Richardson & Anor v Yarra Ranges SC [2003] VCAT 1087 | Case summary | Zoe

VICVCAT

Richardson & Anor v Yarra Ranges SC [2003] VCAT 1087

[2003] VCAT 1087

Victorian Civil and Administrative Tribunal|2003-08-26

At a glance

AI case summary

Result

respondent. The Council's decision to grant a permit is affirmed. A permit is granted for the construction of three double storey dwellings and the removal of vegetation at No. 1522 Burwood Highway, Tecoma,...

Key principles

The Tribunal affirmed the Responsible Authority's grant of a permit because, on balance, the proposed three double storey dwellings provided an appropriate design response to the...
The Tribunal accepted the Council's approach to vegetation removal where amended plans prepared following consultation with the Council's arborist and urban designer had retained...
The Tribunal found that identified amenity concerns (overlooking and fence height) and traffic/access concerns did not amount to unreasonable impacts: the bathroom window was...

Issues before the court

Whether the proposed development is consistent with neighbourhood character and local policy, allowing a permit for three double storey dwellings.
Whether the removal of approximately 24 trees (about 50% of the site's trees) justified refusing the permit.
Whether the proposal would unreasonably affect neighbouring amenity by overlooking or unacceptable fence height.

Plain English Summary

VCAT reviewed an objector challenge under s.82 to Yarra Ranges Council's decision to grant a permit for three double storey dwellings and vegetation removal at 1522 Burwood Highway, Tecoma. The Tribunal considered local and state planning policies (including Clauses 22.01, 22.11, 32.01 and Clause 55 design standards), evidence from the Council (including arborist input), and VicRoads on access. The Tribunal found that amended plans, retention of the 'best' trees, proposed replanting, compliance with design standards and lack of unreasonable amenity or traffic impacts meant the permit decision should be affirmed. It granted the permit subject to detailed conditions addressing plans, landscaping, arborist protection, drainage, civil works, and timing (see Reasons [23], [27]-[29], [31]-[33], Orders).

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Deep Dive

1,589 words · generated 08/09/2026

What happened

This VCAT decision (Richardson & Anor v Yarra Ranges SC [2003] VCAT 1087; Member Rachel Naylor) is an application under section 82 of the Planning and Environment Act 1987 to review the Yarra Ranges Shire Council's delegated decision to grant a planning permit (application YR‑2002/473) for the construction of three double storey dwellings and removal of vegetation at 1522 Burwood Highway, Tecoma. The Council received the permit application on 2 April 2002; requested further information in July and November 2002; the application was amended and consulted upon; a Notice of Decision to Grant a Permit was issued on 8 April 2003; and two neighbouring landowners (Mr Richardson and Mr Butcher) lodged reviews on 28 April 2003 (see [2]-[5]).

The site is vacant, contains medium to dense canopy trees and shrubs, has a frontage of 20.1 metres and area of 2,192m2, and slopes at an average of 12.5% (see [7]-[8]). The proposal was revised from four to three double storey detached dwellings, included detailed layout, garages, visitor parking, removal of 24 trees (plus two dead trees) and retention of 20 trees (see [10]). Key issues raised by the objectors were removal of mature native trees and fauna, compatibility of double storey units with neighbourhood character, and traffic issues associated with access from Burwood Highway (see [4]-[5]).

VCAT heard submissions from the applicants, the Council, the permit applicant, and referral authorities (VicRoads and the Country Fire Authority). Photographs and documents were tendered and considered (Appearances section). The Tribunal affirmed the Council's decision and ordered the issue of a permit subject to detailed conditions addressing amended plans, construction standards, landscaping, arborist protection and civil works; the permit also imposed time limits for commencement and completion (Orders and Conditions).

