VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1483/2022
Permit Application no.837/2020/03P 	
CATCHWORDS	
Section 87A Planning and Environment Act 1987 (‘Vic’); Nillumbik Planning Scheme; Activity Centre Zone (‘ACZ1’); Significant Landscape Overlay (‘SLO1’); Multi-dwelling development; Neighbourhood character; Landscaping and Access.	

Applicant	16 Taylor Pty Ltd	

Responsible Authority	Nillumbik Shire Council	
Respondents	Eltham Community Action Group Inc. & Linda Grigg	

SUBJECT LAND	14-16 Taylor Street
ELTHAM VIC 3095	

HEARING TYPE	Hearing	

DATE OF HEARING	5 June 2023 and 11 July 2023	

date of interim order	26 September 2023	
DATE OF ORDER	21 November 2023	

CITATION	16 Taylor Pty Ltd v Nillumbik SC [2023] VCAT 1272	

Order
1	The application is allowed. Pursuant to section 87A of the Planning and Environment Act 1987 (‘Vic’), Planning Permit No 837/202.3P issued by the responsible authority in respect of the subject land, is amended as follows.
(a)	Conditions in the permit are amended as set out in Appendix A
2	The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987(Vic).

Shiran Wickramasinghe
Member			

Appearances
For 16 Taylor Pty Ltd	Mr Jonathan Halaliku , town planner of Three Thirds Group. Evidence was called from the following witness:
•	Ms Leanne Dowey, landscape architect of Hansen Partnership Pty Ltd	
For Nillumbik Shire Council	Mr David De Giovanni, town planner of David De Giovanni Town Planning	
For Eltham Community Action Group Inc. & Linda Grigg	Ms Carlotta Quinlan	

Information
Description of proposal	Application to amend the planning permit to enable the construction of eight dwellings with associated changes to the layout of the approved seven dwelling development.	
Nature of proceeding	Application under section 87A of the Planning and Environment Act 1987 (Vic)	
Planning scheme	Nillumbik Planning Scheme (‘Planning Scheme’)	
Zone and overlays	Activity Centre Zone Schedule 1(‘ACZ1’)
Significant Landscape Overlay Schedule 1 (‘SLO1’)	
Permit requirements	Clause 37.08-5 – construct a building or construct or carry out works.
Clause 42.03-2 - construct a building or  construct or carry out works.
Clause 42.03-2 – removal of substantial trees; and building and works within 5.0 metres of a substantial tree.	
Land description	The site is a dual allotment located on the south side of Taylor Street. The site has an approximate width of 37.34 metres and length of 45.72 metres and an area of 1,707.18 metres squared.
The site slopes down from its south-east corner at RL70.90 to the north-east corner at RL63.72 equating to a fall of approximately 7.18 metres diagonally across the site. There is also a cross fall at the frontage of the site of 1.79 metres. 
The site is occupied by a dwelling accessed by a circular  driveway with crossovers located at the eastern and western ends of the frontage. The area between the driveway and frontage of the site is landscaped.
To the west at 10 Taylor Street is a medium density housing development comprising six dwellings.
To the east at 18 Taylor Street is a single-storey brick veneer dwelling.
To the north, on the opposite of Taylor Street are residential properties. These properties have frontage to Henry Street and also access from Taylor Street.
To the south (rear of the site) are 23 and 25 York Street, Eltham. These properties are located outside of the Eltham Activity Centre area are zoned General Residential and a Significant Landscape Overlay Schedule 5 also applies to these sites. 	
Tribunal inspection	An unaccompanied site inspection was conducted.   	

