1. Based on the material before me, I consider that the issues which are key to my determination of this matter are:
   • Does the proposed use and development of the site require a planning permit?
   • If a planning permit for the use and development is required, should this be granted?
   • Is the proposed vegetation removal acceptable?
   • Is the proposed vehicle access acceptable?

DOES THE PROPOSED USE AND DEVELOPMENT OF THE SITE REQUIRE A PLANNING PERMIT?

1. There is a range of evidence before me relating to the proposed use of the site, including the affidavit of Mr Lu, Mr Lu's sworn evidence given at the hearing, and the various iterations of the permit application and plans.
2. Based upon this evidence, I find that the proposal is intended to involve the following:
   • Development of a single building which comprises rooms and facilities commonly associated with a residential dwelling/house, including bedrooms, bathrooms, kitchen, living areas and laundry.
   • Separately leased individual rooms, comprising a single space for sleeping and living and an attached bathroom. These individual rooms are to be furnished by each tenant. The individual tenancies will also extend to a small area of secluded private open space which is able to be accessed directly from each tenant's private room.
   • The intention for rooms to be individually let is reflected in the design of the proposed building. Each private room has its own separate entry point to the car park and to the walkway along the southern side of the building. It also has its own separate private courtyard for the exclusive use of the tenant of the room.
   • Tenants of the individually leased rooms are to have shared access to a common kitchen and communal lounge, a common laundry, the car parking area and the common gardens surrounding the building.
   • The communal areas are to be furnished by the landlord, with kitchen appliances, refrigerators, cooking facilities, tables, chairs, couches and the like. Within these spaces tenants will have areas to store their food and will provide their own cutlery and crockery.
   • Tenancies are generally to be of at least 12 months, although shorter tenancies may occur.
   • Tenants themselves are expected to be individuals looking for a cheaper place to live for a range of reasons.
   • Tenants are to have responsibility for cleaning and maintaining their individual rooms, including putting out waste for council collection.
   • There are likely to be rules put in place by the landlord to ensure that common areas are appropriately managed.
   • The landlord will manage and maintain the garden areas and may also manage aspects of other communal spaces such as the waste from the communal kitchen and living area.
   • The arrangements as to utility costs are unknown at this stage. For example, it is not known whether the individual rooms will be separately metered, or how the costs of utility supply to the communal areas will be defrayed.
   • The arrangements as to receipt of post are also unknown at this stage. For example, despite indications on the plans to the contrary, it is not known whether there will be individual or a shared letter box.
3. Council, in its submissions, urged me not to take all of the evidence as to the intended use at face value. It says that while the most recent plans of the proposal (which I substituted for the permit application plans at the commencement of the hearing) do not show kitchen facilities within the individual rooms being let, food preparation facilities could easily be installed by the residents. It says this is likely as the common kitchen facilities are too small to be adequate for the number of residents, and that past iterations of the proposal have included kitchen facilities in the room.
4. I do not consider the evidence before me to indicate an intent for there to be food preparation facilities within each individual room. The original proposal did not indicate such facilities. While later plans did show an oven and refrigerator within the rooms, documents provided to me indicate that this was included in an attempt to address concerns raised by Council. As such, I consider this change to merely indicate that the applicant was willing to alter its proposal in the hope of obtaining a permit from Council. In any event, the plans have again been amended with no food preparation facilities shown, and it is these plans that are before me.
5. The intended use of the site was confirmed in sworn evidence by Mr Lu, a director of the applicant. He said that kitchen facilities were intended to be shared and that he supported a condition being included on any permit issued which confirmed that no cooking facilities were to be installed in the private rooms. The applicant has also accepted the recommendations of its planning witness which would have the effect of enlarging the shared kitchen area at the expense of one of the private rooms.
6. It follows from the above, that I do not find the proposal to involve food preparation facilities within the individual rooms. Rather, I find that intent in this instance, reinforced by the particular design of the proposal, is for food preparation to occur within the shared kitchen facilities which are to be provided within the building.
7. Overall, I find that the real and substantive purpose of the proposal is to provide residential accommodation on the site, of a type involving the letting of individual private rooms (which include a private bathroom and courtyard) and the provision of shared facilities to tenants of those rooms, including a shared kitchen, living and dining area, laundry, car parking and open space.

How is the use to be categorised under the scheme?

1. Having made findings as to what the evidence indicates the real and substantive use of the site will be, I now need to determine how that proposed use fits into the land use terms utilised by the scheme.
2. Clause 74 of the scheme provides definitions of the land use terms used by the scheme.
3. There are a range of land use terms used by the scheme which relate to accommodation uses. The main land use terms which were raised by the parties as being potentially relevant were:
   • Boarding house
   • Residential building
   • Dwelling
4. Council's primary position is that the proposal should be categorised as a 'boarding house' or 'residential building', owing to it providing multiple units of accommodation. The respondents also generally made submissions to the effect that the proposal should be categorised as a boarding house or other similar type of accommodation.
5. In the alternative, the Council submitted that the proposal should be categorised as multiple 'dwellings'.
6. The applicant says that the proposal falls within the definition of a single 'dwelling'.
7. I consider the applicability of each of these terms below.

1. While 'boarding house' is a land use term set out in clause 74, no definition of this term is provided in clause 74. Accordingly, clause 74 provides that it has its ordinary meaning.
2. The terms 'boarding house' and 'lodging' are defined by the Macquarie Dictionary (online) as:

1. a dwelling in which lodging is provided to paying residents who share common facilities such as a kitchen, laundry, living room, etc.

2. a dwelling, usually a private house, in which board and lodging are provided for payment.

1. accommodation in a house, especially in rooms for hire: to furnish board and lodging.

3. (plural) a room or rooms hired for residence in another's house.

1. The terms 'rooming house' and 'lodging house' are also commonly used somewhat interchangeably with 'boarding house'. These other terms are similarly defined by the Macquarie Dictionary (online) as:

a house in which lodgings are let, especially a house other than an inn, hotel, or hostel.

1. As it can be seen from the above definitions, the term 'boarding house' generally involves the provision of individual room/s within a house to a paying resident, with sharing of common facilities such as kitchens, living spaces and laundries. It may also include the provision of board (i.e. daily meals) but not necessarily so. While the tenure may be a temporary one, the definition also clearly includes letting of the room to a person as their place of residence.
2. I find the proposal to fall squarely within the ambit of the common meaning of the term 'boarding house'. I have found on the facts before me that the substantive purpose of the proposal involves the letting of individual rooms within a building, with residents sharing a kitchen, dining/living area, a laundry as well as outdoor spaces. This use comfortably fits within the ambit of the definition of 'boarding house' set out above.

1. Clause 74 provides that the term 'boarding house' is included in the broader land use term of 'residential building'. This means that, having found the proposal to be a 'boarding house', it is also covered by the land use term 'residential building' as defined by the scheme.
2. Other types of accommodation which are specifically included within the term residential building are backpackers' lodge, hostel, nurses' home, residential aged care facility, residential college, and residential hotel.
3. The term 'residential building' itself is defined by clause 74 as meaning:

Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm, residential village or retirement village.

1. I do not consider the proposal is appropriately categorised as any of the uses that are expressly excluded from the definition of 'residential building'. The only one of these excluded uses which is potentially applicable to the proposal is that of 'dwelling'. However, for the reasons I explain below, I do not consider the proposal to be a 'dwelling'.
2. The meaning of the term 'residential building' has been discussed in various cases, including the decision of Deputy President Gibson in Armato v Hepburn Shire[2], where she said:

The common characteristic of all the land use terms included in 'residential building' is that accommodation is provided for multiple people individually. In other words, there are multiple units of accommodation available within the single building or complex of buildings comprising the particular type of residential building. However, in the case of a single house (or flat or apartment etc) there is only one unit of accommodation even though more than one person may be accommodated. The important distinction is that people accommodated would be accommodated as a group rather than individuals.

1. I consider that the proposed use also is a comfortable fit within this broader land use definition of 'residential building'. It is an accommodation use and shares the common characteristic identified in Armato of other land uses that fall under the umbrella of this broad land use term, in that the accommodation will be provided for multiple people individually.
2. Given that clause 74 says that a 'boarding house' is included within the meaning of the term 'residential building', that the proposed use also comfortably fits within the clause 74 definition of 'residential building' gives me comfort that my conclusion about the categorisation of the proposal as a 'boarding house' is an appropriate one.

A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling.

