VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P834/2024
Permit Application no.WH/2024/26 	
CATCHWORDS	
Section 77 of Planning and Environment Act 1987 (Vic) – Whitehorse Planning Scheme – Neighbourhood Residential Zone – Schedule 4 – three dwellings – neighbourhood character – bush suburban – repeat appeal – landscaping – building bulk	

Applicant	JM Co Pty Ltd	

Responsible Authority	Whitehorse City Council	

SUBJECT LAND	12 Efron Street
NUNAWADING VIC 3131	

HEARING TYPE	Hearing	

DATE OF HEARING	7 February 2025	

DATE OF ORDER	17 February 2025	

CITATION	JM Co Pty Ltd v Whitehorse CC [2025] VCAT 138	
Order
Amended plans
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
Development plans
•	Prepared by:  Zai (Pty) Ltd. Building + Urban Design
•	Drawing numbers: TP-29007/101- TP-27007/107 (Inclusive)
•	Revision: C
•	Date: 10 December 2024
Landscaping plans
•	Prepared by: John Patrick Landscape Architects Pty Ltd
•	Drawing numbers: 24-371 L-VCAT01
•	Revision: A
•	Date: 17 December 2024
No permit granted
2	In application P834/2024 the decision of the responsible authority is affirmed.
3	In planning permit application WH/2024/26 no permit is granted.

Cassandra Rea
Member			

Appearances
For applicant	B. Ambrosino.  
J. Patrick was called to provide landscaping evidence.	
For responsible authority	D. Song.	

Information
Description of proposal	The proposal seeks the construction of three dwellings on a lot and removal of a Eucalyptus mannifera tree.  
Each of the dwellings will have a double garage, accessible via a common driveway adjacent to the western boundary.  
Each of the dwellings will be detached.  Dwellings 1 and 2 will be provided with four bedrooms whilst Dwelling 3 will comprise of three bedrooms.  
As there is significant change of topography across the site, the overall heights of the buildings vary, but generally the dwellings can be described as double storey.   
The design of the dwellings will be a traditional style including brick walls at ground level, with upper level walls being weatherboard or render walls in selected locations, and a pitched tiled roof.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Whitehorse Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone – Schedule 4
Significant Landscape Overlay – Schedule 9 (Neighbourhood Character Areas)
Development Contributions Plan Overlay – Schedule 1	
Permit requirements	Clause 32.09-7: Construction of two or more dwellings on a lot
Clause 3.0 of Schedule 9 of Clause 42.03-2: Removal of a tree that has a height more than 5 metres and a single trunk circumference of more than 1.0 metre at a height of 1.0 metre above ground level.	
Relevant scheme policies and provisions	Clauses 02.01, 02.02, 02.03, 02.03-2, 02.03-5, 02.03-6, 02.04, 12.01-1L, 15.01-5L, 15.01-5L, 15.01-5L-01, 16.01-1L, 32.09, 42.03, 52.06, 53.18, 55 and 65.  	
Land description	The site is located on the southern side of Efron Street. The total site area is 978m2 with a frontage of 15.24 metres and depths of 62.92 metres (east) and 65.44 metres (west). 
Located on the site is a detached house facing the street with a large bungalow/outbuilding to the rear.
The slope of the land is varied across the site, but overall falls approximately 11 metres from the front to the rear.	
Tribunal inspection	Unaccompanied, 13 February 2025   	

Figure 1: Extract of ground floor plan
Figure 2: Extract of east elevation
Figure 3: Extract of west elevation

Figure 4: Extract of north elevation (street) and south elevation (reserve)

Reasons
What is this proceeding about?
1	On 26 June 2024, Whitehorse City Council (‘council’) issued a notice of decision to refuse to grant a permit for the construction of three dwellings and the removal of vegetation on the site at 12 Efron Street, Nunawading (‘site’).
2	The grounds of refusal related to:
•	The proposal does not respond to the site context and constraints, and fails to respect the existing or preferred neighbourhood character.
•	The proposal does not provide an acceptable landscaping response that is consistent with the identified landscape character of the area.
