The application proposes the removal of all vegetation from the site, save for Trees 18 and 21, which I have described above.
The schedule to the Vegetation Protection Overlay Schedule 1 ('VPO1') contains vegetation protection objectives which include:
To recognise areas where substantial vegetation cover is the dominant visual and environmental feature.
To ensure that subdivision and development proposals have proper regard to the landscape character of township areas.
To ensure that new development has proper regard for the established landscape, streetscape and development pattern in terms of being consistent with the existing balance between vegetation and building form in the local area and contributing to the landscape character of the area.
To ensure that any removal of natural vegetation and works associated with development in environmentally sensitive areas, including streamline areas, is carried out with proper regard to the physical characteristics of each site and the local area.
To protect and conserve native vegetation, including grasses and ground flora.
To protect and conserve the habitat value of vegetation within township areas.
To encourage strategic replanting to provide for the long term maintenance of landscape and environmental values within townships.
A planning permit is required to remove Trees 2, 3, 4, 6, 7, 9, 10, 19, 20 and 22 from the site under the provisions of VPO1. Prior to deciding on an application the schedule requires consideration of the following decision guidelines:
The vegetation protection objectives of this schedule.
The value of the native vegetation to be removed in terms of its habitat, landscape and environmental values, age, physical condition, rarity or variety.
The need for a report, by a properly qualified person and to the satisfaction of the responsible authority, on the vegetation and habitat significance of the vegetation to be removed.
Whether there is any reasonable alternative means of siting buildings and works in order to conserve the native vegetation of the area.
The benefit of conditions requiring planting, replanting and other treatment of the land, having regard to the relationship between buildings and the landscape and the maintenance, where possible, of shared view lines.
The need for replacement vegetation to be of an appropriate species and to exclude environmental weeds.
Whilst requiring a permit for the removal of some exotic species, the VPO1 has a particular focus on native[2] and indigenous trees. Tree 3 (a 14 metre Manna Gum), Tree 4 (10 metre Southern Mahogany), Tree 9 (5 metre Southern Mahogany) and Tree 10 (5 metre Bracelet Honey Myrtle) are either Victorian native trees or indigenous. The arborist report has identified Tree 3 as having medium retention value, and the others as low.
The arborist assessed Tree 3 has having a useful life expectancy of less than 5 years to 15 years due to trunk decay. The arborist calculated that the works would encroach within the 5.6% Tree Protection Zone of the tree. Whilst the works could be undertaken without removing the tree, the arborist recommended that the tree be removed due to its short life expectancy.
The delegate report provided by Council indicates that the trees were assessed by Council's senior vegetation officer who did not oppose the removal of the trees. No other arboricultural evidence was provided to the Tribunal.
Given the circumstances I have described above, I find that the removal of the trees, including Tree 3 to be acceptable. However, these trees, particularly the four native trees should be replaced with indigenous species of a similar height to maintain the indigenous tree canopy cover sought to be maintained.
The landscape plan shows the planting of 17 canopy trees including four 12 metre Coastal Banksias, which will be supplemented by a significant amount of lower level planting. Whilst this is generally acceptable, I consider that there is room for a taller species to be planted on the site, and so I have required an amended landscape plan incorporating at least one native canopy tree with up to a height of 14 metres. With this change in place I find that the proposal is an acceptable response to the requirements of the VPO1.
[2]
WILL THE PROPOSAL ALLOW A REASONABLE SHARING OF VIEWS?
[3]
One of the design objectives of the DDO2 is to 'protect shared view lines where reasonable and practical.' DDO2 includes height controls, requiring a planning permit where a wall height exceeds 5.5 metres or a building height of 6 metres. It was common ground that the subject site is not included within an area where a mandatory 8 metre maximum building height applies under DDO2. Therefore, the default maximum height is the 11 metres applied under the General Residential Zone Schedule 1.
The property at 86 Dominion Road currently enjoys views to Port Phillip Bay from a first floor balcony, living room and bedroom windows. These views occur across 84 Dominion Road. The dwelling at 86 Dominion Road has been sited towards the rear of the site on a high point of the site to assist in in obtaining the views to Port Phillip Bay.
Visual evidence was provided to the Tribunal by Andrew Bespalov, ARB Design. Somewhat unusually, his evidence relies on photographs taken by the owner of 84 Dominion Road, rather than photographs taken by himself. This does limit the weight to be given by the Tribunal to the images, as they are less reliable than those entirely prepared by the expert preparing visual images. However, the images are useful in showing the impact of the proposed development on the view. The evidence statement included the floor plan of the upper level of the dwelling as well as a panorama of the existing views from the balcony which I have provided below:
[4]
[5]
Figure 1 - Extract from the evidence statement of Andrew Bespalov.
