[2006] VCAT 1270

The decision of the Responsible Authority is set aside. In permit application P800/05 a permit is granted and directed to be issued for the land at 43 Para Road Montmorency. The permit will allow the construction of four (4) double storey dwellings, the removal of vegetation and access alterations to a road in a Road Zone Category 1, in accordance with the endorsed plans and subject to the following conditions.

Plans to be supplied

1 Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans last amended on 23/03/06 but modified to show:

(a) The rear boundary paling fence to be replaced with a 1.8m high brush fence except for a portion of approximately 3m in length between units 2 and 3 comprising black plastic coated chain wire mesh including a gate for park access, the latter which is subject to the owner obtaining a Local Law Permit pursuant to Local Law 1 Section 502;

(b)

An east elevation of Units 1 and 4. The bedroom 2 windows for Unit 4 are to be of a similar design to those depicted on the east elevation for Unit 3's bedroom 3;

(c)

The north-east wing of Unit 2 (i.e that area commencing with the stairs and powder room) relocated 1m further to north by implementing the following measures:

(i)

a reduction in the internal width of this unit's garage to 3m;

(ii)

the space for the pedestrian walkway between units 2 and 3 reduced by 0.5m to 1.5m.

(iii)

consequential modifications to the storage arrangements for this unit (6 cubic metres to be provided in an alternative location);

(d)

The south wall of Unit 1's garage setback a further 1.5m to the north by implementing the following measures:

(i)

a reduction in the internal length of this garage from 6.6m to 6m and shifting the garage northwards by 900mm. The north side of the linen/laundry area may be concurrently shifted northwards to align with the front of the garage.

(ii)

the storage area can be relocated to the east side so that the eastern (rear) part of the garage wall extends into the area occupied by the proposed clothesline.

(iii)

relocation of the rear garage door to the south-east corner of the garage to minimise the need for excavation works and retaining walls within this area.

(e)

A reduction in the width of Unit 2's paving to 1.5m (presently 2.5m) at the rear of this unit. Details of paving construction techniques designed to minimise disturbance to the root system of Tree 10 together with proposed finished levels within the private open space area of Unit 2 are to be provided. These details are to be provided in accordance with the recommendations of a qualified arborist.

(f) The design of footings for Units 1 and 2 within the Optimal Tree Protection Zone of Tree 10 is to be undertaken in accordance with the recommendations of a qualified arborist.

(g)

A schedule of external building materials and colours, including colour samples. The "deep ocean" colorbond roofing is to be replaced with a colour from the green, grey or brown range;

(h)

The inclusion of additional windows to the west side of Units 2 and 3 to take advantage of views over the adjoining parkland as follows:

(i)

additional windows (highlight windows would suffice) at ground level to the living room of Unit 2 and meals area of Unit 3;

(ii)

the provision of larger windows to bedroom 2 of each unit;

(iii)

plan notations indicating the use of solar efficient glazing, blinds or other appropriate shading devices to these west facing windows;

(i) The floor level of Unit 2's garage shown on the north elevation to read RL 41.45 so as to match the floor plan;

(j)

Proposed finished site and driveway levels.

Arborist report

2 Prior to the endorsement of the plans referred to in Condition 1, a report prepared by a suitably qualified arborist must be submitted to the responsible authority for approval. The report must include recommendations for the design of paving and building footings as referred to in Condition 1 and any remedial tree pruning measures required for the removal of dead wood in relation to Tree 10. The recommendations of the approved report must be carried out to the satisfaction of the Responsible Authority.

Compliance with plans

3 The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.

Engineering plans

4 Engineering plans showing a properly prepared design with computations must be submitted to the Responsible Authority for endorsement. The plans must be to the satisfaction of the Responsible Authority and must show:

(a)

The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system;

(b)

The drainage works necessary to connect the subject land to the Council nominated point of discharge.

Landscaping works

5 Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must be generally in accordance with the landscape plan prepared by c.m.d. designs Ref: LS1-285005 revision one (03/04/06). The plan must show:

(a)

a survey (including botanical names) of all existing vegetation to be retained and/or removed

(b)

buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary

(c)

details of surface finishes of pathways and driveways

(d)

a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant

(e)

landscaping and planting within all open areas of the site

All species selected must be to the satisfaction of the responsible authority.