Why the court decided this way

The Tribunal's reasoning is grounded in the planning framework: the site is in a Residential 1 Zone (Clause 32.01), within the Foothills Residential Area where a schedule to Clause 53 requires a permit to construct more than one dwelling and vegetation removal is regulated (see [11], [14]). Local planning policies (Clauses 22.01 and 22.11) set objectives and strategies for medium density housing to be compatible with neighbourhood character, to avoid removal of remnant vegetation or mature trees, and to ensure built form remains below tree canopy and respects landscape and environmental qualities (see [19]-[21]). Clause 55 (ResCode) design standards are directly relevant to multi‑dwelling development (see [12], [23]).

The Tribunal applied these rules by conducting an overall balancing exercise. It accepted the Council's assessment (noted as thorough and compelling) that the revised plan provided an appropriate design response to the objectives and policies, particularly having regard to the site's proximity to services and facilities and compliance with Clause 55 standards ([23]). On vegetation, the Tribunal relied on the Council's submission that revised plans were prepared following consultation with the Council arborist and urban designer, that the 'best' trees had been retained, and that schematic replanting should lead to a net environmental gain consistent with local vegetation protection policy ([27]). On amenity and overlooking, the Tribunal observed that screening and obscure glazing would mitigate impacts on 1 Campbell Street ([30]-[31]). On access, the Tribunal accepted VicRoads' submission that existing line marking where the road narrows provided sufficient room to pass vehicles turning into the development ([32]). The Tribunal therefore concluded that, on balance, the proposal was an appropriate design response and respectful of neighbouring amenity ([34]-[35]).

Two features of the Tribunal's approach are notable. First, it emphasised balancing competing policy objectives (urban consolidation and design standards versus vegetation protection) rather than applying a single policy in isolation (see [23], [29]). Second, it treated outstanding technical and design matters as matters for conditions (see Conditions 1–23), using the permit to secure arborist reports, landscaping details, drainage, civil works supervision, and construction standards.

Before and after state of the law

This decision applies settled principles of planning assessment rather than establishing a new legal test. Before this decision, assessing officers and tribunals routinely balanced policy objectives, applied Clause 55 design standards, and used permit conditions to manage technical details. The Tribunal in Richardson confirms that approach: it engages the local policy framework, weighs competing objectives, and uses conditions to secure mitigation and final details (see [23], [27], Conditions).

After this decision, the practical upshot for practitioners is that VCAT will look for: (a) evidence that amended plans have responded to policy and to advice from relevant technical officers (e.g., Council arborist), (b) an assessment of whether the 'best' vegetation is retained where tree removal is proposed and whether replanting proposals demonstrate a net environmental gain, and (c) clear compliance with Clause 55 standards where multi‑dwelling development is proposed. The decision reinforces that acceptability on balance is achievable where the scheme's objectives and standards are satisfactorily addressed and where conditions can secure outstanding matters.

Key passages with plain-English translation

Paragraph 23: "I am of the opinion that, on balance, the proposal does provide an appropriate design response to the various objectives, strategies and policy of these Clauses." Translation: The Tribunal weighed the planning rules and decided the proposed development reasonably fits the policies; it did not find a policy breach that would require refusal.
Paragraph 27: Council's submission that revised plans were prepared following consultation with Council's arborist and urban designer and that replanting should lead to a net environmental gain. Translation: The Council relied on internal technical advice and the applicant's amended design to show the vegetation outcome would be acceptable.
Paragraph 29: "On balance, I find that the tree removal is reasonable..." Translation: The Tribunal accepted that removing some trees was justified because the revised design retains better trees and provides replacement planting; tree removal alone did not defeat the application.
Paragraph 35: "I am satisfied that the proposal is an appropriate design response...respectful of the amenity of the neighbouring property." Translation: Final conclusion, permit should be granted because design, neighbourhood fit and amenity impacts were acceptable.