  Reasons
What is this proceeding about?
1	This application seeks approval to amend Planning Permit 837/2020/03P pursuant to section 87A of the Planning and Environment Act 1987 (Vic). The proposal amongst other things, seeks to introduce one additional dwelling so that there are a total of eight (8) dwellings. Council’s submission describes the changes to the proposal as follows:
•	The new dwelling is introduced along the eastern side of the site, so that there are now two rows of 4 dwellings either side the central driveway. 
•	The basements associated with dwellings 1 and 2 (front) have been increased in size to include a rumpus room. 
•	Dwelling 8 in the south-east corner of the site (formerly dwelling 8) [sic] has reduced rear setbacks from 4.35m and 7.0m to 4.19m. It also has reduced side/eastern setbacks from 4.0m to 3.7m. 
•	The general setbacks from the eastern side boundary (dwellings 4 and 6 were previously setback 4.0m) have been reduced to 3.7m (for dwellings 4, 6 and 8).  
•	The width of the driveway in the middle of the site (between the former dwellings 3 and 5, and dwelling 4) has been reduced from 6.9 metres to 6.4 metres.   
•	The first floor of dwelling 7 (south-west corner) has slid to the east resulting in increased setbacks from the east, and a sheer wall presentation to the driveway. 
•	The first floor footprint of the former dwelling 4 is now replaced with the first floor footprints of dwellings 4 and 6.   
•	The first floor footprint of dwelling 8 (formerly dwelling 6) is slid further north and closer to dwelling 6, resulting in larger rear setbacks (4.4m to 5.2m).  Its setback from the east has been reduced from 4.0m to 3.7m. 
•	The TPZ encroachment into Tree 12 has been increased from 10.03% to 14.25%.  
•	All dwellings continue to be 2 storey. Dwellings 4 and 6 have heights of 7.3m respectively compared to dwelling 4’s approved height of 6.87m (430mm higher). 
•	The previous grey render on the materials schedule is now replaced with ‘white’, and the roof sheets changed from light to dark colour (unspecified). 
•	Changes to retaining walls (ie. dwelling 4 retaining wall moved further east). 
•	Internal alterations to dwelling layouts. 
•	New window locations/sizes to some dwellings.  
2	Council does not support the proposed amendments on the following grounds:
1.	The proposal is inconsistent with the character objectives of Clause 37.08 – Activity Centre Zone (Schedule 1) and Clause 42.03 – Significant Landscape Overlay (Schedule 10 due to: 
a).	Dominant building bulk, scale, massing and height. 
b).	Reduced space for canopy tree planting and other landscaping. 
c).	Impacts to third party trees. 
d).	Insufficient boundary setbacks. 
e).	Continuous built form and lack of visual separation between buildings. 
f).	White render being highly reflective and not suitably muted. 
g).	Unresolved site cut and retaining walls. 
2.	The proposal does not meet the following objectives of Clause 55 of the Nillumbik Planning Scheme: 
•	Clause 55.02-1  Neighbourhood character 
•	Clause 55.03-8 Landscaping 
•	Clause 55.04-6 Overlooking 
•	Clause 55.06-1 Design detail 
3.	The proposal provides poor amenity for occupants due to limited outlook resulting from an overreliance on high light windows and obscure glazing. 
4.	The proposal does not meet the objectives of Clause 52.06 – Car Parking in relation to car parking provisions and vehicle access. 
5.	Potential impacts to third party trees remain unresolved.
6.	The application is incomplete for the following reasons: 
a).	The statement of changes omitted the increase to building heights. 
b).	It is not clear from the statement of changes that the building footprints are increased or that the building setbacks to boundaries are reduced. 
c).	The statement of changes do not identify that width of the common driveway has been reduced at the locations between the garages. 
d).	The full extent of earthworks is unresolved. 
e).	Building setback and separation dimensions previously shown have been deleted from the plans. 
f).	A reduction in the car parking spaces.  
7.	The proposal is an overdevelopment of the site.
3	Council’s submission address the following  key concerns:
5.	It is Council’s submission the additional dwelling contributes to an over-development of the site, with this submission focusing on: 
•	The layout requiring smaller courtyards and reduced setbacks along the eastern and southern boundaries; 
•	The increased impact on the SLO protected Tree 12 to the rear of the site; 
•	The reduced capacity to accommodate canopy tree planting along the eastern boundary in particular; 
•	The increased visual bulk presented to neighbouring properties; 
•	The poor urban design outcome afforded to residents and visitors using the central driveway as a pedestrian route; and 
•	The amendment resulting in a narrower driveway, an increase in garages, and a tighter car parking arrangement that necessitates multiple corrective movements.
4	The respondents oppose the proposed amendments for reasons that are consistent with Council’s grounds for not supporting the proposal. 
5	The applicant submits:
[64]	The amended [sic] is well considered and does not offend nor detract from the appropriate planning outcome that was previously approved by the Tribunal.
[65]	It has regarded the character within the ACZ and SLO context and is brought forward with the spatial benefits that flow form and existing approval on consolidated lots with low impact amendments.  
[66]	The site is proximate to a range of highly sought-after amenities and the design response is sensitive to the built form and character expectations layered throughout the planning scheme. 
[67]	The built form takes design cues from key characteristics of the area and delivers a quality architectural response that is both visually pleasing with a high level of internal amenity for future residents.   
[68]	The siting, landscaping and architectural expression culminates in a proposal that continues to respect the existing character and makes a positive contribution to the evolving neighbourhood character of the ACZ.
6	Amendment VC243 to the Planning Scheme (‘Amendment’) was gazetted on 22 September 2023. According to the Explanatory Report, amongst others, the Amendment changes the operation of clause 55 to modify the assessment of specified standards. An Order was issued providing parties an opportunity to make submissions addressing any implications arising from the Amendment relating to this proceeding. Submissions were received and have been considered.
7	Council’s submission states:
The assessment of the proposal is unaffected by the amendments for the following reasons: 
1.	Clause 53.22 (Significant economic development) – This policy does not apply to the proposal as the condition corresponding Table 1 is not met. 
2.	Clause 53.23 (Significant residential development with affordable housing) – This policy does not apply to the proposal as the condition corresponding Table 1 is not met.
3.	Clause 53.24 (Future homes) – This policy does not apply to the proposal because the proposal is not an apartment development. 
4.	Clause 55 – The only codified standard forming Council’s grounds of non-support is B22 overlooking and Council maintains that the proposal does not comply with the standard.
8	The applicant amongst other things submitted:
The ACZ is clearly constructed to rely on Clause 55 for siting requirements (other than those speciﬁcally listed in table 5.2-3 of the ACZ1). This is further evidenced by the design and built-form decision guidelines within the parent provision (Clause 37.08-9) that includes consideration of:
The objectives, standards and decision guidelines of Clause 54 and Clause 55. This does not apply to an apartment development.
It follows that if a proposal meets (or is deemed to comply) with the provision of Clause 55,it implicitly demonstrates a high level of compliance with the design standards of the ACZ.
