1. For the reasons given above, the original decision of the responsible authority to refuse this proposal is set aside. A permit is granted subject to conditions.

1. As explained earlier in the information section of this decision, Mr Roberts expressed concern about the accuracy of the shadow diagrams. Part of the adjournment of the May hearing date was to allow the parties the opportunity to talk about the concerns of Mr Roberts and to enable Ms Robinson to further amend the shadow diagrams if necessary.
2. At the end of the May hearing, I left the parties in the hearing room encouraging them to talk and sort out this issue. The submissions from Ms Robinson and Mr Roberts explain that Ms Robinson subsequently engaged a land surveyor to arrange a survey of Mr Roberts' secluded private open space. Ms Robinson submits Mr Roberts' representative, Mr Butler, 'would not accept the veracity of the updated Shadow Diagrams and insisted on the survey'. After engaging a land surveyor, she sought and obtained a response from Mr Roberts' representative confirming that Mr Roberts had given permission for the survey to be completed. However, when the land surveyor attended Mr Roberts' property, he was refused access.
3. Ms Robinson requests that Mr Roberts be ordered to reimburse the land surveyor's fee of $561. She considers Mr Roberts' conduct 'has vexatiously wasted the time and money of the Applicant' and relies on section 115B(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

1. Mr Roberts points out the inaccuracy of the plans was an issue that dated back as far as a practice day hearing in February 2025. He states access to his property was 'never allowed' at the date and time specified. Mr Roberts submits there are a variety of means of providing accurate shadow diagrams that do not necessitate access to a neighbouring property, and the revised shadow diagrams accepted by all parties at the June practice day hearing are evidence of this.
2. Mr Roberts submits the attendance of his representative at the May hearing and June practice day hearing has resulted in him bearing 'significant costs attributed to the Applicant's conduct in these proceedings', namely the inaccuracies in the plans. Mr Roberts seeks reimbursement of his representative's fees and also relies on section 115B(3) of the VCAT Act.

1. Both parties have mistakenly relied on section 115B. I say this because they have referred to the fees of Mr Roberts' representative and the fees of the land surveyor, whereas the definition of fee in section 115A refers to VCAT's fees:

In this Division -

fee means a fee payable in a proceeding under this Act, the rules, the regulations or an enabling enactment;

1. Section 115B sets out 'Orders as to reimbursement or payment of fees'. This means VCAT fees, not other specialist/consultant fees incurred by a party in preparing for and conducting a VCAT proceeding.
2. Both parties have made submissions about the conduct of the other party. In terms of section 115B, the only relevant section that relates to this is section 115B(3)(b) that states the Tribunal must have regard to:

(b) the conduct of the parties (whether occurring before or during the proceeding), including whether a party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse; and

1. Mr Roberts says he has not caused an unreasonable delay or contributed to the Applicant being unable to comply with an order or direction of the Tribunal.
2. Both parties should have focussed on section 109 of the VCAT Act. It enables the Tribunal to make an order that a party pay all or a specified part of the costs of another party in a proceeding . Section 109(3) states that the Tribunal may make such an order only if it is satisfied to that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant.

1. This proceeding is a review of a council decision regarding a multi-dwelling development, so the nature and complexity of the proceeding has been typical insofar as the considerations have only been those found in the planning scheme provisions and policies.[6] All the parties' issues are matters that can fairly be considered and where there may be differing views as to their acceptability or not.[7]
2. The parties have complied with all orders and directions issued by the Tribunal in this proceeding. The Tribunal did not direct or order that a land surveyor be engaged.[8] It was the choice of Mr Roberts to have professional representation during this proceeding.[9] The reasons for the adjournment of the May 2025 hearing and the need for the practice day hearing in June 2025 involved the conduct of all parties, and not just the applicant. The dispute about Ms Robinson's engagement of a land surveyor is not a cost that I will order be paid by Mr Roberts as:
   • the Tribunal did not direct that a land survey take place;
   • the Tribunal was not involved in the discussions between the parties about this; and
   • the issues with communications between the parties about the land surveyor attending Mr Roberts' property is unfortunate but I am unable to conclude based on the materials before me that this was 'vexatious conduct'.

1. For these reasons, I make no order as to costs.

Alterations (and if necessary, part demolition) to part of a front fence, construct a building, and construct and carry out works

Reduction of the car parking requirement for two new dwellings from two spaces to zero

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The amended plans must be drawn to scale with dimensions and be in an electronic format. The amended plans must be generally in accordance with the VCAT substituted plans (prepared by ADL Home, Drawing numbers TP1, TP2 and TP3 dated: 28/12/2024 (and circulated on 11 February 2025) and Drawing number TP4 dated 28/12/2024 (and circulated on 14 May 2025)) but modified to show:

(a) The northernmost window in the west elevation of the existing house to provide screening to the lower pane to provide some privacy for this habitable room.

(b) The other windows (other than (a) above) in the west elevation are non-habitable and may include either clear glazing or some privacy screening.

