood Character Precinct 67[5] which is an area in the south-east of the municipality adjacent to the Alamein rail line, south of High Street. Built form in the area is predominantly post-war detached single storey dwellings with an increasing presence of new one and two storey dwellings and medium density housing.
2. The preferred character statement for the precinct is to enhance the consistency and character of streetscapes and to maintain the spacious, one and two storey suburban feel of the area and the garden setting of dwellings. Key elements include:
   • Encouraging retention of large trees and landscaped gardens.
   • Sufficient space in front and rear for large trees.
   • Setbacks to retain garden character and detached streetscape rhythm.
   • Respecting building scale and form of the streetscape.
   • Setting townhouses one behind the other.
   • Ensuring parking structures do not dominate the streetscape.
   • Maximising landscaping.
   • Encouraging low or open style front boundary treatments.
3. Council acknowledges that the precinct is undergoing change with the original housing stock from the post-war period being replaced by single double storey dwellings or developments such as the proposal.
4. The site is well serviced by public transport and community services including Alamein rail station 230 metres to the north, Ashburton Neighbourhood Activity Centre 800 metres to the north in High Street and recreational parkland associated with Gardiners Creek within one kilometre to the south.
5. Adjoining the site and nearby are:
   • 73 Ashburn Grove, to the north, which is developed with three single storey dwellings with a front setback of 7.5 metres.
   • 77 Ashburn Grove is developed with a double storey dwelling with a front setback of 9 metres.
   • 20 Ambon Street, to the east, is developed with two recently constructed double storey townhouses.
   • 22 Ambon Street is developed with a detached, single storey dwelling.

