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[2003] VCAT 677
appellant. The Responsible Authority was directed to issue a planning permit for two double-storey dwellings at 17 Ripper Street, generally in accordance with the submitted plans and subject to conditions....
VCAT granted a permit for two dwellings on a sloping Montmorency site after finding that the proposal, considered in its particular surroundings, did not justify refusal on neighbourhood-character, vegetation, amenity or Clause 55 grounds. The permit was subject to detailed conditions, including landscaping and tree-protection requirements.
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2,158 words · generated 29/09/2026
Pepper v Banyule CC was a permit review in the Victorian Civil and Administrative Tribunal’s Planning and Environment List. Matthew Pepper applied under s 79 of the Planning and Environment Act 1987 after Banyule City Council did not determine his application within the prescribed time. The application concerned two double-storey dwellings at 17 Ripper Street, Montmorency. The Tribunal heard the matter on 10 April 2003 and made its order on 10 June 2003.
No linked legislation citations have been extracted yet.
The proposed development retained and extended the existing front dwelling, adding a second storey, and provided a second dwelling behind it. The plans also included a double carport for the front residence, a double garage for the rear residence, access driveways and landscaping. The site measured about 20.69 metres across the frontage and 57.91 metres deep. It had a substantial fall of 6.3 metres from the rear towards the front north-east corner, and a drainage and sewerage easement along its northern and western boundaries (paras 5–6).
The setting mattered to the Tribunal’s assessment. The surrounding area was mainly made up of single-storey detached dwellings, but also included multi-dwelling developments. The adjoining property at 15 Ripper Street had three dwellings, including a two-storey front dwelling. Ripper Street’s alignment meant the review site was “hidden” from long views down the street. Nearby services, the railway station, a school and Petrie Park were also described in the reasons (para 5).
Council’s delegate stated on 25 March 2003 that, if the review had not been lodged, Council would have refused the permit. Its stated grounds were neighbourhood character, site constraints, Clause 55 matters, the Vegetation Protection Overlay and alleged overdevelopment (para 2). No objections had been received during advertising, and the Council Development Engineer had raised no objection subject to standard conditions (paras 22–23).
The Tribunal directed Council to issue the permit, generally in accordance with the submitted plans and subject to 15 conditions. These included requirements for amended plans, landscaping, drainage, parking and protection of retained vegetation. The permit also set time limits for commencement and completion (order, conditions 1–15).
The Tribunal organised the substantive dispute around four questions: whether the design responded to the site and avoided significant off-site effects; whether it conflicted with neighbourhood-character policy; whether it achieved Clause 55 objectives; and whether it responded adequately to the Vegetation Protection Overlay objectives (para 47).
On off-site effects, the Tribunal accepted that neighbouring residents would retain their existing views towards the east, at the level of tree canopies remaining above the existing boundary fence. It found “very few off-site impacts” and none significant enough to warrant refusal (para 48). It also concluded that separation between the proposed dwellings and between the proposal and neighbouring dwellings was adequate. It found no overlooking of consequence, taking into account existing vegetation, distances and the context of the site (para 49).
Neighbourhood character was a central disagreement. Council relied on its Neighbourhood Character Strategy and guidelines, while the applicant challenged the weight given to a revised set of guidelines adopted by Council in April 2002. The Tribunal noted that the guidelines were not then referenced in the planning scheme and considered the Panel’s comments about variation within individual precincts. It criticised Council’s assessment for not keeping the existing site conditions, context and design outcome sufficiently in focus (para 52). The Tribunal’s own conclusion was that the proposal would respect and, in its view, enhance the locality’s evolving character (para 49).
The Tribunal rejected the contention that the project was overdevelopment. It said that statistical comparisons did not provide a sustainable argument on that issue. It acknowledged that two large dwellings would replace one relatively small house, but accepted that the proposal responded to the sloping terrain, vegetation worth retaining and neighbours’ existing amenity (para 50). This was a conclusion about the proposal and site before it, not a general finding that numerical standards always resolve an overdevelopment dispute.
The evidence about trees was also important. The applicant relied on an arboricultural report describing the condition and retention value of trees proposed for removal. The Tribunal did not accept that valuable vegetation or significant specimens or canopies would be lost (paras 40–45, 49). It considered that expert arboricultural evidence mattered when assessing claims about whether trees would remain healthy, and rejected Council’s unsubstantiated argument that the development had not been designed around trees (para 54).
The Tribunal also considered the building’s height and excavation in the context of the sloping land. It rejected Council’s claim that excavation was excessive and undertaken merely to reduce the building’s apparent height. It viewed the design as balancing the height of the rear single-level portion against excavation and floor levels. It considered the stated wall and ridge heights not excessive in context (para 54).
Finally, the Tribunal used permit conditions to address matters that required additional detail or protection. Condition 12 required a detailed landscaping plan, including five large canopy trees, indigenous planting, vegetation identification and landscape works. Conditions 13 and 14 addressed tree-protection zones and pruning. Condition 1 required information about underground services that might be affected. The reasons explain that the Tribunal added this requirement because it did not have information about services in the easements and because of the gradient near access to the rear garage (para 56).
