Clause 42.03-2 and section 3.0 of schedule 4 to clause 42.03 Significant Landscape Overlay

1. Before the development starts, amended plans (three copies) must be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted and assessed with the application but modified to show:

(a) Any requirements of Melbourne Water (Conditions 5 - 12).

(b) The front facade to incorporate the use of contemporary design features as additional articulation across each level of the lift shaft.

(c) Any retaining walls/fencing along the south-eastern boundary from the building line to Kingston Avenue to be a maximum of 1.2 metres in height, with the remainder of the fence height/retaining wall shown as 1.8 metres. A new gate must be provided where the 1.8 metre high wall/fence starts to secure the rear yard of the dwelling (similar to the gate shown on north-western side).

(d) Details of any retaining walls on the elevation plans.

(e) A schedule of all external material and finishes. The schedule must show the material, colour (including colour samples) and finishes of all external walls, roof, fascias, windows frames, fences and paving.

Once approved these plans become the endorsed plans of this permit.

1. The layout of the site and/or the size of the proposed or existing buildings and the internal layout of the buildings as shown on the endorsed plan/s shall not be altered or modified except with the written consent of the Responsible Authority.
2. Prior to the issue of an Occupancy Permit, all retaining walls and boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
3. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.

1. The dwelling must be constructed with finished floor levels a minimum of 600mm above the applicable flood level.
2. No fill or development is to occur below the 3.35 metre contour to the Maribyrnong River (except for the pool and pontoon).
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
4. Prior to works commencing, the applicant must submit a Site Environmental Management Plan (SEMP) to Melbourne Water for approval. The SEMP must outline the location and design of all measures including the following:

(a) Silt fencing

(b) Spoil stockpiling

(c) Machinery/Plant Location

(d) Access tracks

1. Prior to the issue of a Certificate of Occupancy, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
2. The pontoon structure must be maintained in a good, safe and tidy condition, to the satisfaction of Melbourne Water.
3. Removal of any litter or waterborne debris trapped by the pontoon structure is the responsibility of the licensee/resident/landowner. Such cleared material is to be removed from the waterway and its surrounds.
4. The pontoon must not be altered unless with the prior written consent of Melbourne Water.

1. Provision must be made for the drainage of the land including landscaped and pavement areas. The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the Responsible Authority.
2. All stormwater runoff from the development is to drain via an underground drainage system and discharge to Melbourne Water Drain/Creek to the satisfaction of Melbourne Water. An application to Melbourne Water seeking consent will need to be made.
3. Before the development starts, or any trees or vegetation removed, a landscape plan (three copies) prepared by a suitably qualified person or firm shall be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:

(a) Plans to accord with Condition 1 of this permit.

(b) The planting required is to be in accordance with the species list of the Maribyrnong River Interface Urban Design Guidelines 1991, Appendix 1.

(c) The provision of landscaping to the satisfaction of Melbourne Water for the interface with the Maribyrnong River.

(d) A planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant.

(e) The use of drought tolerant species.

(f) Features such as paths, paving and accessways.

(g) The provision of at least one canopy tree within the front setback, which are able to achieve a minimum mature height of 4 metres.

Once approved these plans become the endorsed plans of this permit. Landscaping in accordance with this approved plan and schedule shall be completed before the building is occupied. After completion of the landscaping it must be maintained in good order to the satisfaction of the Responsible Authority.

1. No later than three (3) months after the date on which an amended planning permit is issued to allow the use and development of a pontoon, the owner/s of the land must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 (Vic), which provides for the following:

(a) The terms on which the owner is authorised to use the pontoon on the land including that the owner:

1. must maintain and repair the pontoon, at its own cost;
2. must ensure that the pontoon at all times complies with all laws, permits, and approvals;
3. assumes full responsibility for all risk associated with the pontoon and indemnifies and releases Council from any risk in respect of the construction and use of, or damage to, the pontoon; and
4. if the pontoon is damaged or destroyed to the extent that it can no longer be used, the owner must not rebuild or replace the pontoon.

(b) Within 30 days after Council issues a Notice of Intent to Acquire the part of the land affected by the public acquisition overlay (PAO2), the owner must:

1. remove the pontoon (and any support structures) from the property, at the owner's full cost;
2. reinstate the land to the satisfaction of Council.

(c) In the event that the owner fails to remove the pontoon and support structures or fails to reinstate the land to the satisfaction of Council within 30 days after Council issues a Notice of Intent to Acquire the affected land, Council may remove the pontoon and support structures and reinstate the land at the Owner's cost.

(d) That the Owner must not make any claim against Council for compensation, reimbursement or any other payment in connection with or arising from the grant of the amended permit, the Section 173 Agreement or the removal of the pontoon under condition 16(b) (whether under the Planning and Environment Act 1987 (Vic), the Land Acquisition and Compensation Act 1986 (Vic), the Local Government Act 2020 (Vic) or any other law).

The owner must cover all costs relating to the preparation and registration of the agreement (including costs incurred by the Responsible Authority). The Section 173 Agreement must be registered in accordance with the provisions of Section 181 of the Planning and Environment Act 1987 (Vic).

1. No compensation is payable by Council to the owner of the land under Part 5 of the Planning and Environment Act 1987 (Vic) in relation to the amended planning permit that allows for the use and development of the pontoon.
2. The pontoon must only be used for private purposes and in association with the occupiers of 23 Kingston Avenue, Ascot Vale.
3. This permit will expire if:-

(a) the development does not start within two (2) years of the date of issue of this permit, or

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

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Pursuant to Section 61(2) of the Planning and Environment Act 1987 (Vic), the responsible authority must now refuse to grant an amended planning permit.

[3] Ground of refusal #4 refers to 'works' however section 3 of the Planning and Environment Act 1987 (Vic) specifies that the definition of building includes, amongst other things, a boat or pontoon which is permanently moored or fixed to land.

[4] [2004] VCAT 927 at [13] to [29].

[5] Lofts Quarries v Kingston City Council & Ors (1997/56470; 1997/80103).

[10] McCarthy v Glen Eira CC [2004] VCAT 927 at [16] and Lewenbery v City of Stonnington (1997/88586).

[13] McCarthy v Glen Eira CC [2004] VCAT 927 at [28].

[14] I note that no party provided any evidence or documentation that address potential impact that pontoon will have upon land valuation.

[15] Council particularly relies upon policy within the Design and Development Overlay (Schedule 2), Significant Landscape Overlay (Schedule 4) and clause 12.03-1S.