To construct a building or construct or carry out works.

To construct a building or construct or carry out works and remove substantial trees.

Luke Dowdle, town planner of Nepean Planning Consultants.

Adrianne Kellock, town planner of Kellock Town Planning Pty Ltd.

To construct building and works to an existing dwelling (extension and habitable outbuilding) in a Design Development Overlay Schedule 1 (DDO1) and to construct buildings and works and remove vegetation in a Significant Landscape Overlay Schedule 3 (SLO3).

Application under section 77 of the Planning and Environment Act 1987 (Vic) - to review the refusal to grant a permit.

Clause 43.02-2 - to construct a building or construct or carry out works.

Clause 42.03-2 - to construct a building or construct or carry out works and remove substantial trees.

The subject site is described on the relevant Certificate of Title (Volume 03848 Folio 556) as Lot 41 on Plan of Subdivision 006135.

9 April 2025, following the hearing but prior to the delivery of the oral decision.

1. Reasons for this decision were given orally at the conclusion of the hearing. The following is the written form of those oral reasons, after the council requested a written statement of reasons pursuant to Section 45(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
2. The proposal comprises a number of different elements, including a single storey addition to the rear of the dwelling, a freestanding outbuilding to the rear, and a garage and storage area towards the front of the existing dwelling setback 9.1m from the front boundary. A number of trees are also proposed to be removed, some of which are to accommodate the proposed garage.
3. It is relevant to note that since the refusal of this proposal was issued by the council, a planning permit has been issued for another proposal on the review site which is substantially the same as this, except for the garage which, in the approved version, is to be set back 15.1 metres from the front boundary, and consequently of smaller size. In that proposal, the same vegetation is proposed to be removed.
4. The key issue in this case therefore relates to whether or not the built form and siting of the proposed garage is acceptable, having regard to the existing and preferred character, the provisions of the Design and Development Overlay Schedule 1 (DDO1) and the Significant Landscape Overlay Schedule 3 (SLO3). Importantly, these are the only permit triggers as agreed by the parties. Associated policy is also relevant. Because all other elements of the proposal have been issued a permit by the council, the parties come to this hearing only disputing the siting and design of the garage. As a result, my reasons are focussed on that issue.
5. Detailed written submissions were received from the council and the permit applicant, setting out descriptions of the site, the proposal, neighbouring properties, and relevant planning scheme provisions and policies. Given the nature of this matter, it is not necessary for me to repeat all of those in detail. I also inspected the site and surrounding area following the conclusion of the hearing.
6. In summary, key points in this case are as follows.
7. The review site is zoned General Residential Zone. No permit is required under the zone for any element of this proposal.
8. The DDO1 includes various Design Objectives, which are generally aimed at ensuring the treed and spacious character of the area is maintained and enhanced, and that new development responds to the existing and preferred character.
9. The SLO3 also affects the review site in the landscape character objective to be achieved under this Overlay is:

To maintain the well vegetated landscape character of Frankston South.

1. Relevant policy generally seeks to ensure high quality urban design, that development respond to the particular elements of built form and natural environment of Frankston South, and encouragement of low density development that protects significant landscape and vegetation qualities.
2. More specifically, clause 15.01-5L seeks to:

Ensure that development is responsive to the preferred future character of the area.

