1. The Tribunal must decide whether the proposal represents an acceptable outcome having regard to the relevant provisions and policies in the Manningham Planning Scheme ('scheme'). These provisions and policies are listed in the 'Information' section of these reasons. I have considered all the material filed and presented by parties in their submissions, and in their statements of grounds.

1. Clause 71.02-1 explains that the Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in section 4 of the Planning and Environment Act 1987 (Vic)) are fostered through appropriate land use and development planning policies and practices that integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.
2. In addressing 'Integrated decision-making', clause 71.02-3 includes the following:

The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. The applicant's grounds of review and submissions for the hearing raise several procedural matters which were canvassed at the hearing, and which I record below.

1. As a proceeding brought by a third party objector, there is a limitation on the scope of issues that can be the subject of Tribunal review where the scheme expressly states there are no third party rights of review. It would be wrong, in law, for me to take into account issues raised in the application for review that are exempted by the scheme.
2. That is, the 'issues to be determined' are limited by section 82(3) of the Planning and Environment Act 1987 (Vic) to issues that are subject to third party review.[4] The grant of permit under the Bushfire Management Overlay is lawful is not one that I can review, nor issue a permit with new permit conditions that address that Overlay.
3. Having said that, the Court's decision in Myers states that the Tribunal could receive and consider evidence that may be relevant to exempted matters if that evidence is relevant to the planning issues properly before the Tribunal in the review application.[5]
4. The applicant recites referral advice from Fire Rescue Victoria and Australian Standards with respect to, among others, fencing outcomes. Fire protection is not before me to determine, nor impose permit conditions, for reasons set out above. It is not open to me to address existing or proposed fencing with respect to bushfire requirements or compliance. I do, however, consider fencing with respect to other aspects of the applicant's grounds below.

1. The applicant's letters to the Council, and position in the current proceeding, focus on reasons why there is a much more suitable sub-division proposal available.
2. My task is to assess the permit application before me. I am not required to find if there are alternative or better solutions, nor is an ideal outcome required.[6] This includes whether it is necessary to revise the lot layout to a tandem format, or to move or change building envelopes, so as to achieve an acceptable outcome.
3. Ultimately, if the permit application as presented in this permit application is not acceptable when assessed under the relevant provisions of the scheme, I would set aside the Council's decision and not grant the planning permit.

Matters for which no planning permit is required

1. The permit application does not seek permission for tree and vegetation removal. None is required under any of the relevant planning controls based on the Council's submission.
2. This fact has not been contested.
3. I observe some specific exemptions for tree removal also operate.

1. The applicant questions the financial feasibility of development of the proposed lots for dwellings and seeks to ensure that subdivision is (among other outcomes) financially feasible.
2. This is not a relevant matter identified by the scheme, as the Council's representative also stated. I agree with that submission.
3. I am not required to consider whether the subdivision proposal is feasible from a financial perspective. I therefore do not address this aspect of the applicant's submission further.

1. The applicant identifies concerns, and a lack of consultation, by the Council with respect to the objections he made when the permit application was advertised.
2. This is noted, however, it has no bearing on the assessment of the permit application that I must undertake. The hearing has provided the opportunity for all parties to fully present material and represent their case, within the scope that I have described above.

Reference to the compulsory conference - struck out

1. The applicant's written submission cites matters and circumstances in the context of a compulsory conference conducted in this proceeding.
2. As I said at the hearing, the compulsory conference is a confidential process and evidence of anything said or done in the course of the conference is inadmissible.[7] Exceptions may include where all parties agree.[8]
3. After discussion with the parties, noting all parties did not agree to admitting the material referred to by the applicant as 'background', I struck out parts of the applicant's submission referencing things that were submitted to have been said or done in the course of the compulsory conference. I also struck out references to comments about things submitted to have been said or done in the course of the compulsory conference with respect to response material tendered by the applicant during the hearing.