The judgment does not describe a change to the law or establish a new statutory test. It applies the planning provisions and policy material identified in the reasons to one permit proposal. The relevant statutory setting included s 79 of the Planning and Environment Act 1987, which the Tribunal identified as the basis for the review, and planning-scheme requirements including the Residential 1 Zone and Clause 55 (paras 1, 7).
The decision’s more useful guidance is about method and application. The Tribunal examined the actual site, locality, evidence and design, rather than treating a broad character guideline or another development’s outcome as determinative. It expressly said that each case must stand or fall on its own merits and circumstances (para 29). It also considered whether the proposal’s impacts were significant in their physical context, including the direction of neighbouring views, retained vegetation, separation and topography (paras 48–50).
The reasons discuss amendments C33 and C34, Council resolutions and a Panel report concerning neighbourhood-character material (paras 14–18, 52). They do not, however, set out a general ruling that those amendments or guidelines were legally invalid. The Tribunal’s point was narrower: it considered the status of the revised guidelines and the need to assess the particular application in its context.
Accordingly, the “after” position shown by this judgment is the grant of this permit subject to conditions. The text does not establish that the underlying provisions changed, nor does it report an appellate decision altering or affirming the reasoning.
At paragraph 29, the Tribunal said: “I believe every case must stand or fall on its own merits and circumstances.” In plain English, a decision about another property may be relevant, but it does not decide the outcome for a different site with different terrain, trees or design. Here the Tribunal had not inspected the site in Baumgart and did not consider that development determinative.
At paragraph 48, the Tribunal found there would be “very few off-site impacts, certainly none so significant to justify refusal.” The decision rests on the Tribunal’s evaluation of the effects identified in this case, including the neighbouring views and the site’s physical setting. It should not be read as saying that off-site effects are immaterial in other proposals.
At paragraph 49, the Tribunal said neighbourhood character would be “respected and indeed in my opinion enhanced”. That was its assessment of a locality already containing some multi-dwelling developments and undergoing redevelopment. It did not mean that every additional dwelling or two-storey building necessarily enhances neighbourhood character.
At paragraph 50, the Tribunal rejected Council’s overdevelopment argument. It distinguished between the fact that two large homes would replace a smaller one and whether, considering the site’s constraints and effects, that made the proposal unacceptable. It accepted the applicant’s site-specific design explanation.
At paragraph 54, the Tribunal rejected the claim that the design involved excessive excavation “to reduce the height”. It considered the relationship between excavation, ground levels and building form, rather than treating excavation as a standalone indicator of poor design.
The operative statement is at paragraph 57: “a permit with conditions should be granted”. The conditions form part of the practical result. For example, the approval did not dispense with detailed landscaping or protection of retained trees; those requirements were specified in the order.
This decision is most relevant as a factual comparison where a Victorian residential permit dispute involves multiple dwellings, a sloping site, existing trees, neighbourhood-character policy and potential impacts on nearby homes. Its reasoning is particularly connected to circumstances where the proposal is assessed against both planning-scheme provisions and local character material, and where the applicant and responsible authority disagree about the weight of each.
Potentially comparable features include a site with mixed surrounding housing forms; a location where the visibility of the development from public viewpoints is limited; existing vegetation that can be retained; and evidence addressing the condition and retention value of trees. The decision also illustrates the relevance of expert arboricultural evidence and a detailed landscape proposal (paras 33, 40–45, 54).
The case may be useful where an authority characterises a proposal as overdevelopment using coverage or other statistics, while the applicant points to applicable planning standards and site-specific design factors. In Pepper, the Tribunal considered the statistics alongside site slope, amenity, separation, landscaping and design, and rejected the overdevelopment ground on the evidence before it (paras 39, 46, 50).
The limits are equally important. The judgment does not create a general rule that two dwellings are acceptable in the Bush Garden Areas precinct, that a particular site coverage is acceptable, or that tree removal is justified whenever replacement planting is proposed. It records the Tribunal’s assessment of the submitted proposal, evidence and conditions. Different tree quality, visibility, landform, adjoining uses, scheme provisions or amenity impacts could make another case materially different.
The judgment text supplied here contains no later cases applying, distinguishing, affirming, reversing or otherwise treating Pepper. It therefore cannot support a reliable account of how subsequent courts or tribunals have treated the decision.
Within Pepper itself, the only separately identified decision is Baumgart v Banyule City Council (2001/050358). Council relied on passages from that matter concerning how a development could inhibit regeneration of upper-storey trees. Member Avery considered the comparison but said each case must stand or fall on its own merits and circumstances. He noted that the sites and tree quality might differ and did not feel obliged to give particular regard to a design in another suburb (para 29). The judgment thus records a fact-specific treatment of Baumgart, not a general rejection of its reasoning.
The reasons also discuss the Panel report and Council resolutions relating to amendments C33 and C34. Those are planning-policy and amendment materials, not later judicial treatment of Pepper (paras 14–18, 52). Any assessment of subsequent precedential treatment would require sources beyond this judgment.