1. Many Tribunal decisions have noted that the above definition of dwelling involves two limbs, namely:
   • the presence of the four nominated facilities; and
   • a building which is used as a 'self-contained residence'.
2. In this case, there is no doubt that both the proposed building as a whole and each individual room to be offered for separate lease contain the latter two of the nominated facilities (i.e. a shower, closet pan and wash basin).
3. The proposed common kitchen will provide the other two facilities (i.e. a kitchen sink and food preparation facilities).
4. However, as I have already explained, I do not consider that the facts before me suggest that the proposal includes food preparation facilities to be provided within each room. Each room contains a bathroom, and a single, relatively small space which contains a small wardrobe and a bench with a sink. The proposal does not involve the provision of any equipment for cooking or otherwise preparing food within the rooms. Rather, there is a clear intent by the applicant, expressed both by Mr Lu in his evidence and expressed through the design of the proposal, for the residents to rely upon the shared kitchen for their food preparation needs.
5. While I agree with Council that there is the capability for food preparation facilities to be provided within each individual room, it is not the capability of a premises to be used for a certain purpose which is determinative of its use. Consistent with other cases of the Tribunal referred to at the hearing,[3] it is the actual or proposed use which is determinative. In this case I have found this to not involve food preparation facilities within each individual tenancy.
6. In relation to the meaning of 'used as a self-contained residence' this is discussed in a number of decisions including that of Deputy President Dwyer in Banyule CC v Girbau [2007] VCAT 2251, who said:

...what constitutes a "self-contained residence" and what constitutes "use". As to the first of these and, again, using the Macquarie Dictionary (4th Edition) as a guide:

• a "residence" connotes a degree of permanence......
• "self-contained", in the context of a residence means a house or flat having its own kitchen, bedroom and toilet (ie not sharing any of these). A "kitchen" is commonly regarded as a room equipped for or appropriated for cooking, and "cooking" involves the preparation of food by heat - for example, boiling, baking, roasting, etc.

1. In the proposal before me, the tenancies are relatively long term. There are no facts which suggest that the tenants will be using the proposal as anything other than their principal place of residence during their time there.
2. The residents will also be provided with a form of self-contained accommodation, with access to a kitchen, bedroom and bathroom. However, these facilities are not all within rooms leased to the residents. This is unlike the situation, say, in a block of flats, where each flat within the building contains its own kitchen, bedroom and toilet, although residents may also share facilities such as open space, laundries and car parking areas.
3. In other words, and to draw on the above distinction between a dwelling and a residential building set out in Armato, the proposal before me does not involve a building to be used as a single unit or as multiple units of self-contained accommodation. Rather, what is proposed are multiple units of accommodation, none of which are self-contained, together with shared facilities.
4. For this reason, I do not consider the proposal to be properly categorised as a 'dwelling' or multiple 'dwellings'. While the building itself has all of the physical features of a dwelling, this alone does not mean that it is a dwelling. As stated by Deputy President Gibson in City of Casey v Kelly [2004] VCAT 1838:

It is important to recognise that the definition of dwelling is a definition based on the way that a development is used, i.e it must be a building used as a self-contained residence. Whilst the building must contain certain facilities, such as a kitchen sink etc, these facilities do not of themselves determine whether a building is a dwelling. A building may contain all these facilities and still not be used as a self-contained residence.

1. It follows from the above that I do not consider the proposed building is being used as a self-contained residence. Rather, it is being used to provide multiple separate tenancies, which do not provide the tenants with a residence which is self-contained. It is for this reason that I find that the type of accommodation proposed is not appropriately categorised as either a single dwelling or as multiple dwellings.

The decision of Modo Project Builders v Frankston CC [2017] VCAT 390

1. My findings above are at odds with those of the Tribunal in Modo Project Builders v Frankston CC [2017] VCAT 390. In that case the Tribunal found the proposal before it to be properly categorised as a single dwelling.
2. The applicant says that the facts before the Tribunal in Modo were 'on all fours' with the facts before me and that I should therefore give the decision of the Tribunal in Modo substantial weight. I agree with the applicant that the facts in both cases are substantively similar. The building in both cases is similarly designed by the same project builders, with a very similar room and common area layout. The main difference in the design of the two proposals is that in Modo, the accommodation units were arranged over two storeys, rather than in a single storey layout. I consider these differences in this instance to be immaterial to the question of how the use is to be categorised.
3. I also agree with the applicant that certainty and reliability are essential elements of the Tribunal's decision making processes. While I am not bound to follow past decisions of the Tribunal, I agree with the applicant that I should not overturn a previous Tribunal decision without a sound basis.
4. However, I am of the view that this is an instance where there is a sound basis for departing from a previous decision of the Tribunal.
5. This is in part because I am of the view that the Tribunal in Modo does not appear to have considered the meaning of the terms 'self-contained residence' with reference to the past cases to which I have referred that have considered that term. Rather, the Tribunal in Modo appears to have approached the land use categorisation task by starting with a consideration of the different term 'self-contained accommodation' which is used in a different part of the scheme (in clause 52.23), as interpreted by the Supreme Court in Knox City Council v Tulcany Pty Ltd [2004] VSC 375.[4]
6. As I will explain further below, clause 52.23 is an exemption provision which relates to shared housing. It is not a provision which sets out land use definitions, and in my view, it is not the starting point for determining how a land use is to be categorised under clause 74 of the scheme.
7. Rather, the starting point for categorising a proposed use of land is an analysis of the facts to determine the real and substantive purpose of the use.[5] Following this is a consideration of the way in which the use fits within the land use terms defined by clause 74 of the scheme. It is by using this starting point and approach that I have reached the conclusions that I have as to the categorisation of the proposal.
8. The other main reason I consider it appropriate to depart from the decision of the Tribunal in Modo is because while the Tribunal in that case recognised that the proposal was likely to be commonly described as a boarding house, the Tribunal did not appear to consider whether the proposal should in fact be categorised as a 'boarding house'.
9. At paragraph 43 the Tribunal in Modo accepted:

...that many passers-by may not describe the proposal, when built, as a dwelling. In common parlance, it is more likely to be described as a boarding house.

1. As stated by Justice Morris (as he then was) in National Lifestyle Villages Pty Ltd v Wyndham CC[6]:

...a term can be defined to have a meaning completely unrelated to its natural meaning. But the planning scheme, which is a document to be used by non-lawyers, does not generally adopt that approach. Rather it tends to use terms that are commonly used in the community, even though the natural meaning might be adjusted by a definition....

1. The approach I have adopted in categorising the proposed use has lead me to conclude that it is a 'boarding house' not a 'dwelling'. This is an outcome which both I and the Tribunal in Modo agree to be one which is consistent with 'common parlance'.
2. In light of the above comments of Justice Morris, I consider this outcome to indicate my approach to be the preferable one.
3. In these circumstances, I consider there to be a sound basis for departing from the decision of the Tribunal in Modo.

1. The site is within a Neighbourhood Residential Zone, Schedule 2 (NRZ2) under the scheme.
2. A residential building (which includes a boarding house) is a 'section 2 use' for which a permit is required under the zone.
3. However, clause 52.23 of the scheme provides an exemption for certain small scale accommodation uses from the need to obtain a permit for that use. This exemption provides:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any dependants or 2 or more people if the building meets all of the following requirements:

• Is in an area or zone which is used mainly for housing.
• Provides self contained accommodation.
• Does not have more than 10 habitable rooms.

1. In my view this exemption is applicable to the proposed use in this instance as:
   • The site is within an established residential area. It is also within NRZ2 the purposes of which support the provision of housing.
   • The proposed building provides all of the facilities which would ordinarily lead to accommodation being considered to be self-contained, including bathrooms and kitchen facilities for the residents.
   • The proposed building has less than 10 habitable rooms.
2. My conclusions in respect of dot points one and three are relatively uncontentious and were not the subject of contrary submission by any party.
3. On the question of whether the building provides 'self-contained accommodation', it is here that the findings of the Supreme Court in Knox City Council v Tulcany Ptd Ltd & Ors [2004] VSC 375 are of importance. The Supreme Court in this case was considering an appeal against a decision of the Tribunal to grant a permit for the use and development of land for two boarding houses, as well as related enforcement proceedings. One of the grounds of appeal before the Court in that case, was whether the Tribunal had correctly construed the exemption set out in clause 52.23.
4. While ultimately the Court considered it unnecessary for it to address this ground, it still set out its conclusions on whether the requirement for a building to provide of 'self-contained accommodation' to obtain the benefit of the exemption meant that:
   • (a) each person within the shared housing was to be provided with self-contained accommodation; or
   • (b) the building as a whole must itself provide the self-contained accommodation.
5. The Court, adopting a contextual approach, preferred (b) and outlined four considerations which supported its view that it was the building as a whole that must provide the self-contained accommodation. These were:
   • The purpose reflected in the policy provisions of the planning scheme;
   • The sense of parallel provisions relating to crisis accommodation and community care unit;
   • The history of the predecessors to the provision; and
   • The consequences of the alternative construction.
6. While there have been changes to the policy provisions since the time of the Supreme Court decision, none in my view substantially affect the reasoning applied by the Court in Tulcany.
7. I therefore adopt and agree with the view of the Court in Tulcany that the exemption in clause 52.23 applies in circumstances where the building as a whole provides self-contained accommodation.
8. It is clear from my findings as to the facts relating to the proposed use that these circumstances also exist in respect of the proposal.
9. It is for this reason that I consider that the second dot point of the exemption contained in clause 52.23 is met and that the exemption applies to the proposed use.
10. Accordingly, I find that no permit is required for the proposed use of the site for a residential building.
11. I note that I see no contradiction in finding that the proposed use will not provide a 'self-contained residence' but is 'self-contained accommodation'. These are two different terms, used in two different parts of the scheme in quite different contexts. Indeed, the same situation existed in Tulcany, where the Court was considering the applicability of clause 52.23 to a use which was categorised by the Tribunal and not questioned on appeal, as a 'boarding house'.

