1. The development, as shown on the endorsed plans, must not be altered without the written consent of the Responsible Authority.

Section 173 Agreement

1. Before the development starts (including vegetation removal), the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 and such agreement must require that:
   • (a) no trees or vegetation shown for retention on the approved Tree Protection Plan will be removed without the written consent of the Responsible Authority; and
   • (b) the approved Tree Management Plan will be implemented to the satisfaction of the Responsible Authority.

The Owner must pay all reasonable costs for the preparation, execution and registration of the Section 173 Agreement. The Section 173 Agreement must be registered in accordance with the provisions of Section 181 of the Planning and Environment Act 1987.

1. Before the development starts (including any demolition and/or vegetation removal), an Arborist Report to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by, the Responsible Authority. The Arborist Report must be prepared by a suitably qualified Arborist and must be generally in accordance with Constructive Arboricultural Expert Witness Statement dated March 2016, but updated to show the Tree Protection Zones, Structural Root Zones and tree number of all trees to be retained on the site and on adjoining land in accordance with AS4970-2009 Protection of Trees on Development Sites. In particular:
   • (a) The Tree Protection Zone of all multi-stemmed trees must be calculated as set out in AS4970-2009 Protection of Trees on Development Sites.
   • (b) Where the canopy extends past the Tree Protection Zone, as calculated using trunk diameter, the Tree Protection Zone must be increased to include the canopy as set out in AS4970-2009 Protection of Trees on Development Sites.

The Arborist Report must include an assessment of Tree No. 16 (Sydney Blue Gum) confirming whether the tree can be safely retained as part of the development. If the assessment concludes that the tree can be safely retained, appropriate management measures, and any modifications to the development to ensure its retention, must be specified.

The development must be undertaken in accordance with the requirements and recommendations of the approved Arborist Report to the satisfaction of the Responsible Authority.

1. Before the development starts (including any demolition and/or vegetation removal) a detailed Tree Management Plan prepared by a suitably qualified Arborist, must be submitted to, and approved by, the Responsible Authority. The Tree Management Plan must be to the satisfaction of the Responsible Authority and must contain the requirements and measures or works necessary to protect all trees to be retained on site and on adjoining land during the pre-construction, construction and post-construction stages of development. The Tree Management Plan must contain (but is not limited to) the following information:
   • (a) the dwelling numbers and locations;
   • (b) tree numbers in accordance with the approved Arborist Report (refer to Condition No. 4 of this permit);
   • (c) Tree Protection Zone (TPZ) and Structural Root Zone (SRZ) for all trees to be retained;
   • (d) a notation that trees shown to be retained must not be removed without further written consent from the Responsible Authority;
   • (e) the restricted activities and required actions within the TPZ and SRZ;
   • (f) details of the Tree Protection Fence locations, any ground protection requirements and site access route(s);
   • (g) construction methods and equipment required for the dwellings and external boundary fencing (including particular reference to any new boundary fencing to be constructed along the northern, southern and eastern side boundaries within the TPZ and SRZ of trees to be retained on site and adjoining land). Details to include non-invasive root exploration, footing relocation (when/where deemed necessary) and root pruning;
   • (h) plans and sections of the proposed driveway demonstrating that any encroachment into the TPZ of Tree No. 21 will not exceed 6 square metres in area and will not have a depth exceeding 300mm;
   • (i) a requirement that holes required for the installation of fenceposts must be dug by hand within the TPZ of all trees, including trees on neighbouring land. If significant tree roots are located the position of the fencepost must be relocated elsewhere;
   • (j) a requirement that trenches required for the provision of services must be dug by hand within the TPZ of all trees, including trees on neighbouring land. If tree roots are located within the alignment of trenches root pruning must to be undertaken by hand by a qualified arborist and to the satisfaction of the Responsible Authority;
   • (k) construction methods and materials for proposed driveways;
   • (l) pre and post-construction care measures.
   • (m) a review of any proposed site level changes and provide recommendations to ensure retained trees are adequately protected;
   • (n) any tree canopy pruning necessary to provide clearance for the development and any remedial works required;
   • (o) any management measures for retained trees, including any such measures specified in the approved Arborist Report required by Conditon No. 4 of this permit;
   • (p) key supervision and monitoring stages of the development;
   • (q) the location of all underground services. Services must be located outside of the TPZ of retained trees or installed through the use of suitable boring techniques with the entry and exit pits to be outside of the TPZ and at a minimum depth of 700mm;
   • (r) a communication plan that provides contact information for a designated individual responsible for ensuring work adheres to the approved Tree Management Plan. The designated individual will also ensure contractors working at the development site are aware of the approved Tree Management Plan;
   • (s) a suitable reporting method that accurately records tree protection measures undertaken including photographic evidence.