1. Council considers the proceeding to be a 'correcting repeat appeal' in that the proposal seeks to address the shortcomings identified in the previous Miao case.
2. Council says the current proposal better responds to the earlier version considered in the Miao case as well as existing and preferred neighbourhood character by:
   • Retaining the existing street tree.
   • Relocating the garage to Dwelling 1 from the street elevation to its rear, with access from the common driveway along the southern boundary.
   • The consequential removal of the front access driveway for Dwelling 1 increases the front setback area from 58 square metres to 89 square metres thereby providing additional space for planting two canopy trees, thereby contributing to the treed environment which forms part of Precinct 67.
   • Reducing the overall height of Dwelling 1 from 8.4 metres to 8 metres as viewed from the street.
   • Increasing the recession of the upper storeys relative to the ground floor levels.
   • Enhancing landscaping throughout the site especially within the front setback, along both the north and south of the communal vehicle accessway and in the secluded open space of each of the dwellings.
3. Council says these measures provide for an enhanced landscaping response to the site that reflects the importance of space and vegetation within Precinct 67.
4. I note the Miao decision referred to Trees 2 and 4 within the front setback of the site for retention. However, I was advised and confirmed during my inspection that these two trees had already been removed. Although their loss has an impact, I am satisfied that the opportunity for additional planting within the front setback can assist with maintaining a leafy appearance and character to the streetscape.
5. The applicants were sceptical about the changes to the design of the proposal and with regards to the accuracy of the plans for the proposal. They considered the plans were inaccurate because of incorrect scaling of dimensions. They say the design of the proposal cannot be trusted to be compliant with requirements of the planning scheme because the plans forming the basis of the design were incorrect.
6. I am comfortable that the plans show correct dimensions and although they may not scale accurately, the dimensioning of boundary lengths are correct and with setbacks dimensioned, portray a development designed to be consistent with the requirements of the planning scheme.
7. Regarding the design changes, the applicants say the proposal is not a genuine attempt to adjust the design with the proposal remaining too similar to the previous proposal considered in Miao and looking like an overdevelopment of the site.
8. The applicants say the design remains too dominant on oblique views to the site with building mass and impact on trees within neighbouring properties. This includes trees on the adjoining land to the south at 77 Ashburn Grove where they may be affected by the proposed common driveway, and trees on the adjoining land to the north, at 73 Ashburn Grove, which may be affected by the wall of the living room of Dwelling 1 which is located on the boundary.
9. Overall, the applicants consider the proposal is too close to the limits placed by the requirements of the planning scheme, including the garden area, and is too intensive regarding site coverage on a parcel of land generally smaller in size and width compared to other properties that have been redeveloped for medium density housing in the neighbourhood.
10. They consider a less intense development comprising two dwellings would be a better alternative. I have been asked to review a decision by Council to support the development of the site as proposed. My task is not to consider other alternative forms of development. My role is to consider the proposal before me.
11. In this regard, I find the proposal an acceptable outcome regarding the planning scheme. The site is located close to services and public transport that supports the strategic direction for greater density of residential development in proximity to such services.
12. I accept Council's position that the proposal achieves a high level of compliance with the residential development standards under Clause 55 of the planning scheme. Except for minor variations to Standards B6, B17 and B22 which Council suggests can be addressed by conditions, the proposal achieves an appropriate outcome.
13. The key concerns from the previous Miao decision were the inconsistent design approach to the leafy and spacious neighbourhood character and streetscape rhythm of the neighbourhood. I find the proposal now achieves a more acceptable design response with notably, removal of a second crossover and driveway servicing Dwelling 1 which now allows for Dwelling 1 to more directly face the street with a larger area for landscaping and with an increased front setback. It also removes the dominance of the garage and car parking from the streetscape. This significantly improves the streetscape outlook and character of the neighbourhood.
14. In addition to an increase in the front setback, the rear setback has also been increased. These changes allow for canopy trees to be planted in both the front and rear of the site. A canopy tree can also be planted in the private open space area of Dwelling 2. This assists in improving the response to the leafy character of the neighbourhood.
15. I also consider it also responds appropriately to Clause 12.06-1S relating to 'Urban forests' which is a new policy introduced under Amendment VC283 to protect and enhance tree canopy in urban areas through planting of new canopy trees on private land.
16. Importantly, the proposal now includes landscaping along parts of both sides of the common driveway along the southern boundary of the site which will break up the 'gun-barrel' appearance of the driveway access for the development. I do not consider it is correct to say that the entire length of the driveway requires landscaping because there needs to be safe manoeuvring of vehicles using the proposed garages.
17. Trees on neighbouring properties have been assessed by an Arborist and those in Tree Group 12 on the neighbouring property to the south already have their Tree Protection Zone ('TPZ') impacted by an existing garage on the site which will be replaced by the common driveway and include a section that is proposed to be landscaped. I am satisfied there will be no adverse impacts to these trees.
18. I note the extent of encroachment of the TPZ of Tree 11 (proposed at 0.7%) will be acceptable. Although it is proposed to push back the garage for Dwelling 3 to the east, this is offset by an increase in the setback of the proposed study for Dwelling 3 from the southern boundary from 2.2 metres to 2.5 metres. Overall, I find these changes acceptable.
19. Existing trees on the common driveway of 73 Ashburn Grove to the north will also not be significantly impacted by the proposed wall on the boundary of Dwelling 1 because these trees are currently affected by a retaining wall on a portion of the common boundary. Tree roots would already be separated from the site.
20. Built form has generally been pushed further north. This shifts the development away from the adjoining dwelling to the south. Although now closer to the units to the north, there remains compliance with setbacks and there remains buffering provided by the driveway that services the units to the north.
21. Regarding side boundary setbacks, generally, they are compliant with the requirements of the planning scheme, except for a 300mm variation for the northern first floor of Dwelling 1 which Council has addressed by Condition 2(i).
22. Upper levels have either been recessed or have windows included to articulate their appearance and have separation at the upper level between the dwellings down the site to break up the visual bulk.
23. I note the setback of Dwelling 3 to the northern side boundary is proposed to be 1 metre which includes a proposed retaining wall to 1.150 metres in height. The width of the retaining wall leaves around a 300mm gap between it and bedroom 1 and the bathroom which I consider a poor outcome regarding accessibility. I will include a condition for this setback to be increased to 1.5 metres which will allow for easier access to this area.
24. Overall, I am satisfied the proposal appropriately responds to the previous issues in the Miao case and to neighbourhood and streetscape character.

