The order of the Tribunal is that a permit is granted for the construction of a second dwelling and the subdivision of land into 2 lots and the removal of vegetation at 5 Allison Road, Mt Eliza subject to the following conditions:

1 Prior to the submission of a Plan of Subdivision to the Responsible Authority for certification, an amended plan generally in accordance with this application but modified to show appropriate drainage easements to enable the lots to be properly drained. This amended plan must be submitted and approved to the satisfaction of the Responsible Authority and when approved such plan will become the endorsed plan under this permit.

2 The subdivider must provide a reinforced concrete or segmental paving vehicle crossing to each lot with a vehicle crossing permit being obtained from the Responsible Authority prior to the commencement of the works.

3 Prior to the certification of the Plan of Subdivision hereby permitted, the plan must be referred to South East Water, United Energy and Telstra in accordance with Section 8 of the Subdivision Act 1988.

4 Prior to the occupation of the dwelling the owner must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 requiring the installation and ongoing maintenance of the Genus Landscape Architects' landscape plan dated 6/2005 attached to the evidence of Jason Davidson of August 2005 filed in VCAT matter No. P323/2005 to ensure the Landscape Buffer* is maintained between the subject site and 34 Winona Road. The agreement must provide for the replacement from time to time as necessary of vegetation within the Landscape Buffer especially vegetation marked on the landscape plan "Existing Tree to be Retained" with appropriate screening vegetation to the satisfaction of the Responsible Authority.

The agreement must be registered on the certificate of title to the land prior to the occupation of the dwelling commencing. The Responsible Authority's reasonable costs of preparation and lodgement of the Agreement for registration on the certificate of title to the land must be borne by the owner of the land.

For the purposes of this condition *Land Buffer means the triangle of land shown on the landscape plan bounded on the:

1. southern side by the common boundary between lots 1 and 2;

2. eastern side by the west elevation of unit 2 and an imaginary line extended in a straight line (generally north) until the point where the line intersects with the common boundary between 34 Winona Road and the subject land; and

3. west side by the common boundary between 34 Winona Road and the subject land.

5 This permit will expire if the Mornington Peninsula Shire Council has not certified the Plan of Subdivision within 2 years of the date of issue of this permit. The Responsible Authority may allow, in writing, an extension of this permit upon an application being made before or within three (3) months after the expiry date.

6 The subdivider must maintain all of the works detailed in condition 6 below, for a period of three (3) months after practical completion of the works.

7 Prior to the issue of a Statement of Compliance, drainage must be constructed in accordance with plans and specifications approved by the Responsible Authority.

8 Prior to the issue of a Statement of Compliance, the subdivider must pay to the Responsible Authority, the fees as prescribed in Regulation 5 and 6 of the subdivision (Permit and Certification Fees) Regulations 2000 for plan checking and supervision of the works.

9 Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with United Energy for the extension, upgrading or

re-arrangement of the electricity supply to the lots on the plan as required. (A payment to cover the cost of such work will be required).

10 Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with South East Water Limited for the provision of water supply facilities and sewerage facilities. The subdivider must fulfil all requirements to the satisfaction of South East Water.

11 Prior to the issue of a Statement of Compliance, the subdivider must create a restriction of the certified plan, satisfactory to the Responsible Authority, that ensures that any dwelling constructed on Lot 2 resulting from this subdivision is in general accordance with the development plan endorsed as part of Permit P04/1863.

12 Before the development starts, 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 show:

12.1 The deletion of the study area located on the southeast corner of the proposed dwelling.

12.2 A landscape Plan generally in accordance with the plan prepared by Genus Landscape Architects dated 6/2005 and mark revision A, must be submitted to and approved by the Responsible Authority and when approved this plan will become the endorsed plan under this permit. It must include:

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The retention of tree 21 or 18 or the planting of a mature canopy tree in the location of trees 21 & 18.

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A survey of all existing vegetation and features.

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The areas set aside for landscaping.

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A schedule of all proposed trees, shrubs and ground cover, including the location and size at maturity of all plants and their botanical names. This schedule must include a minimum of six (6) eucalypt trees; and

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More than 80% native species to the Mornington Peninsula.

12.3

A Site Plan noting the proposed driveway treated with crushed rock the purpose of which is to reduce the impact on nearby vegetation.

13 The layout of the land, the size and type of the proposed building and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.