•	The proposal will not produce an appropriate outcome as the standards relating to neighbourhood character, residential policy, safety, landscaping, side and rear setbacks, detailed design and site services contained within clause 55 of the Whitehorse Planning Scheme (‘scheme’) are not met.
•	The proposal fails to meet the car parking design standards of clause 52.06-9 of the scheme.
3	Since the issue of council’s decision, Planning Amendment C234 has been implemented into the scheme which has translated former municipal strategic statement and local policies into the Planning Policy Framework of the scheme.  There has been no change to the Strategic Framework Plan 2021 and The Significant Tree Study, City of Whitehorse (Tree Dimensions, September 2006) and Whitehorse Neighbourhood Character Study 2014 (Planisphere, April 2014) that remain listed as background documents.
4	Where some of the grounds of refusal from council referred to former policy references, the submissions referenced the updated policy references.  
5	JM Co Pty Ltd (‘applicant’) seeks a review of council's decision. It is the applicant’s submission that the proposal provides a balanced design outcome in relation to neighbourhood character and the development complies with the relevant clause 55 standards of the scheme. The applicant relies upon the evidence of Mr Patrick relating to the appropriateness of the landscaping response.  
6	Since the refusal of the application, amended plans have been circulated.  The amended plans do not change council’s position on the application other than the ground of refusal relating to the design standards of car parking that is no longer being relied upon by council.  
7	A similar proposal was heard and determined by the Tribunal for three dwellings on a lot and the removal of a tree on the site.  The previous decision is JM Co Pty Ltd v Whitehorse CC (‘previous decision’).
8	Having considered the submissions, in the context of the relevant policies and provisions of the scheme, I have determined to affirm the decision of the responsible authority and direct that no planning permit be issued. My reasons follow.
WHAT IS THE STRATEGIC CONTEXT?
Neighbourhood Residential Zone – Schedule 4
9	The site is zoned Neighbourhood Residential Zone - Schedule 4 (‘NRZ4’) relating to the ‘Informal Bush Suburban Areas’.  There are no identified neighbourhood character objectives to be achieved under the NRZ4 however the purposes of the broader Neighbourhood Residential Zone (‘NRZ’) apply.  Relevantly, these include:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To recognise areas of predominantly single and double storey residential development.
To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
10	The NRZ4 varies several quantitative standards of Clause 55. These include:
•	Minimum street setback: The front of a garage, carport and/or outbuilding should be set back at least 10 metres from the front boundary or 1 metre further that the average set back of the buildings on adjoining allotments, whichever is the lesser. 
•	Site coverage: 40%.
•	Permeability: 40%.
•	Landscaping: Provision of at least two canopy trees per dwelling that have the potential of reaching a minimum mature height of 12 metres. At least one of those trees should be in the secluded private open space of the dwelling. The species of canopy trees should be native, preferably indigenous.
•	Side and rear setbacks: A new building not on or within 200mm of a boundary should be set back 2 metres from the side boundary, plus 0.6 metres for every metre over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres.
•	Walls on boundaries: Walls should only be constructed on one side boundary.
•	Private open space: A dwelling or residential building should have private open space consisting of and area of 40 square metres, with one part of the private open space at the side or rear of the dwelling or residential building within a minimum area of 35 square metres, a minimum dimension of 5 metres and convenient access from a living room. It cannot include a balcony or roof top terrace.
11	In addition to the decision guidelines under the NRZ, the following decision guidelines apply in the NRZ4:
Whether the vegetation in the street setback will contribute to the preferred neighbourhood character and the public realm.
The potential for trees and vegetation to be provided between dwellings on the same site.
Whether there is sufficient permeable space that is not encumbered by an easement to enable the planting of canopy trees.
Development should provide for the retention and/or planting of trees, where these are part of the character of the neighbourhood.
Significant Landscape Overlay – Schedule 9
12	The site is affected by the Significant Landscape Overlay – Schedule 9 (‘SLO9’). This area relates to the neighbourhood character areas.