1. Regarding amenity, I have outlined earlier issues around visual bulk and impacts on amenity.
2. The proposal satisfies building height requirements under the NRZ3 and includes breaks between the dwellings at first floor level down the site. This will provide a reasonable sense of separation between built form that will be most visible down the length of the site.
3. The applicants were concerned about the proposal for blockwork and views into such a façade treatment. They say it will be unattractive to view and is not a façade material that is commonly used in the neighbourhood. They would prefer to see exposed brickwork like what is prevalent in the neighbourhood.
4. The respondent says the blockwork will have an almond colour and will not have a significant visual impact.
5. I note Council have included conditions addressing finishes and materials including face brickwork for Dwelling 1 facing the street and rendered finishes for upper floor levels. I consider this is an acceptable response.
6. Impacts from overlooking have been addressed by Council including conditions for screening of upper level windows facing west, north and south or demonstrating compliance with Standard B22 under Clause 55.04-6. Habitable room windows in the proposal are either screened, are highlight windows or are beyond the 9 metre limit under the standard. Overall, I find the proposal will not have significant impacts on amenity from overlooking.
7. Overall, I find the proposal achieves an acceptable outcome regarding amenity impacts. Visual bulk impacts are mitigated by the reduction in building heights, and changes in setbacks with a combination of recessed upper levels and articulation provided by windows and various setbacks of building facades.

1. I have had the benefit of a 'without prejudice' discussion of a set of further amended permit conditions circulated by Council in addition to those included in the Notice of Decision to Grant a Permit.
2. There is some discussion between parties as to what conditions should be imposed. I have considered those comments and included conditions as I consider appropriate for the proposal and the issues regarding the proposed development.
3. The respondents sought to amend Condition 2(m) relating to the sizing of rainwater tanks associated with a Sustainable Design Assessment. I note Council initially required in the Notice of Decision to Grant a Permit, 4,000 litre rainwater tanks which it amended to 2,500 litre tanks in the draft without prejudice conditions circulated for the hearing. The respondents seek 2,000 litre tanks or for their sizing to be subject to an amended Sustainable Design Assessment.
4. I have decided to not change what Council has amended and will maintain the reduced tanks sizing to 2,500 litres. This represents a significant reduction compared to what was included in the Notice of Decision to Grant a Permit and I consider it an acceptable outcome.

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

Stormwater Drainage Plan Prerequisite Requirements

1. Prior to the submission of amended plans pursuant to Condition 2, Development Stormwater Drainage Plans must be submitted to and approved by Council's Asset and Capital Planning team (Drainage) of the responsible authority. The plans must be prepared by a Registered Professional Civil Engineer with endorsement as a building engineer including:

(a) The use of an On-site Stormwater Detention ('OSD') system;

(b) The connection to the Council nominated Legal Point of Discharge;

(c) The outfall drainage works necessary to connect the subject site to the Council nominated Legal Point of Discharge;

(d) The integration, details and connections of all Water Sensitive Urban Design ('WSUD') features in accordance with the Sustainable Design Assessment ('SDA') and STORM report and include drainage details as a result of landscaping;

(e) A properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas;

(f) All drainage plans must show the Trees to be retained (1, 11, 12, 13, 14 and the hedges along the southern boundary of 73 Ashburn Grove) and the Tree Protection Zone ('TPZ') radius, as detailed and calculated in accordance with the arborist report submitted with the application;

(g) All drainage plans must show proposed trees to be planted in accordance with the landscape plan submitted with the application.

1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The plans must be drawn to scale with dimensions and electronic copies provided (unlocked PDF). When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with the 'section 57A' plans stamped as received on 4 April 2024 but modified to show:

(a) Any new obstructions, including fencing and/or letterboxes, must be no higher than 900mm or 50% permeable within the sight triangles in accordance with Design Standard 1 of Clause 52.06.