We do not suggest that the Tribunal turn away from the nuanced qualitative assessment that remains within its discretion, but the deemed to comply provisions remove much of the “assessment noise” that can plague multi layered grounds of refusals.
For Taylor Street speciﬁcally, it implies and demystiﬁes a baseline of acceptability and merit. It removes the notion of any existence of foundational indicators of ‘overdevelopment’ and ‘visual bulk’ that would ordinarily be the starting point for assessment of such.
background
9	With respect to the planning permit history of the site the Council’s submission states the following:
7.	Planning Application 600/2018/03P was lodged in 2018 to construct eight (8) dwellings on the review site.  That application was not supported by Council, and in the subsequent VCAT proceeding lodged under Section 79 of the Planning and Environment Act 1987, the Tribunal subsequently affirmed Council’s position.  
8.	Planning Application 837/2020/03P was then lodged to construct twelve (12) dwellings and the removal of vegetation on the review site.  That application was refused by Council and subject to a review under Section 77 of the Planning and Environment Act 1987.   
9.	Amended plans circulated prior to the hearing revised the scheme from twelve (12) dwellings to seven (7) dwellings.  
10.	The Tribunal set aside Council’s refusal and directed that a permit issue.  
11.	Council advise that a request to have plans that were lodged to satisfy Condition 1 of Planning Permit 837/2020/03P were refused on 3 October 2022 on the basis that the plans did not adequately address impacts of earthworks to third party trees or overlooking, and that the further amendments made to the plans were generally not in accordance with the plans considered at VCAT.
What are the key issues?
10	The key issues in this application are:
•	Is the proposal an acceptable built form and landscape response?
•	Will there be any unacceptable amenity impacts?
•	Is the driveway and vehicle access acceptable?
11	Having considered the submissions and evidence with regard to the relevant policies and provisions of the Planning Scheme, assisted by a site inspection, I have determined to allow the application and amend the permit. My reasons are as follows.
what is the relevant planning context?
12	The Municipal Planning Strategy at clause 02.03 identifies Eltham Major Activity Centre as one of the locations within the Shire identified as most suited for medium density development. Others are the Diamond Creek Major Activity Centre and the Hurstbridge Shopping Centre.
13	The land is zoned ACZ1. The purpose of the zone include:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To encourage a mixture of uses and the intensive development of the activity centre:
•	As a focus for business, shopping, working, housing, leisure, transport and community facilities.
•	To support sustainable urban outcomes that maximise the use of infrastructure and public transport.
To deliver a diversity of housing at higher densities to make optimum use of the facilities and services.
To create through good urban design an attractive, pleasant, walkable, safe and stimulating environment.
To facilitate use and development of land in accordance with the Development Framework for the activity centre.
14	The schedule to the ACZ1 details a number of objectives relating to land use, built form and landscaping, amongst others. Relevantly, these include:
Land use
•	To promote and increase in the amount and diversity of housing by providing medium density housing, particularly that suited to one and two person households.
•	To optimise the development potential of the activity centre by ensuring that individual sites are developed to their highest and best use.
Built form
•	To encourage more intensive development in a variety of high quality forms and design responses that respond to the Eltham form and character and create a safe, stimulating and enjoyable experience for people in the activity centre.
•	To ensure that elements that contribute to the form and character of Eltham such as timber in buildings, simple, robust design elements, verandahs with timber colonnades on the outer edge and art on the façade of buildings is incorporated in developments.
•	To positively contribute to the visual amenity of the area through new development and redevelopment within the Eltham Town Centre.
•	To ensure building heights, setbacks and form have regard to and seek to be compatible with the surrounding development and the character of the locality in which the development is situated.
•	To ensure the exterior of buildings fit the character of the area by utilising earthy toned colours and materials such as stone, wood, render and mud brick.
•	To ensure that building setbacks achieve spatial proportion to the street and define the street edge, providing a high amenity for uses of the street.
•	To ensure that development sites with front, side or rear setbacks are extensively landscaped with indigenous vegetation so as to contribute to the Eltham form and character.
•	To ensure buildings are of a high quality design and construction and include the use of materials and colours of muted tones that blend in with the surrounding environment.
•	To ensure that any basements do not extend into landscaped areas which would prevent the planting of vegetation.
Open space and landscaping
•	To recognise, protect, retain and enhance the contribution provided by canopy trees, particularly native trees, to the existing and preferred character of Eltham.
•	To ensure that the health of existing canopy trees is not unnecessarily jeopardised by buildings and works.
•	To ensure that new development contributes to the achievement of the preferred character through additional landscaping, particularly canopy trees.
•	To reinforce the indigenous planting regime within the Eltham.
•	To ensure new car parking areas are provided with landscaping with canopy trees where appropriate.
15	The Eltham Activity Centre Framework Plan in the schedule to the zone shows the site as being within Precinct 2 ‘Residential Interface/Medium Density Housing’ – specifically Precinct 2A.
16	The precinct objectives include encouraging medium density housing while also providing some small to medium-scale office use; and providing a transition in built form scale between the core commercial area and adjoining residential areas. The precinct requirements for development in Precinct 2A are:
a.	A mandatory height (excluding basement) of 3 storeys (10.5 metres) with the 3rd storey in roof space.
b.	A preferred minimum front setback of 5.5 metres.  The setback is measured from the roadside kerb.
17	Development in this precinct must meet the requirements of clause 55.
18	Any buildings or works constructed on a lot that abuts land which is in a General Residential Zone must meet the requirements of Clauses 55.04-1, 55.04-2, 55.04-3, 55.04-5 and 55.04-6 along that boundary.
19	Clause 4.4 includes the following relevant guidance with respect to Design and development, Building height, Building setbacks and Landscape design:
Design and development 
All roofs should be pitched, gabled or hipped greater than 10 per cent. 
New commercial buildings should be designed so that signs are an integral part of the architecture. 
Building height 
A permit cannot be granted to vary any ‘Mandatory Height’ specified in the precinct provisions of this schedule.
Building setbacks 
Minor works including verandahs, architectural features, balconies, sunshades, screens and artworks may be constructed within any setback area specified at Part 3.0, provided they are designed and located to the satisfaction of the responsible authority. 
Basement levels should be setback so to not encroach into landscape areas. Where the precinct provisions specify a front setback, that setback is measured from the roadside kerb. 