13	The statement of nature and key element of landscape is:
The leafy garden and bushy character of Melbourne’s eastern suburbs can be viewed from many high points throughout Melbourne and is a significant component of the subregion. The treed character of areas such as Whitehorse provides an important ‘green’ link between Melbourne and the Yarra Valley.
The Municipal Wide Tree Study (June 2016 and March 2019) identifies that trees are significant to the landscape character of the City of Whitehorse. The tree cover in Whitehorse simultaneously delivers multiple benefits to the community, including defining neighbourhood character, providing visual amenity, reducing the urban heat island effect in more urbanised areas, improving air quality and energy efficiency, providing habitat for fauna, and increasing the wellbeing of people and liveability of neighbourhoods.
The Garden Suburban Neighbourhood Character Area generally has formalised streetscapes comprising grassed nature strips, concrete footpaths, kerbs and channels, and buildings are generally visible along streets behind low front fences and open garden settings.
Gardens are typically established with canopy trees, lawn areas, garden beds and shrubs and there are typically well defined property boundaries and consistent building siting.
The majority of the municipality is included in the Garden Suburban Neighbourhood Character Area.
The Bush Suburban Neighbourhood Character Area generally has a mix of formal and informal streetscapes with wide nature strips and streets are dominated by vegetation with buildings partially hidden behind tall trees and established planting.
Gardens are less formal, consisting of many canopy trees and property boundary definition can be non-existent or fenced. Buildings appear detached along the street and generally comprise pitched rooftops, with simple forms and articulated facades.
The Bush Suburban Neighbourhood Area includes parts of Blackburn, Box Hill South, Vermont South, Mitcham, Nunawading and Mont Albert North as shown in the Neighbourhood Character Precincts Map contained in the Neighbourhood Character Study 2014.
14	The landscape character objectives to be achieved are:
To retain and enhance the canopy tree cover of the Garden and Bush Suburban Neighbourhood Character Areas.
To encourage the retention of established and mature trees.
To provide for the planting of new and replacement canopy trees.
To ensure that development is compatible with the landscape character of the area.
15	A permit is required to remove, destroy or lop a tree with a single trunk circumference of 1.0 metre or more at a height of one metre above ground level and a height greater than five metres.
16	A permit is not required to construct a building or construct or carry out works provided the buildings or works are set back at least 4 metres from any tree protected under the provisions of this schedule when measured at ground level from the outside of the trunk.
17	In addition to the decision guidelines under the Significant Landscape Overlay, a decision maker must consider, as appropriate:
•	The contribution of the tree to neighbourhood character and the landscape.
•	The need to retain trees that are significant due to their species, age, health and/or growth characteristics.
•	Where the tree is located, its relationship to existing vegetation and its role in providing habitat and corridors for fauna and their contribution to local ecological systems.
•	The cumulative contribution the tree makes with other vegetation to the landscape and the impact of the incremental loss of trees.
•	Where the location of new and existing footings and impervious areas are in relation to the root zone of established trees.
•	The compatibility of any buildings and works with existing vegetation proposed to be retained.
•	The effect of any proposed lopping on the significance, health or appearance of the tree.
•	Whether there is a valid reason for removing the tree and whether alternative options to removal have been fully explored.
•	If retention cannot be achieved, or a tree is considered appropriate for removal, consider whether:
•	a replacement tree has been provided; and
•	the site provides adequate space for offset planting of trees that can grow to a mature height similar to the mature height of the tree to be removed.
•	If it is not appropriate to select an indigenous or native tree species, the selected species should be drought tolerant.
•	Whether the planting location of the replacement tree(s) will enable the future growth of the canopy and root system of the tree to maturity.
•	Whether the replacement tree species and planting locations conflict with existing or proposed overhead wires, buildings, easements and existing trees.
•	Whether the proposal is consistent with the Whitehorse Neighbourhood Character Study (April 2014), the Municipal Wide Tree Study Options and Recommendations Report (June 2016) and the Municipal Wide Tree Study Part 2: Additional Analysis in Garden Suburban and Bush Suburban Character Precincts (March 2019).