What fact patterns trigger this precedent

This decision is most directly applicable to situations with the following features:

A Residential 1 Zoned vacant, treed lot in a local policy area where multi‑dwelling development requires a permit (e.g., Foothills Residential Area) (see [11], [14]);
A development proposing medium‑density housing (two or more dwellings) with some removal of vegetation where the Council's arborist has been consulted and amended plans seek to retain the better trees and propose replanting (see [10], [27]-[29]);
Objectors raising neighbourhood character, vegetation and access/traffic concerns, with technical referral authorities (VicRoads, CFA) providing evidence on access and fire safety (see [2], [13], [15], [32]);
A development that otherwise meets Clause 55 standards or where conditions can secure compliance (see [12], [23]).

Where those elements are present, Richardson shows that VCAT will perform a balancing assessment and may affirm a permit if the balance favours approval and conditions can secure mitigation.

How later courts have treated it

This judgment itself does not record any subsequent appellate treatment. The decision is a first‑instance VCAT planning determination applying the Yarra Ranges Planning Scheme to the facts. The decision relies on the Council's technical assessments and local policy interpretation; it does not purport to create a binding precedent beyond its persuasive value in similar VCAT matters. The judgment does not cite other cases and does not record follow‑up appellate authority. Therefore, no statements about later courts' treatment of Richardson can be drawn from the text of this decision.

Still-open questions

The Tribunal made a number of findings on balance which leave room for future contestation in different factual contexts:

Adequacy of arborist evidence: The Tribunal accepted the Council's arborist advice as recorded in the Council submission and schematic replanting as producing a 'net environmental gain' (see [27]-[29]). A distinct factual matrix with a more detailed or contrary arborist report might lead to a different outcome. The decision does not set out the content of the arborist report in full, so the threshold for what constitutes adequate arborist justification is not exhaustively defined here.
Distribution of development across the site: The objector argued that development should be concentrated at the front rather than the rear to respect the railway reserve; the Tribunal preferred the Council's design rationale that concentrated development to retain 'best' trees toward the front (see [24], [26], [29]). Different site configurations could produce a contrary result if retention of canopy or landscape character were demonstrably undermined.
Weight given to proximity to services: The Tribunal places weight on proximity to services and facilities as a factor favouring medium density (see [23]). The decision does not quantify how close or what services suffice, leaving that to factual assessment in future cases.
Use of conditions to resolve design details: The Tribunal routinely used conditions to require amended plans, landscaping and technical reports (see Orders 1–23). The decision illustrates the Tribunal's willingness to approve subject to conditions, but does not resolve limits to that approach where fundamental policy conflicts exist.

These questions underline that Richardson is context‑sensitive: its reasoning is tightly bound to the factual matrix (site, amended plans, Council arborist involvement, VicRoads support) and similar outcomes will depend on comparable facts.

Disclaimer: This is a structured analysis of Richardson & Anor v Yarra Ranges SC [2003] VCAT 1087 based only on the uploaded judgment. It is legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any draft or analysis here, get a qualified Australian lawyer to check it.

Judgment (120 paragraphs)

[1]

Richardson & Anor v Yarra Ranges SC [2003] VCAT 1087 (26 August 2003)

[2]

Application under s.82 of the Planning and Environment Act 1987; Yarra Ranges Planning Scheme; Three Double Storey Dwellings; Neighbourhood Character; Removal of Vegetation; Amenity of Neighbouring Properties.

[3]

[2003] VCAT 1087

[4]

With respect to permit application YR-2002/473, the Responsible Authority's decision to grant a permit is affirmed.

[5]

A permit is granted for the construction of three double storey dwellings and the removal of vegetation at No. 1522 Burwood Highway, Tecoma, in accordance with the endorsed plans, subject to the following conditions:

[6]

1. Before the development starts, amended plans drawn to scale and dimensioned, 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 generally in accordance with the plans submitted with the application but modified to show to the satisfaction of the Responsible Authority:

[7]

a) Revised ground floor/first floor building elevations/tree removal plans, detailing the construction of three dwellings generally in accordance with revised drawings numbered 5, 6, 7 and 8 dated 17 and 18 February 2003.