1. The subject land is in the Neighbourhood Residential Zone Schedule 1 ('NRZ1').

Figure 2 - Extract of zoning plan submitted by the Council. I have marked the land.

1. In addition to the purpose of the zone, decision guidelines in clause 32.09-14 address a number of matters which, in addition to those under the heading 'general', include the following relating to subdivision:

Subdivision

The pattern of subdivision and its effect on the spacing of buildings.

For subdivision of land for residential development, the objectives and standards of Clause 56.

1. For two lots, clause 32.09 identifies the objectives and standards to be met as clauses 56.03-5 (neighbourhood character), 56.04-2 (lot area and building envelopes), 56.04-3 (solar orientation of lots), 56.04-5 (common area), and 56.06-8 to 56.09-2 (addressing various matters of site management and utilities). I address disputed matters relating to these clauses below.

1. Multiple overlays apply to the subject land, two of which are not exempt from third party review with respect to subdivision of the subject land:
   • Environmental Significance Overlay Schedule 5 Environmentally Significant Urban Areas ('ESO5').
   • Design and Development Overlay Schedule 10 Donvale Environmental Residential Area ('DDO10').
2. I do not recite all of the provisions of clauses 42.01 and 43.02, including their relevant objectives and decision guidelines. I refer to some elements of the clauses and relevant schedules next.

1. No permit is being sought for buildings and works under this provision.
2. Clause 42.01 Schedule 5 includes a statement of environmental significance and environmental objectives to be achieved.
3. Subdivision of land triggers a planning permit under ESO5 and in this context I have considered the environmental objectives to be achieved as relevant. Notwithstanding the focus of the clause and schedule on tree retention, removal and offsets, and related matters of flora and fauna habitat, no permit is triggered for vegetation removal in this case.
4. There is no permission being sought to construct a building, construct or carry out works, or remove, destroy or lop vegetation as is relevant to decision guidelines in clause 5.0 of ESO5.

1. No permit is being sought for buildings and works under this provision.
2. A decision guideline in clause 43.02 specifically refers to subdivision as follows:
   • Whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
   • Any other matters specified in a schedule to this overlay.
3. The schedule to DDO10 includes design objectives which state:

To ensure that the trees, shrubs and vegetation communities and topography of the Hillcrest area, Donvale remain the prevailing elements of the existing neighbourhood character.

To design dwellings that are subservient to the landscape character of the area.

To retain a low site coverage, and generous areas of pervious surfaces to enable the retention of vegetation and the planting of additional vegetation.

To retain backyards and perimeter areas as an opportunity for retaining or planting additional canopy trees.

To ensure that development does not protrude above the prevailing height of the tree canopy.

To provide spacing between dwellings to reinforce the pattern of development of the street.

To retain the predominance of single detached housing and discourage other forms of development.

To minimise earthworks.

To reinforce the open streetscape character by having no, or low fencing allowing the continuity of landscape and views to front gardens.

Subdivision

Each lot must be at least 650 square metres.

This requirement does not apply to the subdivision of land containing more than one dwelling as at the approval date of this scheme or for which a planning permit for more than one dwelling has been issued prior to the approval date. Arrangements for water supply, sewerage and drainage must be to the satisfaction of the relevant authority.

A permit cannot be granted to subdivide land which is not in accordance with any of these requirements.

1. There are no further decision guidelines in DDO10.

1. The 'Information' section lists the relevant scheme provisions and policies that apply to this permit application, including clauses 65.01 and 65.02. I do not repeat the limitations on my scope with respect to the application of policies and provisions as set out earlier. My decision is properly and fairly made within the allowable and lawful scope.
2. Of note with respect to policies are character and subdivision design in the Municipal Planning Strategy and Planning Policy Framework which include:
   • Clause 15.01-5S with strategies to (among others):

Ensure development responds to its context and reinforces a sense of place and the valued features and characteristics of the local environment and place by respecting the:

• Pattern of local urban structure and subdivision.
• Underlying natural landscape character and significant vegetation.
• Neighbourhood character values and built form that reflect community identity.
• Clause 15.01-3L-01 addressing subdivision design in Manningham, including with respect to energy efficiency and environmental sustainability, and respond to neighbouring uses and buildings, preserve native vegetation, as well as its associated policy guidelines.
• Clause 15.01-3L-02 addressing battle axe blocks - Manningham with the objective 'To avoid creating battle blocks, unless they are functional, safe and an attractive design'.