Bush Suburban Neighbourhood Character Statement
18	The Neighbourhood Character Precincts map at clause 15.01-5L locates the site within the Bush Suburban 5 precinct. The following strategies apply to the Bush Suburban 5 areas: 
Site modest and low scale designed development within well-established garden settings that, include substantial native shrubs and tall canopy trees. 
Maintain generous sized front and side setbacks, allowing sufficient space for the continued planting and growth of new vegetation. 
Provide low, open style fences or leave the front setback unfenced to complement the spaciousness of the precinct and allow, views into front gardens. 
Ensure development does not hinder the retention and planting of street trees that contribute to the vegetation dominated character. 
Incorporate large canopy trees and native vegetation on properties abutting and close to parklands and the Koonung Creek Trail that reflect and contribute to the landscape character of the creek corridor. 
Planning Policy Framework
19	The importance of landscaping and contribution to neighbourhood character is reflected in the following strategies and policies:
Clause 02.01 Context
The City is characterised by undulating topography with some steeply sloping areas, enhanced by a range of native and exotic landscapes. Trees are an integral component of the City and a key determinant of the residential character.
Clause 02.03-2 Environmental and landscape values
Trees are a key determinant of the character of the residential areas of the City. Parts of the municipality are dominated by an upper tree canopy that ranges from the exotic tree-lined streets of Mont Albert to native trees in areas of Blackburn, Blackburn North, Vermont and Mitcham. There is a bushland appearance in parts of the City that is uncommon in middle ring suburbs.
Council’s strategic directions are to:
•	Protect and enhance areas with special natural, environmental, cultural or historic significance for the future enjoyment of the community.
•	Ensure new development does not adversely impact the natural environment and ecological systems.
•	Facilitate environmental protection of, and improvements to, the City’s water, flora, fauna and biodiversity assets.
Clause 02.03-5 Built environment and heritage
Visual amenity
Trees are integral to the neighbourhood character of Whitehorse and they have been identified as an important contributor to the Bush Environment, Bush Suburban and Garden Suburban character areas. The Municipal Wide Tree Study identified that "trees are the most significant determinant of the character of various areas within the City of Whitehorse, with upper tree canopy covering a significant proportion of the city" (Municipal Wide Tree Study Discussion Paper, March 2016).
Neighbourhood character
There is concern within the community that poorly designed residential development is eroding the character and quality of some residential areas. As the basis for addressing this concern, the Whitehorse Neighbourhood Character Study, 2014 has categorised the City’s residential areas into the following neighbourhood character types:
•	Garden Suburban Area.
•	Bush Suburban Area.
•	Bush Environment.
Council will use the identified character types and the three categories of housing change identified in Clause 02.03-6 to encourage high-quality development that is responsive to site constraints and opportunities, and contributes to the preferred neighbourhood character of the area.
Tree Conservation
Council has identified trees as being an integral and valued aspect of the character of Whitehorse, particularly within many of its residential areas.
Vegetation has been identified as one of the most significant determinants of neighbourhood character in the municipality, with trees playing a crucial role. Council is concerned that the removal of canopy trees and vegetation will erode the neighbourhood character of Whitehorse. Of particular concern is the clearing of all trees from sites prior to development. Council's interim Urban Forest Strategy published in 2018, outlines the vision, policies and actions relating to Whitehorse's tree population and has set a target for canopy cover of at least 30% by 2030.
Retaining trees, and providing sufficient space for the regeneration of trees, is therefore vital to preserve and enhance the amenity and character of the City. It strengthens neighbourhood character, landscape and amenity, reduces the urban heat island effect, provides habitat for wildlife, improves air quality and the local climate and has positive effects on community health and wellbeing.
Clause 15.01-5L Preferred neighbourhood character
Objectives
To ensure that development:
•	Is consistent with the built form envisaged for the three categories of housing change, those being limited, natural and substantial change areas as defined in Clause 16.01-1L (Housing change) and shown on Plan 2: Housing Framework Plan at Clause 02.04.
•	Contributes to the preferred neighbourhood character of the area.
•	Minimises the loss of trees and vegetation.
•	Does not detract from the natural environment and ecological systems.