The judgment does not state how a later decision-maker should weigh every possible conflict between a local character strategy and the relevant planning scheme. It discusses the status and history of Banyule’s revised character guidelines but resolves the dispute by focusing on the particular site, proposal and policy context (paras 15–18, 52). The supplied reasons therefore do not settle how materially different guideline wording, scheme references or amendment status should be handled in another proceeding.
Nor does Pepper establish a general threshold for when excavation becomes excessive, when vegetation removal is acceptable, or how many replacement trees are sufficient. The Tribunal’s conclusions depended on the specific slope, proposed building levels, arboricultural evidence and landscape conditions (paras 40–45, 54, 56).
A further point is the judgment’s varying description of the site area: paragraph 5 gives 1,189 square metres, while the applicant’s submission as summarised at paragraph 39 uses 1,198 square metres. The decision does not explain the discrepancy. It does not appear to have been decisive to the Tribunal’s stated conclusion, but the text should be read with that inconsistency in mind.
Finally, the order imposed detailed obligations, including tree-protection fencing, restrictions on storage and access within preservation zones, supervised excavation in specified circumstances and pruning to Australian Standard AS4373 (conditions 13–14). The reasons do not report later compliance or any subsequent dispute about those conditions. The judgment therefore explains the permit outcome, but does not answer how those obligations were implemented or enforced after issue.
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Planning and Environment List; s.79 Planning and Environment Act 1987; Banyule Planning Scheme; Residential 1 Zone; Vegetation Protection Overlay (Schedule 1), Design and Development Overlay (Schedule 8); Exhibited Amendments C33, C34 and C35 and Panel Report; Neighbourhood Character Strategy; Clause 55 standards considered.
Medium Neutral Citation [2003] VCAT 677
The Order of the Tribunal is that the Responsible Authority is directed to issue a planning permit in Application P478/02 for two double storey dwellings on the property at 17 Ripper Street, Montmorency, generally in accordance with the submitted plans and subject to the following conditions:
1. Before the use and/or 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 advertised plans submitted with the application but modified to show:
(a) landscaping as required by Condition 12 of this permit;
(b) any underground services to be retained or relocated, within existing easements, which may be affected by the development, thereby requiring the consent of the relevant service authority.
2. 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.
3. The development permitted by this permit must not be occupied until:
(a) the parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority;
(b) the garden and landscape area(s) shown on the endorsed plan(s) 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.
4. Outdoor lighting must not be used on the subject land other than that which is normal to a private dwelling.
5. All external materials, finishes and paint colours are to be to the satisfaction of the Responsible Authority.
6. The walls of the development on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
7. Areas set aside for the parking of vehicles together with the access driveways and crossovers must be properly formed to such levels that they can be utilised in accordance with the endorsed plan(s) and must be drained and provided with an impervious all-weather surface, or with a pervious surface approved by Council. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
8. 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.
9. In areas set aside for parking kerbs or barriers or other means of protection must be installed to the satisfaction of the Responsible Authority so as to prevent damage by vehicles to the fences of adjoining properties or landscape areas.
10. 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. All vehicle crossing works are to be carried out with Council Supervision under a Road Opening Permit.
11. Stormwater must not be discharged from the subject land other than by means of an underground pipe drain to a Council nominated point of discharge. The drainage system within the subject land must be designed to the requirements and satisfaction of the relevant Building Surveyor. Any connection to Council's drainage system within road reserve or easements must be carried out with Council supervision under a Road Opening Permit.
12. The development permitted by this permit must not be commenced until a satisfactory detailed landscaping plan is submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design and shall be generally in accordance with sheet 6 of the drawings submitted, and include:
(a) details of planting within the front setback and common areas;
(b) the identification of existing vegetation (which is not intended to be removed), and nomination of vegetation for removal throughout the site;
(c) the species and location of five large canopy trees to be planted (including the height when planted) throughout the site;
(e) a schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;
(f) location and details of materials and levels of paving, steps, retaining walls, fence design details and other landscape works including cut and fill.
An endorsed copy of the plan(s) must form part of this permit.
13. A vegetation preservation zone must be established around the vegetation identified for retention on the endorsed plan. This must incorporate vegetation protection fences with a minimum height of 1.2 to 1.5 metres of chain mesh or like and a top line of high visibility plastic hazard tape erected below the outer reaches of the canopy of the vegetation. The supporting posts must be strong enough to sustain knocks from on-site excavation equipment. The fences must be erected prior to the commencement of any buildings or works, must not be removed until completion of the development, and must deter the entry of heavy equipment, vehicles and workers in the Vegetation Preservation Zone.
No storage of material, equipment or temporary building may take place within the Vegetation Preservation Zone, no fuel, oil dumps or chemicals are allowed to be used or stored within this area; and the servicing and re-fuelling of equipment and vehicles must be carried out away from this area.
In the event that entry into the tree preservation zone is required by persons, vehicles or machinery, the consent of a consulting arborist must first be sought.
If any excavation work is to occur within the Vegetation Preservation Zone:
- a consultant arborist to the satisfaction of the Responsible Authority must be on-site to supervise excavation works. This is paramount if substantial roots (greater than 100mm diameter) are encountered and may require pruning;
- any underground service installations must be bored and utility authorities must utilise a common trench where possible;
- 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.