1. The subject site is located in Frankston South Precinct 8 (FS8). The preferred character for this precinct includes:
   • Minimising the impact of new buildings on the landscape;
   • Strengthening of the bush and vegetated setting;
   • Preserve the rhythm of dwelling spacing;
   • Ensure adequate space is provided for the retention and planting of vegetation;
   • Ensuring buildings do not dominate the streetscape and wider landscape;
   • Encouraging planting of indigenous vegetation;
   • Low scale dwellings; and
   • Limiting site coverage and hard surfaces.
2. The council submitted that the proposed garage will present a dominant built form element and restrict the ability for continuous flow of vegetation, as sought by the preferred character.
3. It said that the extensive driveway surface within the front setback, inadequate space within the front setback for planting, incongruent front setback, and appearance of the garage, would be an unacceptable outcome in the context of the review site and the preferred character sought for this area.
4. My findings are as follows.
5. The existing character of Bangalay Avenue is somewhat mixed. Lot sizes are generally large, with frontages that are not exceptionally wide but lot lengths being significant, often in the order of 140 plus metres.
6. Some further subdivision of the original subdivision pattern have occurred, with battle-axe arrangements.
7. The siting of dwellings is inconsistent. Some dwellings have significant setbacks from lot frontages, whilst others have setbacks in the order of 10-15 metres.
8. In some instances, dwellings are entirely invisible from the street, whilst others are prominent. Some are prominent despite having significant front setbacks, because they are large, double storey in scale, or there is limited vegetation in front of them, or combinations of these attributes also.
9. The preferred character sought for this area is drafted in a manner that largely leaves the assessment to judgment of whether a proposal appropriately responds to the existing character.
10. Whilst the applicant submitted that the 7.5 metre front setback called for by the DDO1, amongst other requirements, was primarily part of a suite of permit triggers, it also submitted that the fact this setback exists in the DDO1, which it said was 'refreshed' after the preferred character statement was created, indicates that from a character perspective, this setback requirement must carry significant weight in assessing the front setback of a proposal. It was further submitted that as the proposed setback of the garage is 9.1 metres, and therefore exceeds the 7.5 metre permit trigger in the DDO1, it is an appropriate outcome. The applicant also submitted that, for other reasons, including the mixed character and varied front setbacks, the single storey nature and design detail of the façade of the garage as it faces the street, the proposal was acceptable.
11. Whilst I can sympathise with the applicant's submissions on the 7.5 metre front setback measure in the DDO1 to a degree, I am not persuaded that compliance or not with this is necessarily the primary assessment task. I think it gives some indication of the strategic planning process that the council has undertaken, and the applicant's submissions about the chronology and opportunities for the council to set out a different front setback have some merit, however, this setback dimension forms part of a suite of a number of other requirements that must be concurrently met in a holistic manner, not separately. This suite of requirements form a 'package deal' of deemed to comply provisions that must all be met in order to avoid the need for a permit under the DDO1.
12. However, having said that, I am not persuaded that the proposal is an unacceptable outcome.
13. The combination of factors such as:
    • The front setback, whilst being on the smaller end of what exists in the surrounding area, will still be able to accommodate vegetation, and retains the most significant trees on the lot at the front.
    • The proposed garage is a relatively small element, when compared with other development nearby that is visible from the street. It is proposed to be 7 metres wide, with the frontage width of the lot being over 28 metres. When compared with other existing development, it will be closer than most but much smaller in scale.
    • The garage is also somewhat isolated from the main dwelling, which is much more substantial in scale and appearance than the garage, but which is much further setback from the street.
    • The garage being single storey in scale.
    • Inclusion of some windows to break up the wall surface.
    • The garage will also be set back 2.0 metres from the western boundary, which will allow for further landscaping.
    • The front driveway will be similar to many others in the surrounding area, including its width and length.
14. All of these factors persuade me that the proposal will not dominate the streetscape, or the surrounding area and, with appropriate landscaping, will be an acceptable planning outcome, which is what clause 65 of the planning scheme seeks.
15. On the basis of these findings, I will set aside the decision of the council and direct that a permit be granted, substantially in accordance with the draft conditions circulated by the council, and discussed at the hearing, but with the deletion of proposed condition 1(f), which sought a greater front setback to the garage. All other conditions will be included as per those draft conditions.

To construct a building or construct or carry out works.

To construct a building or construct or carry out works and remove substantial trees.

1. Before the development starts, 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. The plans must be generally in accordance with the plans submitted with the application Project Number 22-058 Revision 7.1 dated 10 May 2024 received by Council 13 June 2024 15 Sheets prepared by Defining Design, but modified to show:

(a) All trees growing on the site and on the adjoining properties within 3m of the boundaries clearly illustrated on all relevant plans to demonstrate canopy width, trunk location and clearly labelled in accordance with the Tree Assessment Report prepared by Future Tree Health dated 26 March 2024 stating whether the tree is to be retained or removed.