14 The materials and colour of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

15 Native vegetation other than on the land shown for the construction of the development as shown on the endorsed plan must not be felled, lopped, topped, ringbarked or otherwise destroyed or removed except with the consent of the Responsible Authority.

16 A tree preservation zone must be erected around all retained trees at the radial distance specified in the report of Arbor Co Pty Ltd prepared by N Withers and dated 29 August 2005(Arborist Report).

17 No construction activity must occur within the tree preservation zone without approval or supervision by a qualified arborist. Any excavation within this zone must be undertaken by hand under the supervision of a qualified arborist. The arborist must approve of and undertake any and all root severance within the tree preservation zone.

18 The recommendations in respect of the dwelling foundations and driveway construction set out in the Arborist Report must be satisfied.

19 Before the initial occupation of the development approved by this permit, landscaping works as shown on the endorsed plans must be completed and then maintained in a healthy condition, to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible. The area set aside for landscaping must be used for no other purpose.

20 If an approved or permitted development is not commenced on the land within two (2) years of the removal of the vegetation, the site must be completely revegetated in accordance with the endorsed landscape plan to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority.

21 A driveway must be provided to the land and surfaced to the satisfaction of the Responsible Authority. It must be completed prior to the initial occupation of the building.

22 All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.

23 This permit will expire if one of the following applies:

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The development is not started within two (2) years of the date of this permit; and

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

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr D. Scally, solicitor appeared for P & C Milner only on 6 July 2005.

Ms B. Hill for Mt Eliza Woodlands Residents Association Inc.

1 This was an application pursuant to s 79 of the Planning and Environment Act 1987 brought by I M Welsh seeking a review of the failure of the Mornington Peninsula Shire Council to determine an application seeking permission for the construction of a second dwelling, subdivision of land into two lots and the removal of vegetation at 5 Allison Road, Mt Eliza.

2 This proceeding was first listed for hearing on 6 July 2005. At the commencement of that hearing Ms Hill on behalf of the Mt Eliza Woodlands Residents Association Inc raised a point of law questioning the validity of the Mornington Peninsula Planning Scheme insofar as amendments had occurred that had affected the interpretation of certain provisions relating to the Design and Development Overlay Schedule 4.

3 Notice of the question of law was not given to the other parties in accordance with the Tribunal's Practice Directions so that the Applicant for Review was able to determine an appropriate response. In addition it was unclear to both the Applicant for Review and the Tribunal exactly what Ms Hill was seeking to have determined and whether it was a matter the Tribunal had any jurisdiction.

4 Mr Jones on behalf of the Applicant for Review submitted that Ms Hill must properly construct the questions of law she wished to be answered so that Mr Jones would know the case he had to answer and prepare submissions.

5 As a consequence it was agreed that the matter be adjourned to a later date and that Ms Hill properly formulate and circulate her questions of law.

6 Ms Hill subsequently advised both the Tribunal and the other parties that she was not pursuing the point of law and the matter could proceed to be dealt with on its merits.

7 Mr Jones on behalf of the Applicant for Review submitted amended plans which effectively reduced the size of the proposed dwelling, set it further back from the north western boundary and made other minor changes for substitution of the application plans. There being no objection to the substitution of amended plans I allowed that substitution to occur.

8 Following the first hearing Mr & Mrs Milner objectors to the original application and located in 34 Winona Road conditionally withdrew their objection subject to the inclusion of a s 173 agreement securing the ongoing maintenance of landscaped area between the proposed new dwelling and their property.

9 The review site is located on the northern side of Allison Road approximately 120m east of Winona Road. The review site has an area of 3162m2 with a frontage of 58.5m and a depth of 89.55m along the eastern boundary and a 122.4m along the western boundary. The review site is irregular in shape with a narrow rear boundary of approximately 11m. The review site rises gently from the frontage to a point of approximately 30m back and then falls gently to the north or rear boundary by approximately 1.6m.

10 The review site is presently developed with a single storey dwelling associated outbuildings and a swimming pool. It is proposed to retain the swimming pool and dwelling and remove the outbuildings located on the eastern boundary.

11 The review site is well vegetated particularly within the front setback to Allison Road and the rear half of the site. Most of the trees within the front setback will be retained and most of the trees in the rear part of the site will also be retained other than those close to the proposed building footprint.