[6]
[7]
Figure 2 - Extract from the evidence statement of Andrew Bespalov.
[8]
During the hearing the responsible authority and respondent described the existing views as 'glimpses' of Port Phillip Bay. Having inspected the view, I would consider the views to be more substantial than 'glimpses', however the views are interrupted by existing built form and vegetation.
The evidence statement included photo montages which showed the impact of the development on the views across the subject site:
[9]
[10]
Figure 3 - Extract from the evidence statement of Andrew Bespalov.
[11]
[12]
Figure 4 - Extract from the evidence statement of Andrew Bespalov.
[13]
These images reveal that whilst most of the view will be obscured, glimpses to the water will still be possible from the balcony, and in turn from the internal living rooms and bedroom of the dwelling. I find that whilst the views will be reduced, the proposed dwelling will still allow for view sharing, and the height and siting of the proposed dwelling is an acceptable response to the DDO2.
[14]
WILL THE PROPOSAL ADVERSELY AFFECT THE AMENITY OF ADJOINING PROPERTIES THROUGH VISUAL BULK?
[15]
Due to the siting of the property towards the rear of the site, the front of the property at 86 Dominion Road is largely used as a driveway and pedestrian access but is also used for recreation purposes with a swimming pool constructed within the front setback of the property. The land between the dwelling and the western boundary with the subject site is largely used for utilitarian purposes, with a the lad to the rear of the dwelling developed as a garden. The plans show the proposed dwelling in the context of the neighbouring property as follows:
[16]
Figure 4 - Extract from Drawing 3 prepared by DNB Design dated 19 June 2024.
[17]
In terms of visual bulk, the dwelling will not have an unreasonable impact when viewed from the side or rear of the dwelling at 86 Dominion Road. The greatest impact will be observed from the front setback of this property.
[18]
Figure 5 - Extract from Drawing 8 prepared by DNB Design dated 19 June 2024.
[19]
The building has a maximum height of 8.2 metres and has been setback a with a minimum setback of 1.2 meters from the boundary. Whilst this setback is narrow, I find that it will not have an unreasonable impact on the amenity of the adjoining property through visual bulk, as the built form has been articulated through the use of varying heights, materials and roof forms.
The view of the proposed built form will filtered through the existing vegetation on the neighbouring site. Although I am not relying on this vegetation to determine that the proposal is an acceptable outcome in terms of visual bulk, I consider it is important to ensure that this vegetation is protected during construction, particularly given the VPO1 which applies to the site. I consider this aspect of the proposal next.
[20]
WILL THE PROPOSAL ADVERSELY AFFECT THE VEGETATION ON THE ADJOINING PROPERTY?
[21]
The arborist report submitted with the application indicates that the works will encroach within the Tree Protection Zones of some of the vegetation contained within the adjoining property, being Tree 13 (2.54%), Tree 14 (7.96%) and Tree 15 (15.89%).
Australian Standard AS 4970:2025, Trees of development sites ('Australian Standard) defines a minor encroachment as up to 10 per cent within the Notional Root Zone provided it is outside of the Structural Root Zone of the tree. As such I am satisfied that the proposal should not have a detrimental impact on the health of trees 13 and 14.
The Australian Standard considers an encroachment between 10% and 20% as 'moderate'. The standard states that in these circumstances a project arborist shall be engaged to review the proposed impact and undertake any other necessary investigation. Tree 15 would fall into this category.
The arborist describes Tree 15 as a 5 metre Melaleuca ('snow in summer') and notes that approximately 30% of the canopy overhands the subject boundary. The arborist assessed the impact on this tree as:
[22]
High. Proposed garage foundation and storm water expected around the garage will result in a major 15.89% TPZ encroachment. Additionally canopy pruning is expected to provide building clearance.
[23]
A planning permit is required under the VPO1 to conduct these works.
The arborist report goes on to make the following recommendations regarding the tree:
[24]
Engage a suitably qualified arborist (AQF 5 or higher) to carry out canopy pruning in accordance with AS4373-2007 Pruning of amenity trees, and to supervise excavation for the retaining wall and storm water installation within the TPZ. Any exposed roots must be carefully pruned by the arborist in accordance with section 4.5.4 of AS 4970- 2009 Protection of trees on development sites.
[25]
The delegate report indicates that Council's senior vegetation officer agreed with the findings of the arborist report and was satisfied that the tree could be retained, subject to tree protection conditions which were included on the notice of decision. These include:
[26]
All excavation within the Tree Protection Zones (TPZ) of Tree 15 located on the adjoining land, must be undertaken under the direct supervision of a Level 5 qualified Arborist using a method which is non-destructive to tree roots in compliance with Australian Standard AS 4970-2009 Protection of trees on development sites. Any tree roots which require pruning must be cut with a clean sharp cutting implement with a final cut to undamaged wood at an angle which minimises the size of the wound. No tree roots critical to maintaining tree health, structure or viability are to be cut. These tree roots must be retained undamaged and alternative design and construction methods used
[27]
I have retained these conditions as in the absence of any other evidence, I am satisfied that the trees on the adjoining property can be successfully retained.
