To maintain the detached, one to two storey scale and spacious, suburban character of the area.

To protect and enhance the area's 'leafy' feel and the garden setting of dwellings.

To maintain the fine grain rhythm of streetscapes and to enhance the landscape character of the area.

1. Decision guidelines refer to a consideration of preferred character statement and design guidelines contained in the Boroondara Neighbourhood Character Precinct Statements 2013 (or as amended and adopted by Council from time to time). The site is within Precinct 48. I have considered these but do not recite them here. I give them little weight noting that they do not form part of the planning scheme.

1. The proposal before the Tribunal includes:
   • Architectural plans described as TP.01, TP.02, TP.03, TP.04 (Rev. A), TP.05 (Rev. D), TP.06 (Rev. A), TP.07 (Rev. D), TP.08 (Rev. B) Job No. 2021-12 prepared by DHF Design. These plans were lodged with council on 12 June 2024 (the 'decision plans') after notice of the permit application was given. Council determined that no further public notice[3] of the decision plans was necessary;
   • Supporting material made available during public notice of the permit application including:
     • A landscape plan dated 27/04/23 Rev. A, by John Patrick Landscape Architects;
     • Shadow diagram plans TP.S1 to TP.S8 inclusive, dated 28/03/23 Rev. A Job No. 2021-12 prepared by DHF Design;
     • A Plan of Feature and Level Survey dated 20/08/2021 Rev. A by Viclandsurvey;[4]
     • Arboricultural Report dated July 2022 ('arborist report') prepared by Kylie May, consultant arborist of John Patrick Landscape Architects;
     • Traffic Assessment dated 29 June 2022 prepared by EB Traffic Solutions ('traffic report'), comprising a two page letter with two Attachments (Car park layout and Swept path analysis (B85 car) with diagrams).
2. The following image shows a streetscape view (south elevation) of the proposal from the decision plans.

1. There are some aspects of this proposal that have not changed since lodgement of the permit application in April 2022. Notably, the construction of four 2-storey dwellings has been a consistent feature of this permit application.
2. However, it is relevant to record that plans in the form originally lodged with the permit application proposed two driveways in parallel - one exclusively for Unit 1 and the other in common for Units 2, 3 and 4.
3. Following council's preliminary review of the permit application and request for further information, plans of the proposal were amended before public notice to provide for one driveway serving all four dwellings. Consequential changes to the siting and layout of various development features also occurred including provision of a double garage for Unit 1 to its rear and reconfiguration of this dwelling's footprint.
4. The different layouts are shown below.
5. The single driveway configuration was adopted for both the advertised plans (lodged with the council in June 2023) and decision plans (lodged June 2024).
6. As might be appreciated from the dates of documents described above, some but not all supporting material is based on a single driveway layout. An example of the former is the landscape plan. Conversely, the arborist report and traffic report prepared in 2022 were based on the original plans with two driveways.
7. These latter two 2022 documents were not amended to incorporate the design changes for a single driveway layout in the decision plans now before the Tribunal for determination.

Plans lodged with application in 2022 with two driveways. Extracted from Traffic report.

1. The applicant's submissions identify what it describes as omissions, insufficient detail and contradictory information in the decision plans. Inconsistencies between the decision plans and supporting documents were also identified.
2. The matters identified by the applicant are said to prevent a proper assessment of the proposal include:
   • An absence of proposed finished driveway levels (including on the plans circulated before the hearing highlighting some proposed driveway grades);
   • An absence of retaining wall details including their locations within the driveway area despite the elevation plans indicating the need for earthworks, predominantly excavation;
   • Inconsistent depiction of development features as between the landscape plans and development plans including retaining walls, (existing and proposed along the west boundary) pathways in open space areas along the west boundary and in the front yard of Unit 1;
   • Limited information on proposed finished site levels throughout private open space areas and in the site frontage, with consequential uncertainty as to the extent of earthworks, functionality of various spaces, their relationship with the proposed dwellings and the effect of any retaining walls upon existing vegetation and proposed landscaping;
   • Inconsistencies between various aspects of the arborist report and the design response in its present form including the retention of existing retaining walls, encroachments into identified Tree Protection Zones and identification of potentially affected vegetation.[5]
3. The council and respondent acknowledge that these matters require resolution, but submit that they can be addressed via the secondary consent process through conditions on any permit granted.
4. While not an exhaustive list, I agree with the applicant's submissions that the omissions and inconsistencies identified do not allow a proper assessment of the permit application to be made.
5. There is evidently a clear misalignment between the information contained in some of the supporting documents (arborist report and traffic report) based on now superseded architectural plans and the proposal in the decision plans and landscape plan. As a consequence, the conclusions in the arborist report that the proposal would not have unacceptable impacts on existing vegetation (both on the review site and neighbouring land) cannot be relied upon. This situation is regrettable as it diminishes the weight that I can give this supporting material.
6. For example, near Tree 26 removal of existing retaining walls appears necessary together with excavation works and construction of additional works including, but not limited to, a retaining wall along the west boundary adjacent to Unit 1.
7. The decision plans indicate that excavation for a courtyard to the west of Unit 2 is required. It is unclear what effects on Tree 26 will be, including whether excavation works will occur within this tree's structural root zone (SRZ).
8. Extracts from the arborist report (left) and decision plans (right) illustrate this.