The approved Tree Management Plan must be implemented to the satisfaction of the Responsible Authority.

1. Tree protection must be carried out in accordance with the Australian Standard AS4970-2009 Protection of Trees on Development Sites to the satisfaction of the Responsible Authority.
2. Before the development starts (including any demolition and/or vegetation removal), a Tree Protection Fence defined by a 1.8 metre high (minimum) temporary fence constructed using steel or timber posts fixed in the ground or to a concrete pad, with the fence's panels to be constructed of cyclone mesh wire or similar strong metal mesh or netting with a high visibility plastic hazard tape, must be installed around the Tree Protection Zone of all the trees to be retained on the subject site and reduced by the minimum amount necessary to construct approved works to the satisfaction of the Responsible Authority. A fixed sign must be provided on all visible sides of the Tree Preservation Fencing, stating "Tree Preservation Zone - No entry without permission from Frankston City Council". Fencing must be inspected by the Responsible Authority before the development starts.

The following requirements must be observed within the area enclosed by the Tree Protection Fence:

(a) no vehicular or pedestrian access;

(b) the existing soil level must not be altered either by fill or excavation;

(c) the soil must not be compacted or the soil's drainage changed;

(d) no fuels, oils, chemicals, poisons, rubbish or other materials harmful to trees are to be disposed of or stored;

(e) no storage of equipment, machinery or material is to occur;

(f) open trenching to lay underground services e.g.: drainage, water, gas, etc. must not be used unless approved by the Responsible Authority to tunnel beneath;

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

(h) tree roots must not be severed or injured; and

(i) machinery must not be used to remove any existing concrete, bricks or other materials.

1. The driveways located within the Tree Protection Zone of trees to be retained must be constructed of air and water permeable material such as sand based paving, gravel, no fine concrete or similar, must be constructed at or above grade and must be in accordance with the recommendations in the approved Tree Management Plan to the satisfaction of the Responsible Authority.

1. All tree pruning must be carried out by a qualified and experienced Arborist who has a thorough knowledge of tree physiology and pruning methods. Pruning must be carried out in accordance with Australian Standard AS4373-2007 Pruning of Amenity Trees. If pruning works are to be undertaken then these works should be carried out prior to any construction works beginning on site.

1. Before the development starts, a landscape plan prepared by a suitably qualified person must be submitted to, and approved by, the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must show:
   • (a) no alteration to the existing soil levels within the Tree Protection Zone of the trees to be retained, exlcuding the driveway where modification is required;
   • (b) landscaping to be sensitive to the tree roots and not include any planting within the Structural Root Zones of any of the trees to be retained;
   • (c) the Tree Protection Zones, Structural Root Zone and tree numbers of all trees to be retained (including those on adjoining land) in accordance with the approved Arborist Report (refer to Condition No. 4 of this permit);
   • (d) a survey (including botanical names) of all existing vegetation to be retained and removed;
   • (e) buildings and trees (including botanical names) on neighbouring properties and road reserves within 3.0 metres of the boundary;
   • (f) details of surface finishes of pathways and driveways, retaining walls and areas of cut and fill;
   • (g) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at maturity and quantities of each plant;
   • (h) a planting theme of a minimum 40% indigenous, 40% native and 20% exotic species within each plant group;
   • (i) canopy trees that have a minimum mature height of 8.0 metres (minimum 2.0 metres tall when planted) in the following areas:
     • (i) two (2) within each of the front setbacks of Dwellings No. 1, 6 and 7 (existing dwelling) and one within the front setback of Dwelling No. 9;
     • (ii) two within the rear yard of Dwelling No. 7 (existing dwelling);
     • (iii) one (1) within the private open space of all the dwellings other than Dwelling No. 7

or otherwise a minimum of eighteen (18) trees, inclusive of the retained trees, in locations to the satisfaction of the Responsible Authority.