[28]
Draft conditions were discussed at the hearing, and any changes to the draft conditions reflects those discussions as well as further consideration by the Tribunal. I have included the Tribunal's standard expiry condition and changed the location of proposed condition 17.
[29]
For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.
[30]
Construct a building and construct and carry out works (DDO2)
[31]
Before the developments starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans submitted with the application identified as Amendment TP_B, dated 19 June 2024 but modified to show:
[32]
a) The dwelling located at 86 Dominion Road, Mount Martha to be correctly labelled as double storey.
[33]
The approved development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority (Unless otherwise specified by a condition of this permit, consent is not required for any buildings or works which do not require a planning permit under the Mornington Peninsula Planning Scheme).
[34]
Air conditioning units, heating systems, hot water systems, and other services normal to a dwelling must not be located forward of the dwelling/within the front setback unless otherwise approved in writing by the Responsible Authority. These services must be located and screened to the satisfaction of the Responsible Authority to minimise visual and noise impacts on the surrounding area.
[35]
The materials and colours of the exterior finish of the dwelling additions must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.
Prior to the occupation of the dwelling additions, external finishes must be completed to a professional standard to the satisfaction of the Responsible Authority.
[36]
Prior to the removal of the vegetation the tree must be inspected for signs of habitation by fauna. If wildlife are present when removing vegetation, only a suitably qualified wildlife handler or zoologist can handle wildlife to ensure it is not harmed. If displaced wildlife cannot be relocated on site to an appropriate location away from the construction footprint, or injured wildlife is captured, please contact DEECA on 136 186 for further advice.
[37]
The extent of clearing of vegetation as shown on the endorsed plans must not be altered or modified without the consent of the Responsible Authority.
All disturbed surfaces on the land must be revegetated and stabilised to the satisfaction of the Responsible Authority.
[38]
Prior to the commencement of buildings and works a revised landscaping plan must be submitted to and approved by the responsible authority. Once approved, the landscape plan will be endorsed and form part of this permit. The landscape plan must be generally in accordance with the plan prepared by Davidson Design Studio (drawing reference 240507 dated 18 June 2024) but modified to include at least one native canopy tree with a mature height of 14 metres.
Prior to the occupation of the development (or other time agreed to in writing by the Responsible Authority) the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.
[39]
Prior to the commencement of any demolition, excavation or works; and during all stages of development, the Tree Protection Zones (TPZ), tree protection fencing, recommendations and tree protection measures identified in the approved Arboricultural Impact Assessment must be implemented and complied with; to the satisfaction of the Responsible Authority.
All excavation within the Tree Protection Zones (TPZ) of Tree 15 located on the adjoining land, must be undertaken under the direct supervision of a Level 5 qualified Arborist using a method which is non-destructive to tree roots in compliance with Australian Standard AS 4970-2009 Protection of trees on development sites. Any tree roots which require pruning must be cut with a clean sharp cutting implement with a final cut to undamaged wood at an angle which minimises the size of the wound. No tree roots critical to maintaining tree health, structure or viability are to be cut. These tree roots must be retained undamaged and alternative design and construction methods used.
Any pruning of trees must be undertaken to the minimum extent necessary in compliance with the procedures and practices described in Australian Standard AS 4373-2007 - Pruning of amenity trees.
The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained and are advised of any obligations in relation to the protection of those trees.
No trenching or soil excavation is to occur within the Tree Protection Zones of retained trees during development unless shown on the endorsed plans, without the prior written consent of the Responsible Authority.
[40]
Prior to the initial occupation of the development, all required privacy screening devices shown on the endorsed plans must be installed and completed to the satisfaction of the Responsible Authority.
[41]
Residential reticulated gas service connection
[42]
Any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.
[43]
This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
[44]
(a) The development is not started within two (2) years of the issued date of this permit.
(b) The development is not completed within four (4) years of the issued date of this permit.
[45]
In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
[46]
[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.
[47]
[2] Clause 73.01 defines Native vegetation as vegetation that is indigenous to Victoria.
Parties
Applicant/Plaintiff:
Wood
Respondent/Defendant:
Mornington Peninsula SC [2025] VCAT 873
Legislation Cited (1)
Environment Act 1987
Cases Cited (1)
Wood v Mornington Peninsula SC [2025] VCAT 873 (6 October 2025)
