1. The review site is located within a Diversity Area in the Residential Areas Framework Plan at Clause 02.04 of the Banyule Planning Scheme. The Residential Areas Framework is provided with the following policy guidance at Clause 02.03-5.

Residential Areas Framework

The Residential Areas Framework addresses the issues affecting the municipality as a result of increasing population, and changes to household size and structure, including impacts on neighbourhood character. The ability to protect and enhance valued neighbourhood character across Banyule depends on directing new housing to areas that are able to accommodate greater densities and increased diversity.

The vision for each residential area identified in Table 1 is based on its proximity to shops, services and transport, as well as its walkability, neighbourhood character, and heritage and landscape qualities.

Diversity

These areas typically have the following characteristics:

• Within the business core of an activity centre.
• Comprise an urban renewal area, or residential properties along streets that immediately surround the business core of an activity centre.

Diversity Areas will provide for shop-top and apartment living in higher density mixed use and residential developments. These areas include strategic redevelopment sites that provide for higher density housing.

Development will make a positive contribution to the identity of the activity centre and the preferred character of surrounding residential neighbourhoods.

In these areas people live close to train stations, transport interchanges, shops, services and nodes of employment. These areas include higher density and some medium density housing opportunities.

Postcode 3081 Urban Design Framework Diversity Areas

Postcode 3081 is renewing. Properties along main roads, along the creekside area at interfaces with parks, and close to the Bell Street Mall Neighbourhood Activity Centre and Olympic Village, are well located to support increased density on consolidated lots.

1. This policy is supplemented by Clause 15.01-5L-02 Postcode 1081 Urban Design Framework, which sets out the following.

Policy application

This policy applies to land identified on the Postcode 3081 Urban Design Framework Plan forming part of this clause.

Objective

To guide the future identity of the Postcode 3081 Urban Design Framework area while providing for housing change and urban renewal.

Strategies

Establish a cohesive and contemporary architectural character that responds to the natural creek environment and treed character of the suburb.

Create an inviting, safe and vibrant public realm.

Avoid development that would entrench buildings and/or uses that are inconsistent with the preferred built form or vision for the urban renewal area.

Maintain good solar access to footpaths, in addition to existing and proposed public open space.

Ensure buildings include the use of natural materials and colours of muted tones that blend in with the surrounding environment.

...

In Areas 1-4:

• Maintain backyard character by providing a tree zone at the rear of lots to enable the retention of existing trees and allow for additional tree planting.
• Provide a landscaped front setback to protect existing trees and root protection zones.
• Provide side setbacks and breaks between buildings to allow for landscaping and to improve residential amenity.

1. The vision for significant redevelopment of this Diversity Area is to be regulated through the application of a zone and an overlay to the review site and abutting properties. Schedule 6 to the Residential Growth Zone (RGZ6) applies to the review site and those abutting to the north and east. The Schedule varies the Maximum building height allowed under the zone to 21.5 metres or 6 storeys, and sets out the following guidance.

• To encourage higher density development along Main Roads to enhance legibility within Postcode 3081.
• To encourage site consolidation enabling preferred scale and dwelling form outcomes that improve housing diversity.

1. The provisions under RGZ6 are supported by Schedule 14 to the Design and Development Overlay (DDO14), which provides the following Design objectives.

• To encourage the development of a new built form identity along Main Roads through increased heights with upper levels that visually recede.
• To encourage site consolidation and discourage the under-development of land.
• To ensure the scale and form of development achieves the preferred character for the area and manages the potential adverse amenity impacts on adjoining residential and parklands properties through an appropriate built form transition.
• To ensure new development provides a positive contribution to the existing landscape character and enhances the amenity of any adjoining public open spaces.
• To ensure buildings are of a high quality design and construction that include the use of appropriate materials and colours of muted tones that blend in with the surrounding environment.

1. DDO14 also contains a number of buildings and works requirements, which largely amount to guidance regarding materials, interfaces to a park, and preferred setbacks. To the extent that they are relevant, they have been taken into account in the analysis that follows.
2. The Council submits that the proposal is an inappropriate response to this guidance, as at four storeys in height it fails to respond appropriately to the envisaged built form character for this locality, of development at six storeys in height. As such, the Council considers the proposal to be an underdevelopment. It considers that a more appropriate form of development can be achieved by site consolidation, noting:

9.4 Importantly and relevant to this proposal, opportunities for appropriately scaled development by consolidating smaller lots is not only encouraged by the DDO14 provisions, but also necessary to realise the development potential of the site and the vision developed in the Postcode 3081 Urban Design Framework.

3. I am not persuaded by this submission, and instead I find that the proposal is not an underdevelopment of land. Rather, I find that the proposed development of seven dwellings in a four storey development on a lot of 672 square metres is an acceptable outcome[3] in response to the guidance provided by the Banyule Planning Scheme in this location. I make this finding for the following reasons.
4. Firstly, the provisions that apply to the review site encourage, but do not require, a consolidation of lots and do not provide guidance as to when site consolidation should occur. Further, site consolidation is not encouraged in isolation, but rather to achieve certain outcomes, as set out in the following extract from DDO6.

To encourage site consolidation enabling preferred scale and dwelling form outcomes that improve housing diversity.