[8]

b) Details of the materials to be used in the permeable paving around the trees adjacent to the driveway.

[9]

c) Details of the construction of the driveway and garage for Dwelling 3 and tree (root) protection methods and critical root protection zones in accordance with a report from a suitably qualified arborist.

[10]

d) A 2 metre high paling fence with a 300mm trellis along the eastern boundary.

[11]

e) The western wall of the garage for Dwelling 3 to have an average wall height of 3.2 metres.

[12]

f) The inclusion of a pedestrian gate adjacent to the remote controlled vehicle gates.

[13]

g) The dwellings to achieve a four star energy rating in accordance with the report by David Ledger VIC/01/012 dated 21 March 2002.

[14]

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

[15]

3. Prior to the commencement of the development, a schedule of construction materials, external finishes and colours (incorporating paving details) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the schedule will be endorsed and will then form part of the permit.

[16]

4. Prior to the commencement of the development, a landscape plan indicating the area or areas set aside for landscaping and a schedule of all existing trees to be retained, all proposed trees, shrubs and ground covers (including size at maturity and botanical names) prepared by a person qualified and experienced in landscape design, is to be submitted to and approved by the Responsible Authority, and when approved, such plan shall form part of the endorsed plans under this permit. This plan shall generally be in accordance with revised Drawing No. 9 titled "Landscape Concept Plan" dated 17 February 2003.

[17]

5. All sewage and sullage waste must be discharged into a reticulated sewerage system to the satisfaction of the Responsible Authority.

[18]

6. The trees on the site to be retained must be protected by the erection of fence(s) or similar during development in accordance with a report by a suitably qualified arborist to the satisfaction of the Responsible Authority.

[19]

7. All batters shall be graded so that they form a gradual transition between levels. All batters shall be smoothly blended into existing levels.

[20]

8. The permitted development and any ancillary or incidental works shall be carried out in accordance with the Shire of Yarra Ranges Information for Landowners Fact Sheets "Development Guidelines for properties identified as landslip risk category Low" and "Development Practices that should be avoided" to the satisfaction of the Responsible Authority.

[21]

9. Any debris resulting from the development and/or works must be stored on the site in an accessible location to allow easy removal from the site, and must be removed from the site within one(1) month of the completion of the development to the satisfaction of the Responsible Authority.

[22]

10. Prior to the occupation of the permitted development, piped drainage shall be constructed to drain all roofs and paved areas to the satisfaction of the Responsible Authority.

[23]

11. Prior to the occupation of the permitted development, piped outfall drainage from the site to the pit 30 metres from the south east corner of the site shall be constructed to the satisfaction of the Responsible Authority.

[24]

12. Prior to the approval of civil engineering construction plans a supervision fee to the value of 2.5% of the cost of the works as required by condition 9 shall be paid to the Responsible Authority.

[25]

13. Prior to the commencement of any works covered by this permit, engineering plans showing all car parking, driveways and drainage shall be submitted to the Responsible Authority for approval.

[26]

14. The construction of all internal civil works, including carparking, vehicular accessways and drainage is to be supervised by a suitably qualified or experienced civil engineer or person. Prior to the occupation of the permitted development, the engineer or person must certify the construction of these works to the satisfaction of the Responsible Authority.

[27]

15. Prior to the occupation of the permitted development, the parking areas and vehicular accessways shown on the endorsed plan must be fully constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority.

[28]

16. If the driveway from the road to the dwelling and water supply, including gates, bridges and culverts, is greater than 30 metres long:

[29]

a) It must be designed, constructed and maintained for a load limit of at least 15 tonnes and be of all weather construction;

[30]

b) It must provide a minimum trafficable width of 3.5 metres and be clear of encroachments four(4) metres vertically.

[31]

17. Fire hydrants must be to the satisfaction of the Country Fire Authority. There must be a hydrant within 120 metres from the edge of any Dwelling (including obstructions).