Landscape design 
Landscape design should:
•	Create private and public open space areas that are accessible, safe, attractive and functional.
•	Retain established vegetation within all streets that contributes to the ‘green and leafy’ appearance of the area. 
•	Limit the removal of vegetation to the minimum required to allow the land to satisfy its development potential.
•	Provide high standard landscape treatment in the front setback where buildings are setback from the street with a focus on indigenous planting.
20	Precinct guidelines state the following:
•	Use and development of non residential uses should:
-	Be compatible with surrounding residential use, scale and intensity.
-	Generally serve local community needs.
-	Reflect the pattern of existing building siting and massing within the precinct.
•	Buildings should be designed to preserve views from adjoining residential properties to the treed hilltops to the west.
•	Buildings with larger footprints should be designed with split levels to respond to the natural topography.
•	Main pedestrian entrances should be clearly legible from the street and demarcated with strong architectural and landscape features.
•	New development should appear to have domestic quality and respond to the residential character of the area.
•	Developments sited alongside boundaries should be massed in a staggered manner to avoid overlooking of adjacent properties and reduce overshadowing impacts.
•	Building siting should provide the opportunity for open space areas and allow for canopy tree landscaping to be integrated with the total development.
•	Consideration will be given to increased residential density on consolidated development sites of 1500 square metres or greater.
•	On-site car parking should be sited to the side and rear of dwellings behind the front façade.
•	New development should provide for open landscaped front yards and avoid high solid fencing.
21	Clause 8 of Schedule 1 to clause 37.08 includes the following relevant decision guidelines:
Design and built form
Whether the proposed development:
•	Provides a high standard of urban design and well designed site responsive architecture.
•	Does not present a blank façade to a pedestrian activity area or street.
•	Provides for appropriate setbacks which respect the siting of adjacent developments where the schedule promotes landscaped setbacks to the street frontage.
Access
Whether the proposed development limits the number of vehicle crossings to each development.
22	At clause 42.03 that purpose of the SLO1 is
To implement the Municipal Planning Strategy and the Planning Policy Framework. 
To identify significant landscapes. 
To conserve and enhance the character of significant landscapes.
23	The Statement of nature and key elements of landscape states:
The Eltham Major Activity Centre Structure Plan (August 2004) recognises that the Eltham Town Centre has a distinctive character which in part is defined by the integration of the built form and vegetation, particularly canopy trees, which should be preserved and enhanced. The Eltham Town Centre is also a designated area of high change, where the development potential of sites is to be realised in accordance with the Eltham MAC Structure Plan. Future development should thus seek to strike a balance between the retention and planting of vegetation and the accommodation of higher intensity development.
In the future, new development will contribute to a strong sense of place by reflecting the special qualities of the Eltham Town Centre through the achievement of the following preferred character:
•	New development will employ earthy muted tones, natural building materials and innovative design.
•	Buildings will not exceed the predominant tree canopy height and while visible from the street, their appearance will be softened though landscaping.
•	Building forms will be modest and compact in scale and avoid excessive bulk through the use of articulation, low roof pitches, and other design elements.
•	Vegetation, both native and exotic canopy trees, will dominate long distance views, the skyline of streetscape views, and front gardens.
•	There will be little physical evidence of the boundary between private and public property at the front of buildings, and no solid fences.
24	The Landscape character objectives to be achieved are:
To recognise, protect and enhance the contribution provided by canopy trees, particularly native trees, to the existing and preferred character of the Eltham Town Centre.
To ensure that the health of existing canopy trees is not unnecessarily jeopardised by buildings and works.
To restrict removal of vegetation to the minimum required to allow land to satisfy its development potential in accordance with the Eltham Major Activity Centre Structure Plan (August 2004).
To ensure that new development contributes to the achievement of the preferred character through additional landscaping, particularly canopy trees.
To reinforce the indigenous planting regime within the Eltham Town Centre.
25	Clause 5.0 of the Schedule provides the following decision guidelines:
•	Whether the site is being restricted from realising its development potential in accordance with the Eltham Major Activity Centre Structure Plan (August 2004) by the retention of the vegetation.
•	Whether the removal or lopping of the vegetation will detract from the achievement of the preferred character of the Eltham Town Centre.
•	Whether the design of any proposed buildings and works has been adequately responsive to the objective of avoiding and/or minimising the extent of vegetation removal, destruction or lopping.
•	Whether the proposed location or design of any buildings or works will impair the appearance or health of the vegetation.
•	The need for additional landscaping and screen planting to contribute to the achievement of the preferred, landscape qualities of the Eltham Town Centre.
•	In the event that an adverse impact on vegetation cannot be avoided, the need for a comprehensive landscape plan which provides an adequate proposal to provide and manage replacement vegetation.
•	The extent to which the proposed landscaping complements the landscape treatments of adjoining public realm areas.
•	Whether the proposed landscaping is of a high quality and uses indigenous species, including canopy trees.
•	The extent to which front setbacks are landscaped to reinforce the appearance of vegetation dominating private allotments when viewed from the street.
is the proposal an acceptable built form and landscape response?
26	Council acknowledged that the Eltham Major Activity Centre has an emphasis that encourages change and more intensive housing. However they say unlike most other Activity Centres in Metropolitan Melbourne, development in the Eltham major Activity Centre needs to be responsive to the ‘Eltham character’.  They also say the application of the Significant Landscape Overlay to the Activity Centre reinforces the need to adhere the ‘Eltham character’.
27	Council submits the amended layout introduces an excessive level of built form intensity to the abutting property to the east at 18 Taylor Street. The footprint of the former dwelling 6 is replaced with two dwellings that offer reduced separation between the dwellings. They also say these dwellings offer little articulation and the two6storey design will create excessive built form along the length of the site.
28	The applicant submits the proposal continues to deliver the approved architectural expression, roof forms, articulation, and siting (specifically to the western boundaries and streetscape presentation). They also say vehicle and pedestrian access points and provision of landscaping remains largely the same. 
29	The increase in the number of dwellings from seven to eight is to be achieved by converting the approved dwelling 7 into two dwellings in the following layout plans:

 

30	I have been persuaded by the applicant that the increase in the number of dwellings is acceptable subject to some amendments. The site is located in ACZ1 and relevant policy encourages change and more intensive housing albeit with an Eltham character.
31	Having regard to what I describe as quantitative indicators of development the proposal provides a site coverage of 50.2%, which is below the maximum 60% specified at clause 55.03-3, Standard B8, Site coverage objective. A site permeability of 35.7% which exceeds the minimum 20% requirement at clause 55.03-4, Standard B9, Permeability and stormwater management objective. Notably the proposal increases the site coverage and decreases permeability by 1.22% (20.7 metres squared) and 2.33% (39.78 metres squared) respectively. The change in these indicators is not significant.
Setbacks and landscaping
32	The amended proposal seeks a ground level setback of 3.7 metres from the west boundary for proposed dwellings 4, 6 and 8. The approved plans show a 4.0 metre ground level setback for dwellings 4 and 6 from the west boundary. Further, proposed dwelling 8 is to have a ground level setback of 4.1 metres from the south boundary. The approved plan shows dwelling 6 (previously sited proximate to the south east corner of the site) to have a setback varying from 4.3 metres to 7.0 metres from the south boundary.
33	The proposed setbacks contain the secluded private open space (SPOS) of proposed dwellings comprising areas of approximately 31.7 metres squared, 33.8 metres squared and 115.8 metres squared with a minimum 3.7 metre dimension respectively for proposed dwelling 4. 6 and 8. The proposed layout and location of open space is generally consistent with the approved development albeit with a lesser dimension.
34	The provision SPOS for dwellings 4, 6 and 8 exceeds the minimum 25 square metres with a minimum 3.0 metres dimension required at clause 55.05-4, Private open space objective – Standard B28. 
35	The landscape plan prepared by Ms Dowey shows the provision of a layered landscape design within these areas and the entire development. It was her evidence that the quantum of planting had not been reduced due to the change in setbacks.  
36	The landscape plan shows a theme of layered planting across the site including trees and other planting proposed throughout the site. The areas to be landscaped include the front and rear setbacks, side boundaries and on both sides of the central driveway. The proposed planting includes 27 trees capable of growing to heights that range from 8.0 metres to 12.0 metres and 36 shrubs plus an assortment of other shrubs, ground cover plants, grasses and climbing/trailing plants that are yet to be quantified. In this context I am satisfied that landscape design shown on the plan below will adhere to the ‘Eltham character’.
 