1. It therefore follows that if the preferred scale and housing diversity can be achieved in the absence of site consolidation, then that is a development that would be supported by this provision of the Banyule Planning Scheme. In this case, the design response demonstrates that a development of four storeys in scale, containing a diversity of apartments and townhouses, and a relatively high yield for a site of this size, can be achieved in the absence of site consolidation. On this basis the encouragement for site consolidation is noted, but is not necessary in order to achieve an outcome consistent with the policies and provisions from the Banyule Planning Scheme, as they apply to the review site.
2. Secondly, the Banyule Planning Scheme does not require or encourage development at six storeys in height on the review site, but rather enables development of up to six storeys in height. This is reinforced through:
   1. The policy for Diversity Areas at Clause 02.03-5 of the Banyule Planning Scheme, which does not encourage development to reach any particular height or scale;
   2. The policy at Clause 15.01-5L-02 for this particular Diversity Area, which also does not encourage development to reach any particular height or scale;
   3. The Schedule 6 to the RGZ, which does not describe any future character of built form aside from achieving higher density housing along main roads. While the Schedule varies the maximum building height under the zone to 21.5 metres or 6 storeys, this does no more than create a statutory regime where buildings up to and including 6 storeys in height can be permitted; and,
   4. DDO14 which contains a number of Design objectives. The first of these describes the desired future character as one that has increased heights and recessive upper levels, but does not describe the desired height. The third Design objective refers to the preferred character, which I take to be a reference back to the content of Clause 15.01-5L-02, which I have already explained does not encourage development of a certain height or scale. The last two Design objectives refer to landscaping, and materials and colors, respectively.
3. This approach is reflected in the Panel Report for Amendment C120 to the Banyule Planning Scheme, which makes the following observation of the urban design evidence called by the Council:

Ms Bell's evidence showed why at least three properties may need to be consolidated to achieve six levels and comply with the proposed side setbacks. She explained that this is why it is unlikely that there will ever be continuous six storey built form along the main roads. Ms Bell considered that a mix of heights between four, five and six storeys would be a more likely outcome.[4]

The Panel agrees with Ms Bell the subject area is likely to evolve into a mix of building heights rather than a continuous streetscape of six storey buildings.[5]

1. For these reasons I am not persuaded that development on the review site needs to be at six storeys in height, in order to produce an acceptable outcome in response to the guidance provided by the Banyule Planning Scheme. Instead, I am persuaded by the following approach set out in the evidence of Mr Glossop.

1. The RGZ6 allows for development of up to six storeys in height and both it and DDO14 encourage site consolidation to enable preferred character outcomes. What the preferred character is in terms of height and lot sizes, however, remains somewhat vague with relevant guidance instead directed at matters such as setbacks and landscaping.

2. I also refer back to the first specific Purpose of the RGZ which refers to buildings up to and including four storeys. Whilst the schedule allows for development up to 6 storeys this does not translate to six storey buildings being the only height acceptable and the RGZ Purpose makes it clear that four storey buildings, and indeed even smaller buildings, are appropriate. The 6 storey/ 21.5 metre maximum building height limit is not and cannot be read as a mandatory outcome. To do so would be akin to suggesting that every dwelling in the GRZ must be 3 storeys/ 11 metres in height. Rather, it is a maximum building height restriction and needs to be understood in that context.
3. I make one final point with respect to this proposal being strategically supported and that is to note that the development proposed could not be provided within the GRZ. It would fail both the mandatory height and garden area requirements. This is further evidence that the proposed development would provide for an appropriate transition by representing a 'step-up' from the GRZ, yet remaining cognisant of its context and the desire for increased height to be provided along main roads.
4. In summary, the design objectives of the RGZ6 refer to encouraging high density development along main roads and encouraging site consolidation to enable preferred scale. What the preferred scale is, however, is not articulated. Neither it is articulated in Clause 15.01-5L-02 (Postcode 3081 Urban Design Framework) nor anywhere in the UDF. The only related reference is to enhance legibility by increasing height along main roads similar to the first design objective. In the absence of such direction and again noting the Review Site is not a on main road, it is appropriate to refer back to the overarching Purpose of the RGZ which does reference a scale being up to and including four storeys.
5. I am persuaded by the evidence of Mr Glossop that a development of four storeys in scale on the review site is an appropriate response to the guidance provided by the Banyule Planning Scheme, as it will achieve an appropriate level of additional housing supply and housing diversity in this edge of Diversity Area location. It will also be a clear response to the policies and provisions, by putting forward a design response that will represent a new character of built form, different in scale to that which currently exists, and also different in scale to that which could be permitted in both the General Residential Zone and the Neighbourhood Residential Zone.
6. Thirdly, while the Council has relied upon a number of previous Tribunal decisions involving findings of design responses that are an underdevelopment, I do not consider that any of them are comparable with the site context or the proposal that is before me. I make this finding for the following reasons.
   1. The decision of Yearone Pty Ltd v Maroondah CC [2019] VCAT 1036 involved a proposal for six, two storey dwellings on a slightly larger lot than that involved in this current proceeding, in a location where policy and the DDO both encourage a future character comprising multi-level apartment style residential buildings, and the DDO schedule sets out certain requirements for the proposed development of lots that have not been consolidated. This differs significantly from the approach of the Banyule Planning Scheme to the review site in this proceeding.
   2. The decision of Pechlivanidis v Monash CC [2020] VCAT 753 involved a proposal for three, two storey dwellings on a lot of 697 square metres, and so would have had a very different level of contribution to housing supply as compared to the proposal that is now before me.
   3. The decision of CKRA Developments Pty Ltd v Banyule [2023] VCAT 430 involved a development of five, two storey developments on a site of a similar size to that involved in this current proceeding, and also covered by RGZ6 and DDO14. In making its decision, the Tribunal noted with relevance that it was dealing with a proposal of a scale and density that is typical of developments in the GRZ1. That is different from the proposal that is before me, which would be prohibited in the General Residential Zone due to its four storey scale. Subsequent to this Tribunal decision, on 22 March 2024 the Banyule City Council granted a planning permit for the development of seven, three storey townhouses on that site. The Council approved development is at a similar density, and lesser scale, than that now proposed for the review site of this current proceeding.
   4. The decision of Simons v Banyule CC [2023] VCAT 1277 involved a development of five, three storey dwellings on a site of 648 square metres in the RGZ7 and DDO15 in the Banyule Planning Scheme. In making its decision, the Tribunal set out the following:
      1. I am persuaded by the objectors that the reverse townhouse typology of five townhouses in a row is a form of housing and development that can be found in many other residential zones and areas within the municipality. I am also persuaded by the objectors that the site calculations of site coverage at 53% and permeability of 36.86% are indicators that the site is underdeveloped in a zone that encourages high density development.