[32]

18. A two way vehicular crossover shall be constructed at least 6.0 metres wide, as measured at the property boundary, to the satisfaction of the Responsible Authority.

[33]

19. The driveway within the site shall be at least 6.0 metres wide for the first 6.0 metres to allow two way traffic flow.

[34]

20. A sealed vehicle access between the property boundary and the existing road pavement shall be constructed at each vehicle access location to the satisfaction of the Responsible Authority.

[35]

21. The eastern edge of the vehicular crossover shall be angled at 60 degrees to the road reserve boundary to improve entry and exit conditions.

[36]

22. All car parking spaces shall be designed to allow all vehicles to drive forwards when both entering and leaving the property.

[37]

23. This permit will expire if one of the following circumstances applies:

[38]

a) The development is not started within two years of the date of this permit.

[39]

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

[40]

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

[41]

The Responsible Authority is directed to issue a permit in accordance with this determination pursuant to the provisions of Section 85 of the Planning and Environment Act 1987.

[42]

All parties made written and/or verbal submissions. Photographs and documents were tendered to the Tribunal. All of the material presented to the Tribunal is retained on file and has been taken into consideration.

[43]

1. This is an Application under Section 82 of the Planning and Environment Act 1987 brought by Mr S Richardson & Mr G Butcher to review the decision to grant a permit in application no. YR-2002/473 by the Yarra Ranges Shire Council ("the Council").

[44]

2. The permit application was received by the Council on 2nd April 2002. Further information was requested on 29th July and 25th November 2002. Notice of the application was given and two objections were received in September 2002. The application was referred to Vic Roads and the Country Fire Authority. A consultation meeting was held on 25th November 2002 and amended plans were subsequently submitted on 25th February 2003.

[45]

3. A Notice of Decision to Grant a Permit was issued under delegation on 8th April 2003.

[46]

4. Mr S Richardson of 1 Campbell Street Tecoma lodged an Application for Review of the Council's decision on 28th April 2003 on the following grounds:

[47]

2. Future effects on the remaining trees and fauna.

[48]

3. Double storey units not consistent with this area.

[49]

4. Possible traffic issues with entry via Burwood Hwy."

[50]

5. Mr G Butcher of 1524 Burwood Highway Tecoma lodged an Application for Review of the Council's decision on 28th April 2003 on the following grounds:

[51]

"1. Double storey units not consistent with this area.

[52]

2. Excessive removal of native trees and fauna. I would have expected a detailed Arborists report.

[53]

3. The Council has not abided by its own letter detailing requirements of the use of this land. Shire of Yarra Ranges Reference number: 80447, Andrew Fletcher, 6th October 2000."

[54]

6. Mr Atkins submitted that the description of the application for permit should be amended to include the removal of vegetation as it had been considered by the Council as part of the proposal. Mr Hannay and Mr Girstun agreed. Accordingly, I granted leave to amend the description of the application to read "the construction of three double storey dwellings and the removal of vegetation".

[55]

7. The review site is located on the south side of Burwood Highway in Tecoma. It has a frontage to Burwood Highway of 20.1 metres and a depth of between 104 and 114 metres, with an overall site area of 2,192 square metres. The site slopes from north to south at an average of 12.5%.

[56]

8. The site is vacant other than for one outbuilding and contains a medium to dense coverage of canopy trees and shrubs including indigenous eucalypts, acacias, exotics and environmental weeds.

[57]

9. The review site is located one kilometre west of the Upwey commercial centre and abuts:

[58]

* Residential properties containing single and double storey dwellings to the north, on the opposite side of Burwood Highway;

[59]

* A petrol station and car wash (Mr Butcher's property), a community vegetable garden and a part two storey house (Mr Richardson's property) to the east; and

[60]

* A railway reserve and bicycle/walking trail to the south, with residential properties situated further to the south.