1. Functionally, it is also unclear as to the appropriateness of the proposed driveway design (and extent of paving) for entry to and egress from Unit 1's garage, noting that swept path diagrams are not provided for this dwelling's garage in its now proposed location on the east side. I do observe however, that the swept path diagrams for Unit 2 indicate vehicle incursions into unpaved landscaped areas relied upon as part of the 'garden area' calculation.[6] Unfortunately, like the driveway section[7] forming part of the decision plans, the traffic report does not contain any information about proposed finished site or driveway pavement levels and the position of any retaining walls, which given the site's topography appear necessary, relative to proposed finished garage floor levels.
2. In turn, the acceptability of these design features and their effect on existing vegetation on neighbouring land and for the proposed landscaping response is too uncertain.
3. If retaining walls throughout the driveway area are required as would appear necessary[8], where will they be sited - along the edge of the driveway pavement, along the boundary or somewhere else? What are implications of their provision and location for existing vegetation, proposed landscaping, functional use of the driveway by vehicles and the mandatory garden area requirement?
4. Contradictory or inconsistent information between different plan sheets of the decision plans compound this uncertainty. For example, the finished floor level for Unit 4's garage on the ground floor plan differs from that shown on the east elevation plans. In the driveway area between the garages of Units 2 and 3, a notation suggests the provision of a new permeable above grade driveway whereas the elevation plans indicate that excavation appears necessary in parts of this segment.[9]
5. Although a planning permit is not required to remove vegetation,[10] the neighbourhood character objectives in Schedule 3 to the NRZ seek to protect and enhance the area's 'leafy' feel and the garden setting of dwellings and to enhance the landscape character of the area.
6. Having considered the NRZ3 objectives, I am also unable to conclude that the proposal would meet the first objective of clause 55 for neighbourhood character at clause 55.02-1. These are:

To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.

To ensure that development responds to the features of the site and the surrounding area.

1. Nor am I able to conclude that the landscaping objective at clause 55.03-8 would be met. Amongst its four objectives are the following:

To encourage development that respects the landscape character of the neighbourhood.

To provide appropriate landscaping.

To encourage the retention of mature vegetation on the site.

1. Decision guidelines in determining whether the corresponding standards of each objective are met, require a consideration of the design response.
2. As identified earlier, the site has a fall of 7m from the rear to the front. A number of trees are also present on the site and surrounding land. These are key features of the site and surrounding area. They also inform the neighbourhood and landscape character of the area to which any proposal must respond and which neighbourhood character objectives in the NRZ3 seek to enhance. On the basis of the information provided, the permit application has not demonstrated that it meets these objectives.
3. The provision of and consistent depiction of plan details that would ordinarily be required to allow a proper assessment of the design response includes the following features. Proposed finished driveway levels and finished site levels, including cross-sections showing these levels together with driveway grades, the location, height and materials of any retaining walls and extent of earthworks including the height/depth of excavation and fill. An appraisal of whether the retention of any existing retaining wall structures is practical in the context of any new development proposal is also necessary.
4. There is nothing particularly unusual or onerous about the provision of this information, which in the context of the particular features of the site and surrounds assumes a higher degree of importance and should be provided early in the permit application process.
5. The provision of this information in an integrated way comes into sharper focus given the interdependent characteristics of these unresolved matters. In particular, the garden area calculation stated in the decision plans indicates only a modest exceedance (0.78%) of the minimum 35% requirement specified in clause 32.09-4 of the planning scheme.
6. In short, it is not appropriate to defer provision of this information to a later stage, by relying upon permit conditions and a secondary consent process. This approach creates the potential for new or different considerations to arise leaving too much uncertainty as to the final form of the development and whether an acceptable planning outcome will be achieved to warrant the grant of a permit in the first instance.

1. For the reasons given above, the decision of the responsible authority is set aside. No permit is granted.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed 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] Notice of approval of Amendment VC267 appeared in Victoria Government Gazette on 6 March 2025.

[4] Included within the document titled 'Town planning report v.2' dated May 2024 prepared by the Townhouse Shop.

[6] Partially obscured by a red hatched area stating 'Existing retaining wall, site cut and concrete footpath encroachment shown red'.

[7] See sheet TP.08. Suggested driveway grades are shown. Proposed finished garage levels are omitted.

[8] For example, the survey plan indicates an existing level of 62.4m through the driveway and reversing area to the east of Unit 2's garage. The finished floor level of Unit 2's garage is 61.37m - a level difference of around 1m between existing and proposed conditions.

[10] I understand that a local laws permission for the removal of vegetation in certain circumstances may be required.