Permit for construction of a residential building?

1. A permit is also required under the NRZ2 for the construction of a residential building. This is the only potential permit trigger for buildings and works, with neither overlay applying to the site triggering the need for a buildings and works permit in this instance.
2. The applicant submitted that clause 52.23 of the scheme, also exempts the proposal from any requirement of the scheme to obtain a permit for the construction of the residential building, as well as its use.
3. Clause 52.23 commences with the words:

A permit is not required to use a building... (my emphasis).

1. On the face it, therefore, this exemption relates only to any requirement to obtain a permit to use a building for the relevant purposes, not to any requirement to obtain a permit for the development of the building.
2. However, the Tribunal in Department of Human Services v Maribyrnong CC [2008] VCAT 1746, in interpreting clause 52.24, which provides an exemption for community care units which commences with the same words to those of clause 52.23 extracted above, found it provided an exemption in respect of a requirement to obtain a permit both for use and for development.
3. This decision of the Tribunal was followed in Kingston City Council v Wilson [2015] VCAT 88 in respect of a proposed crisis accommodation/ shared accommodation facility.
4. The reasons of the Tribunal in the DHS case clearly indicate that it interpreted clause 52.24 in the way that it did, having regard to State policies then in clause 16.04 of the Victorian Planning Provisions relating to crisis accommodation and community care units.[7]
5. I agree with the conclusion of the Tribunal in Modo, that the policies which led the Tribunal to read the words 'or develop' after 'use' in the commencement of the exemption relating to community care units set out in clause 52.24 of the scheme, do not exist in respect of shared housing.
6. I also do not accept the submissions of the applicant that the policy intent of clause 52.23 is served by interpreting it to exempt both use and development. The history of clause 52.23 is set out in the decision of the Tribunal in Intervarsity Developments Pty Ltd v Frankston CC [2001] VCAT.[8] In essence, this history reveals that clause 52.23 is the current means by which the scheme gives effect to a long standing policy of treating a wide variety of small scale accommodation uses in the same manner as a dwelling, given their similar amenity impact.
7. I accept that clause 52.23 makes it clear that a change to the type of accommodation provided within an existing building is not a matter for planning, where the accommodation remains of a domestic scale.
8. However, I do not accept that clause 52.23 makes it clear that this policy intent should be extended so that it applies to a new building which is to be constructed for the purpose of providing accommodation in the form of a boarding house or residential building. A building which is purpose built as a boarding house is not likely to be of a similar, domestic scale, to that of a dwelling. I need to look no further than the proposal before me to see that this is the case. The building footprint, design and extent of car parking of the proposal are all quite different and generally of a larger scale compared with what I would expect if a single dwelling was proposed.
9. Furthermore, a planning assessment of a development proposal is not only concerned with the outward appearance of a building. It is also concerned with ensuring a reasonable internal amenity outcome for future residents. In a situation where multiple units of accommodation are proposed, there is perhaps a greater need for internal amenity outcomes to be considered. Again, I need to look no further than the proposal before me to see that this is the case. As I will explain below, a substantial part of the hearing and my consideration of this proposal has focused on the issue of achieving a built form that will provide a reasonable level of internal amenity in a boarding house context.
10. It follows from the above that I agree with the conclusion of the Tribunal in Modo, and find that there is no justification for reading the words 'or develop' into the commencement of clause 52.23. Accordingly, I find that a planning permit is required for the development of the site as a residential building under the clause 32.09-6 of the NRZ2.
11. This finding is consistent with the 'notes' set out at the end of clause 52.23 which indicate that clause 52.23 does not exempt the development of land. While I have come to my conclusion independent of these 'notes', I consider that the consistency between my finding and the guidance contained in the 'notes' reinforces my conclusions as to the scope of clause 52.23.

1. A permit is required for the removal of vegetation under both the Significant Landscape Overlay, Schedule 3 which applies to the site and under clause 52.17 of the scheme.
2. This is not a matter which was disputed by any parties, although there was some discussion during the course of the hearing as to the scope of some of the exemptions set out in the SLO3. I discuss this further below.

Permit for alteration of access to a road in a Road Zone Category 1?

1. Clause 52.29 of the scheme requires a planning permit to create or alter access to a road in a Road Zone, Category 1 (RDZ1). Mount Dandenong Road, from which the site takes access, is in a RDZ1
2. In Peninsula Blue v Frankston CC (Revised) (Red Dot) [2015] VCAT 571, the Tribunal found that this requirement extended to any change to the use or development of land that may result in changes to the opportunity for traffic to approach or enter a road in a RDZ1 in terms of the volume, frequency or type of traffic, whether this is more or less than the existing situation.
3. This means that in circumstances like those before me, where a permit is separately required for the development and this will change the volume of traffic accessing a road in a RDZ1, then a permit is required under clause 52.29 even though there is no change to the physical means of current access arrangements in terms of new buildings or works.
4. It follows that I find that a permit is required for the proposal under clause 52.29 of the scheme, to alter access to road in a RDZ1.

1. The applicant requested I make a declaration under section 124 of the Victorian Civil and Administrative Act 1998 to the effect that the only planning permissions required for the proposal were planning permissions for the removal of vegetation and for the alteration of access to a road in a RDZ1.
2. However, I find that the proposal is to be categorised as a boarding house (which is included within the definition of residential building). As a consequence of this finding, a planning permit is required for proposed construction of a residential building under clause 32.09-6 of the scheme.
3. Accordingly, I decline to make the declaration sought by the applicant.

SHOULD A PERMIT FOR THE PROPOSED DEVELOPMENT BE GRANTED?

1. Having found that a permit is required for the development of the site under the NRZ2, I must now consider whether such a permit should be granted. The main issues relevant to my determination of this question are:
   • It the proposal an appropriate response to its built form and policy context?
   • Will the proposal give rise to unacceptable amenity impacts?
   • Does the proposal provide an appropriate level of amenity for its future residents?

It the proposal an appropriate response to its built form and policy context?

1. The site is located on the southern side of Mount Dandenong Road, in an established residential area, around 700 metres walking distance from the edge of the Croydon activity centre. The Croydon train station is located within this activity centre and is around 1.5 kilometres walking distance away.
2. Mount Dandong is an arterial road. Adjacent to the site, it is a four lane road with a wide, heavily vegetated central median. Bus route 380 (Ringwood loop) runs along this part of Mount Dandenong Road, with a stop in close proximity to the site. This bus route provides a link between the site and the Croydon activity centre. It also provides a connection to the Maroondah Hospital which is located around 1.4 kilometres to the west of the site, along Mount Dandenong Road.
3. Residential development in the area is a mix of single detached dwellings, as well as some multi-unit developments which are also predominately detached in nature. Dwellings are predominantly of a single storey scale and of a range of styles and materials, generally with a pitched or gable roof. Allotments generally range from 500-950 square metres, although there are also larger lots, such as the site.
4. The below extract of the zoning map (taken from Mr Hollerich's expert report) generally indicates the existing lot pattern and mix of land uses, with the site in the centre of the extract and highlighted by red dots around its boundary. However, it should be noted that the residentially zoned lot immediately abutting the southern boundary of the site, is part of the public open space reserve to the south of the site which shown as 'PPRZ' and shaded green.