1. The matters that are before me with respect to the applicant's grounds and additional matters are addressed below.

Building envelope size and future development

1. The applicant criticises the size of building envelopes, particularly their width, and the consequences of the likely future with two storey houses on the lots.
2. These concerns are identified by referring to Standard C8 of clause 56 that describes lots as being able to contain a rectangle measuring 10 metres by 15 metres. The applicant submits the width of both lots does not allow for an appropriate envelope design. Among the challenges identified for the construction of a house on each of the proposed lots are:
   • DDO10 'restrictions' such as relating to height, size of a second storey, the topography, earthworks, and design, construction, and visual appearance of those dwellings; and
   • inconsistency between DDO10 and clause 56.04 with respect to 'prescribed' earthworks of 100m2.
3. The applicant says that compared with the proposed lots:

...two major Victorian project home builders require a minimum building envelope of 12.5 m wide x 25 m deep, or 312.5 sq.m, to accommodate a two storey home (average size 305 sq.m).

1. In addition, concerns about a two storey building being erected on the proposed lots are raised in the grounds of review. This is with respect to overlooking and privacy impacts which I refer to below.
2. The Council has responded to these submissions. In addition to constraints associated with referral authority requirements, the Council submits the proposal responds appropriately to the established character, taking account of existing street setbacks and allotment patterns. The applicant relies on the Council's assessment, the decision to issue the Notice, and professional reports prepared to support the permit application.

1. It is relevant that:
   • there has been no argument advanced in this proceeding that the subject land is not suitable for subdivision, per se, or that it does not represent a level of incremental change which the Council states is sought for this location through scheme policies;
   • the proposed lot layout adequately responds to the physical features of the land and each lot is at least 650 square metres which accords with the mandatory DDO10 requirement;
   • the form of lots responds to policies such as in clauses 15.01-5S and 15.01-3L-01; and
   • no argument has been advanced that the size or form of the lots is adverse to existing or preferred character.
2. The proposal responds to the varied pattern and size of housing lots in the immediate and wider environs. The variation is influenced by a range of factors such as the topography, specific site conditions and historical lot development. Some of this variability, in plan form, can be seen in Figure 2. In Lisbeth Avenue, which becomes Rangeview Road, dwellings sit on the 'high' or 'low' sides of the street.
3. The building envelopes acceptably respond to the varied position of buildings on adjacent sites and allow for new landscaping to respond to the local valued features and characteristics as sought by clauses 32.09 and 56.03-5 and by policies such as in clauses 15.01-5S and 15.01-3L-01. Site coverage complies with DDO10. Front, side and rear setbacks also comply.
4. I understand how the lot layout derives from the constraints associated with the potential development of the subject land. The layout and driveway configuration for the proposed lots respond to local policy as I have referred to earlier. The spacing between building envelopes is not unusual.
5. The applicant seeks an alternative lot layout, which is not the proposal before me. However, I observe a tandem/battle-axe layout does not find policy support through clause 15.01-3L-02, although some examples exist. Any such proposal would, however, need to be assessed on its merits and having regard to the physical and planning circumstances at such time.
6. It is common ground that the proposed lots do not meet the numerical provision in Standard C8 of clause 56.04 (lot design) in so far as:

Lots greater than 500 square metres should be able to contain a rectangle measuring 10 metres by 15 metres, and may contain a building envelope.