In contrast, the proposal that is now before me could not be permitted in most other residential zones, and it has a higher site coverage (59%) and lower permeability (27%) than the proposal that was before the Tribunal in this previous decision.

1. For these reasons I find that the proposal is not an underdevelopment of land.
2. Each of the nearby residents who have filed a Statement of grounds in this proceeding is opposed to the scale and intensity of the proposed development. As I have set out above, the Banyule Planning Scheme encourages significant change in built form and character to occur in this location, including on the review site. A continuation of the existing form and character of development is not encouraged, and is not a reasonable expectation in this location. For these reasons, I must give weight to the overwhelming strategic intent for this location set out in the Banyule Planning Scheme, over the residents' concerns of change to the existing neighbourhood character.
3. The Council raises no other concerns in relation to the proposed built form for the review site. In these circumstances, it is appropriate to take a more streamlined approach to my assessment by setting out the following observations:
   1. The proposal achieves the preferred future character set out at Clause 15.01-5L-02 of the Banyule Planning Scheme, including the provision of a contemporary architectural design. In relation to the specific guidance for areas 1-4, I am persuaded by the landscape evidence of Mr Schutt that the proposal provides ample opportunities for new tree planting, including in the front and side street setbacks and the setback to the eastern boundary, to achieve the landscape character outcomes sought by this policy and the fourth Design objective at DDO14. As his evidence was not tested under cross examination, I must give the evidence of Mr Schutt significant weight.
   2. I am persuaded by the evidence of Mr Glossop that the proposed materials and colors will blend in with the surrounding environment, as sought by the policy at Clause 15.01-5L-02 and the final Design objective of DDO14. The use of some brickwork and lightweight render of a grey color will reflect the materials and colors that are already found in the surrounding neighbourhood.
   3. In response to the guidance at Clause 15.01-5L-02 the proposal creates a safe and vibrant public realm through a high level of surveillance and activation of the street, with all proposed dwellings overlooking the public realm in Milton Court, and all of the proposed seven dwellings having front doors with direct street access.
4. For these reasons I find that the proposal is an appropriate built form response to the emerging character encouraged for this locality.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. Off-site amenity impacts are generally measured in terms of visual bulk, overlooking and overshadowing.
2. In terms of visual bulk, the proposal does not comply with Standard B17, in relation to the setback of the second and third floors from the northern boundary, and the setback of the second floor from the eastern boundary.
3. However, DDO14 anticipates that new residential developments in this area will have setbacks that do not comply with B17, noting that this is an area where development of up to six storeys in height is encouraged. Instead, DDO14 provides the following preferred setbacks.

Any part of a building above 3 storeys should be setback a minimum of 3 metres from the front building line and a further 3 metres above 5 storeys

6 metres where a building does not share a boundary with a park plus 1 metre for every metre of height over 10.9 metres

3 metres where a building shares a boundary with a park plus 1 metre for every metre of height over 10.9 metres