The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

6 Before the occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

7 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

Prior to occupancy

8 The development permitted by this permit must not be occupied until:-

(a) The parking areas shown on the endorsed plans have been constructed to the requirements and satisfaction of the Responsible Authority.

(b)

The garden and landscape areas shown on the endorsed plans have been planted to the requirements and satisfaction of the Responsible Authority.

(c) Drainage works have been undertaken and completed to the requirements and satisfaction of the Responsible Authority.

(d) The dwellings are numbered in accordance with Council's allocation of street numbers.

Car parking and access

9 Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

10 Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

11 Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Council prior to occupation of the building. All vehicle crossing works are to be carried out with Council Supervision under a Road Opening Permit which must be obtained prior to commencement of works.

12 A Vegetation Preservation Zone must be established around the Spotted Gum (tree 10) and with dimensions of envelope based on the Optimal Tree Protection Zone (9.36m radius) but modified where buildings encroach into the Optimal Tree Protection Zone and set back 1m from the edge of buildings, to the satisfaction of the Responsible Authority prior to commencement of any buildings and works.

The vegetation preservation zone must meet the following requirements:

(a) Vegetation protection fences with a minimum height of 1.2 to 1.5 metres and of chain mesh or like fence with 1.8 metre posts (e.g. treated pine) or like support every 3-4 metres and a top line of high visibility plastic hazard tape must be erected around the perimeter of the zone. The posts must be strong enough to sustain knocks from on site excavation equipment. This fence will deter the entry of heavy equipment and vehicles and also the entry of workers and/or the public in the Tree Preservation Zone. The fences must not be removed until completion of the development.

(b) A consultant arborist to the satisfaction of the Responsible Authority must be on-site to supervise excavation works around the existing vegetation where the Vegetation Preservation Zone will be encroached. This is paramount if substantial roots (greater than 100mm diameter) are encountered and may require pruning;

(c) No persons, vehicles or machinery are to enter the Vegetation Protection Zone except with the consent of the consulting arborist and to the satisfaction of the Responsible Authority;

(d) Any underground service installations must be bored and utility authorities must utilise a common trench where possible;

(e) No fuel, oil dumps or chemicals are allowed to be used or stored within the Vegetation Preservation Zone and the servicing and re-fuelling of equipment and vehicles must be carried out away from the root zones;

(f) No storage of material, equipment or temporary building is to take place within the Vegetation Preservation Zone;

(g) Nothing whatsoever is to be attached to any tree including temporary services wires, nails, screws or any other fixing device;

(h) All root excavation must be carried out by hand digging or with the use of 'Air-Excavation' techniques, and roots must be severed by saw cutting or with a sharp axe and not with a backhoe or any machinery or blunt instrument.

13 Trees shown on the endorsed plans as "trees to be retained" must not be removed, lopped or destroyed without the prior written consent of the Responsible Authority.

14 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.

15 The crossover shall be constructed in accordance with the attached Drawing A such that it is at least 5.5m wide at the property line and for the first 6m within the property and flared 60 degrees with 3 metre radial turnouts at the edged of shoulder.

16 The slope of the driveway must be no steeper than 1 in 20 for the first 6 metres from the property line.

17 Any remaining redundant crossovers on Para Road shall be removed and the appropriate road furnishings reinstated to the satisfaction of the Responsible Authority.

18 Access to and from the Para Road shall be made in a forward gear.

19 All mitigating works are to be completed at no cost and to the satisfaction of VicRoads and the Responsible Authority.

20 A Traffic Management Plan is required to be submitted to and consented by VicRoads, prior to any works on site.

21 Work site traffic management practices must be in accordance with the Australian Standard A. S. 1742.3-2002 "Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads."

22 In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

(a)

The development is not commenced within two years of the date of this permit.

(b)

The development is not completed within four years of the date of this permit.

In accordance with section 68 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to times if a request is made in writing before the permit expires, or within three months afterwards.