[61]

10. Mr Hannay summarised the proposal in Section 3 of his submission:

[62]

"The proposal is for the construction of three double storey detached dwellings. The original application was for four double storey dwellings however through consultation this has been subsequently modified to three dwellings. The revised proposal incorporates the following:

[63]

Via a sealed driveway leading from Burwood Highway

[64]

Units 1 and 2 orientated north-south along eastern boundary. Unit 3 positioned east-west across rear section of site. All units to be double storey with the second storey incorporated beneath the dwelling pitched roof line. Unit 1 setback 29.5m from the Burwood Highway frontage and 2m from the eastern side property boundary and 5.5m from the western boundary. Unit 3 setback 2.3 m from the eastern boundary and a minimum of 2.5 m from the rear boundary.

[65]

Double garage for Unit 3 and single garages for Units 1 and 2. One external parking space is proposed to be located in front of the garages for Units 1 and 2. A single external visitor parking space is proposed between Units 2 and 3 and another visitor parking space is proposed to the front of Unit 1.

[66]

Unit 1 - 142.25m2; Unit 2 - 142.24m2; Unit 3 - 223.36m2

[67]

Cedar weatherboards with pitched red/brown colorbond roofs.

[68]

A landscape concept plan has been submitted proposing the planting of 9 replacement native canopy trees including Eucalypts and Pomaderris species.

[69]

The landscape plan also details the provision of ground covers and climbers along the western property boundary and driveway. Shrub and low level planting is proposed over excavated batters and around each of the Units. A line of small trees densely planted to form a hedge are proposed to be planted along the rear property boundary.

[70]

Brush fences, 1.8m high are proposed to be erected around the private open space areas for each Unit. A 2.3m metre high paling fence, including trellis is proposed to be erected along part of the eastern boundary of the site, adjacent to Units 2 and 3. Remote controlled gates are proposed to be erected across the driveway entrance leading from Burwood Highway.

[71]

The submitted plans indicate that a 3m by 5.5m (16.5m2) outbuilding is proposed to be erected at the rear of Unit 3. The plans also indicate that this outbuilding is to be "temporarily located" behind Unit 1 during the construction of the units.

[72]

A total of twenty four (24) trees are proposed to be removed, plus two (2) dead trees. A total of twenty (20) are to be retained, the majority of which are located in the front part of the site (15 trees).

[73]

Maximum of one (1) metre depth, battered back at 1:1 grade."

[74]

11. The review site and surrounding land is zoned Residential 1 under the provisions of Clause 32.01 of the Yarra Ranges Planning Scheme ("the Scheme"). The purpose of this zone includes:

[75]

* To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

[76]

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

[77]

* To encourage residential development that respects the neighbourhood character.

[78]

12. Under Clause 32.01 "Dwelling" is an as of right (no permit required) use. A permit is required for the development of two or more dwellings on the site. The decision guidelines of Clause 32.01 require consideration of state and local policies as well as Clause 55 (ResCode).

[79]

13. Burwood Highway is contained with a Road Zone Category 1 and a permit is required to create or alter access to a Road Zone under Clause 52.29. This clause requires an application to be referred to Vic Roads .

[80]

14. A planning permit is required under Section 1.0 of the schedule to Clause 53 (Upper Yarra Valley and Dandenong Ranges Region) to construct more than one dwelling on a lot which is within a Residential 1 Zone and also within the Foothills Residential Area as defined by Clause 22.01. Planning approval is also required for vegetation removal.

[81]

15. The review site is affected by the Wildfire Management Overlay, that requires a permit to construct a dwelling and that an application be referred to the Country Fire Authority.

[82]

16. Relevant planning policies are set out at Clauses 14, 15, 16, 18 and 19 of the State Planning Policy Framework (SPPF) whilst the provisions of Clause 21 (Municipal Strategic Statement - `the MSS') are also relevant to the consideration of this proposal.