1. The proposed lots are deeper than 15 metres but shallower (by varying amounts) in their width compared with the 10 metres cited. It was clarified at the hearing that the envelopes do not overlap with or impede easements.
2. With the modest sized envelopes, and challenges such as the slope, dwellings on the proposed lots can expect to be stepped and of more than one level. Earthworks may well be required, and are sought to be minimised by DDO10. This is a consideration for any future permit application, if a permit is triggered. Clause 56.04 'lot design' does not deal with earthworks, while the earthworks provision in clause 2.0 of DDO10 is not mandatory and would be the subject of assessment.
3. DDO10 adopts a (discretionary) height of 8 metres. New houses with more than one level can be anticipated. This scale can occur while meeting other design objectives with respect to landscape character and prevailing tree canopy. I do not give weight to the usual approach or house size adopted for project homes. Dwellings here will require a carefully considered design response that is particular to the land and its circumstances.
4. Standard C8 states a 'building envelope may specify or incorporate any relevant siting and design requirement. Any requirement should meet the relevant standards of Clause 54'. I do not find any requirement is needed in this case. The narrow width and proposed setbacks can be expected to result in houses of a scale and form that will be apparent to neighbours and respond to DDO10 parameters. This does not mean the proposal is unacceptable or restrictions on the plan of subdivision are needed, such as to address overlooking to adjacent sites. Nor are restrictions required to address potential overshadowing when considering lot sizes and private open spaces for properties to the north and south of the subject land.

1. A key issue is overlooking and a loss of privacy with the development of dwellings on the proposed lots. The impact of two storey dwellings on abutting properties has been highlighted and emphasised by the applicant.
2. Clauses 56, 43.02 and 42.01 do not identify overlooking as being relevant in this case. Future development can be relevant under clause 65.02,[9] but this does not extend to me finding that a development within the building envelopes for each proposed lot will give rise to unacceptable overlooking. In addition to the fact that no buildings and works are proposed in this permit application, and the layout of any dwelling not yet known, this matter is addressed in the building regulations (including screening as set out in the regulations such as Reg 84 Building Regulations 2018 (Vic)) should it not arise for assessment under any future planning application.
3. I do not, therefore, accept the applicant's submission that overlooking is a matter to be dealt with now. There is not, in my view, anything unusual about the lot siting or setbacks relative to adjacent residential properties in this location. Two storey dwellings are lawfully allowed.

1. The applicant challenges the proposed lot layout with respect to solar orientation. The adequacy of a northern orientation is questioned given the layout involves a shallow side setback to the north, the building envelopes are narrow, and the likely dwelling size. The submission refers to an outcome with buildings on the two proposed lots which will not achieve good northern solar access, contrary to what the Council has contended.
2. Clause 56.04-3 addresses solar orientation of lots. Standard C9 is the applicable standard. The objective of the clause is:

To provide lots with areas and dimensions that enable the appropriate siting and construction of a dwelling, solar access, private open space, vehicle access and parking, water management, easements and the retention of significant vegetation and site features.

1. The proposed lots offer solar access in their large rear open spaces, to be gained from the east and the north. New dwellings will, as I have indicated, need to be carefully considered to ensure appropriate solar access is achieved for their own amenity. They would need to take account of the topography as well as the position of a dwelling on the northern lot 1.
2. I have not been persuaded that these matters are insurmountable, can or need to be determined now, or that there are potential consequences that should cause the permit application to be refused. There is no basis for me to find that neighbouring properties would be unreasonably affected. The proposal meets the objective of clause 56.04-3 and acceptably responds to policies in clause 15.01-3L-01.

1. An arborist report provided with the permit application was assessed by the Council's statutory planning arborist.
2. Detailed comments with respect to tree removal were set out by the applicant in the original objection material given to the Council. That material identified inconsistencies between an arborist's report and plans, the lack of need to remove certain trees, and cited concerns about impacts on trees on neighbouring properties.
3. I have stated that no permit is sought, or said by the Council to be required, to remove vegetation from the subject land. Neighbouring trees will be protected through permit conditions included in the Notice.

