2 The Tribunal grants a permit for the erection of a dwelling on the land known as 2/4 Currawong Lane, Greensborough in accordance with the amended plans prepared by R.P. Home Design (sheets 1 - 4) dated 21 July 2004 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 plans presented at the Victorian Civil and Administrative Tribunal on 26th August 2004, but modified to show:

a The use of a light weight roof material such as colorbond coloured corrugated iron roofing.

b The use of light weight upper level building materials such as weatherboards.

c The deletion of any part of the north-south 1.8m high treated pine fence from any area one metre south of the existing retaining wall.

d A schedule of external building materials and colours, including details of cladding and roofing materials (with catalogue samples) incorporating neutral colour tones that will blend into the environment.

2 The development permitted by this permit must not be commenced until a satisfactory amended 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 include:

a Details of proposed paving, avoid the area beneath the canopy of the tree located at the north west corner of the site.

b The location of vegetation protection zones as required by condition 4 of this permit.

c Provision of replacement planting for vegetation that is to be removed.

d Screening vegetation along the northern boundary of the site that will grow to above fence height.

f 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.

g Location and details of, steps, retaining walls, fence design details and other landscape works including cut and fill.

h Measures proposed to ensure that sediment runoff and embankment erosion is avoided.

An endorsed copy of the plan must form part of this permit.

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.

4 Vegetation Preservation Zones must be established around the eucalyptus tree located towards the northwestern corner of the site and embankment vegetation. The vegetation preservation zones must extend to the area beneath the outer reaches of the canopy of these trees and must be erected to the satisfaction of the Responsible Authority prior to commencement of any buildings and works.

The vegetation preservation zones 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 refuelling 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.

5 Measures for protection of the river embankment during construction must be in place prior to the commencement of any buildings or works to the satisfaction of the Responsible Authority and thereafter maintained until the completion of buildings and works to the satisfaction of the Responsible Authority.

6 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 the road reserve or easements must be carried out with Council supervision under a Road Opening Permit and to the satisfaction of the Responsible Authority.

7 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.

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 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 naturestrip 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.

10 Unless otherwise agreed to in writing by the Responsible Authority, within 3 months of the occupation of the dwelling the site shall be landscaped in accordance with the endorsed plan and thereafter maintained to the satisfaction of the Responsible Authority.

11 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

12 Finished floor levels must be a minimum of 600mm above the applicable flood level.

13 Any new garage, carport or vehicle parking area must be constructed with finished floor or surface levels a minimum of 300mm above the applicable flood level.

14 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.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

3 The Tribunal orders that the plans approved (in accordance with Planning Permit No. P477/00) be replaced by the plans approved in "planning permit application No. P364/03".

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

Ms A. Paul, Ms J. Macdonald and Mr A. Treadwell, Respondent/Objectors, appeared in person.

Application under S. 149 of the Planning and Environment Act 1987 for a review arising from a dispute.

1 On 28 June 2001 the Responsible Authority issued Planning Permit No. P477/00 allowing the construction of a second dwelling behind an existing single storey dwelling on land situated at Currawong Lane, Greensborough. The site abuts the embankment of the Plenty River.

2 On 7 December 2001 the Responsible Authority issued Planning Permit No. P28/01. This permit allowed the subdivision of the land into two lots. Condition 4 of that permit read as follows:-

4. Unless otherwise agreed in writing by the Responsible Authority, prior to the Certification of the Plan of Subdivision, the owner of the land at 4 Currawong Lane, Greensborough must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement shall require that:

Unless otherwise agreed in writing by the Responsible Authority, each lot created as part of the Plan of Subdivision shall only be developed in accordance with plans endorsed pursuant to Planning Permit P477/00 issued on 28th June 2001.

A memorandum of the Agreement is to be entered on title and the cost of the preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.

3 The Section 173 Agreement has since been registered on title.

4 The plans associated with Planning Permit No. P477/00 allowed the construction of a two storey dwelling comprising three bedrooms. The upper floor was to comprise a bedroom, a large attic and a deck facing the river environs.