(b) Demonstrate that the over bonnet storage located within each garage will comply with the design standards of Clause 52.06.

(c) The overall height of Dwelling 1's porch to be less than 3.6 metres in height.

(d) Dwelling 3's first floor bedroom 3 west facing, rumpus room north facing and bedroom 4 north facing windows to be screened to 1.7 metres above the finished floor level ('FFL') or demonstration of how overlooking to the secluded private open space ('SPOS') of 77 Ashburn Grove is limited in accordance with Standard B22 of Clause 55 (Overlooking).

(e) Dwelling 2's first floor rumpus room north facing windows to be screened to 1.7 metres above the FFL or demonstration of how overlooking to the SPOS of neighbouring properties is limited in accordance with Standard B22 of Clause 55 (Overlooking).

(f) Dwelling 2's bedroom 3 south facing windows to be screened to 1.7 metres above the FFL or demonstration of how overlooking to the SPOS of neighbouring properties is limited in accordance with Standard B22 of Clause 55 (Overlooking).

(g) Dwelling 1's first floor north facing bedroom 2 window to be screened to 1.7 metres above the FFL or demonstration of how overlooking of the SPOS of dwellings within the development is limited in accordance with Standard B23 of Clause 55 (Internal Views).

(h) Dwelling 2's first floor north facing bedroom 2 window to be screened to 1.7 metres above the FFL or demonstration of how overlooking of the SPOS of dwellings within the development is limited in accordance with Standard B23 of Clause 55 (Internal Views).

(i) The northern first floor wall of Dwelling 1 to comply with the numerical requirements of Standard B17 of Clause 55.

(j) A brick finish provided to the ground floor façade of Dwelling 1, to the front, to the northern wall on boundary and to the south.

(k) The rendered finish of the first floor walls interrupted with another finish, to incorporate feature materials of either face brick or the timber finish of the garage doors.

(l) A schedule of construction materials, external finishes and colours (including swatch samples); and corresponding material codes annotated to the elevations to clearly depict which materials are located where.

(m) Initiatives contained within the SDA along with the proposed changes, including:

1. Location of 2,500L rainwater tank(s) to each dwelling shown on plans.
2. The location, surface area and cross-sectional diagram of the proposed raingarden.

(n) The TPZ and Structural Root Zone of Tree Nos. 1, 11, 12, 13, & 14 as identified in the Arborist Report submitted with the application prepared by Bluegum (dated 10/10/2023) and the hedges along southern boundary of 73 Ashburn Grove drawn on all site and floor plans.

(o) Notation on all site and floor plans that Tree Nos. 1, 11, 12, 13, & 14 and the hedges along southern boundary of 73 Ashburn Grove are to be retained and protected in accordance with the endorsed Tree Management Plan required by this Permit.

(p) Any built form reductions recommended in the endorsed Tree Management Plan required by this Permit; all reductions are to be absorbed within the building envelope and without the reduction of any setback.

(q) The siting of any necessary stormwater detention pit, underground service pits, and/or rainwater harvesting tank to be located outside any area set aside for tree planting and outside the TPZ of any trees to be retained/protected.

(r) Notation on all site and floor plans that all excavations within the TPZ of Tree 12 must be undertaken with hand tools or hydro-vacuum and that all excavation works must be supervised, document and certified by the Project Arborist.

(s) Permanent fencing within the TPZ of Tree 1, 11, & 12 constructed on pier foundations with any required plinths constructed above existing grade.

(t) Update the first floor plan or south elevation of Dwelling 1 as necessary, to ensure consistency between the floor plans and elevations (noting a window is shown on the elevation, adjacent to the stairwell window, which is not present on the floor plan).

(u) Notation on all site and floor plans that no strip footing is permitted within the TPZ of Tree 11.

