VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
PLANNING AND ENVIRONMENT list	vcat reference No.
 P1575/2023 & P472/2024
Permit Application No.
1000/2022/05P & 399/2023/20P	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic); Nillumbik Planning Scheme; Low Density Residential Zone; Clause 52.17 vegetation removal; consent required under section 173 agreement

P1575/2023	

Applicant	
Andrew James Whittingham	

Responsible Authority	
Nillumbik Shire Council	

P472/2024	

Applicant	
Andrew James Whittingham	

Relevant Authority	
Nillumbik Shire Council	

SUBJECT LAND	
2 Leafy Drive
PLENTY VIC 3090	

HEARING TYPE	Hearing	
DATE OF HEARING	19 August 2024	
DATE OF ORDER	30 September 2024	
CITATION	Whittingham v Nillumbik SC [2024] VCAT 928	

Orders
Planning permit granted
1	In application P1575/2023 the decision of the responsible authority is set aside.
2	In planning permit application 1000/2022/05P a permit is granted and directed to be issued for the land at 2 Leafy Drive PLENTY VIC 3090 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Removal of native vegetation associated with the development of a tennis court under clause 52.17
Consent granted under section 173 agreement
3	In application P472/2024 the decision of the responsible authority is set aside.
4	In application 399/2023/20P consent is given under clause 3 of section 173 agreement AK287461Y for a tennis court (‘buildings’) to be constructed:
•	outside the building envelope on the property shown on the endorsed subdivision plan for planning permit 267/2011/14P dated 29 November 2011; and 
•	in the location shown on the plans endorsed under Condition 1 of planning permit 1000/2022/05P.

Nick Wimbush
Member	

Appearances
For Andrew James Whittingham	Matthew Butler, Senior Urban & Regional Town Planner, Clement Stone Town Planners	
For Nillumbik Shire Council	Nicholas Ouzas, Statutory Planner	

Information
Description of proposal	Construction of a private tennis court outside a building envelope which requires approval to remove native vegetation.	
Nature of proceeding	Application P1575/2023
Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 
Application P472/2024
Application under section 149(1)(b) of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant consent under a section 173 agreement.	
Planning scheme	Nillumbik Planning Scheme	
Permit requirements	To remove, destroy or lop native vegetation, including dead native vegetation under clause 52.17	
Land description	The site has an area of 4,334 square metres on the corner of Leafy Drive and River Avenue in Plenty.  A dwelling and associated swimming pool are located in the northern third of the property.  The balance of the property is undeveloped with remnant native vegetation, particularly canopy trees.  The site falls approximately 14 metres from the north east corner to the south west corner.	
Tribunal inspection	Unaccompanied of the site and surrounds on 20 August 2024.	

Reasons
What is this proceeding about?
1	Andrew Whittingham (‘applicant’) wishes to construct a tennis court on 2 Leafy Drive in Plenty (Lot 3 on Figure 1).  There are two issues with the proposal.
2	Firstly, a section 173 agreement under the Planning and Environment Act 1987 (Vic) is in place on the title of the land (‘s 173 agreement’).  The agreement, among other things, includes in clause 3.1 that all buildings must be contained within a building envelope unless the prior written consent of the responsible authority has been obtained.
3	It is common ground that the tennis court is proposed outside the designated building envelope on the subject site, and that for the purposes of the agreement a tennis court is included in the definition of a ‘building’.  An extract of the endorsed subdivision plan showing the building envelope on site is shown in Figure 1 and a plan showing the location of the proposed tennis court is in Figure 2.

Figure 1: Building envelope within lot.  
4	The second issue is that the proposed site of the tennis court requires the removal of a number of native trees, the removal of which requires a planning permit under clause 52.17 – Native Vegetation in the Nillumbik Planning Scheme (‘planning scheme’).  There was some confusion between the applicant and the Nillumbik Shire Council (‘Council’) at the time of the hearing as to exactly how many trees (and thus how much native vegetation in the Grassy Dry Forest Ecological Vegetation Class) needs to be removed for the construction of the tennis court.