1. In the immediate vicinity of the site:
   • to the north, on the opposite side of Mount Dandenong Road, is conventional residential development and a small local activity centre.
   • abutting the northern boundary of the site, are Nos. 66, 68 and 70 Mount Dandenong Road, which are developed with single dwellings fronting Mount Dandenong Road. The secluded private open space at the rear of those dwellings abuts the site.
   • abutting the eastern boundary of the site is Nos. 2, 4, 6 and 8 Glenwood Drive, which are also developed with single dwellings. The dwellings on those lots are generally oriented so that the rear private open space of these dwellings and outbuildings within those rear yards are adjacent to the site.
   • abutting the southern boundary of the site is a public open space reserve accessed from Glenwood Drive via two relatively narrow points. This reserve contains areas of lawn, trees, and playground equipment. Fencing between the reserve and the site is relatively open, with a low post and wire fence marking the common boundary.
   • abutting the western boundary of the site is No. 58 Mount Dandenong Road. This property is similar to the site in that it is a large battle-axe shaped lot. It is currently developed with a single dwelling located to the rear (south) of the lot, as well as a number of outbuildings. It is accessed from Mount Dandenong Road by a long gravel driveway.

1. As set out above, the site is within the NRZ2 under the scheme. The purposes of the NRZ2 are to:
   • To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • To recognise areas of predominantly single and double storey residential development.
   • To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
   • To allow educational, recreational, religious, community and a limited range of other non residential uses to serve local community needs in appropriate locations.
2. Clause 32.09-1 of the NRZ2 says that a schedule to the zone must contain the neighbourhood, heritage, environment or landscape character objectives of the area. However, none are as yet included within Schedule 2 of the NRZ2.
3. The NRZ2 requires compliance with clause 55 of the scheme, as varied by the Schedule 2 of the NRZ2. Schedule 2 varies a number of the Standards of clause 55, including Standard B17 (side and rear setbacks); Standard B28 (private open space) and Standard B32 (front fence).
4. While the NRZ2 includes requirements as to the maximum building height and the minimum garden area, the proposal does not need to comply with them. This is because the permit application was lodged prior to those requirements being introduced into the scheme, meaning that the transitional provisions of clause 32.09-14 apply to the permit application.
5. The site is also subject to a Significant Landscape Overlay, Schedule 3 (SLO3) and a Design and Development Overlay, Schedule 2. The focus of the DDO2 is on lot density, with requirements for lots to be at least 867 square metres. A permit is only required under the DDO2 for subdivision and, therefore, no permit is required under the DDO2 for the proposal.
6. A permit is required under the SLO3, as well as under clause 52.17, for the removal of vegetation. These provisions, together seek to protect vegetation for its habitat or biodiversity values and for its landscape character values. In addition to the SLO3 and 52.17, there are other policies of the scheme which relate more broadly to the protection of existing vegetation, such as clause 12.04 (as amended by VC 138) and clause 21.10. I discuss the details of the SLO3 and clause 52.17 in more detail below when considering the proposed vegetation removal.
7. I also discuss the requirements clause 52.29 below when considering the proposed vehicle access off Mount Dandenong Road.
8. Policies of clause 52.06 are also relevant in terms of vehicle access and carparking. As clause 52.06 does not specify the number of car parking spaces required for a residential building, the amount of on-site car parking supplied must be to the satisfaction of the responsible authority.
9. In addition to the applicable zones, overlays and other clauses of the scheme which trigger a planning permit, a range of State and local policies are relevant to the proposal.
10. These policies include those which provide general support for the sustainable growth and development of a diverse range of housing, particularly in locations with good access to services, jobs and transport. For example, clause 11.06-2, 11.06-5, 16.01-4 and 21.07 all provide strong support for proposals to increase the type of housing choice available in established areas to meet a range of increasingly diverse housing needs.
11. Local policies of clause 22.10 also have particular guidance for boarding houses and other communal residential accommodation forms, including guidance as to the location and design of such facilities. While this policy is aimed at larger facilities, it is still of relevance to the proposal.
12. While there are also policies aimed at encouraging 'affordable housing' or 'social housing', these are not relevant to the application. This is because the applicant acknowledged that the proposal was not for 'affordable housing' or 'social housing'. Nor do I consider it to be so, there having been no submissions or material provided which satisfy me that it falls within the definitions now contained in section 3AA of the Planning and Environment Act 1987.
13. There are also a range of State and local policies relating to the form of new housing, including those which encourage appropriate, high quality, sustainable, site responsive building design and those which focus on achieving new development which is responsive to the valued character of an area.
14. A number of these policies, such as clauses 21.07 and 21.10 include policies which specifically recognise the value of the Wicklow Hills Ridge on which the site is located. For example, clause 21.10 says in its overview:

Maroondah is physically dominated by two geographical features locally referred to as the Wicklow Hills Ridge and the Loughnan Warranwood Ridge. In the context of the municipality as a residential suburb, these two natural features are primarily characterised by low density subdivision, developed with a variety of housing choices and covered by an extensive canopy of native and exotic vegetation.

1. Detailed neighbourhood character policy is set out in clause 22.02 of the scheme. Policy in this clause seeks to ensure that new development achieves the preferred future character of the relevant area, as well as achieving general development requirements set out in the clause.
2. The site is within neighbourhood character area 18 - Burley Griffin, as shown on the neighbourhood character map included within clause 22.02. The preferred future character of this area is stated by clause 22.02 as:

The preferred future character will be achieved by:

• Ensuring site responsive and low scale building forms tucked into the landscape and surrounded by vegetation.
• Ensuring development in elevated areas or on hill faces is designed with the topography, avoiding excessive excavation and removal of vegetation.
• Encouraging the use of materials and colours found naturally in the local area.
• Encouraging the use of permeable materials within front setbacks.
• Encouraging the planting of indigenous and exotic vegetation, including substantial trees.
• Encouraging open frontage treatments, including the use of vegetation instead of front fencing.

1. The applicant does not say that the proposal comprises affordable housing or social housing, there being no proposal for the site to be managed in this way. Rather, the applicant says that the form of accommodation proposed provides diversity from the other housing stock in the area, which generally comprises single dwellings.
2. I accept that this is the case. The proposal, in providing a residential building in which private rooms are able to be separately rented, is providing a form of accommodation which is different to the more conventional single and multi-unit dwellings around it.
3. The respondents say that this type of accommodation should be located in an activity centre, not in a location such as the site. I agree that the scheme generally directs higher density housing to be focused in and around activity centres. This is the clear intent of policies such as 'objective 6' of clause 21.07 of the scheme which encourages higher density housing to be provided within the Ringwood and Croydon activity centres.
4. However, while activity centres are to be focus of higher density residential development, this does not mean that no housing growth is to be accommodated on sites outside of these activity centres. As such, to the extent that the proposal before me can be considered to be a higher density residential proposal (which I consider to be questionable given the scale of the proposal compared with the size of the site), I do not consider that policy precludes it from being located on the site. There is no policy which suggests that no housing growth is to occur in established residential areas, outside of activity centres. And given its size of over 6,000 square metres and its location opposite a local activity centre, within walking distance to a main activity centre and train station, on a busy arterial road, and with a bus stop only some metres away from its frontage, there can be no real doubt that this is a site well suited to accommodate a greater degree of housing than its existing, relatively modestly sized, single dwelling.
5. The site is also broadly in a location which the policies of clause 22.10 suggest to be appropriate for a boarding house type proposal, being on a main road, within 400 metres of shops and a public transport stop, close to public opens space, and not in a Low Density Residential, Rural or Rural Living Zone. It is also immediately adjacent to public open space and opposite a local commercial centre.
6. However, in my view, what policies such as objective 6 of clause 22.02 do, together with the purpose of the NRZ2, is make it clear that there is no particular policy imperative for additional housing growth to be accommodated on this site which would take precedence over other policy considerations, such as those relating to the retention of vegetation, and to neighbourhood character.
7. I discuss the response of the proposal to neighbourhood character policy below. I discuss the response of the proposal to policies relating to vegetation protection and landscape character later in these reasons, when discussing the proposed vegetation removal. For the reasons that I explain in those parts of my reasons, I find the proposal to be an appropriate response to those policies.
8. It follows from the above and applying principles of integrated decision making outlined in clause 10.01 of the scheme, that I consider the proposal to be an appropriate response to its built form and policy context. In my view, the proposal successfully achieves the call of policy for housing diversity in a way which is respectful of the character of the area and which retains and enhances the significant areas of existing vegetation on the site.