12 The access to the existing dwelling is via a circular driveway and one of the driveways will be used as access to the rear part of the site facilitating access to the proposed new dwelling.

13 To the west of the review site are two properties, 3 Allison Road and 34 Winona Road. 34 Winona Road is located close to the proposed location for the new dwelling and is comprised of a double storey dwelling constructed of brick and timber external walls. That site itself is a battleaxe shape lot with the dwelling located in the rear part of the site.

14 To the east are 7 and 9 Allison Road with 7 Allison Road being a single storey brick dwelling and 9 Allison Road being a double storey brick dwelling. On the south side of Allison Road are 8 and 10 and again developed with single and double storey dwellings respectively.

15 The review site has convenient access from both Nepean Highway and Canadian Bay Road to the west and Moorooduc Highway and Mountain Avenue to the east. The review site also has convenient access to large public open space areas including the Moorooduc Quarry Flora and Fauna Reserve and Mt Eliza Regional Park.

16 The review site and surrounding area are within the area known as Mt Eliza Woodlands Estate which is dominated by tree canopy and an rural/urban feel.

17 The proposal essentially consists of the development of a new single storey dwelling at the rear of the existing dwelling on the site which is to be retained, the subdivision of land into two lots each containing a dwelling and associated vegetation removal.

18 The proposed new dwelling is quite modest in size and built form having a maximum wall height of approximately 3.5m and an overall building height of 5.6m. The proposed building is comprised of three bedrooms and a study and a large kitchen, meals, family, living, dining area. On the northern side of the proposed dwelling is an external deck and the total internal floor area of the proposed dwelling is 190.6m2.

19 In terms of the subdivision two lots will be created one having an area of 1788m2 , being Lot 1, which retains the existing dwelling and swimming pool and the second lot will have an area of 1374m2 and contain the proposed new dwelling. Lot 2 relies on the battleaxe subdivision pattern with vehicular access provided along the eastern boundary utilising the existing concrete crossover and modified driveway alignment at the front of the site.

20 Vegetation removal is in the form of the removal of 12 trees, following an assessment of 35 trees being located close to the building. Of these 12 trees most have been identified as having poor future potential or little or no retention value and are reasonable to remove in order to facilitate the proposed works.

21 The review site and surrounding area are all zoned Residential 1 under the Mornington Peninsula Planning Scheme (MPPS). A permit is required to subdivide the land and develop a dwelling on the second lot. The decision guidelines at Clause 32.01-4 require consideration of State and Local Planning Policy Frameworks together with the provisions of Clauses 55 and 56. Two Overlay controls also apply to this site.

22 A Vegetation Protection Overlay (Township Vegetation Schedule 1) applies to the land. A permit is required to remove vegetation except where a development is otherwise approved.

23 A Design and Development Overlay Schedule 4 - Environmental Design also applies to the land. It has a complex set of provisions relating to new development and subdivision.

24 As the review site is located east of Canadian Bay Road, Mt Eliza no more than two dwellings allowed for every 2600m2 of site area in accordance with the provisions of the DDO4. Design objectives are set out in this Schedule 4 to the Overlay and include:

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To ensure that development densities are compatible with the environmental and infrastructure capacities of the area ...

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To recognise areas, including Mt Eliza, where substantial vegetation cover is a dominant visual and environmental feature of the local area, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space.

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To recognise the landscape character of environmentally sensitive areas ...

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To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared viewlines where reasonable and practical.

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To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.

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To ensure that subdivision proposals will enable new buildings to be integrated with their site and the surrounding area in terms of the relationship to existing buildings, open space and the coastal landscape.

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To recognise areas where a lower intensity of residential activity and traffic movement contributes to the amenity of the area.

Pursuant to DDO4, a permit is required for subdivision. Decision guidelines are set out in the Schedule, in addition to the decision guidelines at Clause 43.02. These decision guidelines have been taken into account by the Tribunal in reaching a determination. The site is not within the Mt Eliza escarpment that has been recognised by the National Trust.

25 A number of other Clauses are relevant to the consideration of this Application, including Clauses 11, 15, 16, 19, 21, Clause 22.13 (township environs local policy) and Clause 65 (general decision guidelines and guidelines relating to subdivision). Melbourne 2030 has also been taken into account by the Tribunal.