Figure 2: Extract from proposed works plan showing location of tennis court in south east corner of property.  
5	A permit for the tennis court itself is not required if the proposal is in accordance with Clause 52.21 - Private Tennis Court in the planning scheme, and more specifically responds to the ‘Code of Practice – Private Tennis Court Development Revision 1 March 1999’.  This last point was not in dispute, and I am satisfied that the tennis court is responsive to clause 52.21.
What are the key issues?
6	This area of Plenty is subdivided into large lots, often with large dwellings and significant amounts of remnant vegetation.  Many of the lots in the vicinity, and particularly along Rotin Court nearby for example, are developed with additional features such as swimming pools and tennis courts.
7	As part of the subdivision of the land, when planning permit 267/2011/14P was issued in 2011, the s 173 agreement was applied to manage development in conjunction with the planning permit conditions.  In this context building envelopes are included on the endorsed plans and the s 173 agreement operates to regulate development to constrain it to defined building envelopes, and thus allow for the retention of vegetation and particularly trees in the area.
Procedural issues & rulings
8	As indicated earlier in these reasons there was some confusion in the hearing as to how many native trees were sought to be removed in the application; the applicant’s pre-circulated written submissions identifying 17 native trees out of 65 in total on the site for the tennis court.
9	The applicant sought leave at the hearing to circulate a revised arborist’s report.  Leave was granted and the revised report ‘Arboricultural Impact Assessment Report’ prepared by Molloy Arboriculture Pty Ltd dated 19 August 2024 was provided to Council and the Tribunal.
10	Council in turn provided it to their consulting arborist and then with leave provided a further submission to the Tribunal dated 4 September 2024.  Key points in the Council response included:
•	The applicant now proposes to remove four trees being trees 1, 5, 6 and 7.  This extent of tree removal is acceptable and will not greatly affect the landscape in the area.
•	Trees 4, 8, 9, 10, 13 and 14 may be affected by temporary access during construction and should be protected.
•	The location of the tennis court to minimise tree removal means Council considers there has been an acceptable response to clause 52.17 and the ‘avoid, minimise and offset’ approach in that clause.
11	Council provided revised conditions to the Tribunal and applicant.  By email dated 11 September 2024, the applicant advised that it noted Council’s submission, accepted the proposed permit conditions and further noted that its view is it and Council are now in agreement on the acceptability of the native vegetation removal proposed, being four trees.
is the removal of native vegetation under clause 52.17 acceptable?
12	Council provided an overview of the relevant planning policy in this area in its original submission.  This is clearly an area where native vegetation and trees are to be retained and enhanced in the landscape; my site inspection confirms the leafy nature of Leafy Drive.
13	The original subdivision permit and associated s 173 agreement clearly outline a regulatory approach to maximise the retention of native vegetation. 
14	In this case, the tennis court is proposed on an area mostly outside the defined building envelope.  It is apparent however from inspections and aerial photography that it is the best location in terms of minimising impact on native vegetation and also minimising the extent of cut needed to accommodate a level tennis court.
15	I note the reduction in removal of native vegetation required to four trees, following further investigations.  This, coupled with proposed offsets and additional replacement planting and landscaping in my view means an acceptable outcome has been achieved under the regime in clause 52.17.  A permit for native vegetation removal should be issued.
Consent under the S 173 Agreement
16	The s 173 agreement is designed to limit development to a particular area of the subject site to protect native vegetation and particularly canopy trees.  For the reasons outlined above I consider the proposed tennis court location an acceptable departure from the building envelope, and coupled with the additional native vegetation replacement planting proposed via conditions on the planning permit, will ensure the vegetated nature of the subject site sought by the agreement can be retained.  Consent for the building (tennis court) outside the building envelope is thus granted.
What conditions are appropriate?
17	I have reviewed the draft without prejudice conditions provided by Council and note the applicant’s agreement to them.  I consider they provide an acceptable framework for ensuring the required vegetation offsets are delivered.  
18	There was some repetition in the proposed conditions provided to me regarding amended plans.  I have modified the conditions and reordered them to provide for one amended plan condition while ensuring that important matters such as demonstration of offsets and identification and management of tree protection zones are included.
19	I have modified and simplified other conditions for clarity and plain English but these changes do not change the intent of conditions.
Conclusion
20	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Nick Wimbush
Member	