2 metres plus 1 metre for each metre of height above 3 storeys

1. I note that the preferred rear setbacks are drafted on the understanding that in most contexts, properties within DDO14 are positioned with a frontage along a main road corridor, and a rear abuttal to land with a different future built form character. The large rear setbacks sought in DDO14 are therefore intended to provide a transition in built form to the residential hinterland positioned behind the main road corridor. The review site does not exist in such a context, instead each of the properties that abut the review site are also within DDO14. This provides for a level of flexibility to depart from the preferred rear setbacks set out in DDO14, which are drafted to respond to a different context.
2. Further, on this corner site it is difficult to understand which boundary is the rear boundary. Or if indeed there is a rear boundary, with instead there being a street frontage, a street sideage, and two side boundaries. Given the intent behind the preferred rear boundary setbacks in DDO14 is not relevant to the review site, I consider it appropriate to apply the preferred side boundary setbacks from DDO14 to the northern and eastern boundaries of the review site. The proposal complies with the preferred minimum setbacks set out in DDO14 from these two side boundaries.
3. I find that the proposed development will not cause any unreasonable levels of visual bulk to the surrounding properties. I make this finding for the following reasons.
4. In conducting this visual bulk analysis, it is important to do so with the understanding and framework that this is a location where large buildings up to 6 storeys in height are encouraged by the Banyule Planning Scheme. Further, as explored above DDO14 encourages reduced setbacks to side boundaries, as compared to that referred to in Standard B17. As such, it is a reasonable expectation in this neighbourhood that views to tall buildings at close proximity will not constitute an unreasonable level of visual bulk.
5. The properties on the opposite side of Milton Court will be separated from the review site by the width of the road reserve, and also benefit from the front setbacks provided on the review site. Given these setbacks, and the fact that the proposal comprises a four storey development in a location where development of up to six storeys in height is encouraged, I find that these properties will not experience an unreasonable level of visual bulk.
6. The adjoining property to the east of the review site has recently been developed with three double storey dwellings. Given the recent development of those dwellings, this adjoining property is less likely to be developed in the future with a larger built form as encouraged by the Banyule Planning Scheme. Only one of the three dwellings to the east of the review site shares a boundary with the review site. The existing dwelling on that abutting site to the east presents to the review site with its service yard, and just a single window at each of ground and first floors that face towards the review site. As such, this abutting property has a very limited level of sensitivity to new built form on the review site.
7. The proposed development responds to this interface with setbacks of between 2.47 metres and 7.26 metres to the eastern boundary from the first and second floors, and between 6.7 metres to 9.7 metres to the third floor. These setbacks exceed those sought for a side boundary under DDO14. The setbacks are skewed to the angled alignment of the eastern boundary of the review site, and result in a minimum 6.5 metre setback to the closest of the windows on the adjoining property to the east of the review site. For these reasons I find that the proposal will not result in unreasonable levels of visual bulk to the adjoining property to the east of the review site.
8. The adjoining properties to the north of the review site are developed with single detached dwellings, and are likely to be redeveloped in the future with built form in accordance with the strategic intent for this area, that is up to 6 storeys in height. In their present conditions, these single detached dwellings present with outbuildings and private open space at the interface with the review site.
9. The proposed development is setback from the northern boundary of the review site at the following distances:
   1. Ground floor: 3.2 metres to 6.1 metres
   2. First floor: 2.0 metres
   3. Second floor: 2.0 to 2.8 metres
   4. Third floor: 5.1 to 8.2 metres
10. Again, these setbacks comply with those set out for side boundaries under DDO14. Further, as the proposed built form is sited adjacent to the positioning of outbuildings on the lots immediately to the north of the review site, there will be a reduced level of visibility and interaction with the northern elevation of the proposed development. In making this observation, I note that the area of secluded private open space at 91 Southern Road is sited directly opposite the generous setback that is proposed from the eastern boundary of the review site, though will have angled views to the proposed development on the review site.
11. I accept that there will be views from both of the properties to the north of the review site to the proposed development, and that those views will reveal a building of some scale. However, the proposed development on the review site is lower than that permitted in this location, provides or exceeds the side boundary setbacks sought under DDO14, and interfaces primarily with outbuildings on the adjoining properties to the north. For these reasons I find that the proposed development will not cause any unreasonable levels of visual bulk to these adjoining properties.
12. Overshadowing is not at issue here, as the review site is located on the northern side of Milton Court. The shadow diagrams submitted with the amended plans demonstrate that between 9:00am and 3:00pm at the equinox, none of the nearby areas of secluded private open space receive any shadowing from the proposed development on the review site. I make this observation noting that the side setback on the adjoining property to the east is a service yard (containing a water tank and other utilities) and that its area of secluded private open space is located to the north of the dwelling on that site.
13. Finally, any potential overlooking is addressed through the use of highlight windows and screening to a height of 1700mm above floor level. Having made that observation, the proposed dwellings do not suffer from the overuse of screening, noting that the balconies and windows to each dwelling that face Milton Court are unscreened, as are the roof terraces to three of the proposed dwellings on the review site.
14. One of the adjacent residents raises a concern regarding the existing height of a boundary fence and the potential for people to enter their yard, and the resultant security impacts. This is not a relevant planning issue, as the height and condition of a boundary fence is a matter addressed by other legislation, and the fencing height can be changed with the agreement of neighbouring landowners. Further, as this is an existing condition, it is an existing security issue not related to the proposed development of the review site. If anything, the proposed change in condition from the presently vacant review site, to one where residents will be in occupation, would likely result in an improved security outcome.
15. For these reasons I find that the proposed development will not result in any unreasonable off-site amenity impacts.

IS AN APPROPRIATE LEVEL OF INTERNAL AMENITY PROVIDED?

1. None of the parties raise any concern in relation to the levels of internal amenity to be enjoyed by the future residents of the proposed dwellings on the review site. From my own analysis, I find that the proposal will provide for an appropriate level of internal amenity. I make this finding having regard to the size of the dwellings and the individual rooms, their ability to receive solar and daylight access, the size and orientation of the areas of private open space, the open aspect devoid of screening that will be available to each dwelling over the Milton Court road reserve, and the convenient car parking provided on site.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. The application intends to provide one resident car parking space per dwelling, which meets the requirement for resident car parking as set out at Clause 52.06 of the Banyule Planning Scheme. However, the proposal does not provide the one visitor car space that is required, and therefore seeks a permit for a reduction of car parking amounting to one car space.
2. Traffic and car parking evidence was provided by Mr Furness. It is the evidence of Mr Furness that the site has a combined frontage and sideage to Milton Court of over 50 metres, which is sufficient to park 8 vehicles alongside the site's frontage. Further, Mr Furness provides evidence of car parking surveys undertaken over three days, which indicates that at all times of the surveys there were a minimum of 21 car parking spaces available on street, within 200 metres walking distance of the review site.
3. I also note that the Council does not oppose the reduction of car parking that is sought, in line with the following referral comments from the Council's Traffic Engineer.