Nothing whatsoever is to be attached to any tree or vegetation, including temporary services wires, nails, screws or any other fixing device.
14. Any pruning is to be carried out by a trained and competent arborist who has a thorough knowledge of tree physiology and pruning methods. Pruning must be carried out in accordance with Australian Standard AS4373 Pruning of Amenity Trees.
15. This permit will expire if one of the following circumstances applies:
* The development is not commenced within two years of the date of this permit.
* The development is not completed within four years of the date of this permit.
The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.
* In the event that this permit expires or the subject land is proposed to be used or developed for purposes different from those for which this permit is granted, there is no guarantee that a new permit will be granted. If a permit is granted then the permit conditions may vary from those included on this permit having regard to changes that might occur to circumstances, planning scheme provisions or policy.
* A Building Permit must be obtained prior to the commencement of any works associated with the proposed development.
_____________________________
For the Applicant for Review: Mr Andrew Robertson, Consultant Town Planner, represented Mr Matthew Pepper.
For the Responsible Authority: Mr Matthew Cripps, Senior Town Planner of the City of Banyule, represented the Responsible Authority.
The parties made both written and verbal submissions and tendered a number of plans, photographs, and other documents to the Tribunal. All of that material presented is retained on the Tribunal file and has been taken into consideration.
The subject site, adjoining properties and the locality have been inspected by the Tribunal following the hearing.
1. This is an application pursuant to s.79 of the Planning and Environment Act 1987, brought by the Permit Applicant against the failure of the Banyule City Council as Responsible Authority to determine Application P478/02 for the construction of two (double storey) dwellings on the site known as 17 Ripper Street, Montmorency, within the prescribed time.
2. Following the lodging of the subject application with this Tribunal on 9 December 2002, a report of an officer of the City of Banyule was prepared on the application and considered by the delegate of the Responsible Authority on 25 March 2003, when it was determined that "Had an appeal not been lodged, Council would have issued a Notice of Refusal to grant a permit, on the following grounds:
1. The proposed development fails to comply with Council's Neighbourhood Character Strategy and does not sufficiently respect the surrounding character.
2. The proposed development has failed to appropriately respond to the site constraints.
3. The proposed development fails to meet the objectives of Clause 55 of the Banyule Planning Scheme with respect to Neighbourhood Character, Permeability, Landscaping, Side and Rear Setbacks, Overlooking, and Open Space.
4. The proposed development has failed to appropriately respond to the objectives of the Vegetation Protection Overlay (Schedule 1).
5. The proposed development constitutes an overdevelopment of the site.
3. Following the hearing conducted on 10 April 2003 the Tribunal made an inspection of the site, the adjoining properties and the locality.
4. A group of excellent photographs of the site, of neighbouring properties, of the Ripper Street environment, and of a number of other recent developments in the locality were provided at the hearing and are retained on the Tribunal file.
5. For convenience sake and based on my inspection, I adopt the description provided in the written submission of Mr Robertson:
- The site has a single storey weatherboard dwelling with tile gable roof. The dwelling is setback 14.4m;
- The surrounding area consists primarily of single storey detached dwellings and is intermixed with multi dwelling developments. Dwelling types vary between brick and weatherboard;
- Existing vegetation is scattered across the front of the site and along the rear boundary;
- A single vehicle crossover entry is provided at the frontage. Parking is provided on the front gravel driveway;
- A three dwelling development adjoins the site to the south (15 Ripper Street). The front dwelling is a two-storey residence with two single storey dwellings located to the rear. The development has two driveways with a common driveway extending along the common boundary accessing the 2 rear dwellings.
- Further to the south at 13 Ripper Street is a three dwelling development. The front dwelling is single storey with frontage to Ripper Street. The two dwellings to the rear share vehicular access from McFarlane Street;
- The property has a substantial 6.3m fall across the site from the rear to the front north east corner;
- The alignment of Ripper Street angles at its end on the west side in front of no.s 15 and 17 Ripper Street. As a consequence the review site is `hidden' from long views down Ripper Street;
- The streetscape has a vegetated character with a scattering of trees and is uncluttered by front fencing and light poles;
- Further the site benefits from excellent proximity to services and facilities as set out below:
- Montmorency shopping centre is located within 600m of the site. Bus route 293 is available from Rattray Street (to south) and connects to Greensborough Train Station and shopping centre;
- Montmorency train station is located within 400m of the site; and
- Montmorency Primary School is within 400m of the site.
- Petrie Park and grounds adjoins to the north with kindergarten, an RSL Club facility, senior citizens club and youth centre community building. The established Montmorency Bowling Club is positioned at the end of Ripper Street. Petrie Park offers passive and active recreation opportunities with BBQ facilities, open fields and a Scout Hall.
- The review site is in an excellent location with proximity to a wide range of social, educational and transport infrastructure and is a desirable place to live.
I also observe that the title is encumbered by a 1.83 metre wide drainage and sewerage easement along the northern and western boundaries.
