Neighbourhood Residential Zone Schedule 1 - Incremental Change - Coastal Suburban 1 ('NRZ1')

Design and Development Overlay Schedule 1 - Foreshore and Urban Coastal Areas ('DDO1')

Clause 32.09-7 - To construct two or more dwellings on a lot.

The subject land is a rectangular allotment with a frontage to Newington Parade of 15.24 metres, a depth of 46.02 metres and an overall area of approximately 701 square metres. The land is vacant, having been cleared of all buildings and vegetation.

Newington Lane runs along the length of the western boundary of the subject land, connecting Newington Parade in the north with Wimborne Avenue in the south.

Newington Parade terminates at the Chelsea beach foreshore, approximately 47 metres west of the subject land.

An unaccompanied inspection of the site and surrounding area was undertaken on 16 February 2026, as advised to the parties.

1. Kingston City Council ('Council') has granted planning permit KP-2024/538 ('permit') for the construction of three dwellings at 16 Newington Parade, Chelsea ('subject land').
2. The permit is subject to a number of conditions. Condition 1 requires the submission of plans showing various changes to the proposed development. The requirements specified in Conditions 1(s) include:

(s) An amended landscape plan in accordance with the submitted landscape plan prepared by Justin Hutchinson, dated 23 May 2025, revision B, with such plans to be prepared by a suitably qualified landscape professional to the satisfaction of the responsible authority and incorporating:

...

1. The space located in the south-west corner of the site to be replaced with garden bed containing understory planting and a costal (sic) indigenous canopy tree capable of growing to minimum mature dimensions of 8 metres in height and 5 metres in width.
2. A balcony planter capable of supporting the growth of small to medium shrubs and grasses to be provided along the length of the northern edge of the Dwelling 1 balcony, with the minimum internal dimensions of 400mm in width and 500 millimetres in depth.
3. A balcony planter capable of supporting the growth of understory planting and a canopy tree capable of growing to minimum mature dimensions of 3 metres in height and 2 metres in width to be provided on the first floor balcony of Dwellings 2 and 3, with minimum internal dimensions of 2.5 metres in width and 800 millimetres in depth and minimum soil volume capacity of 7 cubic metres.
4. A roof terrace planter capable of supporting the growth of understory planting and a canopy tree capable of growing to minimum mature dimensions of 3 metres in height and 2 metres in width to be provided on the roof terrace of each dwelling, with minimum internal dimensions of 2.5 metres in width and 800mm in depth and minimum soil volume capacity of 7 cubic metres.

(u) Location of balcony planters to be illustrated to scale and labelled on the first floor plan as per the endorsed landscape plan.

(v) Location of roof terrace planters to be illustrated to scale and labelled on the roof terrace plan as per the endorsed landscape plan.

1. The outcome of compliance with these conditions would be an increase in the extent of landscaping, including the provision of six additional small and medium-sized coastal indigenous tree species, in addition to five proposed trees. A consequential impact is the reduction in the occupiable area of the first-floor balconies and the roof terraces.
2. Lesleigh Stanley ('applicant') has made this application to the Tribunal for a review of Conditions 1(s)(vii), 1(s)(viii), 1(s)(ix), 1(s)(x), 1(s)(xi), 1(u), 1(v), which are sought to be deleted. There are a number of other conditions requiring modifications to the landscape plan[2] submitted with the application which are not sought to be reviewed.
3. The statement of grounds forming part of the application states these conditions 'are onerous and unnecessary, noting Conditions 1(s)(v) [and] 1(s)(vi) and the other trees already shown to be planted, satisfy Standard B13 as varied in the Schedule 1 to the Neighbourhood Residential Zone'.
4. For clarity, Conditions 1(s)(v) and 1(s)(vi) state:

(v) Substitute the two (2) Allocasuarina littoralis (Black She-oak) located in the front setback of Dwelling 1 with two (2) Banksia integrifolia (Coast Banksia) capable of growing to minimum mature dimensions of 12 metres in height and 6 metres in width.