Mr Lorenzo Rigoni, town planning consultant of Terrain Consulting Group

1 This case involves the construction of four two-storey units on a 1239sq.m block of land in Montmorency. There is parkland at the back of the site and the area, although unmistakably residential, has a pleasant treed character. The units would replace the existing house on the land and the development involves the removal of some native and exotic trees.

2 No objections were received to the proposal from any other person.

3 The Council refused to grant a permit and Masten Bennett and Associates are now seeking a review of that decision.

4 The key issues in this case are essentially whether the:

•

scale, height and appearance of the units is acceptable in this neighbourhood;

•

proposal makes acceptable provision for the retention of existing vegetation and new landscaping;

•

units will provide future residents with good standards of amenity.

5 At the commencement of the hearing, Mr Rigoni sought leave to substitute the plans with those circulated under cover of a letter dated 5 April 2006. Among other things, the revised plans increase various setbacks including the front setback (now 9m), modify the footprint and floor levels of the units to enable retention of a large eucalyptus tree (spotted gum) near the south boundary and provide for a shared pedestrian path enabling parkland access at the rear.

6 I amended the application for permit[1] by substituting the revised plans for those that had accompanied the application in the absence of any objection to do so.

7 The subject land is located on the west side of Para Road in Montmorency about 100m north of Airlie Street. The land is a rectangular shaped block with a frontage of 27.25m, depth of 45.72m and rear boundary of 26.96m.

8 The land falls from front to back by about 6.6m (south-east corner to north-west corner). A fairly modest split level weatherboard and brick clad house is located in the centre of the site and there is a fibro shed in the back yard near the south boundary. A driveway and cross-over are located on the north side.

9 Some native and exotic vegetation is spread throughout the site. Of particular note are two gum trees. They are a 22m high Corymbia Maculata (Spotted Gum) near the southern boundary and 15m high Eucalyptus camaldulensis (River Red Gum) in the north-west corner of the site. I will refer to the Spotted Gum as Tree 10 and the River Red Gum as Tree 12, in line with the numbering system used in the arborist's report[2] provided by the permit applicant.

10 The abutting site to the north is developed with 5 single storey units built about 20 years ago. To the south is a double storey weatherboard house that is setback a considerable distance from the street. It is in disrepair and is surrounded by overgrown vegetation. Some trees are located along the common boundary including a cypress and oak tree.

11 The rear of the site adjoins parkland owned by the Council and which forms part of the Plenty River open space network.

12 Properties opposite and more broadly in the area are developed with dwellings. In particular, there are many sites developed with medium density housing.

13 Para Road is a main road that provides a connection between Greensborough, Montmorency and Lower Plenty.

14 There are a full range of services and facilities nearby, including the Montmorency train station and shops (within 1.4km to the north-east), Lower Plenty shops (500m to the south) and two bus routes within a 700m radius.

15 This proposal involves the construction of four double storey dwellings that would replace the existing house. Three of the units have three bedrooms with garaging for two cars and one unit (Unit 2) has 2 bedrooms and a single car garage. Living areas are located at ground level and bedrooms upstairs, except in the case of the 3-bedroom units whose master bedrooms are at ground level. Secluded private open space varies from 40sq.m to 50.5sq.m.

16 The units are arranged around a central shared driveway. This connects with a 2m wide pedestrian walkway between Units 2 and 3 at the rear of the site allowing access to the adjoining parkland.

17 Tree No. 10 which is located between Units 1 and 2 is to be retained while Tree 12 is proposed for removal as are the remaining plants and shrubs except for an Oleander species in the front setback.

18 Various external finishes and materials are proposed to the units including feature brickwork and blockwork to the base of buildings, lightweight painted cladding to upper levels, feature render elements and colorbond roofing. Retaining walls are proposed at the front and along part of both side boundaries.

19 The land is included in a Residential 1 zone and a planning permit is required to construct two or more dwellings on a lot.[3] Such applications must meet the requirements of Clause 55 of the Scheme (ResCode). These requirements are that a development must meet the objectives and should meet the standards of that clause.