(v) Development Stormwater Drainage Plans in accordance with Condition 1 of this permit.

(w) A Landscape Plan in accordance with Condition 4 of this permit.

(x) A Tree Management Plan in accordance with Condition 5 of this permit.

(y) The development must demonstrate full compliance with Clause 55.04-6 (Standard B22) and demonstrate the accurate depiction of habitable room windows as it relates to unit 3/73 Ashburn Grove.

(z) The SPOS of Dwelling 2 must comply with Clause 55.05-4 (Standard B28) with all built form changes to be reductions, to be absorbed within the building envelope and without reducing any setbacks.

(aa) Increase setback of the ground floor bedroom 1 and bathroom of Dwelling 3 from the northern side boundary to 1.5 metres with all built form changes to be reductions, to be absorbed within the building envelope and without reducing any other setbacks.

(bb) Delete reference to Tree 4 being retained as it has been removed.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the responsible authority.

1. A landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The plan must be drawn to scale with dimensions and electronic copies provided (unlocked PDF). When endorsed, the plan will form part of the permit.

(a) A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan;

(b) All hard surfaces proposed within the TPZ of Tree Nos. 11 as identified in the Arborist Report submitted with the application Bluegum (dated 10/10/2023) must be constructed of permeable materials; be constructed above current grade; and be constructed on foundations that maintain appropriate permeability for each tree, to the satisfaction of the responsible authority;

(c) Detailed construction specifications for all permeable surfaces that include cross-section diagrams;

(d) Two (2) canopy trees (minimum 2 metres tall when planted and must achieve a minimum mature height of 10 metres and canopy spread of 5 metres) in the front setback of the property;

(e) One (1) small tree (minimum 2 metres tall when planted and must achieve a minimum mature height of 5 metres and canopy spread of 3 metres) in the secluded private open space of each dwelling;

(f) Each canopy tree must be provided a minimum of 49 sqm of soil, with the available soil area clearly shown on the landscape plan;

(g) Each small tree must be provided a minimum of 12 sqm of soil, with the available soil area clearly shown on the landscape plan;

(h) All trees must comply with Australian Standard AS2303:2015 - Tree Stock for Landscape Use;

(i) All canopy trees must be planted by an AQF Level 3 Qualified Arborist, Landscape Gardener or Horticulturist;

(j) All canopy trees must be planted more than 2 metres away from any structures, paving, decking, property boundaries, easements, existing trees or shrubs;

(k) All small trees must be planted more than 1 metre away from any structures, paving, decking, property boundaries, easements, existing trees or shrubs;

(l) All trees adequately setback from common boundaries to minimise mature canopy overhang of neighbouring spaces.

1. Concurrent with the submission of amended plans required by Condition 1 of this Permit and prior to any demolition or site works, a Tree Management Plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The Tree Management Plan must be prepared by a minimum AQF Level 5 qualified and experienced Arborist in relation to the management and maintenance of Tree Nos. 1, 11, 12, 13, & 14 as identified in the Arborist Report submitted with the application prepared by Bluegum (dated 10/10/2023) and the hedges along southern boundary of 73 Ashburn Grove. The Tree Management Plan must make specific recommendations in accordance with the Australian Standard AS4970: 2025 - Protection of Trees on Development Sites and detail the following to ensure that all retained trees remain healthy and viable during construction:

(a) A Tree Protection Plan drawn to scale that shows:

1. TPZs and Structural Root Zones of all trees to be retained;
2. All tree protection fenced off areas and areas where ground protection systems will be used;
3. The type of foundations (illustration or notation) within each TPZ;
4. Any services to be located within the TPZ and a notation to state that all services will either be located outside of the TPZ, bored under the tree protection zone, or installed using hydro excavation under the supervision of the project arborist; and
5. A notation to refer to the Tree Management Plan for specific detail on what actions are required within the TPZ.