•	Provides adequate vegetation and gardens consistent with the preferred neighbourhood character.
Clause 15.01-5L-01 Tree Conservation
Strategies
Retain trees that are:
•	Sound in health, reasonable in structure, of an appropriate species, and are in a location that can be reasonably designed around.
•	Significant for aesthetic, neighbourhood character, ecological, cultural or historical reasons, such that they are important beyond the immediate surrounds of the site.
Separate new buildings or works an appropriate distance from trees to be retained to ensure that an adequate proportion of the root system is protected from disturbance, and that adequate oxygen and nutrients are available for the tree to survive in the long-term.
Use techniques such as site-responsive building design and hard-surfacing to minimise potential damage to trees and their root systems, particularly where separation distances are at a minimum and the size and species of a tree requires additional measures to ensure its long-term health
Policy guidelines
•	Retaining trees unless the structure of the tree is unsound due to any of the following:
•	Major limbs either dead or dying.
•	Major fungal or insect damage.
•	Rot.
•	Termite attack.
•	Major forks low in the trunk.
•	Retaining trees unless the species of the tree is unsuitable for the site due to any of the following:
•	It is, or will be, too big for the area where it is located.
•	It is a species known to drop limbs or block drains.
•	It is an environmental weed.
•	It is inappropriately located near power lines or other overhead services.
•	In areas affected by a Significant Landscape Overlay or Vegetation Protection Overlay, providing a minimum separation distance of 4 metres between the trunk of a tree to be retained and any new buildings or works.
Tree regeneration strategies
Plant new canopy trees, and replace significant trees that are unable to be retained, to maintain the canopy tree cover of the municipality.
Ensure new trees have sufficient space and separation from buildings and impervious surfaces, to successfully obtain their optimum height and avoid any damage to property in the future.
Plant new trees in an open area that is free of buildings, impervious surfaces, and other tree canopies, to minimise competition and facilitate normal growth.
Use juvenile trees for replanting that are better able to adapt to their surroundings and develop a strong, healthy root system.
Ensure consideration is given to species of new trees to determine if they are appropriate for the location, soil type and neighbourhood character.
20	The site is identified for the lowest scale of intended residential growth in Whitehorse (Limited Change area) in the Strategic Framework Plan at clause 02.04 of the scheme and the vision for the limited change area is outlined at clause 02.03-6 of the scheme, as follows:
Enable specific characteristics of the neighbourhood, environment or landscape to be protected through greater control over new housing development. These areas represent the lowest degree of intended residential growth in Whitehorse.
21	In relation to development expectation and housing supply, the following objectives, strategies or policies apply:
Clause 02.01 Context
The City of Whitehorse provides housing for a wide range of household types, ages and cultural groups. Residential development varies between apartment buildings in the Box Hill Metropolitan Activity Centre (MAC), small unit developments in areas with good access to public transport and amenities, and detached dwellings in the majority of residential areas.
Clause 02.03-6 Housing
The City is under increased pressure to accommodate more people who are attracted to the area due to its strategic location, high amenity residential areas and quality services and facilities. It is predicted that Whitehorse will need to accommodate an additional 19,694 dwellings to house the projected population growth to 2041. The community is concerned about maintaining the high-quality residential environment and ensuring that areas of environmental, heritage or special character are protected as the population grows.
Council has identified areas of substantial, natural and limited housing change that are aligned with the neighbourhood character precinct
statements. These statements, and subsequent planning controls, aim to direct housing growth across the municipality in a way that reflects the community’s neighbourhood character aspirations, while balancing the future housing needs of the City.
Clause 16.01-1L Housing Change
Objectives
•	To limit dwelling densities in Limited Change Areas.
•	To accommodate population increases in the municipality within Natural and Substantial Change Areas.
•	To facilitate residential development in Substantial Change Areas.
•	To guide development outcomes along key road corridors in the municipality where Substantial Change Areas interface with low-rise residential development.
Strategies
Provide adequate space for substantial vegetation in Limited and Natural Change Areas.
Encourage the retention of older dwellings in Limited and Natural Change Areas where these buildings are predominant.