(vi) Substitute the two (2) Lagerstoemia indica 'Albury White' (Crepe Myrtle) located in the front setbacks of Dwellings 2 and 3 with two (2) Allocasuarina verticillata (Drooping She-oak).

1. Details of the site and its context were set out in the applicant's and Council's submissions. The subject land is in the Neighbourhood Residential Zone Schedule 1 ('NRZ1') and the Design and Development Overlay Schedule 1.
2. The zoning of the site and surrounding land changed from General Residential Zone to NRZ1 on 2 May 2024, as part of Amendment C203king ('C203'). In addition, and amongst other things, C203 inserted cl 15.01-1L-04 (Landscape design - Kingston) into the Kingston Planning Scheme ('Scheme') and amended cl 15.01-5L-02 (Landscape character - Kingston).
3. A permit is required to construct two or more dwellings on a lot under cl 32.09-7 in the Scheme. Council has granted a permit for construction of three dwellings on a lot.
4. Under cl 32.09-7, a development of two or more dwellings must meet the requirements of cl 55. Relevant provisions in this instance include cl 55.02-1 (Neighbourhood character objectives) and cl 55.03-8 (Landscaping objectives).
5. As the permit application was lodged before the approval date of Amendment VC267 ('VC267')[3], cl 55 as in force immediately before the approval date of VC267 continues to apply.[4] Consistent with the findings of the Tribunal in Oakley Six Pty Ltd v Monash CC [2025] VCAT 648, this extends to the contents of Schedule 1 to the Neighbourhood Residential Zone ('NRZ') in force immediately before the approval date of VC267.
6. Clause 1.0 of Schedule 1 to the NRZ includes the following neighbourhood character objective:

To retain established coastal indigenous vegetation and plant new coastal indigenous vegetation to soften development and improve the interface with foreshore areas.

1. The related Standard B13, as varied in Schedule 1 to the NRZ states:

Figure 1: Extract of Schedule 1 to the NRZ, as in force immediately before the approval date of VC267 (Source: Council attachments).

1. The applicant submits Standard B13 is met by the proposed provision of five trees as shown in the landscape plan. Council does not agree, submitting the landscape plan lodged with the application is non-compliant with the varied Standard B13 because Dwelling 2 is not provided with one medium tree in its rear setback. In all other respects, Council submits that subject to the remaining uncontested permit conditions, B13 is met.

Figure 2: Extract of the landscape plan submitted with the application. The uncontested permit conditions change the species and increase the height of the two trees in the Newington Parade front setback and change the species and increase the height of the two trees in the Newington Lane front setback. The contested conditions insert one small tree in the south-west corner, one small tree on each of the first-floor balconies of Dwellings 2 and 3 and one small tree in each of the roof terraces of Dwellings 1, 2 and 3.