Coucnil's (sic) Traffic and Transport Team have reviewed the proposed reductio (sic) in car parking and advised that they have no objection to the reduction of one visitor parking space noting that Milton Court is a residential street with no parking restrictions with additional parking available on Southern Road as well as a bus stop servicing two routes in close proximity.

1. On the basis of the current availability of car parking, including directly in front of the review site, I find it appropriate to allow the grant of a permit for the reduction of one car parking space.
2. In terms of traffic impacts, Milton Court has been surveyed as having a current average of 75 daily vehicle trips, which will increase to 117 trips per day on average if the proposed development is completed. According to the evidence of Mr Furness, Milton Court has an environmental capacity in the order of 1,000 to 2,000 vehicle trips per day. On this basis, and in the absence of any contrary traffic evidence, I find that the proposed traffic movements can be easily and safely accommodated on the surrounding road network.
3. The Council raised two concerns, relating to the non-provision of a visitor bicycle space on site, and the siting of the car space for Dwelling 7 immediately adjacent to one of the entry doors to this dwelling. Both of these issues were discussed with the expert witnesses and the parties during the course of the hearing, such that by the end of the hearing a solution had been found for both of these issues. The minor design changes required to address both matters are reflected in the permit conditions drafted as part of this decision.
4. The Council seeks the private collection of waste to occur on site, and for waste vehicles to be able to enter and exit in a forward direction. In making this submission, the Council relies on the following from Clause 55.07-11 of the Banyule Planning Scheme.

Waste and recycling objectives

To ensure dwellings are designed to encourage waste recycling.

To ensure that waste and recycling facilities are accessible, adequate and attractive.

To ensure that waste and recycling facilities are designed and managed to minimise impacts on residential amenity, health and the public realm.

Standard B45

Developments should include dedicated areas for:

• Adequate circulation to allow waste and recycling collection vehicles to enter and leave the site without reversing.

1. The former Clause 55.07 of the Banyule Planning Scheme applies to part of the proposal, noting that some of the proposed dwellings on the review site are properly defined as apartments.
2. The following is extracted from the evidence of Mr Furness on this issue (noting that Mr Furness refers to the new Clause 55.05-5, which does not apply to the review site, due to transitional provisions).

I am satisfied with on-street collection. The site enjoys a substantial frontage of 53.4m (minus the proposed crossover) for the storage of bins for 7 dwellings. The WMP proposes only 7 bins in total. Accordingly, the sites frontage has adequate space to place bins from the seven proposed dwellings side by side.

The private waste collection vehicle will be required to drive along Milton Court and briefly prop while collecting the waste before continuing. There is no material difference in truck travel path between the Council or private waste vehicle. Any one truck would only be collecting 3 bins, which means that the vehicle is propping for only a short time.

The potential challenge in navigating Milton Court raised by Council's waste team is a result of the 6.5m carriageway width. In driver's park opposite one another (illegally) or closely staggered, this may pose a challenge for a Council's waste vehicle. The solution to this existing situation is to formally ban on-street parking on one side of Milton Court by signage (as opposed to relying on the road rules under existing conditions). This would not reduce the amount of legal, available on-street parking. It would only regularise on-street parking and ensure a clear traffic lane at all times.

A private waste collection could be limited to the mini-waste truck (6.4m long x 1.7m wide), which is substantially smaller than a typical Council truck (10m long x 2.5m wide). This truck would navigate the street much more easily than Council's truck.

On-site waste collection in my view is not practical. Clause 55.05-5 requires that on-site waste collection be completed as follows:

Where access is provided for private bin collection on the land the design of access ways must allow the vehicle to enter and exit in a forward direction.

However, is no requirement in Clause 55.05-5 for private collection to be on-site. It is not possible to turn around the smallest commercial waste vehicle around on-site within the available accessway. Modifying the on-site carpark to make this possible would result in

the loss of a garage or car space. In my view, given that waste collection can be readily completed from the kerbside in a local street and this development is modest in scale, there is no need to require on-site waste collection in this instance.

Accordingly, I am satisfied that the waste collection arrangements are acceptable.