20 There are two overlay controls that also affect the site. They are the Environmental Significance Overlay - Schedule 1 (ESO1) and a Design and Development Overlay - Schedule 8 (DDO8).

21 These overlay controls trigger the need for the following permissions:

•

Buildings[4] and works (ESO1);

•

The removal of Tree 12[5] (ESO1);

•

Buildings and works within the dripline of Tree 10[6] (DDO8);

•

Side fences and retaining walls within 10m of the front boundary (DDO8).

22 Para Road is in a Road Zone Category 1 and a permit is required to create or alter access to such a road under Clause 52.29 of the Planning Scheme. Applications require referral to Vic Roads and this Authority has no objections subject to the inclusion of standard conditions on any permit issued.

23 State and Local planning policies relevant to this application include Clauses 11, 14, 15.12, 16.02, 18.02. The most relevant local planning policies are to be found at Clauses 21.04-1 (Residential), 21.04-5 (Natural Environment), 22.06 (Housing Policy) and Clause 22.07 (Residential Neighbourhood Character Policy).

24 The thrust of these policies is to encourage the provision of diverse housing types within established suburbs with good access to a range of services and facilities. Housing that is affordable is a further objective. Council's housing policy also recognises the need to halt the decline of its population and to provide housing that caters for the diminishing size of households.

25 Balanced against these policies is the need for development that is well designed, respectful of the surrounding neighbourhood character and which offers good standards of liveability. Council's Neighbourhood Character Study includes the site within the Bush Garden precinct (BG1) where the treed canopy is dominant and where buildings should be sited and designed to remain subservient to and enable retention of this vegetation. Policies such as those at Clause 21.04-5 also seek the protection and enhancement of vegetation for its visual and environmental qualities particularly within parkland and on abutting private land near the Yarra and Plenty Rivers.

26 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Matters for consideration include State and local planning policies referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

27 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

28 Before turning to a discussion of the key issues in this case, it is relevant to observe that the suitability of this for some form of medium density housing was not in dispute. Nor were issues raised about the adequacy of carparking or any traffic related matters. I agree that none of these matters are a cause for concern.

Is the scale, height and appearance of the units is acceptable in this neighbourhood?

29 Mr Cover expressed concerns with the two-storey appearance of the proposed units, contending that most development in the area is single storey. He was also critical of the height and scale of the units, particularly units 2 and 3 whose floor levels are to be elevated by up to 1m at the rear.

30 Based on my observations of the prevailing scale and form of development in the immediate area, I am unable to come to the conclusion that the construction of 2-storey units on this site is unacceptable. The topography of the area is such that many dwellings are two-storey. As Mr Rigoni correctly pointed out, this is particularly evident on the opposite side of Para Road where the land slopes down towards the street. The converse is true in relation to development on the west side of Para Road where development facing the street has a lower profile whereas when I walked along the rear of properties within the adjoining reserve during my inspection dwellings were typically elevated at the rear where the land falls away.

31 It is true that the rear units have elevated floor levels, particularly evident in relation to Unit 2. This unit has 2-storey walls of up to 6.5m and an overall height of about 7.4m. Unit 3 has an overall height of about 6.8m. I do not however consider these dimensions to be excessive or unreasonable. There is sufficient distance between Unit 2 and the neighbouring dwelling to the south so as to cause no unreasonable loss of amenity.

32 I am also satisfied that the design of these units would not have any adverse visual impacts upon the neighbouring parkland. The parkland behind the review site seems to terminate at the northern boundary of the neighbouring site to the south - this neighbouring lot extends further west than the rear boundary of the review site. The Plenty River is located to the west whose steep banks on this side render pedestrian access along this waterway difficult if not impossible. These features together with the absence of any formalised pedestrian path within the parkland lead me to conclude that this area is not highly trafficked for recreational purposes and therefore not greatly exposed to the public eye.