6. I have studied both the plans lodged in the application, the supporting site analysis and design response, as well as both descriptions provided by Mr Robertson for the Applicant, and Mr Cripps for the Responsible Authority. Based on that review, I adopt the useful summary of the proposal by Mr Robertson as follows:
The main features of this development are summarised below:
- The existing house will be retained and extended to add a second storey;
- The existing front wall of the dwelling will be retained to preserve the setback of the dwelling from the street.
- The front wall will be updated with a new bay window to the living room. Part of the north facing wall will be demolished to allow for the new driveway connection to the rear dwelling and the rumpus room at the rear will also be demolished.
- A new double space carport will be positioned in front of the existing house with a 1.0 metres setback from the south boundary. A new crossover and driveway will provide access to the carport.
- 2 trees will be removed for the carport and entry driveway. Neither tree is native vegetation.
- Residence 1 will consist of kitchen/meals, living and family area, three bedrooms, retreat and double carport. The proposed residence 2 will consist of a study, separate living room, three bedrooms, kitchen/meals, family room and double garage;
- 3 Eucalyptus species will be removed for the siting of the proposed dwelling. The majority of mature vegetation along the rear boundary will be retained;
- Residence 1 will have a maximum building height of 8.8m above natural ground level from the north elevation. Primarily, the dwelling will be 7.4m above natural ground level. Residence two will have a maximum building height of 7.8m above NGL from the lower north side of the site;
- Dwelling 2 is designed to respond to the site topography by creating a split floor level. With excavation the dwelling is part single and part 2 storey. The maximum height of the dwelling at the south elevation adjacent to 15 Ripper Street is 6.6m above NGL. The rear wall of the dwelling is 3.6m above NGL at its south edge.
- The development will have a site density of 1:599/ sqm with site coverage of 33% with hard surface coverage of 52%, including driveways.
7. The site and properties to the south, west and east are all in a Residential 1 Zone, and planning permission is required by Clause 32.01-4 for more than one dwelling on a lot, and a development must meet the requirements of Clause 55.
8. Land to the north is a large site known as `Petrie Park' and the parcel is in a PPRZ (Public Park and Recreation Zone) (Clause 36.02 applies).
9. The entire locality is covered by the Vegetation Protection Overlay, and Schedule 1 to Clause 42.02 is relevant, as well as a Design and Development Overlay, and Schedule 8 to Clause 43.02 also is relevant.
10. Mr Cripps stated that a total of three trees (native to Victoria) required a permit to be removed as a result of the proposed development, and this was not contested by the Applicant.
11. The objective of VPO1 is set out in part 2 of Schedule 1 as follows:
- To conserve the existing pattern of vegetation, landscape quality and ecosystems within the area;
- To address the threatening processes associated with widespread habitat loss and degradation that has occurred in North East Melbourne;
- To protect the area as a habitat for local fauna and as an important habitat link;
- To promote the retention of existing indigenous vegetation wherever possible; and
- To ensure that the development, use and management of land is compatible with the existing character and landscape conservation of the area.
12. Whereas Mr Cripps argued that the proposal required a permit under this control due to the location of the dwellings in relation to the protected trees under the Vegetation Protection Overlay, Mr Robertson submitted the dwellings proposed would require "minimal vegetation removal", that "the built form will not penetrate the tree canopy" and that the dwellings will not be visually prominent from key public viewpoints.
13. With regard to policies related to the proposal, I was advised and accept that these apply:
* Clause 22.07-5 (Neighbourhood Character Policy for `Bush Garden Areas' especially related to the precinct BG1 within which this review site is located).
14. Mr Cripps advised the Tribunal that the Council had adopted modifications to the Neighbourhood Character Strategy on 8 April 2002 which included amended information in precinct brochures, and provided copies.
15. He further advised the Tribunal about the Panel Report related to AM C33 which recommended it be abandoned, and of the Council resolution made on 7 April 2003 (the Monday prior to the subject review hearing). He also agreed with Mr Robertson who argued that Council officers had been directed to compare developments against the Decision Response Guidelines in the 8 April 2002 version of the brochure for BG1 precinct, notwithstanding they were not the referred document to Clause 22.07-5, and that the Panel appointed by the Minister had recommended AM C33 (and hence those guidelines) be abandoned. Mr Cripps set out in full the Council resolution of 7 April 2003, which in paragraphs 3 and 4 stated:
3. Council undertake the following strategic planning work within the next twelve months:
(a) completion of a Housing Strategy for the municipality taking into account the implications of Melbourne 2030.
4. The changes to the Neighbourhood Character Strategy brochures adopted by Council on 8 April 2002 continue to apply for a further twelve months.
16. Mr Cripps provided the Tribunal (in paragraph 4.5.3) with comprehensive quotations regarding a second Amendment C34 and what it proposed to change, and of what the Panel report released in mid February 2003 recommended, including that it be abandoned, among other specific recommendations regarding Council reviewing the effectiveness of Clauses 54 and 55, followed by `fine tuning' of their Neighbourhood Character Brochures, and that the 8 April 2002 resolution to adopt those brochures of that date be rescinded.
17. He also referred to a similar resolution (made on 7 April 2003 to that made above for AM C33) regarding the submission of Part 1 of AM C34 to the Minister, the continuation of the application of the 8 April 2002 brochures for a further twelve months, and that Council would give further consideration whether or not to adopt AM C33 and C34 with or without changes after the further strategic work was completed.