1. The applicant refers to the application plans showing post and wire fencing between the proposed lots. He alleges the plan does not comply with relevant bushfire requirements. He seeks conditions for a different form of fencing to comply with BAL29; reduce construction noises during earth works and building activities; provide prospective buyers with the exact dimensions of the land that they are purchasing; and avoid future negotiations with adjoining neighbours regarding the construction of fences.
2. As I have said, bushfire matters are not before me for determination or with respect to adding new permit conditions. A 2.1 metre high Colourbond fence is not required to achieve any of the scheme outcomes that are before me for determination in this proceeding.
3. Fencing, being 'works' as defined by the Planning and Environment Act 1987 (Vic), may be subject of a future planning permit/s and could give rise to third party notice or rights depending on the scheme provisions that apply at that time. Further, noise associated with the occupation of new dwellings and by building construction are not, typically, impacts that warrant a permit condition of the type being imposed on a planning permit.

1. There is no review of permit conditions by the respondent.
2. The description of what the permit in the Notice allows requires reformatting to give effect to changes to the Planning and Environment Regulations 2024 (Vic).
3. I have referred to the scope of this proceeding which, as discussed at the hearing, means the Tribunal can only issue a permit for the permissions under review. In this case, the decision of the responsible authority to grant a planning permit under the Bushfire Management Overlay is not before me. I do not include the permission already granted under clause 44.06 in my orders. The conditions in Appendix A do not include conditions specifically relating to that permission.
4. I have determined that no other changes are required to conditions to respond to the applicant's grounds, for reasons given earlier.
5. Consistent with the decision of the Supreme Court in Myers,[10] the responsible authority must consider how to align the permission already granted with the permissions granted in this review proceeding. Similarly for the correction sought by the Council to add a permit condition that was inadvertently excluded, which is unrelated to the matters in this proceeding. The Council may seek to address this using powers available to it.

1. For the reasons given above, the decision of the responsible authority is affirmed. A permit is granted subject to conditions relating to the matters that are before the Tribunal for review.

1. Before the Certification of the Plan of Subdivision, amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will then form part of the permit. The plans must generally be in accordance with the plans prepared by Nacha Moore Land Surveyors (Version 2) but modified to show:

1.1 The driveway setback at least one metre from the existing electricity pole and dimensioned.

1.2 The northern edge of the vehicle crossover follows the alignment of the existing crossover and without extending closer to Tree 1, with the driveways realigned accordingly to the satisfaction of the Responsible Authority.

1.3 The lot sizes consistent between the site plan and tree removal plan.

1.4 The table on the tree removal plan amended so the trees listed to be removed are consistent with the notations on the plan.

1.5 The existing easements E-18, E-19, E-21, E-22 and E-23 for drainage in favour of Manningham City Council.

1. The layout of the subdivision, works and vegetation removal as shown on the approved plan must not be altered or modified without the prior written consent of the Responsible Authority.

1. No vegetation, apart from that shown on the approved plans as vegetation to be removed, may be removed, destroyed or lopped without the written consent of the Responsible Authority.
2. The owner or developer must ensure all contractors/tradespersons (including demolition workers) who install services or work near trees to be retained are made aware of the need to preserve the trees and to minimise impacts on the trees through appropriate work practices.

1. Before the Statement of Compliance is issued, a certified engineering construction plan for outfall drainage works between the site and the junction pit in the south-east corner of 18 Rangeview Road within the easement in accordance with a certified engineering construction plan 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 show:

5.1. A drainage system designed for 20% Annual Exceedance Probability AEP (1 in 5 year storm)) as required by Council's City Infrastructure Department.