Appendix A – Permit Conditions

Permit Application No	1000/2022/05P	
Land	2 Leafy Drive
PLENTY VIC 3090  	

What the permit allowS	
In accordance with the endorsed plans:
•	Removal of native vegetation associated with the development of a tennis court under clause 52.17	
Conditions
Amended plans
1	Before vegetation removal commences, 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 dated 8/2023 and prepared by ADEX Building - Design and Drafting Services but modified to show: 
(a)	Accurate dimensions of the proposed tennis court and any areas of disturbance proposed during construction.
(b)	Clear delineation of all vegetation to be removed, being T1, T5, T6 and T7 on the Proposed Works Plan dated 19.08.2024 Version 2 prepared by Molloy Arboriculture.
(c)	Exact location and measurements of the Tree Protection Zone and associated tree protection fencing for all vegetation to be retained. 
(d)	Location and percentage of any encroachment of the Tree Protection Zone of all vegetation to be retained. 
(e)	Exact location and measurements of replacement planting and indicative canopy spread at maturity. The mature tree canopy must provide a minimum five (5) metre separation from any proposed and existing vegetation. 
(f)	Landscaping located outside of the Tree Protection Zone of all vegetation to be retained, if possible.
(g)	Any changes resulting from the Tree Protection and Management Plan required in condition 7.
(h)	A notation confirming that offsets in accordance with condition 12 have been secured.
2	The removal of native vegetation as shown on the endorsed plans must not be altered unless with the prior written consent of the Responsible Authority. 
3	Only native vegetation marked "to be removed" on the endorsed plans is permitted to be removed, to the satisfaction of the Responsible Authority. 
4	No vegetation on-site (unless specified on the endorsed plans or exempt by provisions of the Nillumbik Planning Scheme) shall be removed, destroyed, felled, lopped, ringbarked, uprooted or otherwise damaged except with the prior written consent of the Responsible Authority. 
Replanting program and landscaping
5	A replanting program of a 1 to 1 replacement must be undertaken for any native vegetation removal from the subject site within 6 months of the removal of the trees hereby permitted, to the satisfaction of the Responsible Authority. Species must be indigenous and of local provenance, and selected from the following: 
(a)	Eucalyptus goniocalyx (Long-leaved Box) 
(b)	Eucalyptus leucoxylon (Yellow Gum) 
(c)	Eucalyptus melliodora (Yellow Box) 
(d)	Eucalyptus polyanthemos (Red Box) 
(e)	Eucalyptus radiata (Narrow-leaved Peppermint) 
(f)	Eucalyptus rubida (Candlebark) 
6	Unless with the prior written consent of the Responsible Authority, the landscape works shown on the endorsed plans must be carried out, completed and maintained to the satisfaction of the Responsible Authority. 
Tree protection
7	Before vegetation removal commences, a Tree Protection and Management Plan must be submitted to and approved by the Responsible Authority.  The Tree Protection and Management Plan must include tree protection and management measures for all retained vegetation generally in accordance with the Arboricultural Impact Assessment Report dated Monday, 19 August 2024 prepared by Molloy Arboriculture Pty Ltd including:
(a)	TPZ fencing as recommended by Council’s Consulting Arborist. 
(b)	Colour code areas that require ground protection. 
(c)	Clearly mark trees proposed for removal and trees to be retained. 
(d)	Notations on the plan regarding supervision requirements and arborist attendance prior to works commencing. 
When approved, the Tree Protection and Management Plan will be endorsed and will then form part of this permit.
8	Prior to development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the vegetation (or nominate tree numbers or species of individual trees) marked on the endorsed plans as being retained must have a Tree Protection Zone 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 Tree Protection Zone, calculated as being a radius of 12 x Diameter at Breast Height (DBH - measured at 1.4 metres above ground level as defined by the Australian Standard AS 4970.2009). 
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 and must be a minimum height of 1.5 metres and of chain mesh or similar fence with 1.8 metre support posts (e.g. treated pine or similar) every 3-4 metres, including a top line of high visibility plastic hazard tape 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 1 cm of trunk girth measured at the soil/trunk interface on a weekly basis. 
(e)	Provision of Services 
Unless with the prior written consent of the Responsible Authority, all services (including water, electricity, gas and telephone) must be installed underground, and located outside of any Tree Protection Zone, 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). 
9	Prior to the commencement of the approved works (including any demolition, 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. 
10	The following actions must not be undertaken in any tree protection zone as identified in this permit, to the satisfaction of the Responsible Authority: 
(a)	Materials or equipment stored within the zone; 
(b)	Servicing and refuelling of equipment and vehicles; 
(c)	Storage of fuel, oil dumps or chemicals; 
(d)	Attachment of any device to any tree (including temporary service wires, nails, screws or any other fixing device); 
(e)	Open cut trenching or excavation works (whether or not for laying of services); 
(f)	Changes to the soil grade level; 
(g)	Temporary buildings and works; and 
(h)	Unauthorised entry by any person, vehicle or machinery. 
Native vegetation offsets
11	To offset the removal of 0.040 hectares of native vegetation as shown in the approved native vegetation removal report (report 356-20240819-C6P). The permit holder must secure a native vegetation offset, in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP 2017) as specified below: 
A general offset of 0.018 general habitat units: 
(a)	located within the Port Phillip & Westernport Catchment Management Authority boundary or Shire of Nillumbik municipal district 
(b)	with a minimum strategic biodiversity value of at least 0.680 
The offset provided must be to the satisfaction of the Responsible Authority. 
12	Before any native vegetation is removed, evidence that the required offset has been secured must be provided to the satisfaction of Council. This evidence should be:
(a)	Credit extract(s) allocated to the permit from the Native Vegetation Credit Register. 
A copy of the offset evidence will be endorsed by the responsible authority and form part of this permit. Within 30 days of endorsement of the offset evidence by the responsible authority, a copy of the endorsed offset evidence must be provided to the Department of Energy, Environment, and Climate Action. 
13	In the event that a security agreement is entered into, the applicant must provide the annual offset site report to the Responsible Authority by the anniversary date of the execution of the offset security agreement, for a period of 10 consecutive years. After the tenth year, the landowner must provide a report at the reasonable request of the Responsible Authority. 
Stormwater drainage
14	The development, including any new paved areas, must be drained so as to prevent the uncontrolled discharge of stormwater from the subject site across any road, footpath or onto any adjoining land.  Stormwater must not cause any nuisance or loss of amenity in any adjacent or nearby land. 
15	Stormwater from the impervious area created must be controlled and released into the existing stormwater drainage system to the satisfaction of the Responsible Authority. 
Permit expiry
16	This permit will expire if the native vegetation permitted to be removed under this permit is not removed within 12 months of the date of this permit. 
17	The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires, or within 6 months afterwards.
– End of conditions –