1. I am persuaded that the private waste collection of bins for the proposed development can occur on street. I make this finding for the following reasons.
   1. At most three bins will be collected from the review site at a time, and so a bin collection truck will not be stopped kerbside in Milton Court for a long period each time it visits the review site.
   2. There is more than sufficient room along the very long road frontage and sideage of the review site to have up to three bins wait for collection.
   3. The Council waste collection truck currently travels along Milton Court. As the private waste collection truck will be of a similar size or smaller than the Council truck, access along Milton Court will be available. If the traversing of parked vehicles in Milton Court becomes an issue for the Council waste collection truck, then this can be resolved by only allowing parking on one side of the street, without reducing the potential on-street parking supply, noting that cars cannot currently be parked opposite another parked car in Milton Court.
   4. I am not persuaded by the Council's submission that there is an unreasonable amenity impact arising from visits to the site from a private waste collection truck. While the truck creates some noise, this will simply become another commercial vehicle visiting this residential area, alongside the Council waste collection trucks, and those delivering groceries and other items. I have found no reason to treat the noise from the private waste collection truck, differently from the other truck traffic to visit this neighbourhood from time to time.
   5. The provision of a turning bay on site for trucks to enter and exit the review site in a forward motion would require a reduction in the extent of developable land on the review site, and potentially a reduction in yield. This is contrary to the Council's primary position that the proposal is an underdevelopment, and contrary to the intent of the Banyule Planning Scheme to encourage development in this location.
2. For these reasons I find that the proposal appropriately provides for car parking and traffic movements.

1. A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I summarise my conclusions as follows:
   1. Mr Glossop has recommended that part of the northern edge of the balcony to Dwelling 1 be opened to allow for improved solar access. I have drafted a condition to allow this to occur, in a manner that also addresses the potential for unreasonable levels of overlooking to the adjoining property to the north of the review site.
   2. I will amend Condition 4 in the manner sought by the applicant, to require a 7 star rating to be achieved by Dwellings 4, 5 & 6. While I understand that an earlier assessment has indicated that a 7.4 star rating can be achieved for these dwellings, there is no requirement that such a star rating must be achieved for these dwellings, that should be repeated in a permit condition.
   3. Council has conceded that tree 1, one of the street trees, is dead and so does not need to be protected. I will therefore delete the reference to tree 1 from Condition 8 as drafted by Council.
   4. Council has also conceded that its drafted condition guiding works within the tree protection zone of retained trees is not required for this site and this proposed development.
   5. I have deleted components of the Waste Management Plan condition that I have not been persuaded are necessary, including those that seek to relocate the bin storage area, limit the frequency of bin collections, and have the bin storage area designed for Council bins in case there is a Council collection in the future. None of these changes are necessary in order to achieve an acceptable form of development on the review site.
   6. I have not been persuaded that a Section 173 Agreement is needed to address the service of the review site with a private waste collection, as the condition drafted by Council fails to achieve anything other than that already achieved by the drafted condition that requires a waste management plan. For this reason I will delete that condition.
   7. Finally, I will replace the time limit condition as drafted by Council, with the one applied as standard by the Tribunal.

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

To construct a building and construct or carry out works.

1. Before the development permitted by this permit commences, amended plans to the satisfaction of the Responsible Authority 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 drawn to scale with dimensions and be submitted in an electronic format acceptable to the Responsible Authority. The plans must be substantially in accordance with the substituted plans submitted 25/9/2025 with the application but modified to show:

(a) The doors of the under stair storage in the garages of Dwellings 4, 5, 6 and 7 altered to open outward;

(b) Deletion of notation indicating Tree #5 to be relocated;

(c) Notations for the use of double-glazed windows in conjunction with the SDA on all applicable/habitable windows;

(d) Selection of a roof colour to minimise the urban heat island effect with a maximum Solar Absorptance (SA) of 0.70;

(e) A schedule of external building materials, colours and finishes, including details of cladding and roofing materials.

(f) A notation that obscured film or spray applied to clear glazing is not accepted as 'obscured glazing';

(g) A Landscape Plan in accordance with Condition 3 of this permit;

(h) A Sustainable Design Assessment (SDA) in accordance with Condition 5 of this permit;

(i) A Water Sensitive Urban Design (WSUD) Drawing in accordance with Condition 6 of this permit;

(j) An Environmentally Sustainable Development (ESD) Drawing in accordance with Condition 7 of this permit;

(k) Tree Protection Fencing in accordance with Condition 8 of this permit.

(l) A Waste Management Plan in accordance with Condition 10 of this permit;

(m) The provision of a visitor bicycle space at the north-eastern 'cut-out' of the ground floor of Dwelling 1. This is to be facilitated by reducing slightly the internal space in Dwelling 1 at ground floor, to the extent required to make the external north-south wall of this cut-out a minimum length of 1700mm.

(n) A change to the car space for Dwelling 7 so as to increase its width to 2800mm, which is to be achieved by reducing the setback to the eastern boundary of the review site to the car space for Dwelling 1. This increased width to the car space for Dwelling 7 is to enable a reduced aisle width of 5800mm to the northern boundary, and in turn allow a gap to be created between the car space and the entry door for Dwelling 7.

(o) The provision of a partly open aspect to the northern edge of the first floor balcony to Dwelling 1, and the provision of a screening device to restrict overlooking to the adjoining property to the north.

1. The development as shown on the endorsed plans must not be altered (unless Clause 62.02 of the Banyule Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. Concurrent with the endorsement of plans under Condition 1 of this permit, a Landscape Plan must be submitted to and approved by the Responsible Authority, including:

(a) Amendments required by Condition 1 of this permit;

(b) Planting adjacent to driveways and within landscaping zones to consist of varying heights and species;

(c) Provision of the following minimum plantings:

1. A small canopy tree (minimum mature height of 5m) planted within the front setback of Dwellings 1, 4, 5, 6 and 7;
2. A medium canopy tree (minimum mature height of 8m) planted at a semi-advanced state (minimum pot size 16 litre) in the northeast corner of the site but outside the easement;

(d) An indigenous and/or drought tolerant planting theme;

(e) A schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(f) Tree species and planting locations must be carefully selected to avoid canopy or root conflicts with overhead wires, property boundaries, easements and existing trees;

(g) Location and details of paving, steps, retaining walls, water tanks, clotheslines, fence design details and other landscape works including cut and fill;

1. The Final NatHERS Star Rating Certificates for the building/each dwelling must meet the following minimum ratings in accordance with the endorsed plans:

(a) Dwellings 4, 5, 6, and 7 not less than 7 Stars;

(b) Average rating of 7 Stars across for Dwellings 1, 2 and 3 with no unit achieving less than 6 Stars.