All species selected must be to the satisfaction of the Responsible Authority.

1. The landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before the development is occupied or at such later date as is approved by the Responsible Authority in writing.

1. Before vegetation removal starts, an Offset Management Plan showing appropriate offsets to compensate for the removal of all native vegetation from the site as approved by the Responsible Authority, must be submitted to, and approved in writing by, the Responsible Authority. Three copies of the Offset Management Plan must be provided. Maps or plans forming part of the Offset Management Plan must be drawn to scale with dimensions. When approved, the Offset Management Plan will be endorsed and will then form part of this permit. The plan must include:
   • (a) description of the existing vegetation to be removed and any vegetation to be retained including details of:
     • (i) the location of the vegetation including details of the Bioregion;
     • (ii) the Ecological Vegetation Class (EVC) of the vegetation;
     • (iii) the Bioregional Conservation Status of the EVC;
     • (iv) the number of very large, large and medium old trees to be removed;
     • (v) the presence of any rare or threatened fauna or flora species;
     • (vi) whether the site is potential habitat for any rare or threatened species;
     • (vii) conservation significance;
   • (b) gain targets;
   • (c) offset(s) to compensate for the vegetation removal, including details of:
     • (i) type of offset(s) to be provided in each location;
     • (ii) location of the offset(s) including details of the Bioregion;
     • (iii) ecological vegetation class of the offset vegetation;
     • (iv) habitat hectare score (out of 1) of the offset (where applicable);
     • (v) number of very large, large and medium old trees to be protected (where applicable);
     • (vi) rare or threatened species habitat to be protected (where applicable);
     • (vii) conservation significance of the offset;
   • (d) gains in vegetation and habitat quality to be achieved by the offset(s);
   • (e) details of any revegetation works including number of trees, shrubs and other plants, species mix and density included in a schedule of works;
   • (f) methods of managing and restoring the existing vegetation to be retained including schedule of works;
   • (g) methods of interim protection for newly established vegetation;
   • (h) methods of permanent protection of established offsets;
   • (i) persons responsible for implementing and monitoring the offset plan;
   • (j) time frame for implementing the offset plan;
   • (k) cost to implement the offsets.
2. The Offset Management Plan endorsed under this permit must commence implementation to the satisfaction of the Responsible Authority within one (1) year of the commencement of vegetation removal from the land, unless the Responsible Authority consents to a variation of this condition, in writing. Any variation must be submitted and approved within the term of the original Plan.
3. If an agreement is made with Bushbroker to offset the loss of vegetation a credit extract, issued by the Department of Environment, Land, Water and Planning, confirming that payment has been received to implement the approved Offset Management Plan must be provided to the Responsible Authority prior to vegetation removal commencing.
4. If an agreement is made with the Responsible Authority to offset the loss of vegetation, payment must be provided prior to vegetation removal commencing.