(c) Either the arbour entrance or an alternative location along the pedestrian pathway must be designed as a secure entrance(s) so that only residents and their guests can gain access to the three dwellings to council's satisfaction.

(d) The storage of garbage bins for the existing house to be shown on the east side of the house.

(e) The bin storage for each rear dwelling to be located for convenient access by residents in or adjacent to each respective lot rather than midway along the pedestrian pathway.

(f) The ground floor east and west side walls that are set back 0.95 of a metre must be increased to a minimum of 1.0 metre.

(g) Only the screening necessary to comply with clause 55 to be included on the south facing first floor windows of the two new dwellings.

(h) The external finishes schedule to include swatches of all the proposed material finishes in accordance with Clause 43.01 (Heritage Overlay) and Clause 55.02-1 (Standard B1 - Neighbourhood Character) of the Moonee Valley Planning Scheme.

(i) The permeable and non-permeable surfaces in accordance with Clause 55.03-4 (Standard B9 - Permeability and Stormwater Management) of the Moonee Valley Planning Scheme.

(j) The arbour to be fully dimensioned to demonstrate that sufficient shelter and weather protection is provided in accordance Clause 55.05-2 (Standard B26 - Dwelling Entry) of the Moonee Valley Planning Scheme.

(k) The first floor balconies to contain a notation stating that the balustrading is to comply with Clause 55.04-6 (Standard B22 - Overlooking) and Clause 55.04-5 (Standard B23 - Internal Views) of the Moonee Valley Planning Scheme and may include glass or an alternative design.

(l) The provision of storage areas for each dwelling to be fully dimensioned to be 6 cubic metres in accordance with Clause 55.05-6 (Standard B30 - Storage) of the Moonee Valley Planning Scheme.

(m) The details of the front fencing of the existing dwelling including in the internally dividing fencing between the northern title boundary and façade of the existing dwelling to include the following:

1. The location of the posts;
2. Details of the capping; and
3. Access point from the street frontage to the existing dwelling (Dwelling 1).

(n) Notations numbering all three dwellings.

(o) The shared pedestrian lighting to be correctly positioned on the western elevation.

(p) An indicative location of the skylight of both rear dwellings to the shown on the first floor plan.

(q) Correction to any drafting error in the title block of sheets TP1.

(r) All stormwater treatment measures and annotations as a result of Condition 3 and 5 with no alternate designs on the plans

(s) Any modifications and notations required by Conditions 4.

(t) A Landscape Plan in accordance with Condition 8.

(u) Notations required by Conditions 19 and 20.

(v) Any details or modifications required by Condition 16.

When approved, these plans will be endorsed and will form part of this permit.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. Stormwater from the development must be treated to meet the water quality performance objectives set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999 (Guidelines), as amended. The performance objectives of the Guidelines must be met entirely on site as demonstrated by a Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the Responsible Authority; except that with the written consent of the Responsible Authority, up to 20% of treatment may be delivered offsite as demonstrated by a Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the Responsible Authority.
3. A BESS report must be submitted simultaneously with the submission of amended plans in accordance with Condition 1 and the provisions of Clause 15.01-2L (Environmentally sustainable development) of the Moonee Valley Planning Scheme. The BESS report must be a 'published' version, achieve all minimum requirements, meet best practice standards and be to the satisfaction of the Responsible Authority for approval. Once approved the BESS report is to be implemented and appropriately managed during construction of the proposed dwellings.
4. If rain gardens, permeable paving or buffer strips are used, a minimum 30 days prior to any building or works commencing, all WSUD details (relating to the WSUD treatment measures nominated in the approved and complying STORM report), such as cross sections and/or specifications, to assess the technical effectiveness of the proposed stormwater treatment measures (with the exception of rainwater tanks), must be submitted for approval by the Responsible Authority.
5. A minimum 30 days prior to any building or works commencing, a Construction and Site Management Plan (CSMP) must be submitted to and be approved by the Responsible Authority detailing the construction activity proposed and the site and environmental management methods to be used. The CSMP must be in accordance with Moonee Valley City Council's CSMP's guideline and templates.

When approved, the CSMP will be endorsed and will form part of this permit.

The development must be carried out in accordance with the endorsed CSMP and the provisions, requirements and recommendations of the endorsed CSMP must be implemented and complied with to the satisfaction of the Responsible Authority.

1. A maximum 30 days following completion of the development, a WSUD Maintenance Program must be submitted to and approved by the Responsible Authority which sets out future operational and maintenance arrangements for all WSUD measures. The program must include, but is not limited to:

(a) Inspection frequency;

(b) Cleanout procedures;

(c) As installed design details/diagrams including a sketch of how the system operates; and

(d) A report confirming completion and commissioning of all WSUD Response treatment measures written by the author of the WSUD Response and STORM or MUSIC model approved pursuant to this permit, or licensed installing/commissioning plumber, or similarly qualified person or company. This report must be to the satisfaction of the Responsible Authority and must confirm that all WSUD treatment measures specified in the WSUD Response and STORM or MUSIC model have been completed and implemented in accordance with the approved report.