1. Residential buildings are, because of their different use, typically of a somewhat different built form from a private dwelling.
2. This does not mean that this built form cannot occur within an area typically characterised by single dwellings. A proposal does not need to replicate existing built forms in order to appropriately respond to character policy. Rather, what is required is a built form response that pays appropriate respect to what is around it.
3. In my view, this proposal achieves this outcome for the following reasons:
   • Retention of the majority of the site for tree retention/additional landscaping: the footprint of the proposal only occupies a minor part (with approx. 6% site coverage ) of this large site. The remainder of the site (apart from carparking areas, accessways and the like) is set aside for use as a substantial common area which wraps around the proposal. The retention of existing canopy trees and other vegetation is a strong feature of policy for this area and I consider the way in which the proposal delivers on this intent to weigh significantly in its favour.
   • Presentation to the public reserve to the rear of the site: the proposal is well set back from the public park to the rear (around 30 metres). A substantial amount of existing vegetation is to be retained in the space between the building and the park. To the extent that it is visible at all through this vegetation, the significant setback will ensure that the proposed building will not in any way be viewed as a dominant built form element to users of the park.
   • Setback from adjoining residential properties: the proposed built form is substantially set back from the residential properties to its north and east (around at least 20 metres). It is set back less to its western side boundary by around 5 metres. In the context of a total boundary length of around 121 metres, I do not consider a single storey building coming within 5 metres of the boundary for a length of around 8.5 metres, to indicate a proposal which is inconsistent with a preferred low scale character. Nor is it inconsistent with what is evident on other sites in the area where side boundary setbacks are often significantly less. This 5 metre setback is ample space within which landscaping can be established to enhance the presentation of this interface. The proposed setback to the car parking area is less. Mr Hollerich suggested that this can be readily increased to allow for additional landscaping. I agree and have required this by way of permit condition.
   • Presentation to streetscape: the proposed low key gravel driveway, surrounded by retained canopy trees is a good fit with the low scale and vegetated character of the area. I initially had some concerns about the location of the car parking and private courtyards toward Mount Dandenong Road, in front of the proposed building. However, I am now satisfied that it is acceptable. This is because my inspection of the site confirmed what was also the view of Mr Hollerich, that the battle-axe nature of the site means that this aspect of the proposal will be largely invisible from Mount Dandenong Road. To the extent that any part of the proposed building and carpark are visible from Mount Dandenong Road, the removal of the two courtyards in front of the common area, and the additional landscaping that I am requiring by way of permit condition (as explained further below) will ensure an appropriate response to the streetscape. In addition, I have imposed permit conditions requiring plans to specify details of mail and utility services which are also sympathetic to character outcomes.
   • Respectful scale: the proposal is of a scale which is similar to that around it and is consistent with the purposes of the NRZ2. Its single storey scale enables it to be tucked into the site so that it is largely hidden from the public realm, with the highest parts of the building sitting well below the canopy of the trees retained on the site around it. The proposal is also respectful of the low density character of the area, as protected by the DDO2 and clause 22.02. I agree with the submissions of Council and the respondents that the proposal, as a boarding house involves a building footprint, design and extent of car parking which are different and generally of a larger scale compared with what I would expect if a single dwelling was proposed. However, I am satisfied that this built form is able to be accommodated in this particular case while ensuring policies calling for a low scale and vegetated character are achieved, given the size of the site, the retention of the majority of the existing vegetation on the site, the siting of the proposal within the site so that it is virtually invisible from the public realm, the setbacks from adjoining residential properties and the opportunities for additional landscaping.
   • Materials and finishes: while Council and respondents were critical of the use of colourbond cladding, I agree with the applicant that this is a material which is evident in the area and that its use in this instance, given the limited views which are available of the built form is acceptable. I agree with Mr Hollerich's evidence that the colour of this cladding should be changed so that it is a more natural colour which will assist it to blend into the site, and have required this by way of permit condition.

Will the proposal give rise to unacceptable amenity impacts?

1. The proposal complies with all Standards of clause 55 of the scheme (as varied by the NRZ2) relating to external amenity, including those relating to setbacks and noise.
2. The scale and substantial setbacks of the proposed building from its northern and eastern boundaries of around at least 20 metres, well exceed the Standard B17 setbacks and mean that the proposed built form will be generally unable to be seen from adjoining properties.
3. As such, I am satisfied that the proposed built form will not give rise to unreasonable amenity impacts to those properties.
4. While the setbacks to the western boundary of the site are less, the proposed building is still set back at least 5 metres from this boundary. This comfortably achieves Standard B17 setbacks, as varied by the NRZ2. It is also in my view, a sufficient space within which the retained landscaping can be enhanced by proposed landscaping to soften views of the proposal, noting that the existing western boundary fence is of post and wire. In addition, this 5 metre setback occurs adjacent to the top of the existing driveway and a cluster of sheds on the adjoining property to the west. This existing development will to some extent obscure views of the proposal from this site.
5. While the proposal will be likely to result in additional vehicle access into the site, the proposal remains of a residential scale. The resulting level of traffic is therefore, in my view, also of a scale which is reasonable within this residential context.
6. While the proposed car parking area is shown on the plans as being set back less than 5 metres from the western boundary of the site, I agree with the evidence of Mr Hollerich, that this setback should be increased to provide better opportunity for landscaping. I have included a permit condition requiring the carpark to be setback at least 2 metres from the western boundary, which is consistent with the policies set out in clause 22.10 of the scheme relating to residential accommodation.
7. It follows from the above that I am satisfied that the proposed development will not give rise to any unreasonable external amenity impacts.

1. The respondents raised various concerns which were largely focused upon impacts that they consider will arise as a result of the use of the site for the type of residential accommodation proposed. These included fears about the noise and behaviour of the future residents of the site, which they say will not only impact their residential amenity, but will also give rise to safety issues in the neighbourhood, including users of the public reserve to the rear of the site.
2. These are all concerns which relate to the proposed use of the site for a residential building. They are not matters which arise from the proposed development, which I have already explained is well setback from all boundaries and complies with all relevant standards relating to external amenity.
3. In circumstances where no planning permit is required under the scheme for a proposed use, these matters are not before me. In any event, the scheme does not contain policies seeking to regulate the behaviour of individuals within a domestic scale residential development.

Does the proposal provide an appropriate level of amenity for its future residents?

1. There are aspects of the proposal which I consider weigh in its favour in terms of the level of amenity provided to its future residents. These include the substantial common grounds surrounding the building which will provide a pleasant setting, particularly when this existing landscaping is enhanced by maintenance and with new plantings as a result of implementation of permit conditions.
2. In addition, the private rooms are dual aspect, allowing for cross ventilation and good access to daylight. They also open onto a small, north facing courtyards which provide each private room with around 15 square metres of usable secluded private open space.
3. However, there are other aspects of the internal amenity of the proposal in which I consider the proposal to fall short of acceptable standards of design, as supported by general policies within the scheme (eg. clauses 15.01 and 22.10). These are:
   • Inadequate communal kitchen/living space: Mr Hollerich suggested that the proposed common room be enlarged so that it also included the room shown as 'room 4' on the plans. He also suggested that permit conditions require appropriate facilities to be provided in this room, such as appropriate kitchen space (including adequate cooking facilities and refrigeration), sufficient lockable storage space, and a communal lounge area. In addition, he said that showers currently shown on the plans should be deleted. I agree with these recommendations and have included appropriate permit conditions to achieve them.
   • Design details to ensure accessibility: In answer to my questions, Mr Hollerich agreed that the ambition of the disabled unit should be realised by ensuring that doors to it, the common room and the laundry are wide enough to be accessed by person with limited mobility. In addition, outdoor paths providing access along the south of the building and from the disabled car parking space should be sealed and of an appropriate grade. I also consider it appropriate for the path to the proposed seating area within the common open space shown on the landscape plan to be paved to allow any resident with limited mobility some access into the common grounds. I agree with these suggestions and have included appropriate permit conditions to achieve these outcomes.
   • Increased internal storage within rooms: Mr Hollerich suggested that benches and cupboards in rooms to be extended into the areas where fridges and ovens had been deleted by the amended plans to avoid wasted space and to provide some internal storage space. I agree and also consider it appropriate to include a condition which prevents the installation of food preparation facilities within the private rooms. These rooms are small in size and I have only considered the proposal to provide an acceptable level of internal amenity based upon residents having access to and use of the proposed shared common kitchen and living area. I consider it appropriate for these matters to be confirmed by permit conditions.
   • Weather protection over the access to the shared areas: In answer to my questions, Mr Hollerich agreed that residential amenity could be improved by requiring a verandah type roof over the pathway along the south of the building, so that residents have reasonable protection from the weather when accessing shared areas. Again, I have required this by way of permit condition.
   • Sense of address: I had concerns about the presentation of the proposal for residents as they approach the building along the common driveway. When they do so, the building is somewhat obscured behind the carparking area and fencing of the individual courtyards. Also northern access to the private rooms is through pathways between the fencing for the courtyards, which limits the sense of identity of each room. This sense of address is improved somewhat with Mr Hollerich's recommendation for the loss of the courtyards in front of rooms 4 and 5, which together will comprise the enlarged common room. It would be further improved by landscaping in front of, or creepers on the outside of the courtyard fences and also in front of the common room. While the net result is still in my view less than ideal, I consider it acceptable in this particular instance as it has no impact beyond the site and is impact on internal amenity is not so great as to result in the overall internal amenity for the residents being unacceptable.
4. It follows from the above that I consider the proposal to provide an appropriate level of internal amenity for its future residents, subject to the modifications I have required by way of permit condition.