18. It was the fundamental contention of the Council in this matter that the proposal failed to comply with the Neighbourhood Character Strategy, as set out in the policy reference document (apart from alleged non-compliance with aspects of the provisions of the Vegetation Protection Overlay, and Clause 55).
19. I propose to give my conclusions on these arguments later in these reasons in the Basis of Decision section.
20. I was advised that the application was received by the Council on 16 July 2002, and Council by letter dated 25 July requested further information, and expressed concerns with the areas of non-compliance with Council's Neighbourhood Strategy that was amended on 8 April 2002.
21. The additional information was provided on 1 October 2002, and is understood to have been the Arboricultural Report dated 17 August 2002 by The Botanical Treesurgery Co Pty Ltd. The Applicant elected not to amend the plans in response to the concerns expressed by Council.
22. Advertising of the application then proceeded by a sign on site, and by mail to nearby owners and occupiers. No objections were received by the Responsible Authority.
23. Internal referral to the Development Engineer who raised no objections, so long as standard conditions were imposed on any permit to issue.
24. It was argued for the Council that the design was not reflecting adequate consideration of the vegetation, topography and vehicle store, and accordingly would result in a "poor outcome within the context of the surrounding area".
25. Mr Cripps submitted the removal of five canopy trees (albeit not all "protected" native trees) which contribute to the "treed character" of the area, to facilitate the construction of the rear dwelling, and the extensive paved areas, and result in a site coverage of 52%, would be contrary to the adopted Neighbourhood Character Policy for the area.
26. He acknowledged the Landscape Plan showed five replacement trees but criticised their positioning and species chosen, as being inadequate.
27. He further criticised "excessive site cut" of around two metres, to reduce the height of the building, arguing that Council policy and strategy sought excavations to be minimised and buildings to be designed to follow the topography.
28. He also pointed out that the proposed double carport structure for the front residence would be forward of the dwelling, and therefore inappropriate, a dominant solid, visual feature which would be contrary to Council policy, and requires separate access dictating removal of vegetation and limiting landscaping opportunities, and contrary to Council policies and objectives.
29. In terms of the landscape plan lodged, and the size of the open space areas available due to the size and positions designed for the dwellings' vehicle spaces and driveways, he argued the resulting opportunities were severely limited for canopy trees to be planted, which might be capable of becoming effective in enhancing, protecting, maintaining, or contributing to the environmental significance of the area. Mr Cripps referred me to a decision of Member Gilfillan in Baumgart v Banyule City Council (2001/050358) regarding a site in Greensborough, and quoted with approval the passages from paragraphs 39 and part of paragraph 40 when the Tribunal considered the impact of that proposal on existing vegetation. Mr Gilfillan found that:
... the proposed new building and paving seriously inhibits locations for regeneration of upper storey trees ... ... ...
The proposal will reduce the bush environment so important in the area. The Tribunal accepts that this site could accommodate a respectful dual occupancy design. However the subject proposal fails to meet ... ... ...
I believe every case must stand or fall on its own merits and circumstances, and while I have not viewed that site and the design Member Gilfillan rejected, I have had regard to the design and circumstances of the subject review site, and do not feel obliged to have particular regard to a design in another suburb which may have had totally different terrain, and better quality trees being removed.
30. Mr Cripps submitted arguments that the proposal failed to comply with objectives of:
and claimed that the combination of these features demonstrated that the proposal was an overdevelopment.
31. Mr Robertson discussed and contested each of the five grounds Council had resolved in March 2003 would be the basis of their refusal, and it seems convenient to summarise his submissions in the order of those grounds (set out in paragraph 2 above).
Ground 1: The proposed development fails to comply with Council's Neighbourhood Character Strategy and does not sufficiently respect the surrounding character.
32. He pointed out that the officer report appeared to suggest the proposal met the majority of objectives set out in the Strategy, but was considered inappropriate in relation to:
* relationship between topography and built form; and
33. By reference to the comprehensive summary in his written submission to the Tribunal (his para 4, pages 7 and 8), he submitted the proposal was an appropriate "design response". He noted only three of the five trees to be removed were natives, and all of these were not significant canopy trees and each were acknowledged to be in poor health, which was obvious from photographs and on my own site inspection. He submitted the scheme retained the most valuable mature canopy vegetation (along the west boundary) which would form a backdrop to the new dwelling, and that there were adequate opportunities for revegetation of the site, and relied on the submitted landscape plan as demonstrating this aspect.
34. To the suggestion that the built form was unresponsive to the terrain, Mr Robertson identified that the rear dwelling resulted in a maximum west-wall height of 4.4 metres above EGL - "existing ground level" (he termed it NGL - "natural" ground level), with a single storey element for the rear half of the second residence. The FFL of the kitchen at the rear of this dwelling (being 70.80) is approximately 0.8m above EGL only, whereas the family room at this same floor level is approximately 2.5 metres off the existing ground level due to the significant fall across this part of the site. (The Tribunal will return to this aspect later in these reasons, in terms of overlooking chances, towards the west.)