[83]

17. Mr Hannay highlighted that the MSS contains key objectives and strategies for Townships - large and small and those relevant to "Foothills Residential Areas" are to:

[84]

"1. Encourage a diversity of dwelling types and consolidate residential development in areas that are not subject to physical constraints.

[85]

2. Establish sustainable and attractive townships which can support a range of commercial, retail, community and recreational facilities and services.

[86]

3. Recognise and protect the distinctive characteristics and environmental features of residential areas throughout the Shire.

[87]

4. Promote proper siting and good design in construction of all buildings and in the carrying out of works."

[88]

18. Mr Hannay submitted that the strategies to meet these objectives included encouraging "medium density housing close to town centres, public transport and commercial and community facilities, where the infrastructure has the capacity to cope with increased densities and where the local residential character can be maintained".

[89]

19. Clause 22.01 contains the Residential Areas local planning policy and Mr Hannay highlighted that the review site is located within a Foothills Residential Area, which contains objectives for medium density housing including:

[90]

* "Ensure that medium density housing is compatible with the existing character of the area in which it is located.

[91]

* Ensure that medium density housing is dispersed within areas where it is allowed to locate and that it does not have an adverse impact on the natural, built form and landscape amenity of an area, or compromise important environmental objectives."

[92]

20. The policies to achieve these objectives include:

[93]

* "The design and density of the proposed development be compatible with its location and maintain the existing streetscape character, landscape and environmental characteristics of the area.

[94]

* If the land is in a Foothills Residential Area ... the proposed development be consistent with the established pattern of development in the surrounding area.

[95]

* The development be located to avoid the removal of remnant vegetation, or the removal of mature trees with a height of five metres or more."

[96]

21. Clause 22.11 contains the local planning policy for development in residential areas and the policy includes the following matters of particular relevance to this proposal:

[97]

* "Building setbacks from road frontages generally reflect the development setbacks on adjoining properties, have regard to the need to avoid the removal of vegetation and be consistent with the overall character of development within the locality.

[98]

* The construction of a dwelling be of a height that is below the tree canopy level and take into account the height of surrounding development, the slope of the land and the impacts of views into the land from adjoining viewpoints.

[99]

* Any development proposal must demonstrate that the proposed buildings and works will not compromise the landscape and environmental qualities of the surrounding area, or substantially change the natural land form.

[100]

* On the completion of any development, the site must be landscaped, to protect and enhance the residential amenity, landscape character and any environmental features of the area."

[101]

22. Mr Atkins submitted that the most important considerations for this proposal were the relevant provisions of the local planning policies at Clauses 22.01 and 22.11. He stated that the basis of these policies seek to:

[102]

* "Protect and enhance the visual and environmental qualities of this locality.

[103]

* Ensuring development reflects the environmental and physical form of the surrounding neighbourhood.

[104]

* Ensuring that land remains committed to single housing as a primary function and predominant land use within the Foothills Residential Area.

[105]

* Ensuring that development is located to avoid removal of remnant vegetation or removal of mature trees with a height of 5.0 metres or more."

[106]

23. I note that pages 13 and 14 of Mr Hannay's submission set out, at length, the compliance of the proposal with the local planning policies at Clauses 22.01 and 22.11. I have chosen not to quote Mr Hannay's submission due to its length, however I find his assessment thorough and compelling. Accordingly, I am of the opinion that, on balance, the proposal does provide an appropriate design response to the various objectives, strategies and policy of these Clauses. Having regard to the proximity of the site to services and facilities and its compliance with the various design standards of Clause 55, I am of the opinion that this proposal provides an appropriate balance between the urban consolidation, environmental and design objectives of the planning policy framework of the Yarra Ranges Planning Scheme.

[107]

24. Mr Atkins submitted that the development was out of scale with the character of the area as evidenced by the excessive removal of vegetation; the siting of the dwellings; the double storey built form; and the extent of hard standing area. He stated that one to two dwellings would be a preferable design outcome.