26 The Tribunal has taken into account all of the submissions, evidence and material presented at the hearing in determining this application. All of the material is retained on the Tribunal's file.

27 The Tribunal inspected the site, adjacent properties and surrounding area following the hearing to better appreciate the matters raised at the hearing.

28 There is no question that this is a unique part of metropolitan Melbourne. Ms Hill and other objectors, are in the Tribunal's view, genuine in their concern to protect the special qualities of this area.

29 Mr Nicol in a detailed submission on behalf of the Responsible Authority outlined the likely impact of a subdivision in the form proposed. He submitted that there was no urban consolidation imperative to increase the density of development in this location. He submitted the proposed lot size and in particular the lot configuration led to an inappropriate subdivision and development for this area.

30 He further submitted the vegetation removal particularly the removal of canopy trees was inconsistent with the Vegetation Protection Overlay.

31 Mr Jones referred to three expert witnesses and the detailed officer's report to Council which recommended approval of this proposal. Mr Jones conveniently summarised the three key planning issues the Tribunal must assess and I adopt these as being appropriate and as follows:

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Does the proposed subdivision accord with the objectives and decision guidelines for subdivision under Schedule 4 to the Design and Development Overlay?

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Is the location of the proposed dwelling site and environs responsive?

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Is the extent of vegetation removal satisfactory when assessed against the objectives of the Vegetation Protection Overlay Township Vegetation (VPO1)?

32 Senior Member Baird summarised the considerations found within DDO4 in her decision of Trembearth v Mornington Peninsula Shire Council (2004) VCAT 2532 where she stated at paragraphs 27 and 28 as follows:

27 Central to the debate about the subdivision of the land in this case is whether the creation of two lots should be allowed as a matter of principle. The two cases referred to above, on my reading, do not particularly advance the case for any party in the current proceeding as, for example, in Carter, the two lots already existed. I instead refer to my own comments in P430/2003 Forde v Mornington Peninsula Shire Council and others, which I also referred to in P1280/2004 Rowe v Mornington Peninsula Shire Council and others where I made the following findings in relation to the potential for a reduction in lots sizes in the DDO4 area where the Scheme allows such an application to be considered:

I am mindful that the provisions of the Overlay give a discretion for the type of application that is before me to be allowed in the low density area in contrast to other parts of Mt Eliza where the same discretion to approve subdivision to the density proposed in this Application is not available. ....

I accept that there is not a policy imperative to significantly increase densities; the area is recognised as low density and is intended to remain at a low density.

In my view, the proposal can be fairly said to represent low density compared with more conventional suburban development, although it is obvious that when compared with existing lots in the vicinity of the review site it is at a higher density.

That the Scheme allows an application to be made for two dwellings on a land of the size involved here gives weight to the submission made by the Applicant that the proposal would maintain the low density of development, in contrast to areas where more intensive development is allowed. The provisions of the Scheme have been prepared with an awareness of the existing level of service provision in the locality. In addition, they have been formulated with the strategic intent to "Maintain the existing transition area of low- density residential development in Mt Eliza, having regard to its particular environmental, landscape, township character and heritage values" (Clause 21.07). Therefore, the Scheme contemplates the possibility that lot sizes may be reduced and densities increased to the nominated level without undermining its strategic foundation and while recognising the current level of servicing.

Consequently, I am not persuaded that there is a policy basis to adopt the position put in some submissions that there should be no change in relation to lot sizes .......

28 The same principle applies in the current proceeding. I find there to be no basis to depart from the above principle as I understand that the controls and policies are the same. Thus, suitability of subdivision will be determined by considerations such as layout and density and a position of "no change" is not the proper starting point.

33 Senior Member Baird went on to uphold Council's decision to refuse the application. The decision however needs to be distinguished by a number of factors including that the proposal was on the Mt Eliza escarpment, including the removal of substantial native vegetation and the proposal was for two relatively large two storey dwellings. Nevertheless I find that the policy principles set out in the above extract in terms of subdivision and construction of a second dwelling is consistent with the principles I need to adopt for this proposal.

34 In a recent decision of mine in Harms v Mornington Peninsula Review No. P781/2005 I made comments in respect of submissions by Ms Hill on behalf of the Mt Eliza Woodlands Residents Association. Those comments, which I do not intend to repeat, are equally applicable to this application.