…
Enable medium density developments, in the form of townhouses or units, in Natural Change Areas and higher density developments in Substantial Change Areas that provide a sensitive interface with adjoining streets, buildings and residential areas.
Limit residential development to detached and semi-detached dwellings, that is of a scale, form and character consistent with the surrounding area.
Provide some diversity of dwelling sizes and tenures, including affordable housing where feasible.
WHAT ARE THE KEY ISSUES?
22	Based on the relevant decision making framework, the key issues that I find I need to determine are:
•	Does the development make an appropriate contribution to the neighbourhood?
•	Can sufficient landscaping be provided on the site?
•	Will there be an acceptable presentation to the reserve?
•	Will the proposal result in an acceptable impact to nearby properties?
23	I make my findings with the knowledge of the previous decision.   The Tribunal and the courts have previously set out principles around how repeat appeals should be considered and these are now well known and established. In summary, these principles are:
•	It is a matter for the later decision maker to determine what weight should be given to the previous decision;
•	Consideration of the new application must be undertaken on its merits but in doing so, great weight should be given to the previous decision; and 
•	Whether there has been significant changes in the application itself, changes in circumstances of the land and its surrounds, change in planning policy or changes in the interpretation of the facts or laws relevant to the Tribunal’s consideration.  
24	It is my role to consider the new application on its merits whilst giving great weight to the previous decision on the earlier application having regard to the usual principles that have evolved for repeat appeals.
25	For reasons outlined in my decision below, I agree with the council’s submission that the proposal fails to respond successfully to the key criticisms expressed by the Tribunal in the previous decision and in my assessment of the applicant against current planning policy, I find the proposal does not achieve policy sought by the scheme. 
Does the development make an appropriate contribution to the neighbourhood?
26	The previous decision considers that ‘the development of three, double storey dwellings could ‘fit in’ to the neighbourhood character context of the subject land.’ Council does not oppose development of the site for medium density housing, but is critical of the response to the overall spaciousness of the layout and the sensitive location due to the presence of the Lindsay Avenue Linear Reserve (‘reserve’) to the south.  
27	The applicant took me to some examples of medium density housing in the locality, including 38 to 48 Efron Street, Nunawading (inclusive).  I agree with the submissions of council that the context of these development is different to that presently before me as these developments do not interface with the reserve.  I am also not persuaded that the landscaping within these developments meet the current planning policy context set out above.  
28	Even with the changes to the proposal from the previous decision, the council submits that the proposal will be significantly at odds with the spacious character of dwellings nearby.
29	The applicant submits ‘the proposed development includes setbacks from all boundaries that allow for substantial landscaping and vegetation to be provided throughout the site’.  This is incorrect as dwelling 3 includes a wall on boundary associated with the garage which appears to be the same height and in the same location as the previous proposal.  The previous decision is critical of the wall on boundary, particularly due to the presentation from the reserve and the response to the neighbourhood character seeking modest, low scale dwellings sitting within well- established garden settings.  I agree with the council that insufficient setbacks have been provided for dwelling 3 to the east, south and west and the consequence is that the proposed dwelling will inappropriately dominate the reserve environment.  
30	I agree with the council’s submission that the elongated building envelopes of dwellings 1 and 2 reduces the amount of land available for dwelling 3 to  achieve an appropriate presentation to the reserve to the south. The sense of spaciousness that is characterised by bush suburban areas is not respected with the proposed layout of the proposal.  
31	I have not been persuaded that the design response for the proposal has had sufficient regard to the significant change in topography.  The embankment that is located along parts of the western and southern boundaries of the site is significant and creates a constraint for the redevelopment of the site.  
32	The width of the dwelling 3 presentation to the reserve with minimal side setbacks, including the garage wall on boundary which will be viewed from the reserve as an elevated element, will not be in keeping with the reserve character or the prevailing detached dwellings nearby.  
33	Even with the design changes to dwelling 3 that the applicant says have been made to the proposal including a reduced building footprint, increased setbacks at lower ground and ground floor level, reduction in the overall heights, reduction in the height of the western wall and the provision of a canopy tree in the south-west corner, I find the visual impact of dwelling 3 onto the reserve will be unacceptable.  