The Final NatHERS Star Rating Certificates must be provided at the completion of the development and at the request of the Responsible Authority.

1. Concurrent with the endorsement of plans under Condition 1 of this permit, an amended Sustainable Design Assessment (SDA) must be submitted to and approved by the Responsible Authority. The SDA must be generally in accordance with the SDA prepared by Eco Results dated 19 August 2024 but amended to include:

(a) Deletion of the weighted average results from the Energy Rating Results table on page 14 of the SDA;

(b) Deletion of all references in the SDA that state that a minimum of 7 Star NatHERS will be achieved with the higher rating stated in the Energy rating results table on page 14 of the SDA (updated in accordance with Condition 1(b)) used instead;

(c) The annual heating loads, cooling loads and NatHERS star ratings, entered into the BESS report altered to be consistent with those provided in the Energy Rating Results table on page 14 of the SDA;

(d) The submitted STORM report updated to indicate 2 occupants for Dwelling 2 with appropriate additional water treatment measures to maintain a score of at least 100 per cent if the reduced occupants result in a score under 100 per cent;

1. Concurrent with the endorsement of plans under Condition 1 of this permit, a Water Sensitive Urban Design (WSUD) Plan must be submitted to and approved by the Responsible Authority. When approved, the WSUD Plan will be endorsed and will form part of this permit. The WSUD Plan must include:

(a) All features nominated within the associated STORM Report identified under Condition 5, as follows:

1. The location and storage volume (Litres) of rainwater storage tank(s), pumps and connections to end-uses, such as toilets and laundry, as claimed;
2. A roof plan demonstrating the portion of the roof diverted into the rainwater treatment/storage device;
3. The location and type of any required other proprietary devices employed to improve the quality or reduce the loads of stormwater run-off from the site;

(b) A Maintenance Schedule for stormwater treatment devices such as rainwater tanks, toilet connections and raingardens, including responsibility, key serviceable components and frequency of maintenance;

Environmentally Sustainable Development (ESD) Plan

1. Concurrent with the endorsement of plans under Condition 1 of this permit, Environmentally Sustainable Development (ESD) Plans must be submitted to and approved by the Responsible Authority. The ESD Plans must be generally in accordance with the ESD Plans prepared by M3 Group, revision E, dated 27/2/2025.

1. Unless otherwise approved in writing by the Responsible Authority, prior to the commencement of any building and or demolition works on the land, a Tree Protection Zone (TPZ) must be established and maintained during and until completion of all buildings and works including landscaping, around Trees #2, #3 and #4 to the satisfaction of the Responsible Authority. Tree protection zone measures are to be established in accordance to Australian Standard 4970-2009 as calculated within the arborist report submitted with the application authored by Climbing High Tree Services, July 2024.

(a) Tree protection zone measures are to be established in accordance to Australian Standard 4970-2009 and including the following:

1. Erection of solid chain mesh or similar type fencing at a minimum height of 1.8 metres held in place with concrete feet;
2. Signage placed around the outer edge of perimeter fencing identifying the area as a TPZ. The signage should be visible from within the development, with the lettering complying with AS 1319-1994;
3. Mulch across the surface of the TPZ to a depth of 100mm and undertake supplementary watering in summer months as required;
4. No excavation, constructions works or activities, grade changes, surface treatments or storage of materials of any kind are permitted within the TPZ unless otherwise approved within this permit or further approved in writing by the Responsible Authority;
5. All supports, and bracing should be outside the TPZ and any excavation for supports or bracing should avoid damaging roots where possible;
6. No trenching is allowed within the TPZ for the installation of utility services unless tree sensitive installation methods such as boring have been approved by the Responsible Authority;
7. Where construction is approved within the TPZ, fencing and mulching should be placed at the outer point of the construction area;
8. Where there are approved works within the TPZ, it may only be reduced to the required amount by an authorised person only during approved construction within the TPZ and must be restored in accordance with the above requirements at all other times;
9. For street trees, protection must be to the extent of the entire nature strip where the Calculated Tree Protection Zone (TPZ) occurs (not obstructing a footpath or cross-over);
10. For neighbouring trees, protection must be to the extent of the calculated Tree Protection Zone (TPZ) where it occurs within the subject Land;
11. Ground protection must be laid down where access is required through a TPZ outside the fenced area detailed in (a). It must consist of a permeable membrane beneath a layer of mulch or crushed rock with rumble boards on top. Rumble boards should be of a suitable thickness to prevent soil compaction and root damage. Ground protection must only be removed once all buildings and works have been completed;
12. Once installed a TPZ must be maintained until the conclusion of all works on site, including landscaping to the satisfaction of the responsible authority;

Statement Of Compliance - Tree Protection Zone

1. At least 14 days prior to commencement of works, a 'Statement of Compliance' including photographic evidence from a suitably qualified Arborist (AQF Level 5) must be submitted to the Responsible Authority to demonstrate that the Tree Protection Zone (TPZ) fencing is installed in accordance with the permit conditions and endorsed plans. Submission must be made to enquiries@banyule.vic.gov.au referencing the address and Planning Permit number.