5 The lot has since been sold. It comprises an area of 770m2 and contains a number of significant trees, both indigenous and exotic. The land falls approximately 5700mm from the northwest corner to the southeastern corner, descending steeply towards the river. Housing in this locality is varied. While predominantly single storey, there are other two-storey dwellings in the vicinity.

6 The new owner does not wish to proceed with the approved dwelling. He seeks instead to build a slightly larger house which Mr English described as follows:-

The proposed dwelling will comprise at ground floor level an entrance foyer, amenities, separate lounge and open layout kitchen, meals and family room area with direct access to the secluded principal private open space. The construction of the proposed dwelling will warrant the removal of one chestnut tree. At first floor level the proposed dwelling will comprise amenities, landing gallery and three bedrooms. The first floor level of the proposed dwelling is partially incorporated into the roof space. The proposed dwelling is an attic style to reduce the visual appearance of the dwelling to the adjoining properties to the north and north east. The proposed dwelling sits well within the site with extensive side and rear setbacks.

The proposed dwelling will utilise building materials typically found in the immediate and surrounding area. The ground and first floor level walls will be selected face brickwork with terra cotta roof tiles. First floor elements will be finished in render.

There is provision on site for a two-car space garage with vehicle access from the access way that extends along the north east boundary of the site from Currawong Lane.

The proposed dwelling will have direct access to ground level open. It is considered that the open space provision is more than adequate for the site.

7 As can be seen, the first hurdle the applicant must overcome is the existence of the Section 173 Agreement. As was made plain in Goodcorp Pty Ltd v Melton SC (2003) 15 VPR 37, the power of the Tribunal to amend or vary a Section 173 Agreement is somewhat constrained. Mr English was unable to point to the particular provision on which he relied. However, Section 149(1)(b) of the Planning and Environment Act 1987 provides as follows:

149 (1) A specified person may apply to the Tribunal for the review of-

(b) a decision of a specified body in relation to a matter if an agreement under section 173 provides that the matter must be done to the satisfaction, or must not be done without the consent, of the specified body and makes no provision for settling disputes in relation to the matter; or

8 Given the wording of condition 4, the Tribunal considers that the agreement can be varied by resort to the above section.

9 As a cautionary measure, the Tribunal amended the application (which was simply to vary the agreement) as follows:-

* an application to review the Council's refusal to consent; and

* an application for a permit under the provisions of the overlay controls previously specified.

10 It is noteworthy that, given the size of the land, no permit is required under Clause 54 of the planning scheme.

11 The application was advertised and attracted four objections. These the Responsible Authority summarised as follows:

* The proposal is an overdevelopment of the site and will affect the environmental and visual amenity of the site with significant effect on the adjacent Plenty River riparian environment.

* Areas of erosion will be increased by the proposal.

* Proposal will result in increased disturbance to the riparian and instream environment and will be a significant intrusion into a relatively undisturbed area of the river bank.

* The large Eucalypt will risk damage to its root ball.

* Silt fencing and an approved landscape plan are required.

* The new dwelling is 3 metres higher than the one previously approved.

* The proximity of the dwelling to rear fence line means it will overlook rear entertainment areas of adjacent properties.

* Visual bulk of the dwelling will dwarf surrounding residents and is not in keeping with the area.

* No dimension of the plans of distances from rear and side fences.

* Cannot imagine a high building so close to the Plenty River.

12 On 23 March 2004 the Council resolved to refuse the application on the following grounds:

* The development fails to satisfy the objectives and design responses of Council's Neighbourhood Character Strategy relating to:

* The proposal does not respond sufficiently to the objectives and decision guidelines of the overlay controls affecting the land.

13 It appears from the foregoing process that the Council treated this application as one which should be considered via the normal planning procedures associated with a conventional planning application.

14 At the commencement of the hearing Mr English sought leave to substitute amended plans for the plans which had accompanied the application. These plans tended to reduce the scale of the proposal. There was no objection to the substitution and accordingly the Tribunal granted leave.