Source: Applicant
37	The applicant submitted the change to the dwelling 1 driveway alignment was required due to a difficulty arising from achieving a ‘building over easement’ consent. The respondents are concerned the realignment reduces the garden area available for planting along the west boundary and it may be insufficient to support the proposed planting. I have been persuaded by Ms Dowey’s evidence that the altered alignment enables the planting of the approved trees and large shrubs along the west boundary that formed part of the approved plans. 
38	The change whilst altering the shape of the landscape areas does not reduce the extent of landscaping within the front setback. Therefore, the amended alignment will not have an unacceptable  impact on the landscape character of the site when viewed from the street. In this context I find the altered alignment to be acceptable. Further in the absence of any evidence to the contrary I am persuaded by the applicant the planting area along the west boundary within the front setback is sufficient for the proposed landscaping.
39	Council and the respondents raised concerns regarding the impact on a Sugar Gum tree (Tree 12) located on the site to the south at 25 York Street. They say the tree makes a significant contribution to the character of the area and is protected by the SLO. The approved development provided a Tree Protection Zone (TPZ) encroachment of 6.1% whilst the proposed encroachment is 9.9%. Council also submitted the encroachment depicted in the ground floor plan does not include either the shed or water tank, both of which may be located on concrete slabs, which would result in a major encroachment that exceeds 10% of the TPZ.
40	The applicant relied on an Arboicultural Impact Assessment that states:
8.1.7 	A total encroachment of 52.27m2 (14.5%) upon the TPZ of Tree 12 is noted by the proposed south-eastern footprint/site cut and retaining wall.  There is no SRZ incursion. However, the existing dwelling currently occupies 16.0m2 which reduces the net encroachment by the proposal to 9.9%. With reference to AS4970 (2009) Protection of trees on development sites, this level of encroachment is considered minor. Furthermore, given the extent of open and unencumbered ground within the site contiguous to the TPZ, portion of the encroachment will also be offset within the site. On this basis, provided the recommendations are enforced, it is anticipated that the proposal will not adversely impact the viability of Tree 12.
41	I have been persuaded by the applicant that the siting of dwelling 8 is acceptable having regard to the Arboricultural Impact Assessment. Whilst the proposed siting of dwelling 8 is closer to Tree 12 than the approved development there is no encroachment of the structural root zone (SRZ) and due to the encroachment of the existing dwelling into the TPZ the proposed encroachment is now 9.9%. Therefore, having regard to the level of encroachment being classified as minor there is no evidence the siting of dwelling 8 will have an unacceptable impact on Tree 12. I will however out of an abundance of caution require the proposed shed and water tank to be located outside the SRZ and TPZ of Tree 12.
42	Council and the respondents raised concerns regarding potential grade changes to the southern section of open space associated to dwelling 8 in the context of potential impacts on Tree 12. The applicant’s submission states the existing levels of the land that will form part the SPOS to south of the proposed dwelling 8 are to be retained. They also say the south wall of proposed dwelling 8 will double as a retaining wall. This design response is the same as what has been previously approved albeit with a reduced setback. In the absence of any evidence to the contrary I am satisfied that subject to there not being a change of grade and the south wall doubling as a retaining wall the proposal will not have an unacceptable impact on Tree 12. 
Built form
43	Council submits the amended layout introduces an excessive level of built form intensity to the abutting property to the east at 18 Taylor Street. They say the replacement of the former dwelling 6 with two dwellings (6 and 8) unacceptably reduces the separation between the dwellings. 
44	The new central dwellings are said to offer little articulation and the sheer façade designs of dwellings 7 and 8 are accentuated by the proposed site cut. They say the design is unacceptable along the common driveway, where the dwelling 8 façade will rise to an approximate 7.5 metre unarticulated height and extend to height of almost 9.0 metres to the roof ridge.
45	The applicant submitted that where visible changes are proposed along the eastern elevation, they are:
•	Set back 3.0 metres between dwellings.
•	Dwellings 4 and 6 are set back from the eastern boundary by 7.9 metres, and adopt a recessive profile behind dwelling 2, like the presentation of dwellings along the western elevation. 
•	Where dwelling 8 ground and upper-level footprints change, they set back deeply into the site, largely concealed from the Taylor Street streetscape, and where visible from the east, remain articulated.
•	The 300 millimetre reduction to the eastern side setback will be largely imperceptible from the streetscape and neighbouring property, and offset by continued quality landscaping response along common boundaries.
46	I have been persuaded by the applicant that the approximate 3.0 metre built form separation between dwellings 2 and 4, and 6 and 8 combined with their ground and first floor setbacks from the east boundary are acceptable. The first floor levels of dwellings 4 and 6 are setback 7.9 metres from the east boundary whilst the east elevation of dwelling 8 is articulated with setbacks varying from 3.7 metres to 9.0 metres. The articulation combined with the varied setbacks ensures that the proposed dwellings will not have an unacceptable impact on the dwelling to the east.
47	I agree with Council with respect to its concerns regarding the limited articulation and sheer façade walls associated to dwelling 7 and 8. The design response whilst internal to the site creates a dominant built form that has limited articulation. This design response unacceptably confines the view though the centre of the site along the driveway and will have an unacceptable impact when viewed from the streetscape. Therefore as addressed by the parties at the hearing  I will require the west wall of bedroom 1 of dwelling 8 to be set back in-line with west wall of bedroom 2 with no changes to other setbacks. 
48	Council and the respondents raised concerns regarding the change to the  material/colour palette that replaces the previously specified grey render finish with a lighter colour. The respondent described the colour as off-white. The applicant submits the colours remain low impact and are already used in the ACZ1.
49	I have been persuaded by Council and the respondents that the approved colour palette is more consistent with the with the earthy muted tones described in the Planning Scheme. Therefore, I will require retention of the grey render as originally approved.
Will there be any unacceptable amenity impacts 
50	Council submits the amended layout results in overlooking to the east from the ground level living room window of dwelling 6 and first floor master bedroom windows of dwellings 4 and 6. They say the overlooking from these windows is  contrary to the requirements at Clause 55.04-6, Standard B22 Overlooking objective.
51	Clause 55.04-6, Overlooking objective seeks to limit views into existing habitable room windows and secluded private open space areas within a horizontal distance of 9.0 metres. The related Standard B22 details the means by which the objective can be met and refers to the provision of screening of habitable room windows, balconies, terraces, decks or patios to a height of 1.7 metres above floor level.
52	As identified by Council the layout plans show east facing habitable room windows associated to dwellings 4 and 6 that have outlook to the east. In this context I consider it prudent to impose a condition that requires the proposal to demonstrate compliance with the requirements of Clause 55.04-6, Standard B22 Overlooking objective.
is the driveway and vehicle access acceptable?
53	The car parking requirements of clause 52.06 have been met by this proposal. Twelve car spaces are provided with either a single or double garage.  
54	Council is concerned that access to the garages is difficult due to the slope of the driveway and two corrective manoeuvres are required. They also say that swept path diagrams demonstrating access to garages 3 and 5 have not been provided. Accordingly they say the same degree of difficulty to access garages 4 and 6 would apply to garages 3 and 5. 
55	The applicant relied on the Traffic Impact Assessment Report prepared by O’Brien Traffic dated 6 October 2022. They say:
The manoeuvres have been assessed via industry standard software and techniques. There has been no opposing assessment or quantification of what constitutes over reliance or assessment against 52.06. We suggest the Tribunal is assisted by assessment and appendices within the accompanying report. Additional information can be Conditioned should the Tribunal see fit.
56	Having regard to the Swept Path Diagrams I find they demonstrate acceptable entry and exit movements for B85 vehicles for dwellings 4, 6 and 8. The diagrams indicate that all vehicles can safely access and exit the site with corrective movements. Therefore I am persuaded that two corrective movements are acceptable. I will however require the submission of swept path diagrams to demonstrate acceptable entry and exit movements for B85 vehicles for dwellings 3, 5 and 7 having regard to the proposed narrowing of the driveway width.
57	Further I do not share Councils concerns regarding the shared use of the driveway by pedestrian and vehicles. I find the shared use of the space to be acceptable given the low volume of cars that will use the driveway.
Conclusion
58	For the reasons given above, the application is allowed. Planning Permit No. 837/202.3P, issued by the responsible authority in respect of the subject land, is amended subject to the conditions as set out in Appendix A.