33 Nevertheless, I am satisfied that the design and appearance of the units would not be in conflict with the environmental objectives under the ESO1, the design objectives under the DDO8 or the desired future character expressed under Council's Residential Neighbourhood Character Policy. The proposed units are generally well articulated, have upper level footprints that are not excessive in area and are of a height such that they will sit below the predominant canopy height of vegetation. The units are cut in at the front and will be quite recessive in appearance from the street. Front and side setbacks are fully compliant with the relevant ResCode standard and the units would not be visually intrusive when viewed from surrounding residential properties. The units' design involves the use of a sympathetic palette of external materials and finishes that is generally suited to the character of this area.

34 I agree however with Mr Cover's submission that the use of "ocean blue" colorbond roofing to two of the units may not be suitable in this particular bush-garden context but this is a matter that could be easily resolved with an appropriate permit condition.

35 I also consider that the provision of a brush fence along the majority of the rear boundary would produce a superior visual outcome to a timber paling fence. Given the privacy and service needs of future residents I do not consider it reasonable to require open style wire fencing. I also say this because I do not consider it desirable to expose clothelines and the like to a public interface. Open style fencing could however be used adjacent to the pedestrian walkway which is proposed between the 2-units with the benefit of allowing views through the site into the parkland.

36 My order reflects these findings.

Does the proposal make acceptable provision for the retention of existing vegetation and new landscaping?

37 The impact of the proposal on Trees 10 and 12 were the subject of considerable debate at the hearing. As I have mentioned, Tree 12 is to be removed and Tree 10 is to be retained.

38 In relation to Tree 10, Mr Cover submitted that Unit 2 and the garage of Unit 1 as well as paving works would be too close to this tree. These buildings would be partially located under the canopy of this tree and within 0.5m of the 3m critical root zone (CRZ) identified by the permit applicant's arborist.

39 I have given careful consideration to the question of vegetation retention and this has been the most difficult aspect of this application.

40 I have come to the conclusion that Tree 10 is worthy of retention having regard to the objectives of the ESO1, the DDO8 and the desirability of retaining high canopy trees under Council's Neighbourhood Character Policy. This tree makes a significant contribution to the landscape character of the area and is given a "high retention value" by the permit applicant's arborist.

41 While some space has been provided around it, I consider that greater separation and distance from the CRZ is however warranted. The canopy radius is about 6m and small portions of Unit 2 and Unit 1's garage are within 3.5m of the tree. These distances could however be readily increased with some minor modifications to the plans. In the case of Unit 2, the internal width of the garage could be reduced to 3.5m and the space for the pedestrian walkway between units 2 and 3 reduced by 0.5m to 1.5m. This will allow the north-eastern part of the unit (beginning with the stairs and powder room) to be shifted 1m to the north, giving a 4.5m setback at the closest point from the tree. These modifications will entail the need for an alternative arrangement for storage.

42 The modifications I propose to Unit 1's garage involve increasing the setback of this building by 1.5m to the north. This is to be achieved by a combination of measures including a reduction in the internal length of this garage from 6.6m to 6m and shifting the garage northwards by 900mm. The storage area can be relocated to the east side so that the eastern (rear) part of the garage wall extends into the area occupied by the proposed clothesline. In making these modifications, the north side of the linen/laundry area may be concurrently shifted northwards to align with the front of the garage. I will also require the relocation of the rear garage door to the south-east corner of the garage to minimise the need for excavation works and retaining walls within this area.

43 A further matter concerns the impact of paving and associated works at the back of Unit 2 upon the root system of Tree 10 given that these works are within the Optimal Tree Protection Zone (OTPZ). I will require a reduction in the width of this paving to 1.5m (presently 2.5m) and details of proposed finished site levels and paving techniques designed to minimise disturbance to the tree's root system. This is to be done in accordance with the recommendations of a qualified arborist. I will similarly require the design of footings for Units 1 and 2 within the OTPZ to be undertaken in accordance with the recommendations of a qualified arborist.

44 With these modifications I am satisfied that the propensity for future residents to seek removal of the tree or limbs will be diminished. I am mindful however that trees are dynamic, living things and are likely to require on-going maintenance. In the short term at least it may be necessary for pruning of one branch to be undertaken but this is to be balanced against the on-going contribution this tree makes to the landscape character of the area. My order will require any remedial pruning works to be undertaken in accordance with the recommendations of a qualified arborist.