1. Before the development starts, roadworks, drainage and associated works must be provided and constructed at the expense of the owner in accordance with plans and specifications approved by Council and must include as appropriate details of:
   • (a) kerb and channel;
   • (b) a 1.4 metre wide footpath along the Aqueduct Road site frontage, terminating at the north edge of the southern vehicle crossover;
   • (c) vehicle crossings;
   • (d) amenity control during construction;
   • (e) drainage system design/layout and 100 year flow paths to be accommodated;
   • (f) street tree planting;
   • (g) permanent survey marks/numbered/levelled;
   • (h) service conduit plan;
   • (i) filling of land/placement/material; and
   • (j) street lighting.
2. The nature strip area at the site frontage must be re-graded, as necessary, to facilitate pedestrian and vehicle access to the satisfaction of the Responsible Authority.
3. Before the development is occupied, a Stormwater Detention System, with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI pre-development value must be provided, to the satisfaction of the Responsible Authority.
4. Stormwater Drainage Outfall must be constructed to the satisfaction of the Responsible Authority.
5. Water Sensitive Urban Design principles (WSUD) must be incorporated into the drainage design, which may include but not be limited to the following components:
   • (a) on-site stormwater detention and rainwater tanks;
   • (b) soil percolation;
   • (c) stormwater harvesting and re-use of stormwater for garden watering, toilet flushing, etc; and
   • (d) on-site 'bio-treatment' to reduce dissolved contaminants and suspended solids.
6. Stormwater runoff must achieve the following objectives for environmental quality, as set out in the Urban Stormwater Best Practice Environmental Guidelines (CSIRO) 1999:
   • 80% retention of the typical annual load of suspended solids;
   • 45% retention of typical annual load of total phosphorous; and
   • 45% retention of typical annual load of total nitrogen

Water quality works within the development must be provided to achieve compliance with the above best practice standards to the satisfaction of the Responsible Authoirty.

1. Before the development starts, construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by, the Responsible Authority.
2. Vehicle crossings must be constructed to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority.
3. All disused vehicle crossings must be removed and the area reinstated to kerb and channel and landscaped to the satisfaction of the Responsible Authority.
4. Before the dwellings are occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
   • (a) constructed to the satisfaction of the Responsible Authority;
   • (b) properly formed to such levels that they can be used in accordance with the plans;
   • (c) surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority; and
   • (d) drained and maintained to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

1. Where the development involves work on or access to Council-controlled land including roads, reserves and rights of way, the owner, operator and their agents must at all times take adequate precautions to maintain works to the highest public safety standards, to the satisfaction of the Responsible Authority. Precautions must include, appropriate signage to AS 1743 Road Signs Specifications, the provision of adequate barricading of works, including trenches of service authorities and any other road openings sufficient to ensure public safety. (Note: all relevant permits must be obtained from the Responsible Authority for works within the existing road reserves).

1. Before the development starts (including vegetation removal) a Construction and Environment Management Plan must be submitted to, and approved by, the Responsible Authority. When approved the Construction and Environment Management Plan will be endorsed to form part of the permit. Any plans submitted must be consistent with all other documents approved as part of this permit. The information must be drawn to scale with dimensions and three copies must be provided. The Construction and Environment Management Plan must include details of the following:
   • (a) a Traffic Management Plan for any works affecting traffic along Aqueduct Road prior to and during construction and development works;
   • (b) contact telephone numbers of responsible owner/contractor including emergency/24 hour mobile contact details;
   • (c) identification of possible environmental risks associated with development works;
   • (d) response measures and monitoring systems to minimise identified environmental risks, including but not limited to vegetation protection, fauna protection, runoff, erosion, dust, litter, noise and light;
   • (e) location and specifications of sediment control devices on/off site;
   • (f) location and specifications of surface water drainage controls;
   • (g) location and specifications of fencing for the protection of trees and/or vegetation as required by the permit;
   • (h) proposed drainage lines and flow control measures;
   • (i) location of all stockpiles and storage of building materials;
   • (j) location of parking for site workers and any temporary buildings or facilities;
   • (k) details to demonstrate compliance with relevant Environment Protection Authority guidelines; and
   • (l) hours during which construction activity will take place.

The development must be undertaken in accordance with the approved Construction and Environment Management Plan to the satisfaction of the Responsible Authority.

1. All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
2. Mailboxes must be provided to the dwellings to the satisfaction of the Responsible Authority and Australia Post.
3. Lighting must be provided within the development, and must not cause adverse impact on adjoining land, all to the satisfaction of the Responsible Authority.
4. All plumbing work, sewer pipes etc. (except for spouting and stormwater pipes) associated with the new dwellings must be concealed from general view, to the satisfaction of the Responsible Authority.

1. Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the issued date of this permit.
   • (b) The development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] I have considered the submissions of the parties, all the written and oral evidence and all the exhibits tendered by the parties. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Rescom Aqueduct Langwarrin Pty Ltd v Frankston CC [2016] VCAT 1119