35. On the criticisms made by the Responsible Authority, about the design and locations of the car parking facilities (double carport and double garage with two driveways), Mr Robertson submitted the carport would be set back five metres further than the adjoining double storey residence at 15 Ripper Street to the west, and consequently would be significantly screened from view from the south, and being set back 9.63 metres would have "no material" impact on the streetscape.
36. I understood Mr Robertson to have verbally offered to construct the proposed new driveway I believe (to the double carport) in a "pervious" material, (in compliance with the "design response" numbered 11 of the reference document for BG1 - or numbered 14 in the April 2002 version, which refers to a _"_non-impervious surface, eg gravel or toppings), however his written submissions on page 16 - second last paragraph say:
We would be happy to construct this new driveway with an impervious material.
A "paved" driveway is nominated on the plans for the northern driveway, but there is no description provided on the plans for the southern driveway (and the Tribunal returns to this aspect later in these reasons).
Ground 2: The proposed development has failed to appropriately respond to the site constraints.
37. Mr Robertson submitted with respect to the two key site factors of slope and vegetation, that the proposal retains healthy mature vegetation on the site, minimises excavation, and will result in the acceptable outcome, that both dwellings will be at relatively lower levels/heights than the rear dwellings to the west at 15 Ripper Street.
Ground 3: The proposed development fails to meet the objectives of Clause 55 of the Banyule Planning Scheme with respect to Neighbourhood Character, Permeability, Landscaping, Side and Rear Setbacks, Overlooking, and Open Space.
38. Mr Robertson emphasised the position of the site at the end of the street, the generous front setback, the fact that the rear dwelling proposed will only become visible from the street directly in front, and that there is no adjoining residential development to the immediate north, were all factors minimising any potential detrimental impact on the neighbourhood character, or amenity of existing residents.
39. Mr Robertson quoted statistics from the legend on sheet 4, namely total site coverage of buildings being 33% (400m2 buildings on 1198m2 site), density of 1:599m2, and impermeable area 52% (630m2 compared with 1198m2 site area). He compared these with the standards in Clause 55 (60% and 80%) and submitted that the standards were not appropriate to the location, however the proposals' results were nevertheless fully compliant and significantly less than those standards.
40. Mr Robertson relied on the arborist report supplied, and its' recommendations regarding the `Retention Value', `Treatment' and `Useful Life Expectancy'. The three native trees were towards the rear of the site, numbered 14, 15 and 16, with several recommended for total removal (14 and 16) and/or for removal of dead and damaged branches (15), with trees 14 and 16 both with ULE of 0 years. The other two trees proposed to be removed (a Liquidamber and Cotoneaster) were in the front setback and numbered 2 and 3. The arborist recommended both to be totally removed, as they were either dead, or in poor form and condition, (again with ULE of 0 years), with no retention value.
41. He also relied on the detailed landscape plan, and submitted the proposed garden areas will support new species as chosen to supplement the retained canopy trees, which would add value to the site appearance and to the locality.
42. He argued the setbacks satisfied Clause 55 provisions for side boundaries and were appropriate, being 1.9 metres minimum and 4.2 metres to the rear. Front setbacks of 9.6 metres (and 14.4 metres to the existing house to be retained) were generous and significantly greater than the recently built dwellings to the west at 13 and 15 Ripper Street, which were 7.0 metres and 6.5 metres respectively. He strongly contested the Council contentions, which reflected the 8 April 2002 policy position previously referred to, rather than ResCode standards and Clauses 54 or 55 provisions.
43. It was argued overlooking opportunities were considered to be negligible, with only the windows facing the rear, (western boundary) being contentious. Mr Robertson argued that most of the existing vegetation will remain, and in any event, there were no habitable rooms or secluded private open spaces directly overlooked or within nine metres.
44. Mr Robertson highlighted that 92m2 and 150m2 being provided, substantially exceeded the minimum provision in Clause 55 being 40m2, and expressed disappointment that Council had argued insufficient areas had been provided for planting of canopy vegetation (while retaining sufficient useable recreational - open space).
Ground 4: The proposed development has failed to appropriately respond to the objectives of the Vegetation Protection Overlay (Schedule 1).
45. Mr Robertson repeated his earlier arguments to counteract this position of the Responsible Authority. He highlighted the poor condition of the trees to be removed, the opportunities provided for replacement planting to supplement the retained trees, and the landscape concept on sheet 6. He once again referred to the three native trees and the arboricultural assessment report, which was not to my recollection contested by Mr Cripps. He concluded his `submission' on this ground, that the development would achieve the balance between built form and vegetation within the area, and that it would be compatible with the existing landscape character of the surrounding area.
Ground 5: The proposed development constitutes and overdevelopment of the site.
46. Mr Robertson repeated earlier comparisons made, (between the percentages of buildings, and private north facing areas, hard surface coverage of the proposal), with traditional ResCode standards. He referred to the absence of off-site shadow impacts, and the lesser density proposed of dwellings per site than the two nearby parcels to the west.
47. (A) Is the design of the development site responsive and are there any significant off-site impacts?