45 I turn now to Tree 12 - a 15m high River Red Gum. At the hearing, Council's position in relation to the fate of this tree was somewhat enigmatic. As it transpired, two officers to whom the application was referred had different opinions about the worth of retaining Tree 12. Council's arborist advised that "the retention of Tree No. 12 is questionable as Eucalyptus camaldulensis (River Red Gum) are not suitable for retention in urban sites because of their propensity to shed limbs". This advice was given to the permit applicant who in preparing the latest modified plans did not include retention of this tree. Council's landscape architect indicated a preference for the tree's retention commenting that it is indigenous and a critical Plenty River Riparian Zone species.

46 Having inspected this tree I have come to the conclusion that it should be removed. The tree is showing extensive signs of dieback. The permit applicant's arborist although suggesting it has an overall "high" retention value, has described the 'crown health' and 'condition rating' as "fair". I have also given preferential weight to the advice of Council's arborist who has recognised the propensity for this species of tree to drop limbs and its lack of suitability in urban situations.

47 I am satisfied that there is adequate scope for replacement planting throughout the site. Such planting will more than compensate for the loss of Tree 12 as well as making a positive contribution to the landscape character of the area. I note that the landscape plan tabled at the hearing makes provision for two Yellow Box trees within the front setback - canopy trees that the plan indicates grow to a height of 20m. There is also sufficient space for ten other trees (Acacia implexa are proposed) although I will leave the decision as to the suitability of this particular species to the Council's discretion.

Will the units provide future residents with good standards of amenity?

48 I am generally satisfied that the design, layout and siting of the units will offer future residents good standards of internal amenity. The units are of an open plan design with good integration between indoor and outdoor areas.

49 The design of Units 2 and 3 has not however capitalised on the opportunities for parkland views to the west with the benefits of offering some surveillance of this area. Upper level bedroom windows are highlight windows only and ground floor living/meals areas do not have any windows oriented to the park. I regard this design response as a lost opportunity. When I asked Mr Rigoni about this aspect of the design, he mentioned the need to provide solar protection from the western sun.

50 While I agree that this is a worthy objective measures can be implemented to minimise the impacts of the western sun, such as the use of blinds or solar efficient glazing. I will therefore require the provision of west facing windows at ground level (highlight windows would suffice) and larger windows to the relevant bedrooms together with details of sun protection measures such as those which I have described.

51 In relation to overlooking I am generally satisfied that the proposal would not result in any unreasonable impacts upon neighbouring properties. I note that a lattice screen is proposed along the northern boundary fence and screening is proposed to the landing at the rear door of Unit 4 so as to limit overlooking into the backyards of units to the north.

52 There was however some discussion about the prospect for overlooking from Unit 4's bedroom 2 west facing windows. No west elevation has been provided for this unit but Mr Rigoni advised that the window treatment proposed for use to the east elevation of Unit 3's bedroom 3. These are small windows with sill heights of 1.5m above floor level. I consider the use of such windows in this case to be acceptable given the nature of the rooms (bedrooms - used mainly at night), the distance involved (about 8m from the north boundary) and the fact that any northward views would be oblique. My order will include a condition requiring the necessary elevation details.

53 The construction of four units on this relatively large site has achieved a reasonable balance between housing diversity and urban consolidation objectives on the one hand and the protection and enhance of the neighbourhood character on the other. While one indigenous tree is to be removed, the retention of another native tree is proposed together with compensatory planting that will positively contribute to the landscape character of the area.

54 For the reasons I have set out, the decision of the Responsible Authority is set aside.

55 I will direct the grant of a permit with the conditions I have described. I have also taken into account submissions made about the draft submissions and in some instances made revisions to them.

[1] Pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998

[2] Report dated 16 May 2005 by Nicholas Archer of A & R Tree Surgeons

[3] Pursuant to Clause 32.01-4 of the Planning Scheme

[4] Wall heights are greater than 4.5m and overall building heights are greater than 6m

[5] This tree has a height greater than 5m and trunk circumference of more than 0.5m at a height of 1m above ground level.

[6] A tree which would otherwise require a permit for removal under the ESO1