Shiran Wickramasinghe
Member			

Appendix A – Permit Conditions

Permit Application No	837/2020/03P	
Land	14-16 Taylor Street
ELTHAM VIC 3095	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of eight dwellings, removal of vegetation and buildings and works within 5 metres of substantial trees, in accordance with the endorsed plans.	

Conditions
1	Before the development commences, three copies of 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 this permit.  The plans must be generally in accordance with the plans prepared by SGA Design, Drawing No. TP.01, TP.02, TP.03, TP.04, TP.05, TP.06, TP.07, TP.08, TP.09, TP.10, TP.11, TP.12, TP.13, TP.14, TP.15, TP.16, TP.17) , All Revision H, Dated 14 October 2022 but modified to show: 
(a)	The full extent of earthworks within the secluded private open space areas of all dwellings on site, including site cuts, retaining walls and service trenching.  
(b)	Any modifications required as a result of the Tree Management Plan in accordance with condition 5.
(c)	All ground floor and first floor east facing habitable room windows treated in accordance with Clause 55.04-6, Overlooking objective, Standard B22 of the Nillumbik Planning Scheme.
(d)	The colour of the external wall render changed from off-white to a grey colour consistent with condition 9 of this permit.
(e)	The west wall of bedroom 1 of dwelling 8 to be set back in-line with west wall of bedroom 2 with no changes to other setbacks.
(f)	Relocation the dwelling 4 rain water tank to the north of the alfresco and relocation of a folding clothesline to be attached to the southern wall of dwelling 4. 
(g)	Swept path diagrams to demonstrate acceptable entry and exit movements for B85 vehicles for dwellings 3, 5 and 7.
(h)	The proposed shed and water tank associated to dwelling 8 to be located outside the Structural Root Zone and Tree Protection Zone of Tree 12.
2	The development as shown on the endorsed plans must not be altered unless with the prior written consent of the Responsible Authority. 
3	Before the development starts, a landscape plan prepared by a suitably qualified person must be submitted to and approved by the Responsible Authority. The landscape plan must be generally in accordance with the landscape plan prepared by Hansen Partnership Drawing No. LCD-001 and LCD-002 Revision C dated 27 October 2022 but modified to show: 
(a)	Any changes required by the development pursuant to condition 1 of the permit.  
4	Unless with the prior written consent of the Responsible Authority, before the occupation of the development the landscaping works shown on the endorsed plans must be carried out, completed, and maintained to the satisfaction of the Responsible Authority. 
5	Prior to the endorsement of plans pursuant to condition 1, a Tree Management Plan prepared by a suitably qualified arborist must be submitted to and approved by the Responsible Authority to its satisfaction and include: 
(a)	consideration of the potential impacts of the earthworks within the secluded private open space areas of all dwellings on site, including site cuts, retaining walls and service trenching on adjoining trees;  
(b)	recommendations to ensure the protection of the adjoining trees within three metres of the site including Tree Protection Zones in accordance with AS4970-2009;  
(c)	measures to address how underground services within the Tree Protection Zones should be designed and installed; and 
(d)	any modifications required to the development to ensure protection of adjoining trees. 
6	Except with the prior written consent of the Responsible Authority, prior to development commencing (including any excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the adjoining trees within 3 metres of the site shown on the endorsed plans must have a Tree Protection Zone in accordance with AS4970-2009 and the Tree Management Plan endorsed under this Permit to the satisfaction of the Responsible Authority. The fencing associated with this Tree Protection Zone must meet the following requirements: 
(a)	Extent 
The tree protection fencing is to be provided to the extent of the identified Tree Protection Zone. 
If works are shown on any endorsed plan of this permit within the confines of the calculated Tree Protection Zone, then the Tree Protection Fencing must be taken in to only the minimum amount necessary to allow the works to be completed. 
(b)	Fencing 
All tree protection fencing required by this permit must be erected in accordance with the approved Tree Protection Zone. 
The Tree Protection Fencing must be erected to form a visual and physical barrier, be a minimum height of 1.5 metres above ground level and of chain mesh or similar material. A top line of high visibility plastic tape must be erected around the perimeter of the fence.  
(c)	Signage 
Fixed signs are to be provided on all visible sides of the Tree Protection Fencing clearly stating “Tree Protection Zone – No Entry”, to the satisfaction of the Responsible Authority.  
(d)	Irrigation 
The area within the Tree Protection Zone and Tree Protection Fencing must be irrigated during the summer months with 1 litre of clean water for every 1cm of trunk girth measured at the soil/trunk interface on a weekly basis. 
(e)	Provision of Services 
All services (including water, electricity, gas and telephone) should be installed underground, and located outside of any Tree Protection Zone, wherever practically possible.  If underground services are to be routed within an established Tree Protection Zone, they must be installed by directional boring with the top of the bore to be a minimum depth of 600mm below the existing grade or alternative measures to ensure protection of trees, to the satisfaction of the Responsible Authority. 