(B) Are there aspects of the outcome which conflict with objectives of the policies in the Banyule Planning Scheme relating to the "Desired future character and development guidelines" for the Precinct BG1?
(C) Does the proposal achieve the objectives of Clause 55?
(D) Does the proposal adequately respond to the objectives of the Vegetation Protection Overlay (Schedule 1)?
48. In assessing each of these issues, I find I have reached conclusions that the proposal deserves approval. I am convinced by the argument advanced by Mr Robertson that there will be very few off-site impacts, certainly none so significant to justify refusal. The occupants of the dwellings to the west will retain their present views, which are towards the east at levels of the canopies of trees which will remain, over the top of the existing extended height boundary fence.
49. I remain unconvinced by the arguments advanced for the Responsible Authority that the objectives and strategies of their policies will be compromised, or have been ignored in preparing this scheme of development. I find that the neighbourhood character (which is gradually changed as redevelopments of sites in this locality occur), will be respected and indeed in my opinion enhanced, with this proposal proceeding. I do not agree there will be any loss of valuable vegetation, or significant tree specimens or canopies. The separation between dwellings on the site, and with neighbouring dwellings is perfectly adequate, no overlooking of consequence will occur, and I do not agree that any specific measures are needed for the west facing windows of the kitchen, meals or family rooms of the rear residence, having regard to the filtering effect of both existing vegetation to be retained, the distances involved, and the context of the site and the property to the west.
50. I reject the Council position that the development is an overdevelopment. Based on statistical comparisons, there is no sustainable argument. On aesthetic grounds, I agree that two large dwellings will result where there is now one relatively small home. That there may be other designs which could be prepared, or satisfy Council better, but I am dealing with a proposal (which I agree with the Applicant) responds to the site constraints of the terrain which has significant slopes in two directions, the existing vegetation worthwhile retaining, and neighbours' current amenity levels.
51. I am unconvinced that the objectives of the landscaping, setbacks, overlooking and open space are not satisfied, and agree with each and every argument submitted by the representative of the Applicant, set out in some detail in paragraphs above (33 to 46 both inclusive).
52. I was urged by Mr Robertson to give no weight to the revised Character Guidelines adopted by the City of Banyule on 8 April 2002, since they are not currently referenced in the planning scheme, and they conflict with ResCode provisions in the planning scheme. I have read Chapter 7 - Key Issues and Conclusions (pages 69-78) and Chapter 8 - Recommendations (pages 79-80), which Mr Robertson photocopied and provided to me. I recognise the validity of the Panel comments regarding the "substantial variation of character within individual precincts, and the need to consider the particular circumstances of each application should not be lost in Council's desire for consistency". Indeed this review demonstrates in my opinion that Council have not realistically, demonstrably and thoroughly approached their assessment of this proposal with the existing conditions and the context of the site, and the designed outcome firmly in focus.
53. The levels of compliance clearly achieved by this proposed redevelopment with the objectives and standards set out throughout Clause 55, indicate the approach adopted by the Responsible Authority needs to be revisited.
54. The arguments valiantly advanced by Mr Cripps attempting to justify the stance adopted by Council in March 2003 were not persuasive, and to suggest "the proposed development has not been designed around trees, or provided ample space around trees to ensure that they will be retained in a healthy state_"_ ignores in my view the advice which needs to be obtained from experts such as the arborists engaged by the Applicant, in order for such an unsubstantiated argument to be upheld. I reject the argument that the development involves excessive excavation "to reduce the height". That is a suitable outcome for the design appearing to me to try to balance the height above ground of the rear (single level) part of the house, with the amount of excavation involved to create the result that the finished floor level at the front door (and the garage) are as close to existing ground level as possible. The heights of the walls and to the ridgeline (being 6.2 metres and 7.7 meters as shown on sheet 5) are not excessive in my opinion for such a dwelling, facing over the top of the bowling club to the east. This would barely be higher than the current canopy level of the existing trees, if at all, which is one of the stated objectives of BG1 (Clause 22.07-5).
55. I am also satisfied that the design is sufficiently sympathetic with the style and heights of neighbouring new dwellings to the west. I do not concede any views or vistas will be detrimentally affected.
56. With respect to the set of draft conditions provided by Mr Cripps for my consideration, I have generally adopted them in my Order, with minor changes to the condition requiring a detailed landscape plan, to require further information about the northern driveway (gradients and amounts of excavation or fill) through levels being shown. No information was provided about whether any services exist in the easements which encumber the site, especially those which may be affected by any excavation for construction of the proposed driveway which partly intrudes into that northern easement. I have incorporated a part (b) to draft condition 1, noting that the ground gradient at one point rises approximately 2.5 metres in ten metres, near the access area to the garage for residence 2.
57. For the reasons given above, I have determined that a permit with conditions should be granted, and I have issued the necessary Order.
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Pepper
Banyule CC [2003] VCAT 677
The Responsible Authority was directed to issue a planning permit for two double-storey dwellings at 17 Ripper Street, generally in accordance with the submitted plans and subject to conditions. The conditions required amended plans, landscaping details, vegetation protection measures, drainage and parking works, and compliance with permit expiry periods.