1. As explained above, a permit is required under both the Significant Landscape Overlay, Schedule 3 (SLO3) and clause 52.17 of the scheme for the removal of certain vegetation on the site.
2. There are differences in the policy focus of these two triggers and also in the type of vegetation which requires a planning permit for removal under each of these clauses.
3. I consider the proposed vegetation removal to be appropriate under both the SLO3 and clause 52.17 for the reasons outlined below.

1. A permit is required under clause 52.17 of the scheme for the removal of native vegetation, unless one of the exemptions set out in that clause applies.
2. Clause 52.17 was amended by Amendment VC 138 on 12 December 2017. However, transitional provisions in clause 52.17-6 mean that for this application, clause 52.17 as it was immediately prior to Amendment VC 138 is to be applied.
3. The policy focus of clause 52.17 (as at 12 December 2017) is on the protection of native vegetation for its biodiversity values, with its purpose being:

To ensure permitted clearing of native vegetation results in no net loss in the contribution made by native vegetation to Victoria's biodiversity. This is achieved through the following approach:

• Avoid the removal of native vegetation that makes a significant contribution to Victoria's biodiversity.
• Minimise impacts on Victoria's biodiversity from the removal of native vegetation.
• Where native vegetation is permitted to be removed, ensure that an offset is provided in a manner that makes a contribution to Victoria's biodiversity that is equivalent to the contribution made by the native vegetation to be removed.

To manage native vegetation to minimise land and water degradation.

To manage native vegetation near buildings to reduce the threat to life and property from bushfire.

1. The expert evidence of Mr Lane set out details of the proposed native vegetation removal which requires a permit under clause 52.17 (as at 12 December 2017), namely 0.044 hectares of native vegetation and four scattered trees.
2. In response to questions from the Tribunal, Mr Lane also gave evidence as to the likely impact of the earthworks required to level the site on native vegetation outside of the footprint that he had assessed. His conclusion was that while there was the potential for these earthworks to impact on a small number of trees, he considered that any such impact could be avoided by minor adjustments to the plans. This could involve a slight change to the proposed ground level of the building, a small bringing forward of the building footprint, or a combination of the two. I have sought to ensure that earthworks do not cause the loss of any additional trees, by imposing a permit condition which requires measures to achieve this being detailed in the required tree management plan.
3. Council says that the applicant has not appropriately minimised the extent of vegetation removal. It also says that the proposal should be relocated so that it is within the footprint of the existing dwelling on the site. Council also was of the view that the development footprint could be minimised by a double story, rather than single storey proposal. The respondents also raise concerns about the loss of vegetation, and its impact on amenity and habitat values.
4. Mr Lane gave evidence on whether he considered the proposal appropriately avoided and minimised the extent of proposed vegetation removal. He confirmed that his opinion was informed both by the policies of clause 52.17 (as at 12 December 2017 prior to Amendment C138) and also by the current clause 12 of the scheme (ie as amended by VC 138 on 12 December 2017). The current clause 12.01 provides policy support for a three step approach which first seeks to avoid vegetation removal, then to minimise the removal which cannot be avoided, and finally for appropriate offsetting of the vegetation which is removed.
5. Mr Lane said that he considered the proposal achieved policies requiring proposals to avoid and then minimise the extent of native vegetation removal as for a number of reasons, including:
   • relocation of the proposal so that it was within the footprint of the existing dwelling would require a greater extent of vegetation removal, including as a result of extending the driveway to this part of the site and as a result of the greater extent of earthworks required on this steeper part of the site.
   • relocation of the proposal to within the footprint of the existing dwelling would also bring the development closer to 'tree 23' and also isolate this tree from other vegetation. Tree 23 is a Green Scentbark (Eucalyptus fulgens) and is considered by both Mr Lane and Council's ecologist to be a high value and rare species.
6. I accept that evidence of Mr Lane that the proposal has appropriately avoided and minimised the extent of native vegetation. The proposal is located on a relatively flat part of a generally sloping site, across the footprint of existing outbuildings, on a part of the site which has relatively small amounts of lower quality native vegetation and with relatively low site coverage, leaving the bulk of the site available for the retention of existing native vegetation and the planting of new indigenous vegetation.
7. I also accept the unchallenged evidence of Mr Lane as to the offsets required for that vegetation which is to be removed. Permit conditions will ensure that these offsets are secured prior to any vegetation removal occurring.
8. It follows from the above, that I find that a permit should be granted for the proposed native vegetation removal under clause 52.17 of the scheme.

1. A permit is also required under the Significant Landscape Overlay, Schedule 3 for the removal of vegetation, except for vegetation described in exemptions in the head clause and schedule of the SLO3.
2. The SLO3 applies to the Wicklow Hills Ridge and Loughnan Warranwood Ridge Landscape Protection Act. It has somewhat different policy objectives to clause 52.17 in that it not only seeks to protect vegetation for its habitat value, but also for its landscape character values.
3. The SLO3 contains the following statement of the nature and key elements of the landscape:

Canopy trees are the main element of the urban character of Maroondah. Canopy trees in particular soften the impact of buildings in the environment and provide a distinct leafy character to Maroondah.

The continuous nature of the canopy vegetation throughout the ridgelines of Maroondah provides a strong character element and is much valued by the community. The canopy vegetation is a defining element of the ridgelines of Maroondah.

Contiguous canopy vegetation contributes to the maintenance of biodiversity through the provision of wildlife movement corridors, habitat and shelter areas.

1. The landscape character objectives of the SLO3 are:

To conserve the existing pattern of vegetation, landscape quality and ecosystems within the area and encourage the re-generation of vegetation.

To maintain a dense vegetation canopy that contributes to the environmental significance of the area.

To control or minimise the effect of future development upon natural features, particularly canopy trees and ridgelines.

To ensure that the development, use and management of land is compatible with the existing character and landscape protection of the area.

To maintain the overall scenic beauty of the municipality.

What tree removal requires a permit under the SLO?

1. Some of the vegetation proposed to be removed, requires a permit under both the SLO3 and also under clause 52.17. However, other vegetation proposed to be removed only requires a permit under the SLO3.
2. There was some discussion at the hearing about whether the trees that Mr Lane had identified as requiring a permit for removal under the SLO3 included trees which were under 5 metres, irrespective of the circumference of their trunk at a height of 1 metre from the ground. There was also discussion as to whether such trees fell within an exemption which is almost identical to one recently considered by the Tribunal in Ausgood Development Pty Ltd v Whitehorse CC [2018] VCAT 690.
3. Subsequent to Mr Lane giving evidence, the applicant advised me that Mr Lane had adopted an interpretation of the SLO3 exemptions which was consistent with that of the Tribunal in Ausgood. However, the applicant also advised me that it appeared that Mr Lane had erroneously omitted four trees which should have been referenced in his list of trees for which a permit is required under the SLO3 for their proposed removal. Mr Lane had, however, considered the removal of three of these trees under clause 52.17. The applicant advised that the fourth tree which was omitted was an introduced Privet.
4. This subsequent advice of the applicant was provided in the form of a letter from a senior ecologist employed by the same company as Mr Lane. As such, I do not give it the weight of expert evidence. However, I still accept that the evidence of Mr Lane, together with this further letter, is a reliable account of the vegetation on the site which requires permission under the SLO3 for removal. Based on this account, 22 trees on the site require a permit under the SLO3 for removal.

Is the proposed vegetation removal appropriate under the SLO3?