The WSUD Maintenance Program may form part of a broader Maintenance Program that covers other aspects of maintenance such as a Building User's Guide or a Building Maintenance Guide.

1. Before the development starts, and before any trees or vegetation are removed, an amended Landscape Plan, prepared by a suitably qualified person or firm must be submitted in an electronic format. The amended Landscape Plan must be generally in accordance with the Landscape Plan contained in the substituted VCAT plans (prepared by Plantery Landscape Architecture, Drawing numbers LA00, LA01, LA02 and LA03, all Rev E dated 01/12/25) but modified to the satisfaction of the Responsible Authority to show:

(a) Any changes in accordance with Condition 1 of this permit.

When approved the landscape plan and schedule will be endorsed and will form part of this permit.

Landscaping in accordance with the endorsed landscape plan and schedule must be completed before the building is occupied.

1. Prior to the issue of a Building Permit in relation to the development approved by this permit, a Development Infrastructure Levy and/or Community Infrastructure Levy must be paid to Moonee Valley City Council in accordance with the approved Moonee Valley Development Contributions Plan December 2023.

If an application for subdivision of the land in accordance with the development approved by this permit is submitted to Council, payment of the Development Infrastructure Levy can be delayed to a date being prior to the issue of a Statement of Compliance for the subdivision.

1. The water sensitive urban design treatments as specified within the Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the Responsible Authority must be implemented on site prior to the occupation of the development unless an alternative agreement is reached with the Responsible Authority.
2. Before the buildings approved by this permit are occupied, all boundary walls and retaining walls must be cleaned and finished to the satisfaction of the Responsible Authority if the occupier of the adjoining land allows access for the purpose.
3. Floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
4. Before the buildings approved by this permit are occupied, the privacy screens and other measures to prevent overlooking as shown on the endorsed plans must be installed in accordance with Clause 55.04-6 (Overlooking objective) of the Moonee Valley Planning Scheme to the satisfaction of the Responsible Authority.

All privacy screens and other measures to prevent overlooking as shown on the endorsed plans must at all times be maintained to the satisfaction of the Responsible Authority.

1. Provision must be made for the drainage of the land including landscaped and pavement areas. The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the Responsible Authority.
2. An on-site stormwater detention drainage system must be installed on the land to the satisfaction of the Responsible Authority.

Before the development starts a Drainage Layout Plan, including computations and manufacturers specifications, to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Drainage Layout Plan must be prepared by a Civil Engineer with suitable qualifications to the satisfaction of the Responsible Authority and must depict an on-site stormwater detention drainage system to be installed on the land.

When approved, the Drainage Layout Plan will form part of this permit.

The on-site stormwater detention drainage system must be installed and the provisions, recommendations and requirements of the endorsed Drainage Layout Plan must otherwise be implemented and complied with to the satisfaction of the Responsible Authority.

1. Unless an alternative solution is achieved, stormwater runoff from the development must drain via an underground system and discharge to the kerb and channel in front of the land to the satisfaction of the Responsible Authority. If discharge to the kerb and channel via gravity is not possible, the discharge to the kerb and channel in front of the land must be via a dual pump system in accordance with AS3500.3.2. 1998, Section 9 to the satisfaction of the Responsible Authority.
2. Where an overland flow path may exist due to the steep nature of the land, Before the buildings approved by this permit are occupied, that a cut off drain must be provided inside the property to prevent possible overland flows.
3. The garden areas shown on the endorsed plan and schedule must only be used as gardens and must be constructed, completed and maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Any tree or shrub damaged, removed or destroyed must be replaced by a tree or shrub of similar size and variety to the satisfaction of the Responsible Authority.
4. The existing nature strip tree on the Finsbury Street frontage must not be removed or damaged as a result of the permitted development, unless with the written consent of the Responsible Authority.
5. Prior to the commencement of the development (including any demolition works), the following street tree/nature strip protection measures must be undertaken:

(a) The existing nature strip tree on the Finsbury Street frontage of the land must be barricaded out using portable cyclone fencing for the duration of the development in accordance with the Australian Standard (AS 4970 - 2009 - Protection of trees on development);

(b) No pruning of the existing nature strip tree on the Finsbury Street frontage of the land is to be undertaken by any party other than Moonee Valley City Council;

(c) No building materials are to be stacked and/or dumped on any nature strip during construction; and

(d) All costs associated with any fencing and/or damage to the existing street tree shall be borne by the permit holder.

1. This permit as it applies to the development will expire if:

(a) The development does not start within three (3) years of the date of issue of this permit; or

(b) The development is not completed within five (5) years of the date of issue of this permit.

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

[1] The submissions of the parties, the supporting exhibits given at the hearing and the documentation on the Tribunal's electronic file have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Extracts from paragraphs 7.23 and 7.24 of Council's submission.

[3] As explained in the Understanding Neighbourhood Character Planning Practice Note PPN43, January 2018.

[4] Section 2.5.1 of City of Moonee Valley Heritage Guidelines.

[5] Page 11 of OneMileGrid's assessment.

[8] Sections 109(3)(a) and (b) of the VCAT Act.