1. Standard B13 is not nominated in cl 55 as one of the standards where, if it is met, the decision guidelines for that standard do not apply to the application. Accordingly, even if Standard B13 is met, in deciding whether the objective is met, the decision guidelines at cl 55.03-8 apply.
2. In determining whether varied Standard B13 is met, I note:
   • In response to the first dot point: Under uncontested condition 1(s)(v), two large trees will be provided in the front setback
   • In response to the second dot point: Under uncontested condition 1(s)(vi), one small tree will be provided in the front setback of Dwellings 2 and 3.
   • In relation to the third dot point: One large tree is provided in the rear setback of Dwelling 3. However, no medium trees are provided in the rear setback of Dwellings 1 and 2.
   • In response to the fourth dot point: A 0.5 metre wide landscape buffer is provided adjacent to the driveways of Dwellings 1, 2 and 3, however there is no landscape strip adjacent to the secondary accessway for Dwelling 3.
3. In this instance, because no trees are proposed in the rear setbacks of Dwellings 1 and 2 and no landscape strip is provided adjacent to the secondary accessway of Dwelling 3, Standard B13 is not met.
4. The objectives of cl 55.03-8 include to encourage development that respects the landscape character of the neighbourhood, encourage development that maintains and enhances habitat for plants and animals in locations of habitat importance and provide appropriate landscaping.
5. The following decision guidelines are set out at cl 6.0 of Schedule 1 to the NRZ, and are to be considered before deciding on an application in addition to those specified in cl 32.09 and elsewhere in the Scheme:
   • Whether there is an opportunity to retain existing vegetation.
   • Whether the location of site services, infrastructure and building footings would impact on tree retention.
   • Whether there is sufficient volume of soil appropriate to the species to support the health of the tree.
   • Where a tree planting requirement is specified for private open space, and the space is in a rear or front setback, regard should be given to the capacity of the space to accommodate multiple trees, and whether one tree would be sufficient.
6. The following decision guidelines must be considered under cl 55.03-8:
   • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • Any relevant plan or policy for landscape design in the Municipal Planning Strategy and the Planning Policy Framework.
   • The design response.
   • The location and size of gardens and the predominant plant types in the neighbourhood.
   • The health of any trees to be removed.
   • Whether a tree was removed to gain a development advantage.
7. Reference was made to clauses 02.02, 02.03 and 15.01, which address environmental and landscape values, and neighbourhood character.
8. The Scheme includes a landscape design policy at cl 15.01-1L-04. The policy applies to residential development assessable by cl 55. The objective is to ensure development maximises opportunities for landscaping, including trees.
9. A relevant strategy is to provide replacement trees for the removal of existing trees. The provision of three replacement trees for every tree removed is a policy guideline to be considered as relevant.[5]
10. In response to my questions, both the applicant and Council submit two trees have been removed from the subject land - one in the front setback and one at the rear. Consequently, both submit the policy guideline calls for six replacement trees. However, both accept that a Local Law permit[6] was issued by Council allowing the removal of five trees on the subject land and an arborist report[7] prepared in support of the Local Law application describes a total of 10 trees proposed to be removed from the subject land.[8]
11. Council submits its basis for considering that six replacement trees are required under the policy guideline is that only two of the trees to be removed were significant in size. The applicant adopts Council's position and further submits the policy guideline should not be elevated to a 'requirement'.
12. The applicant submits it would not be fair to require three large canopy trees as replacements for each of the small trees removed from the subject land. The applicant concedes the policy guideline does not specify the size of any replacement trees, only the quantum. However, the applicant suggests large canopy trees are what is sought by Council. The applicant's perception of the size trees sought is inconsistent with the Council's Conditions 1(s)(ix) and 1(s)(x), which require trees of a size that is smaller than the definition of 'small' trees in Table 1 in cl 15.01-1L-04.
13. In Council's submission, the design response provides little opportunity for landscaping at ground level. It submits that to maximise opportunities for landscaping as sought by the Scheme, replacement planting is required in planter boxes on the balconies and roof terraces, in addition to that proposed in-ground.
14. The respondent supports Council's efforts to 'green' the street. He notes that the trees removed from the south-west corner of the subject land were flowering trees that supported bird and bee life in the area. He submits a flowering tree of a similar size should be planted in the south-west corner, so supports retention of Condition 1(s)(vii) except he says it should be modified to specify a flowering coastal indigenous canopy tree.
15. Based on the Local Law permit for tree removal, the arborist report prepared in support of the Local Law application and the October 2025 aerial photo referred to by Council, I find that 10 trees have been removed from the subject land. Consequently, the policy guideline at cl 15.01-1L-04 requires 30 replacement trees.
16. I am not persuaded by the applicant's submissions that the level of canopy tree planting required 'far exceeds that found on nearby medium density housing developments'.[9] Existing landscape character and the extent or lack of landscaping in recently completed nearby multi-dwelling development is of less relevance in circumstances where those developments were approved or constructed prior to the changes to the policy setting in the Scheme made by C203.
17. The NRZ1 neighbourhood character objective to '...plant new coastal indigenous vegetation to soften development and improve the interface with foreshore areas' is supported by strategic directions and policies in the Scheme, including:

Maintain and enhance the tree canopy within existing urban areas. [Clause 02.03-2]

Protect and enhance landscaped character of established areas. [Clause 02.03-5]

To ensure development maximises opportunities for landscaping, including trees. [Objective at cl 15.01-1L-04]

Support building and basement design that maximises the availability of deep soil and opportunities to retain trees and plant new vegetation and in ground canopy trees. [Strategy at cl 15.01-1L-04]

Encourage street setbacks that can accommodate large and medium sized trees. [Strategy at cl 15.01-1L-04]

Promote understorey planting below trees to provide a layered greenery outcome. [Strategy at cl 15.01-1L-04]

Support development that provides landscaping treatments on balconies, roofs and walls that maximises the greening of buildings. [Strategy at cl 15.01-1L-04]

Maximise landscaping opportunities in street setbacks by limiting hard and impervious surface areas, including basement ramps, driveways, paths and paving. [Strategy at cl 15.01-1L-04]

To support development that contributes to urban cooling and greening. [Objective at cl 15.01-1L-04]

Where the removal of existing trees is unavoidable, provide replacement trees. [Strategy at cl 15.01-1L-04]

The provision of three replacement trees for very tree removed. [Policy guideline at cl 15.01-1L-04]

1. The eastern ground-level courtyards of Dwellings 1 and 2 have a width of 1.81 metres, which is insufficient space for in-ground tree planting sought by Standard B13 or the policy guideline at cl 15.01-1L-04.
2. I consider the landscaping of the south-west corner and balconies and roof terraces, as sought by the permit conditions, is consistent with cl 15.01-1L-04 and Standard B13 and would achieve an acceptable landscape response to the foreshore setting.
3. I am not persuaded that inclusion of the planter boxes will compromise the usability of the balconies or roof terraces. The applicant concedes that even with the planter boxes, the minimum area and dimensions of the balconies will meet Standard B28 at cl 55.05-4 (Private open space objective).
4. Under cl 55, Standard B28 is nominated as one of the standards where, if it is met, the objective 'to provide adequate private open space for the reasonable recreation and service needs of residents' is deemed to be met and the decision guidelines for that standard do not apply to the application.
5. Accordingly, Conditions 1(s)(viii), 1(s)(ix) and 1(s)(x) will remain on the permit.
6. I have corrected a spelling mistake in Condition 1(s)(vii) and required the tree to be a flowering species.
7. Council submits, and the applicant agrees, Conditions 1(u) and 1(v) are related and necessary if Conditions 1(s)(vii), 1(s)(viii), 1(s)(ix) and 1(s)(x) are retained. Accordingly, Conditions 1(u) and (v) will remain on the permit.
8. The applicant also seeks amendment of the timeframes set out in Conditions 20(a) and 20(b), so the permit would expire if the development is not started within three years or completed within five years of the issue date of the permit.
9. The applicant seeks the additional time due to the elapse of time while this proceeding is on foot, the need to prepare technical drawings and to obtain finance. Council and the respondent support the amendment. Council notes that following recent changes to s 68 of the Planning and Environment Act 1987 (Vic), it now as a matter of course provides three years and five years to commence and complete development.
10. In the circumstances, I am persuaded that increasing the time to commence and complete the development is acceptable.

1. For the reasons given above, the decision of the responsible authority is varied.

[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] Justin Hutchison, Revision B, 23 May 2025.

[3] Council advised the permit application was lodged on 10 October 2024. The approval date of VC267 was 6 March 2025. The Amendment came into operation on 31 March 2025.

[4] Clause 32.09-7 Transitional provisions.

[5] Clause 15.01-1L-04 Policy guideline.

[6] Dated 25 September 2025, permitting the removal of Tree Nos. 2, 3, 9, 10 and 11, being three Feijoa trees and two Oleander trees.

[7] Preliminary Arborist Report, dated 15 November 2024, prepared by Landscapes by Design.

[8] Of which, five required permission under Council's Local Law for their removal. Of the other five, one was a weed species and the remaining four were small so did not require a permit for their removal.