Application under section 79 of the Planning and Environment Act 1987 (Vic) - to review the failure to grant a permit within the prescribed time[1]

Neighbourhood Residential Zone - Schedule 7, Incremental Change - Garden Suburban ('NRZ7')

Clause 32.09-7 (construct two or more dwellings on a lot in NRZ7)

The subject land is a vacant lot situated on the west side of Fourth Avenue in Chelsea Heights. It has a 15.24 metre frontage and an area of 696 square metres. Surrounding land supports a mix of single dwellings and multi-dwelling developments.

1. Reasons for this decision were given orally. The responsible authority subsequently requested written reasons. In accordance with that request, following are the oral reasons in written form, with minor editing.
2. This is an application to the Tribunal for a review of the failure of the Kingston City Council to grant a planning permit for the construction of two, two-storey attached dwellings on land at 10 Fourth Avenue in Chelsea Heights.
3. Subsequent to the lodgement of the application, council determined to refuse the planning permit application on grounds which relate to the impact of a proposed vehicle crossover on a street tree. In summary, the construction of the crossover will require, or result in, the removal of the street tree. This is an outcome which council does not support.
4. Details of the site, its surrounds and the proposal were provided in council's submission. I will not repeat them here, other than to provide a brief summary.
5. The subject land is a vacant lot with a 15.24 metre frontage and a site area of 696 square metres. It is situated in an established residential area characterised by a mix of single dwellings and multi-dwelling developments. The proposal is to construct two dwellings in a side-by-side arrangement, necessitating the construction of two vehicle crossovers to provide access to the respective garages.
6. The land is within the Neighbourhood Residential Zone, Schedule 7. Pursuant to clause 32.09-7, a permit is required to construct two or more dwellings on a lot. A development must meet the requirements of clause 55. Relevant provisions in this instance include clause 55.02-1 (Neighbourhood character objectives) and clause 55.03-9 (Access objective).
7. A mature, red flowering gum street tree exists in the nature strip at the front of the subject land. According to the evidence, the tree has an 8.0 metre height and a 9.0 metre canopy width. It is assessed as being of good health, with an average structure, a 'medium' arboricultural value and a safe useful life expectancy of 10-20 years.
8. The vehicle crossover for proposed Dwelling 2 is to be located proximate to this tree.
9. A root excavation and investigation was undertaken to determine the likely impact the crossover would have on the tree, as detailed in a report prepared by Constructive Arboriculture dated August 2024. According to that report 'the root excavation revealed significant root activity from the tree within the proposed areas of construction (crossover)'. Roots included a main buttress root with a width of 180mm. A further six roots with widths ranging between 20mm and 50mm were also present. The report concluded that its findings and assessment demonstrate the tree's retention cannot be facilitated within the context of the proposed construction without detriment to its health and further detriment to its stability. Additional comments contained in the report were that, due to the tree's poor structure and declining and limited retention viability, the tree's removal is considered prudent and proactive, and was recommended.
10. The evidence presented at the hearing is that the tree:
    • is in fair health with manageable structural issues
    • may benefit from minor pruning off the property line, but there is no arboricultural basis for its removal in the absence of development
    • has amenity value and remains a valuable public asset
    • is a viable, biologically healthy specimen
    • is of fair health with no signs of decline
    • has an average to poor structure due to asymmetric canopy with low scaffold branching.
11. According to the evidence, cutting the structural roots to construct the crossover while attempting to retain the tree is not recommended as it would create an unacceptable structural and safety risk. The evidence is that the tree is incompatible with the development in its current form due to the proposed crossover.
12. Council referred to policies, objectives and strategies within the Planning Scheme which address the protection and enhancement of landscape character, submitting that this includes the retention of street trees. The objectives of clause 55.02-1 are to ensure the design respects the existing neighbourhood character and that development responds to the features of the site and the surrounding area.
13. Council submitted that the street tree forms part of the existing neighbourhood character, and it is a feature of the surrounding area to which the development should respond. Reference was made to clauses 02.02, 02.03 and 15.01, which address environmental and landscape values, and neighbourhood character.
14. In particular, clause 15.01-1L-04 'Landscape design - Kingston' is a policy which applies to residential development assessable by clause 55. The objective is to ensure development maximises opportunities for landscaping, including trees. A strategy is to promote building siting that enables the retention of street trees.
15. In council's submission, the retention of street tree is consistent with the strategic directions in the Planning Scheme relating to the protection and enhancement of landscape character. It submitted that the tree contributes to the neighbourhood and landscape character of the area.
16. Additionally, council advised that it will not grant the necessary approvals for the construction of the crossover or for the removal of the street. In such circumstances, council considers that it would be futile to grant the planning permit.
17. The applicant submitted that the overhang into the subject land unacceptably constrains the ability to redevelop the property. The applicant considers that, due to its asymmetrical form, the tree does not have amenity value. Further submissions addressed history with council in seeking to address concerns relating to the tree.
18. The objective of clause 55.03-9 is to ensure the number and design of vehicle crossovers respects the neighbourhood character. The application complies with the related standard B14 as the width of the accessways does not exceed 40 per cent of the street frontage. Standard B14, however, is not nominated in clause 55 as one of the standards where, if it is met, the decision guidelines for that standard do not apply to the application. Accordingly, the decision guidelines at clause 55.03-9 apply. A decision guideline which must be considered before deciding on an application is the effect on any significant vegetation on the site and footpath.
19. The submissions, evidence and photographs demonstrate that the street tree is a significant, mature specimen which contributes to the landscape character of the neighbourhood, notwithstanding its asymmetrical form. This is consistent with my observations during a site inspection. The evidence is that it has amenity value and is a valuable public asset. Further, the views expressed by council's Vegetation Management Officer are that the tree is a significant tree that has a high amenity and retention value, and its removal is not supported.
20. The findings of the root investigation, and the evidence, confirm that the tree cannot be retained if the crossover for Dwelling 2 is constructed. The development has not been sited to enable the retention of the street tree and is not consistent with clause 15.01-1L-04. In addition, given the impact of the crossover on the street tree, (being that it necessitates its removal of this significant vegetation) the objective of clause 55.03-9 is not met.
21. Accordingly, council's decision is affirmed. No permit is granted.

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