(b) The Tree Protection Zone (TPZ), Structural Root Zone (SRZ) and the tree protection locations for all trees to be retained illustrated on all relevant plans.

(c) Tree protection conditions 8 and 9 noted on all relevant plans.

(d) Development and landscape plans to consistently show the front fence.

(e) All side and rear boundary fencing as post and wire.

(f) Landscape Plan in accordance with Condition 4.

(g) Tree Protection Management Plan in accordance with Condition 7.

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

1. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

1. Before the development starts, a detailed landscape plan consistent with Frankston City Council's Landscape Plan Guidelines (2024) must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be prepared by a suitably qualified landscape designer, drawn to scale with dimensions. The plan must be consistent with the development plans and generally in accordance with the concept landscape plan, prepared by Whyte Gardens dated 21 May 2024, but modified to show:

(a) A planting theme of a minimum 60% indigenous and 30% native.

(b) Substitute proposed Melaleuca ericifolia with indigenous canopy trees, minimum mature height 12.0 metres.

(c) All existing environmental weed species must be removed from the site and environmental and noxious weeds found in the 'Frankston City Council Invasive Species Guide (2019)' must not be planted.

1. The landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or commencement of the use.
2. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.

1. Before works start (including any demolition, levelling of the site, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), a Tree Protection Management Plan (TPMP) prepared in accordance with Frankston City Council's 'Arboricultural Report Writing Guide' must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of the permit. The TPMP must be prepared by a suitably qualified and experienced Arborist in relation to the management and maintenance of trees numbered 1-7, 13-18, 22-25. The TPMP must make specific recommendations in accordance with AS4970: 2009 - Protection of Trees on Development Sites and detail the following where relevant but not limited to ensuring that the trees remain healthy and viable during and following construction:

(a) A site plan showing tree protection zones (TPZ) and structural root zones (SRZ), tree protection fence locations and any tree protection fence relocations required where ground protection systems will be used.

(b) A clear photograph of each tree.

(c) Any specific damage/faults evident within each tree prior to demolition or construction. These photographs must be supplied within the TPMP as a preliminary dilapidation report.

(d) Restricted activities in the TPZ.

(e) Key supervision and monitoring stages of the development including pre-demolition, pre-construction, and post construction stages.

(f) Details of any TPZ encroachments including if necessary:

1. details of exploratory root investigation
2. alternative construction techniques
3. root pruning.

(g) Methods for installation of services e.g., sewerage, storm water, telecommunications, electricity etc.

(h) Remedial pruning works as required including a detailed photographic diagram specifying what pruning will occur.

(i) Final Certification of Tree protection template.

Prior to occupation of the development or at such later date as is approved by the Responsible Authority in writing, the Final Certification Report Template as required in the Tree Protection Management Plan must be completed and submitted to the satisfaction of the Responsible Authority.

1. Tree protection must be carried out in accordance with AS 4970-2009 Protection of trees on development sites and the endorsed TPMP to the satisfaction of the Responsible Authority.

1. All tree pruning must be carried out by a qualified and experienced Arborist who has thorough knowledge of tree physiology and pruning methods. Pruning must be carried out in accordance with AS 4373-2007 Pruning of Amenity Trees and to the satisfaction of the Responsible Authority. Any pruning works must be undertaken before works start. Any pruning of trees located on a neighbouring property should be undertaken in consultation with the property owner.

1. Stormwater must be connected to the stormwater legal point of discharge as nominated by and to the satisfaction of the Responsible Authority.

1. Before the development is completed, new or altered vehicle crossing(s) servicing the Lots must be constructed to the satisfaction of the Responsible Authority and any existing disused or redundant crossing or crossing opening must be removed and replaced with footpath/nature strip/kerb and channel, to the satisfaction of the Responsible Authority.

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.

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