34	Clause 55.02-1 of the scheme which relates to neighbourhood character objectives state:
The proposed design must respect the existing or preferred neighbourhood character and respond to the features of the site.
35	Dwelling 3 encroaches onto the crestline and as such does not respond to the topography of the site.  The encroachment results in a heavy reliance upon retaining walls that introduces structure into locations typically expected to be set aside for landscaping and secluded private open space.  The building bulk and presentation, as viewed from the reserve, is heightened by the location of the building on top of the embankment with insufficient setback to mitigate against the dominance of the built form.  
36	The variation in setbacks between the basement and ground level for dwelling 3 generally between 0.5 and 1.0 metres will be very subtle and the setbacks will not mitigate against the elevated built form with a high level of exposure from the reserve.
37	Whilst the applicant observes that the adjoining property to the east has been aligned close to the easement not dissimilar to the proposed development, I find that the upper floor of the adjoining property to the east will have more generous setbacks to create more recessed building elements.  Unlike the development at 14-16 Efron Street, the proposal does not have generous side setbacks of 5.0 metres that will accommodate canopy trees as set out in the tree regeneration policy guidelines contained within clause 15.01-5L-01 of the scheme.   
38	As the layout does not reflect the level of spaciousness, together with a lack of response to topography, I find that the development does not make an appropriate contribution to the neighbourhood and I agree with council that the development will result in a negative visual impact upon the sensitive landscape environs of the reserve to the south.  
Can sufficient landscaping be provided on the site?
39	The council suggests that the tree regeneration policy guidelines at clause 15.01-5L-01 of the scheme requires planting on the site with a minimum area of 35 square metres of open ground with a minimum dimension of 5 metres, that is free of buildings, impervious surfaces and other tree canopies.  Trees ought to be planted 3.0 metres from a building and not within an easement. 
40	While at least 35 square metres will be provided for each of the secluded open spaces, these areas are encroached with a series of retaining walls and other structures.  
41	The extensive use of retaining walls throughout the site will limit the impact of landscaping as structures will dominate garden areas and the retaining walls potentially create ongoing maintenance issues for the future occupiers.  The retaining walls along the driveway will add to the visual impact of hard surfaces across the site and I find that there will be insufficient room to provide landscaping to soften the impact.  
42	There are also sizeable areas that have been designated for driveway and turning areas and there is not the ability to provide any meaningful landscaping that would contribute to the bush suburban character as set out in policy.  
43	I find the amount of area available for landscaping particularly unsympathetic to the sensitive reserve environment.  The bush suburban precinct particularly includes a strategy to ‘incorporate large canopy trees and native vegetation on properties abutting and close to parklands and the Koonung Creek Trail that reflect and contribute to the landscape character of the creek corridor’.
44	I find that it is failing of the development before me that there is insufficient room to incorporate canopy trees in accordance with the tree regeneration strategies and policy guidelines that particularly seek planting to compliment parklands within designated bush suburban areas.  
Will the proposal result in an acceptable impact to nearby properties?
45	Aerial photos show that the property to the east (14-16 Efron Street) commenced construction prior to the start of August 2024 including earthworks for footings and slabs for the front dwellings.  Since then construction of these dwellings have continued.  
46	The latest set of plans do not show the layout of the development under construction which has made it challenging for the assessment of the impact upon the adjoining property to the east.   
47	The applicant was unable to satisfy me that the shadow impact to the secluded private open spaces on the adjoining site to the east will comply with clause 55.04-5 of the scheme.  I was also unable to confirm whether the provided shadow diagrams at 9.00am, 12.00 noon and 3.00pm at the Spring Equinox have taken into account the significant change in topography of the land between the two properties.  
48	Council was critical of the two locations that the side setbacks of clause 55.04-1 of the scheme were not achieved.  Further criticism was made on the basis that it was council’s view that landscaping would not be effective in screening the views to the new building in these locations.  I received no submissions regarding what the interface on 14-16 Efron Street will be opposite the areas of non-compliance.