1. Concurrent with the endorsement of plans under Condition 1 of this permit, an amended Waste Management Plan (WMP) must be submitted to and approved by the Responsible Authority. The WMP must be prepared by a suitably qualified waste engineer. The WMP must be generally in accordance with the WMP prepared by Eco Results dated 7 August 2024 but modified to include:

(a) Details as to how prospective purchasers will be advised that all refuse and recycling collection for the property will be provided by a private contractor at the expense of the owner of the land;

(b) Collection to be by way of private contractor;

(c) How waste and recycling materials are to be managed within the site and collected from the site;

(d) That bins will be transferred to the street for collection by residents;

(e) Bin collection is to occur from kerbside in Milton Court;

(f) The location of the bin store and any bin wash;

(g) Anticipated frequency, hours and duration of collection(s);

(h) The size of the waste collection vehicle;

(i) Specify times for such collection;

(j) How bin storage areas will be maintained to ensure there is no unreasonable emission of odour or noise;

Once approved, the Waste Management Plan must be adhered to by the owner(s) and operator(s) of the development at all times unless otherwise approved in writing by the Responsible Authority.

1. Before the development permitted by this permit commences, Development Drainage Plans must be submitted to and approved by the Responsible Authority. The plans must be prepared by a suitably qualified engineer, designed in accordance with all endorsed plans and include:

(a) The use of an On-site Stormwater Detention (OSD) system;

(b) The connection to the Council nominated Legal Point of Discharge;

(c) The integration, details and connections of all Water Sensitive Urban Design (WSUD) features in accordance with the endorsed STORM report;

(d) A properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas;

(e) The Tree Protection Zone and Structural Root Zone of Trees #1, #2, #3 and #4 as identified in the submitted Arboricultural Report shown to be retained.

1. Unless otherwise agreed, prior to the commencement of any works including demolition, a Construction Management Plan must be submitted to and endorsed by the Responsible Authority. Once endorsed, the plan must be implemented to the satisfaction of the Responsible Authority.

1. Prior to the commencement of development, the permit holder must pay to Banyule City Council a development infrastructure levy and community infrastructure levy in accordance with the amount specified in Table 6 of the Banyule Development Contributions Plan 2016-17, September 2018. The contribution amount payable in the table will be adjusted annually from 1 July 2017, each year to cover inflation, by applying the Consumer Price Index for Melbourne (All Groups) as published by the Australian Bureau of Statistics.

Removal and Replacement of Council Street Trees - Payment

1. Prior to the commencement of development and removal of street tree ID #ZQL-752 (Tree #5 in the submitted arborist report), the required fee for the planting of One (1) new street tree must be paid to the Responsible Authority. The cost of the tree removal is to be paid by the permit holder.

Residential Reticulated Gas Service Connection

1. Any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.
2. Any new apartment development allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.

1. Prior to the issue of Statement of Compliance or Occupation (whichever comes first), a report from the author of the Sustainable Design Assessment (SDA) or a suitably qualified person must be provided, to the satisfaction of the Responsible Authority. This report must include suitable evidence to certify that ESD features have been installed. This may include photographic evidence, product specifications and certificates, and invoices/receipts.

1. Prior to the issue of Statement of Compliance or Occupation (whichever comes first), the owner or developer must notify Council's Development Planning section that the development is complete to allow for an inspection of ESD features as shown on the endorsed documents. Council will visit the site to inspect or require suitable evidence to be provided, to confirm ESD features have been installed, to the satisfaction of the Responsible Authority.

1. Unless otherwise agreed in writing by the Responsible Authority the development permitted by this permit must not be occupied until the development has been completed to the satisfaction of the Responsible Authority in accordance with the permit and endorsed plans (including, but not limited to built form and layout, parking, landscaping, drainage and water sensitive urban design, street numbering, replacement of street trees and any environmentally sustainable development features).

1. All external surfaces of the building elevations must be finished in accordance with the schedule on the endorsed plans and maintained in good condition to the satisfaction of the Responsible Authority.
2. Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.
3. Unless otherwise agreed in writing by the Responsible Authority, all telecommunications and power connections (whereby means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.
4. All screening measures required to prevent overlooking in accordance with Standard B22 of Clause 55 of the Banyule Planning Scheme must be erected prior to the occupation of the building and maintained thereafter for the life of the building to the satisfaction of the Responsible Authority. The use of obscure film or spray fixed to transparent glass is not acceptable as 'obscure glazing'.

1. Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Council prior to occupation of the building. All vehicle crossing works are to be carried out with Council Supervision under a Memorandum of Consent for Works which must be obtained prior to commencement of works.
2. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all-weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
3. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issued date of this permit.

(b) The development is not completed within four (4) years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence 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.

[3] With reference to the use of these words at Clause 65 of the Banyule Planning Scheme.

[4] Page 33 of the Panel Report dated 23 August 2019.

[5] Page 34 of the Panel Report dated 23 August 2019.