35 From a policy perspective the objectives of the DDO4 in my view are satisfied by the proposal because:

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There is no instability or erosion potential for this site.

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The density is not inconsistent with the environmental or infrastructure capacity nor does it alter the local street drainage or sewerage system. The subdivision lot size threshold of two dwellings for every 2600m2 is satisfied in this proposal.

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There is no significant vegetation in the area within which the dwelling is to be constructed and provision for substantial areas of new landscaping are still available within each lot.

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There is no landscape impact on the Mt Eliza escarpment.

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There is no impact on the established streetscape or development pattern given the single storey nature of the proposal and its location behind the existing dwelling and there is certainly no shared vieweline issues resulting from this proposal.

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The siting of the new dwelling away from the sensitive boundaries minimises any visual impact to adjoining properties.

36 The dwelling while located close to the south-eastern boundary is well screened by the existing vegetation located on the adjoining allotment at 7 Allison Road. In addition proposed vegetation within the review site will further soften any visual impact of this proposal.

37 I do however have a concern with the loss of a large canopy tree on this part of the site as view from 7 Allison Rd. This can in my view be adequately best addressed by modification to the building, a matter which I will address later in these reasons.

38 The new dwelling being sited well away from 34 Winona Road and subject to the imposition of the agreed conditions (resulting from the objectors withdrawing their objection) will maintain its rural rustic feel when viewed from Winona Road property. Setbacks are in the order of 6m to 14m along the north-eastern boundary.

39 Again the simple, single storey nature of this dwelling and the materials proposed to be used demonstrate a high level of satisfaction with the general requirements of the DDO4.

40 In terms of subdivision simply because it is possible to subdivide land does not mean subdivision should be approved. As referred to earlier this is a location where all of the infrastructure services are available. Certainly in terms of road capacity the local network would have no trouble in dealing with the extra traffic generated by one additional dwelling. Other services such as water, sewerage and drainage are also readily available to this second dwelling.

41 While the lots proposed to be constructed will be less than 2,500m2 minimum lot size, they will nevertheless still be large enough to facilitate large parts of the site being retained for vegetation purposes. Lot 1, the front lot retains the substantial vegetation in the front setback area that contributes to the streetscape environs. Lot 2 retains substantial vegetation along the northern and western parts of the lot that assist to maintain the canopy vegetation character of the area.

42 Thus, I am satisfied from a policy position the proposal will be satisfactory and achieves the objectives of the DDO4.

43 The site responsiveness of the proposed dwelling and subdivision were debated by both the Responsible Authority and all objectors.

44 Mr Nicol on behalf of the Responsible Authority submitted that the irregular shape of the allotment and the use of a battleaxe shaped allotment together with the loss of vegetation all resulted in a proposal not being site responsive.

45 All of the objectors submitted that the loss of vegetation particularly canopy trees resulted in this development not being site responsive. The objectors were all concerned with the introduction of a second dwelling in this area would lead to a piece by piece destruction of the unique environment within which they lived.

46 On my inspection of the site and the surrounding area it was clear that the two important aspects were; the canopy tree cover experienced from a distant vantage position along roadways and adjoining sites, and secondly the experience of vegetation corridors along the roadway. This latter experience is gained primarily as a result of substantial vegetation within the large frontage setback of dwellings fronting each of the streets.

47 In this proposal that latter character experienced along the frontage will not alter significantly with the development of a second dwelling to the rear. While some minor vegetation will be lost for the modification to the access most of the significant vegetation in the front setback area remains unchanged.

48 Two crossings currently exist on this allotment a pattern which is not uncommon in the area. The location of the new dwelling to the rear of the existing dwelling results in the new dwelling being largely unseen from the street frontage.

49 The loss of vegetation within the site particularly the building footprint will have some minor affect however this is quite insignificant when it is taken in context of a large tree canopy covered area being retained. The modest dwelling size and style and the material used will result in a comfortable blend within the natural environment. In my view an important aspect of this proposal is the loss of canopy trees when viewed from nearby properties particularly 7 Allison Road.

50 On my inspection while it was clear that much of the dwelling would be screened by the existing vegetation and the vegetation proposed as part of this development the loss of canopy vegetation particularly along the

south-eastern side of the proposed dwelling is excessive.