49	With respect to overlooking, I acknowledge that it would be possible to screen bedroom 4 of dwelling 2 if views into habitable room windows or secluded open space of the development under construction at 14-16 Efron Street.  
50	Potential overlooking from bedroom 3 of dwelling 2 was raised in statement of grounds received by the Tribunal from the property to the west.  I am not persuaded by the submissions of the applicant that the 1.9 metre high fence will block views from this window.  No cross-section or survey material accompanies the application to demonstrate that this is the case.  
51	However, I recognise that potential overlooking can be addressed by condition should a permit issue, however this may reduce the driveway surveillance discussed below.  
Are there any other matters that would be result in an inappropriate planning outcome?
Driveway surveillance
52	The previous decision did not support the siting and design of the development due to the lack of visibility and surveillance of the driveway. 
53	The applicant submits that the living room window of dwelling 1 has been enlarged and there is a clear glazed window to bedroom 3 of dwelling 2 that will allow passive surveillance in accordance with clause 55.03-7 of the scheme. 
54	I am not persuaded that the changes to the plans provide sufficient surveillance of the driveway.  There continues to be large sections of the driveway that will not have any passive surveillance and the layout of dwellings 2 and 3 have not incorporated habitable room windows near their entries that would enable occupants to survey activity in the driveway.    
Visitor Car Parking
55	The proposal has met onsite provision of car parking prescribed under clause 52.06, and as such matters relating to car parking and traffic are not before me.
Tree Removal and Protection
56	I was informed that the removal of the significant eucalyptus tree within the front setback was not contested by council due to serious defects in the form.
57	Statement of grounds received by the Tribunal suggests that Tree #8 has not been plotted on the plans correctly and that this tree would be compromised by the proposed garage on boundary wall.  If I had been of a mind to grant a permit, this is something that would necessitate more exploration and that a condition on permit could address tree protection measures to ensure the protection of nearby trees.   
Other improvements from previous proposal
58	I acknowledge that there are improvements from the last proposal determined by the Tribunal including solar access to the secluded open space of dwelling 3, size of living area associated with dwelling 3, and the setback of habitable windows from the communal driveway.
59	However, I find that these improvements do not outweigh the shortcomings of this proposal, for reasons outlined above.  
Quality of the plans
60	The previous decision at paragraphs 37 to 40 outlines the challenges in the assessment of the application based on the quality of plans provided.  
61	I asked the applicant to explain to the Tribunal and council particular elements of the proposal as the plans remained unclear, particularly in relation to proposed levels, driveway grades and the southern elevation of dwelling 3 at the commencement of the hearing.  
62	With respect to the retaining walls, the plans do not clearly show the location of all retaining walls that will be necessary due to the extent of cut and fill.  There is no detail of the materials and how these walls may fit into the landscape or what will be their visual impact when combined with other built form elements.  The width of the retaining walls will also be consequential to the width of garden beds and the successful planting in the space.
63	I am also not persuaded that the grades shown on the plans produce a practical and functional layout for the dwellings.  For example, there will be a 1.0 metre difference in the finished floor level of the garages between dwellings 1 and 2 however the separation of approximately 2.0 metres is likely to result in a cross-grade that may be contrary to trafficable driveway grades and creates pedestrian accessibility issues for dwelling 2.  Likewise, the gate providing access to the secluded private open space of dwelling 2 is elevated above the finished surface level of the driveway with no area set aside for steps.  
64	The south elevation of dwelling 3 also shows a retaining wall beneath the south wall of the garage.  The applicant suggests that this retaining wall will not be exposed to the reserve and that natural ground level in the area to the south will be maintained.  It is not clear to me the purpose of the retaining wall if this is the case, and I would find it inappropriate to provide an exposed retaining wall in this location as it contributes to the dominance of the built form as viewed from the reserve.  
65	If I had been persuaded that the proposal was generally acceptable, I would have asked for further details to clarify the plans.  Given I find the proposal fails, as set out above, I have not burdened the applicant with the cost of preparation of extra plans. 
Conclusion
66	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Cassandra Rea
Member