5.2. A schedule of costs for the construction of the required works.

1. Before the issue of a Statement of Compliance, the owner must pay the following to the Responsible Authority:

6.1. A supervision fee equal to 2.5% of the cost of construction of the works;

6.2. A plan checking fee equal to 0.75% of the cost of construction of the works; and

6.3. A maintenance deposit equal to 5% of the cost of construction of the works which will be retained for a minimum of three months following the completion of the works to the satisfaction of the Responsible Authority.

1. Before the issue of a Statement of Compliance, the outfall drainage works must be completed in accordance with the engineering construction plan approved under this permit and to the satisfaction of Responsible Authority.

1. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage sewerage facilities, electricity, and gas services to each lot shown on the approved plan in accordance with that authority's requirements and relevant legislation at the time.
2. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
3. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

1. The owner of the land must enter into an agreement with:

11.1. A telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time; and

11.2. A suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

1. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:

12.1. A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time; and

12.2. A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

1. Before the Statement of Compliance is issued, the following must be completed to the satisfaction of the Responsible Authority:

13.2. The removal of the existing car parking bay to the front of the site.

13.3. Vegetation removal in accordance with the approved plans.

13.4. The vehicle crossover and driveways to the building envelopes constructed.

13.5. All drainage works completed and inspected to the satisfaction of the Responsible Authority,, including all required outfall drainage works between the subject land and the nominated point of discharge in accordance with construction plans approved under this permit.

1. Before the Statement of Compliance is issued, the owner of the land must enter into and execute an agreement with the Responsible Authority, pursuant to Section 173 of the Planning and Environment Act 1987. This agreement must provide for:

14.1. No buildings or works are undertaken outside the building envelopes as shown on the Endorsed Plan unless with the written consent from the Responsible Authority.

14.2. No native vegetation is removed outside the building envelope as shown on the Endorsed Plan unless with the written consent from the Responsible Authority.

14.3. The common driveway and landscaping must be maintained by the owners of both lots in accordance with the plans endorsed under this permit.

14.4. Vehicle or pedestrian access to any lot must only occur via the approved crossover.

14.5. No further subdivision of the lots created by this permit.

14.6. Before the occupation of any dwelling, each lot must have a 4,000 litre water tank with 2,000 litres for reuse and 2,000 litres for active storage detention to the satisfaction of the Responsible Authority.

14.7. Before the occupation of any dwelling, each lot must have a minimum of two (2) new canopy trees indigenous to the local area planted to the satisfaction of the Responsible Authority. The trees must be Eucalyptus naturally occurring in the relevant EVC appropriate to replanting site location, at a minimum 45L/50cm pot size, at 1.5m tall at time of planting and capable of reaching a minimum mature height of 8 metres.

1. The land owner must pay the reasonable costs of the preparation, execution and registration of the Section 173 Agreement. The agreement must be registered at Land Victoria pursuant to Section 181 of the Planning and Environment Act 1987.

1. Unless the subdivision approved by this permit is commenced within two (2) years of the date of this permit, and completed within five (5) years from certification of the plan, then this permit will expire.

The Responsible Authority may extend the commencement period referred to if a request is made in writing by the owner or occupier either before the permit expires or in accordance with Section 69 of the Planning and Environment Act 1987.

[1] There have been versions of plans through the permit application process which have caused some concern and possible confusion. My decision relates to the stamped advertised/decision plans.

[2] No planning permit is required under any of the overlays or clause 52.17 to remove the trees and vegetation that is to be removed.

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

[4] Myers v Southern Grampians Shire Council [2023] VSC 658 ('Myers'), a decision of the Victorian Supreme Court by which I am bound.

[6] Knox City Council v Tulcany Pty Ltd [2004] VSC 375.

[7] Section 85 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[8] Ibid, ss 85(a),

1. [9] Clause 65.02 includes 'Before deciding on an application to subdivide land, the responsible authority must also consider, as appropriate:.... existing use and possible future development of the land and nearby land'.

[10] See also Box v Stonnington [2024] VCAT 149.