(b) Details of how the root system of any tree to be retained will be managed. This must detail any initial non-destructive trenching and pruning of any roots required to be undertaken by the project arborist; and details of how any permeable surfaces within the TPZ of retained trees will be constructed;

(c) Supervision timetable and certification of tree management activities required by the Project Arborist to the satisfaction of the responsible authority;

(d) All remedial pruning works that are required to be performed on trees during demolition and development of the site. The pruning comments must reference Australian Standards 4373:2007 Pruning of Amenity Trees and provide a detailed photographic diagram specifying what pruning will occur. Note: Only Council or Authorised Council Contractors can prune Tree No. 1. Any request for the pruning of trees on public land must be made through Council's Environmental Sustainability and Open Spaces Department.

(e) The recommendations contained in the approved Tree Management Plan must be implemented to the satisfaction of the responsible authority and any changes to the endorsed Tree Management Plan will require written authorisation from the responsible authority.

Tree Management Plan and Construction Management Plan

1. If a Construction Management Plan is required as a condition of this permit it must be in accordance with the Tree Management Plan and Tree Protection Plan.

Contractors to be advised of trees to be retained and protected

1. The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained and protected as detailed in the endorsed Tree Management Plan and are advised of any obligations in relation to the protection of those trees. A written record must be maintained on site of all contractors inducted regarding this condition. At the request of an authorized officer of Council this written record must be provided to Council.

Regulation of activities in Tree Protection Area

1. No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Area as detailed in the endorsed Tree Management Plan without the prior written consent of the responsible authority. No storage or dumping of tools, equipment or waste is to occur within the TPZ.

Documentation and Certification by Project Arborist

1. Prior to the commencement of any site works, including demolition and excavation, the responsible authority must be provided with evidence that a project arborist has been engaged as part of the ongoing consultant team to oversee the design and construction, and to ensure the development does not have a detrimental impact on the ongoing health and stability of the trees to be retained. The project arborist must hold suitable qualifications and experience to the satisfaction of the responsible authority. Evidence of the appointment of the project arborist must be submitted to the satisfaction of the responsible authority (quoting the Planning Permit number and site address, emailed to Boroondara@boroondara.vic.gov.au) not less than seven (7) days before the commencement of works on site.

1. A Water Sensitive Urban Design Report to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When endorsed, the plan will form part of the permit.
2. The Water Sensitive Urban Design Report must be generally in accordance with that dated 13 October 2023 prepared by ecoresults with any amendments to achieve a 100% STORM rating.

1. The site must be drained to the satisfaction of the responsible authority.
2. The owner must make an arrangement with Council for the provision of drainage and the acceptance of surface and stormwater from the subject land directly or indirectly into Council's drainage system and a final inspection shall be carried out to determine the completion of drainage in accordance with the approved plans, to the satisfaction of the responsible authority.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development, to the satisfaction of the responsible authority.

1. All works must be undertaken in accordance with the endorsed Environmentally Sustainable Design report to the satisfaction of the responsible authority. No alterations to these plans may occur without the written consent of the responsible authority.

1. A minimum of six car parking spaces must be provided on the land, to the satisfaction of the responsible authority.

1. Car parking spaces shown on the endorsed plans must not be used for any purpose other than the parking of vehicles, to the satisfaction of the responsible authority.

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the responsible authority.

1. The external faces of walls on or facing boundaries must be cleaned and finished to an acceptable standard to the satisfaction of the responsible authority.

1. All works including earthworks, demolition and construction activity associated with the approved development must take place only during the following hours, except with the prior written consent of the responsible authority:

1. Provision must be made on the site for letter boxes and receptacles for papers to the satisfaction of the responsible authority.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issued date of this permit.

(b) The development is not completed within four (4) 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] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] [2016] VSC 420.

[3] [2012] VCAT 1675 ('Sprut').

[4] Refer to the Housing Framework Plan under Clause 02.04-3.

[5] Identified under Clause 15.01-5L - 'Policy documents' in 'Neighbourhood Character Precinct Statements (City of Boroondara, 2023)'.