1. Mr Lane gave evidence to the effect that the proposed vegetation removal was appropriate under the SLO3 in so far as its habitat objectives. Ten of the trees protected by the SLO3 and proposed to be removed are exotic species or environmental weeds. While the size of this vegetation means that a permit for its removal is required under the SLO3, in terms of habitat values, Mr Lane considered its removal to be a positive. This is because he considered removal of non-indigenous vegetation, particularly environmental weeds, to provide greater opportunity for indigenous vegetation of higher habitat values to establish, both within and outside of the site. Of the native trees to be removed, Mr Lane considered them to generally be of lower ecological value, compared with other vegetation which is proposed to be retained on the site.
2. Mr Hollerich gave evidence as to the character implications of the proposed vegetation removal. He also considered the removal to be appropriate, having regard to the nature of the vegetation to be removed, the extent of vegetation to be retained and the enhancement to canopy cover which would occur in the longer term as a result of the implementation of the proposed landscape plan. He considered that there was room for additional vegetation to be planted on the site, in addition to that already set out in the proposed landscape plan, which could further enhance the character of the area.
3. There is no doubt that the overall policy context provides strong support for the retention of vegetation, particularly canopy trees of habitat value on this site.
4. I accept the evidence of both Mr Lane and Mr Hollerich that this has been achieved in this instance, including by the low site coverage of the proposal allowing the retention of much of the existing vegetation on the site, avoiding the removal of the most significant native vegetation on the site, removal of some of the weed species found on the site and the enhancement of the existing vegetation on the site via the implementation of the proposed landscape plan.
5. In terms of the opportunity for additional planting noted by Mr Hollerich, I agree that additional planting in some parts of the site should occur to ensure that the strong policy focus of the scheme on ensuring canopy tree coverage is achieved. In particular, I consider this to be appropriate along the proposed driveway and along the western boundary of the site in the area where Mr Hollerich has recommended the greater setting back of the car park. This will enhance views of the site from Mount Dandenong Road, and also from properties to the west of the site. I have therefore required this by way of permit condition.

1. As explained above, a permit is required for the proposal under clause 52.29 of the scheme. VicRoads has no objection to the proposal subject to the inclusion of certain conditions, which I have included on the permit. On this basis, I am satisfied that the proposal should be granted a permit under clause 52.29 of the scheme.
2. I have also considered the broader arrangements for vehicle access and car parking and consider them to be acceptable. The proposal provides room for at least 8 spaces of at least 3 x 4.9 metres in front of the courtyards of rooms 2-9, accessed of an accessway at least 5.2 metres in width. This is more than sufficient to a space for each resident of the eight private rooms (including one disabled space) as well as space at the end of the car parking area for vehicles to turn so as to exit the site in a forward direction. In order to ensure that carparking is appropriately provided on-site on amended plans to be submitted to comply with conditions of the permit, I have included a permit condition which requires details of the carparking layout (designed to comply with the requirements of clause 52.06 of the scheme) to be shown on the plans.

1. There is a restrictive covenant on the title of the land which limits its development. However, I agree with the view expressed by the Council officer who assessed the proposal that this covenant is not applicable to the proposal. This is because the aspects of the covenant which limit development on lots of less than 1 acre do not apply, given that the site is larger than this.
2. Other aspects of the covenant require any dwelling constructed on the site to be of a certain value and have construction supervised by a registered architect. For the reasons I have already explained, I do not consider the proposal to be a 'dwelling' either using the definition of the planning scheme or the ordinary meaning of the term. Given this, I do not consider those aspects of the covenant to be applicable. However, even if I was wrong about this I do not consider the grant of the permit would result in a breach of the covenant, as the value of the proposal is above the amount specified in the covenant and the question of who will supervise the construction of a building is not a matter which is governed by the planning permit in any way. The appointment of a supervisor for construction is something that occurs outside of and separate to the planning process.

1. Without prejudice permit conditions were circulated by Council and discussed at the hearing. I have included conditions on the permit which are generally consistent with this discussion and also with my above findings. While the applicant asked for amendment of conditions about waste management plans to be amended, I have retained the requirement for plans about the cleaning and maintenance of bin storage areas to be provided to Council (minus a requirement for ventilation given this area is outdoors) so that it is clear to Council who is responsible for this in the context of final tenancy arrangements.

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

• Construction of a residential building (boarding house);
• Removal of vegetation; and
• Alteration of access to a road in a Road Zone, Category 1.

1. Before any buildings and works start, 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 three copies must be provided. The plans must be generally in accordance with the amended plans dated 12th September 2017 prepared by Modo Project Buildings, numbered sheets 1-7, issue number C, but modified to show:
   • (a) Space set aside for landscaping around the entry to the building which separates the building from the driveway/carpark and enhances the building's sense of entry.
   • (b) Any other changes to the proposal layout as required to allow the effective implementation of the Landscape Management Plan required by Condition No 2 (including changes to ensure retained vegetation is not adversely affected by earthworks).
   • (c) Modifications to the common room to include the following:
     1. Deletion of shower facilities.
     2. Enlargement of the common room so that it also occupies the floorspace of room 4 (i.e. the common room is to be a single room approximately double the size of the other, private rooms contained within the building)
     3. Provision of sufficient kitchen facilities, including sufficient number of cook tops, refrigeration, sink space and lockable storage to cater for the occupants of the 8 private rooms.
     4. Provision of sufficient seating for dining to cater for the occupants of the 8 private rooms.
     5. Provision of a communal recreation space (lounge area) sufficient to cater for the occupants of the 8 private rooms.
   • (d) Provision of 8 private rooms, in addition to the enlarged common room (i.e. a total of 9 habitable rooms, with 8 private rooms and one room providing shared kitchen and lounge facilities), with no cooking facilities to be provided within the private rooms
   • (e) Deletion of the two enclosed courtyards in front of the enlarged common room and provision of an open frontage and entry to delineate the common room from the private rooms, including areas for landscaping as per Condition No 1(a).
   • (f) Modification to the 8 private rooms to extend the benches within those rooms so that they cover the full distance between the two adjacent walls, providing additional areas of storage.
   • (g) A verandah providing weather protection to residents along the pathway abutting the south of the building.
   • (h) Cladding of the building to be of a muted tone and natural colour;
   • (i) Reasonable accessibility for a resident with limited mobility, including doors to the shared facilities (kitchen, lounge and laundry) and to the relevant private room to be of at least 900mm in width, and pathways along the south of the building, between the building and the disabled car parking space, and within the common open space to be of an appropriate grade and surface.
   • (j) Increased setback of the carpark from the western boundary to at least 2 metres.
   • (k) Details of the modified car parking area and accessways, which must include one car parking space for each of the 8 private rooms (including one disabled space), and be designed to comply with clause 52.06 of the Maroondah Planning Scheme.
   • (l) North accurately depicted.
   • (m) Details of the proposed mailbox and utility services, with a location and design which is appropriately screened from the streetscape.
   • (n) No enlargement of the building or car parking area, with all changes to the plans to be accommodated generally within the same development footprint, and with no reduction in the setback of the development to the western boundary.

1. Before the development starts, including any removal or destruction of vegetation, a Landscape Management Plan, to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Landscape Management Plan will be endorsed and will then form part of the permit. The Landscape Management Plan must be prepared with input from an expert in native vegetation management and an expert in landscape design and management and shall include:
   • (a) A Site Survey and Layout Plan which clearly and accurately shows:
     1. All areas of native vegetation as identified in the Flora and Native Vegetation Impact Assessment (Report no. 15077 [1.0], Brett Lane and Associates, September 2015), and clearly indicating the areas of native vegetation that will be removed and that which will be retained.
     2. All existing canopy trees on or near to the land, each identified with their corresponding ID number, and clearly indicating those trees which are to be removed and those which are to be retained in a manner consistent with the report of Brett Lane and Assoicates dated December 2017 (Report no. 15077 [2.2]) as updated by correspondence provided to the Tribunal from Brett Lane and Associates dated 18 June 2018.
     3. For each tree to be retained, plot their corresponding Tree Protection Zones (TPZ) and Structural Root Zone (SRZ).
     4. All existing and proposed buildings, including sheds, fences and pavements/pathways, clearly indicating which of these buildings is to be retained, removed or to be constructed.
     5. A construction zone which encompasses the full extent of works associated with development of new buildings and demolition of existing buildings, including any earthworks and service installations.
     6. Areas which will be established prior to development, and maintained during development, for vehicle access and parking, delivery and storage of materials, management of waste, and any other functions ancillary to construction activity.
   • (b) A Detailed Landscape Plan, addressing Maroondah City Council's Landscape Plan Guidelines and generally with the landscape plan prepared by John Patrick Landscape Architects Pty Ltd, numbered TP01 and dated December 2017, which will show landscape treatments around the new buildings and carpark, and in areas where buildings have been demolished. The landscaping must provide a sympathetic interface between areas of development and uses associated with development (such car parking and passive recreation) and the areas of retained native vegetation, including scattered trees. The landscaping must include additional landscaping in the following parts of the site:
     1. Along the front part of the site, along the driveway;
     2. Along the western boundary, adjacent to the car park;
     3. In front of the common room and entry of the site; and
     4. On the external side of the courtyard fences (e.g. creepers) to soften the appearance of those fences from the car park.
   • (c) A Tree and Vegetation Protection Plan/Schedule which will prescribe actions that will protect retained native vegetation and trees during any development works on the land, including protection of trees to be retained during and as a consequence of earthworks.
   • (d) A Native Vegetation Management Plan/Schedule which will apply to all areas of identified native vegetation (and surrounding areas as appropriate), and will prescribe actions for the ongoing management of vegetation, including the management of dead or fallen trees/logs, eradication of weed species and recruitment of new plants, to conserve and enhance native vegetation quality in these areas.
   • (e) A General Landscape Maintenance Plan/Schedule which will prescribe establishment and maintenance procedures for landscaping shown on the Detailed Landscape Plan, as well as maintenance procedures for other areas of the site which are not subject to the Native Vegetation Management Plan/Schedule.