51 The Revision A Landscape Plan submitted by the Applicant for Review originally included the retention of Tree No. 21. This is a large canopy tree of some 14m in height located close to Tree 18. While Mr Withers had some reservations with Tree 21 as it had recently shed a major scaffold limb on its eastern side and identified poor attachment elsewhere, from my perspective the retention of a canopy tree in this location is an important factor as the removal of canopy trees is most apparent in this part of the site. I am confident that with the deletion of the study from the design of the proposed dwelling and any necessary treatment to Tree 21 then it can be retained as it indicated on Revision A Landscape Plan. Alternatively it may be that Tree 18 be retained with suitable treatment or if neither of these options is available then a new advanced indigenous canopy tree be planted within the vicinity of Trees 18 and 20 still requiring the deletion of the study area.

52 In my view the retention of a canopy tree in the above location will enhance the overall canopy vegetation of the site particularly when viewed from a distant location and more importantly when viewed close by from 7 Allison Road.

53 Some discussion took place around the access way vegetation and the need to relocate some of the services attached to the existing dwelling. I am satisfied that this can easily be achieved and it is not a matter which would lead me to refuse the application.

54 The existence of a number of other battleaxe shaped allotments in the immediate area is evident from the aerial photo and a drive around the area demonstrates this is not an unusual lot configuration. Importantly, the battleaxe approach in this area maintains the single dwelling fronting the street and the large vegetated front setback area and leads to a minimal interruption to the existing streetscape. Thus, I am satisfied the proposal is satisfactory from a site responsive design perspective.

55 The review site is covered by a Vegetation Protection Overlay. It is unnecessary for me to set out the details of the control suffice to say its principle is about ensuring the subdivision and development proposals have proper regard to the landscape character of township areas.

56 Mr Withers carried out a thorough analysis of the trees affected by the proposal. He submitted that of the 35 trees within proximity of the development 23 trees or 68% were both suitable for retention and could be retained. Twelve trees recommended for removal included Trees 8, 11, 14, 21 and 35 which are outside the building envelope and Trees 1, 12, 15, 16, 17, 18 and 23 which are located within the building footprint. Of these 12 trees only three trees 8, 15 and 17 have a life expectancy greater than five years. The remaining trees have poor life expectancies or little to no retention value.

57 Mr Withers acknowledged a large number of trees are retained on other parts of the site both within the front setback area and to the north and northwest of the proposed dwelling.

58 In addition, the evidence of Mr Davidson, Landscape Architect, was that the landscape vegetation would result in an enhancement to the site's vegetation. I have previously commented on the short and long distant visual impact of vegetation particularly canopy trees. I am confident with the retention of Trees 18 or 21 (through the deletion of the study) that the canopy cover of the area will be maintained and that the objectives of the VPO1 will be achieved.

59 Issues of amenity impacts were discussed and I find there are no unreasonable amenity impacts that occur to adjoining properties that could not be readily rectified by a condition on permit. No unreasonable overshadowing or visual impacts occur as a consequence of this proposal.

60 Concerns were also expressed in respect of any precedent that may be set as a consequence of approval of this application. As I commented in Harms decision mentioned previously and I adopt in this case the following extract from paragraphs 39 to 41 as follows:

39 Mr Nicol and in particular all of the resident objectors raised the concern of the precedent the approval of this development may give rise. In the first instance this Tribunal is not bound by the rules of precedent. Each case must be decided on its merits.

40 Secondly, the Tribunal must take the planning scheme provisions and planning law as it finds it on the day it makes its decision. In this instance discretion is clearly available and can be exercised to permit or refuse a second dwelling.

41 Thirdly, a perusal of the Tribunal cases tabled at the hearing in my view clearly demonstrates that the Tribunal does look at each case on its merits and determines matters accordingly. As such in some instances where appropriate the Tribunal has directed the grant of a permit and in other instances where it considers it inappropriate it directs the refusal of the permit.

61 Finally, I wish to comment on Mr Jones' submission to me that a permit was only required under the VPO provision for trees outside the building footprint and an exemption applied to the trees within the building footprint. While this is not a matter relevant to my decision as I have considered the vegetation removal both within and outside the building footprint, I believe that the VPO1 provisions do apply to trees within the building footprint unless a building permit has been issued. No evidence was presented to me that such a permit had in fact been issued.

62 Subject to the modification of the building and the retention or replacement of the canopy tree as outlined above, I propose to direct the grant of a permit subject to conditions.