[108]

25. Mr Hannay submitted that the proposed dwellings are consistent with the neighbourhood character, which contains both single and double storey dwellings. Ms Dean pointed out a vast range of properties within 500 metres of the review site that contain medium density housing, as well as single and double storey dwellings. Accordingly, I find that the proposal provides a built form that is in keeping with the existing neighbourhood. Mr Hannay submitted that the use of pitched colorbond roofs and timber wall cladding is consistent with the existing built form environment and I agree.

[109]

26. Mr Atkins submitted that 24 trees are to be removed, which equates to approximately 50% of the trees on the site. Mr Hannay submitted that the Council supports the tree removal as the design of the three dwellings toward the rear of the site allows for the "best" trees to be retained. In contrast to this, Mr Atkins submitted that any development on the site should be more intense toward the front in order to respect the railway reserve and bicycle/walking path at the rear of the site.

[110]

27. I note that Mr Hannay addressed the issue of tree removal on page 16 of his submission:

[111]

"The revised plans for the development were prepared by the applicant following consultation with Council's Arborist and Urban Designer. Following the reduction in the number of dwellings to be constructed to three, the best trees have been retained and appropriate room has been left for replanting. The schematic landscaping plan is considered to be appropriate subject to substitution of specific plant species as shown on the revised plan submitted by the applicant, as required in Condition 1(b) of the Notice of Decision to Grant a Permit. Council's Arborist advises that the replanting should lead to a net environmental gain, consistent with Local Planning Policy (Vegetation Protection) requirements."

[112]

28. I also note that the landscape concept plan proposes the inclusion of small trees along the rear boundary line to create a hedge.

[113]

29. Again, I find that this is a matter that must be considered having regard to the policy framework, in particular balancing the urban consolidation and environmental objectives. The extensive existing vegetation on the site is the product of the fact that it is vacant land. However, this land is zoned for residential purposes and is in close proximity to a range of services and facilities. On balance, I find that the tree removal is reasonable based upon the Council's submission that the "best" trees are being retained and the landscape concept and replanting should lead to a net environmental gain. I am satisfied that the creation of a hedge along the rear boundary is respectful of the relationship between the review site and the railway reserve.

[114]

30. Mr Atkins expressed concern about the potential for overlooking from a window and the decking of Dwelling 3 into 1 Campbell Street. He also submitted that the proposed 2.3 metre high fence is unacceptable in this neighbourhood character. Mr Hannay and Ms Dean both advised that this fence was included as a result of the consultation that occurred during the processing of the permit application. Ms Dean explained that the fence would comprise a paling fence of 1.7 metres in height with a trellis of 0.6 metres. Mr Atkins then advised that, if a fence is to be erected, Mr Richardson would prefer a fence of 2.0 metres and a trellis of 300mm.

[115]

31. In regard to the potential for overlooking, I note that the bathroom window contains obscure glazing and the deck contains screening trellis along its western side. On this basis, I do not consider that the proposal will have an unreasonable impact upon the amenity of 1 Campbell Street.

[116]

32. Mr Atkins expressed concern about the access into the review site from Burwood Road as the road narrows from two lanes to one when travelling east toward the review site. I am satisfied with Mr Lam's submission that the line marking on the road, as it reduces to one lane, provides sufficient room to pass vehicles turning into this small residential development.

[117]

33. During Ms Dean's submission, a number of minor aspects of the design were discussed and I note her agreement that the plans require modification to confirm that the western wall of the garage for Dwelling 3 has an average wall height of 3.2 metres; and to include a pedestrian gate adjacent to the remote controlled vehicle gates.

[118]

34. Having considered the merits of this proposal, I am of the view that a permit should issue.

[119]

35. I am satisfied that the proposal is an appropriate design response, providing three double storey dwellings that will be in keeping with the neighbourhood character, and that is respectful of the amenity of the neighbouring property at 1 Campbell Street.

[120]

For the above reasons the Council's decision to grant a permit is affirmed. A permit is granted subject to conditions.