1. Before the development starts, a waste management plan must be provided to the satisfaction of the responsible authority. The waste management plan must be prepared by a suitable qualified person and must include the following information:
   • (a) Indication of the preferred collection provider; Council or, private collection company details;
   • (b) Estimated generation rates showing that all occupiers will be sufficiently catered for with the proposed number of garbage, recycling and where required; garden organic bins;
   • (c) Estimated generation rates showing that all occupiers will be sufficiently catered for with the proposed collection process for hard waste;
   • (d) Plans which show the storage location for both the bins and hard waste, as well as plans which show the size and type of the bins to be used by the site;
   • (e) Cleaning and maintenance plans for bin storage areas;
   • (f) Details of the waste collection point(s), including plans which show the collection location;
   • (g) Details of education plan to ensure ongoing information provided to new residents on how to use waste system;
   • (h) Details of receptacles/storage for in-the-home to account for at least one day's waste;
   • (i) Details of how waste will be transferred to collection point;
   • (j) Details of the hours and frequency of collection;
   • (k) Provision of a risk and hazard analysis to ensure potential risks to both residents and waste collectors are minimised; and
   • (l) For an on-site collection, provision of a swept path analysis of the truck movements including details of the size and type of proposed waste collection vehicle.

1. The development as shown on the endorsed plans, including the internal layout (both of private and common rooms/areas), must not be altered without the written consent of the Responsible Authority.
2. Without limiting the general nature of condition 4, the development must not at any time be altered so as to:
   • (a) provide food preparation facilities within any private room; or
   • (b) alter the common room in a manner which would mean that it no longer provided shared food preparation, dining and lounge facilities for residents,

without the written consent of the Responsible Authority.

1. Before any building or works start, construction plans for all parking areas and access lanes must be submitted to and approved by the Responsible Authority. The construction plans must be consistent with the endorsed site layout, development plans and landscaping plans.

1. Before the use starts or the development is occupied (whichever occur first), the area(s) set aside for the parking of vehicles and access lanes as shown on the approved plan must be surfaced and drained to the nominated legal point of discharge, all to the satisfaction of the Responsible Authority.

1. Before the development is occupied, the owner must at its cost construct a concrete vehicular crossing at right angles to the road to suit the proposed driveway to the satisfaction of the Responsible Authority. The vehicle crossing must be a minimum 1.0 m offset from any existing tree or utility service assets.
   • (a) Construction Plans for Drainage Required
   • (b) Before any building or works start, drainage plans including calculations prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Drainage Plans must:
   • (c) Show all drainage works associated with the development including any drainage works required beyond the boundaries of the land;
   • (d) Show the nominated legal point of discharge;
   • (e) Convey stormwater runoff by means of underground drains to the nominated legal point of discharge.
   • (f) Prevent overland flows from having a detrimental effect on the environment or adjoining properties;
   • (g) Limit the permissible Site Discharge (PSD) to the equivalent of a 35% impervious site coverage, or the pre-developed discharge rate, if it is less than 35% impervious site coverage, to the satisfaction of the Responsible Authority; and
   • (h) Provide appropriate stormwater detention storage for a 10 Year ARI storm event to limit the maximum discharge rate to the PSD;

1. Before any building or works start, drainage plans including calculations prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Drainage Plans must:
   • (a) Show all drainage works associated with the development including any drainage works required beyond the boundaries of the land;
   • (b) Show the nominated legal point of discharge;
   • (c) Convey stormwater runoff by means of underground drains to the nominated legal point of discharge.
   • (d) Prevent overland flows from having a detrimental effect on the environment or adjoining properties;
   • (e) Limit the permissible site discharge (PSD) to the equivalent of a 35% impervious site coverage, or the pre-developed discharge rate, if it is less than 35% impervious site coverage, to the satisfaction of the Responsible Authority; and
   • (f) Provide appropriate stormwater detention storage for a 10 Year ARI storm even to limit the maximum discharge rate to the PSD.

1. Before the development is occupied, the drainage and associated works shown on the Drainage Plans must be constructed in accordance with those plans to the satisfaction of the Responsible Authority. Within 14 Days of the completion of the works, certification by a suitably qualified engineer must be submitted to the Responsible Authority certifying that works have been completed in accordance with the Drainage Plans.

1. During the construction of the development, methods to control sediment laden runoff as described under 'Best Practice Environmental Management Guidelines for Urban Stormwater' or similar must be implemented and used to minimise sediment laden runoff and stormwater pollution from leaving the land to the satisfaction of the Responsible Authority

Vegetation Offsets secured prior to vegetation removal

1. Before native vegetation is removed, the permit holder must secure a General Offset equivalent to 0.010 General Biodiversity Equivalence Units in an offset site within the boundaries of the Port Phillip and Westernport CMA and which holds a minimum strategic biodiversity score of 0.080, in order to offset the vegetation approved for removal.
2. The permit holder may satisfy their offset obligations through:
   • (a) Establishment of a first party offset site where suitable land owned by the applicant is secured for the retention and management of native vegetation, or
   • (b) Establishment of a third party offset site by agreement with the owner of suitable land that their land be secured for the retention and management of native vegetation, or
   • (c) Purchase of third party offset credits through the Victorian Native Vegetation Credit Register.
3. Evidence of the appropriate offset having been secured must be provided to Council, as the Responsible Authority, prior to vegetation removal commencing.

Implementation of Landscape Management Plan, including tree and vegetation protection, prior to development works

1. Before any other development works commence, the approved Landscape Management Plan, including any Plan or Schedule contained within, shall be implemented and shall thereafter be adhered to, to the satisfaction of the Responsible Authority. Tree and vegetation protection must be established as a priority.

Installation of Landscaping prior to occupancy/use

1. Before the development is occupied or the land use starts, landscaping works shown on the Detailed Landscape Plan must be installed to the satisfaction of the Responsible Authority.

1. All areas of the land shall be maintained in accordance with the relevant plan/schedule of the endorsed Landscape Management Plan, to the satisfaction of the Responsible Authority.

1. The crossover and driveway are to be constructed to the satisfaction of the Responsible Authority and at no cost to the Roads Corporation prior to the occupation of the works hereby approved.
2. Prior to the occupation of the buildings or works hereby approved, the driveways, crossovers and associated works must be provided and available for use and be:
   • (a) Formed to such levels and drained so that they can be used in accordance with the plan.
   • (b) Treated with an all-weather seal or some other durable surface.
   • (c) Driveways must be maintained in a fit and proper state so as not to compromise the ability of vehicles to enter and exit the site in a safe manner or compromise operational efficiency of the road or public safety (e.g. by spilling gravel onto the roadway)..
3. All vehicles must enter and exit the site in a forward direction at all times.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two years of the date of this permit; or
   • (b) the development is not completed within four years of the date of this permit.

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

[1] 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.

[2] [2007] VCAT 603, at paragraph 16.

[3] Bayside CC v Girbau [2007] VCAT 2251; Cotsonis v Darebin City Council [2005] VCAT 232.

[4] The appeal was brought in respect of a Tribunal decision to grant a permit for the use of land for the proposed use as a 'boarding house'. However, the appeal did not challenge the Tribunal's categorisation of the use as a 'boarding house', and this was therefore not an issue considered by the Court.

[5] See eg. National Lifestyle Villages Pty Ltd v Wyndham CC [2006] VCAT 798; Cascone v City of Whittlesea (1993) 11 AATR 175.

[7] See eg paragraphs 19-22 of that decision.

[8] Noting that while the conclusions reached in that case are now inconsistent with the subsequent case of Knox City Council v Tulcany Pty Ltd [2004] VSC 375, the summary of the history of the provisions has not been questioned.