15 On the hearing each of the parties made submissions, some orally, and some in writing. The arguments of those opposing the proposal are best encapsulated by reference to the concluding passage of the Council's submission:

The subject site is located within an environmentally sensitive area with important landscape value. The predominant scale of housing is single storey and the desired future character for the area is to retain and enhance the tree dominated character.

The proposed dwelling has not been designed with regard to the sensitivity of the site or the valued character of the area. The height and bulk of the dwelling will lead to it being the dominant feature of the area, rather than the natural environment. The dominance of this building will detract from the valued landscape character of this area.

The proposed double storey built form with high walls is not in keeping with the predominantly low set built form in the area and little has been done to minimise the impact of this built form on viewscapes. In particular the dwelling will be the dominant view from adjoining properties, the pedestrian bridge and the river areas.

The overhanging of the dwelling into the embankment is not considered to be an appropriate design response to the site and shows a lack of regard to the characteristics and value of the site in developing the design.

It is therefore respectively submitted that the permit be refused and Council's decision be affirmed.

16 The objectors made similar observations. Ms Paul, who represented the Plenty River Forum Inc. also expressed concern regarding degradation of the wildlife corridor and the natural habitat provided by the riverine environment.

17 The applicant's submissions were effectively summed up by Mr English as follows:-

The subject land is residentially zoned, is vacant, and has an area of 770m2. The land is therefore capable of some type of residential development. There are no prohibitions on double storey development, and more particularly the Design and Development Overlay allows for as-of-right development up to 8 metres in height, whilst the Council's rather restrictive amended Neighbourhood Character Policy suggests 7.5 metres.

The overall ridge height proposed is only one metre higher than the development currently approved on the site, whilst the proposed building envelope will extend no further to the south or west than this development.

With respect to vegetation, only one tree is proposed to be removed from the site, whilst the proposed dwelling will be set back approximately 7.8 metres from the existing Manna Gum. The setback is also consistent with the development previously approved.

18 Following the hearing the Tribunal inspected the review site from a number of nearby vantage points. In coming to its decision the Tribunal has carefully considered all the arguments put before it.

19 It was common ground at the hearing that the critical planning control at issue was the Environmental Significance Overlay, the purpose of which is expressed at Clause 42.01 of the planning scheme as follows:-

* To protect areas along watercourses from development and loss of vegetation that may damage the streamside environment as a visual, conservation, ecological and recreation resource.

* To address the threatening processes associated with widespread habitat loss and degradation that has occurred in North East Melbourne.

* To encourage the retention and enhancement of a continuous corridor of indigenous vegetation along river and creek banks in order to provide corridors for the movement of wildlife.

20 Viewed objectively, it is difficult to see how the purpose of the overlay will in any way be violated by approving the present proposal. The Responsible Authority seems to have assumed that the earlier planning permit set the boundaries for the development of this site. However, Mr English was quite correct when he pointed out that:-

* no indigenous vegetation is to be removed as a result of this proposal;

* the main additional built form will occur at a point which is not visible from the river environs;

* there is extensive vegetation already in place which serves to soften the impact of any development on the site;

* given the earlier approval of a two-storey dwelling, the present application has no consequences at all for the river environs or for the protection of wildlife;

* Melbourne Water has consented to the revised proposal.

21 Given those findings, the visual, conservation, ecological and recreation consequences of this proposal will be negligible.

22 There remains the question of conditions. Given the way in which applications for development of this site have proceeded, a procedural tangle has resulted. In view of the overlay provisions, it seems to the Tribunal that the requirement for a Section 173 Agreement in Planning Permit No. P28/01 was unnecessary as any development of the land would have required a permit in any event. In the result, the Tribunal's requirement that the application for review be amended to also include an application for a planning permit under the Overlay controls now allows conditions to be imposed on the permit authorising the new proposal.

23 The Tribunal will make the necessary orders to give effect to these observations.