Any bore pits must be located outside of the Tree Protection Zone or manually excavated without damage to roots, to the satisfaction of the Responsible Authority. 
(f)	Access to Tree Protection Zone 
Should temporary access be necessary within the Tree Protection Zone during the period of construction, the Responsible Authority must be informed prior to relocating the fence (as it may be necessary to undertake additional root protection measures such as bridging over with timber). 
7	Prior to the commencement of the approved works (including any excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the erected tree protection fences must be inspected and approved by the Responsible Authority. 
Once erected to the required standard, the tree protection fencing shall be maintained in good condition and may only be removed upon completion of all development works, to the satisfaction of the Responsible Authority.   
8	Prior to occupation of the development, all visual screening measures shown on the endorsed plans must be installed in order to prevent overlooking and must be maintained to the satisfaction of the responsible authority. Any screening measure that is removed or unsatisfactorily maintained must be replaced to the satisfaction of the responsible authority. 
9	The materials to be used in the construction of the buildings and works hereby permitted shall be of non-reflective type and finished in muted tones, to the satisfaction of the Responsible Authority.
10	Air-conditioning and other plant and equipment installed on the subject buildings shall be so positioned and baffled so that noise disturbance is minimised, to the satisfaction of the Responsible Authority.
11	Prior to the development commencing, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plan will be endorsed as evidence of its approval.  The plan must specify: 
(a)	The details and location of bin storage and bin collection on the kerbside. 
(b)	Access route and method of access for the vehicles collecting waste.
(c)	Details and location of bin storage areas for each approved dwelling. 
(d)	Odour control from bin storage areas. 
12	Vehicular access and egress to the development site from the roadway must be by way of vehicle crossings constructed to the requirements of the Nillumbik Shire Council, to suit the proposed driveways and the vehicles that will use the crossings.  The Responsible Authority must approve the location, design and construction of the crossings.  Any existing unused crossing must be removed, and the disturbed area reinstated to the satisfaction of the Responsible Authority.  All vehicle crossing works are to be carried out with Council supervision under an Infrastructure Works permit. 
Width of the driveway at property boundary must match the width of the vehicle crossing. 
13	The vehicular driveways must be properly formed and constructed meeting the ramp grades specified in the Nillumbik Planning Scheme (Clause 52.06-9, Design standard 3: Gradients), and to such levels to ensure that it can be always utilised. The driveway must be drained, constructed in concrete, asphalt, or similar surface, and maintained in a continuously useable condition.  All works are to be carried out to the satisfaction of the Responsible Authority. 
14	Except with the written consent of the Responsible Authority, stormwater from impervious areas located below the level of the legal point of discharge must be directed to a pit chamber and pumped to the on-site stormwater detention system.  A backup pump of the same specification must be installed in the event of primary pump failure and located in the same pit chamber if a pit chamber is proposed.  Engineering computations and design of the pumping system and a maintenance schedule must be submitted to and approved by the Responsible Authority. 
15	The development, including any new paved areas, must be drained to prevent the uncontrolled discharge of stormwater from the subject site across any road or footpath or onto any adjoining land to the satisfaction of the Responsible Authority.   
16	Except with the written consent of the Responsible Authority stormwater from the roof of the development hereby approved must be directed to the holding tank. The size of the holding tank for the development must be designed by a suitably qualified engineer and computation submitted to Council for approval. Alternatively, a minimum of 15,000 litres holding tank must be provided. 
The overflow from the tanks must be directed via the internal drainage system to the on-site detention system.  The overflow from the on-site detention system must be directed to the nominated point of discharge. 
17	No polluted, effluent and/or sediment laden runoff from the development site is to be discharged directly or indirectly into Council’s drains, Melbourne Water’s drains or watercourses or adjoining private property during the construction of the development.   
In this regard, sediment fencing and/or pollution/litter traps must be installed on site and serviced accordingly, all to the satisfaction of the Responsible Authority. 
18	This permit will expire if one of the following circumstances applies: 
(a)	The development is not commenced within 2 years of the date of this permit. 
(b)	The development is not completed within 4 years of the date of this permit. 
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within 6 months afterwards if the development has not commenced, or 12 months after if the development has commenced but is not yet completed. 

- End of conditions -