VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1464/2018
Permit Application no. P18/1149	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; General Residential Zone; Dwellings; Policy; Neighbourhood character.	

APPLICANTs	Anthony and Tracey Byrne	
responsible authority	Mornington Peninsula Shire Council	
SUBJECT LAND	33 Hilary Avenue, McCrae	
WHERE HELD	Melbourne	
BEFORE	Bill Sibonis, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	1 February, 2019	
dates of interim orders	4 and 13 March, 2019	
DATE OF ORDER	29 April, 2019	
CITATION	Byrne v Mornington Peninsula SC [2019] VCAT 503	

Order
1	In application P1464/2018 the decision of the responsible authority is set aside.
2	In planning permit application P18/1149 a permit is granted and directed to be issued for the land at 33 Hilary Avenue, McCrae in accordance with the conditions set out in the Appendix.  The permit allows the construction of two dwellings and the subdivision of the land into two lots, in accordance with the endorsed plans.

Bill Sibonis
Member			

Appearances
For A & T Byrne	Mr L Dowdle, Town Planner of Nepean Planning Consultants	
For Mornington Peninsula Shire Council	Mr J Livingston of JLP Melbourne	

Information
Description of proposal	The construction of two dwellings and the subdivision of the land into two lots.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	General Residential Zone – Schedule 1, Mornington Peninsula Town Areas (GRZ1)
Design and Development Overlay – Schedule 1, Township Design (DDO1)
Vegetation Protection Overlay – Schedule 1, Township Vegetation (VPO1)	
Permit requirements	Cl. 32.08-3 (to subdivide land in the GRZ1)
Cl. 32.08-6 (to construct two or more dwellings on a lot in GRZ1)
Cl. 43.02-2 (to construct a building and to construct or carry out works on land in DDO1)
Cl. 43.02-2 (to subdivide land in DDO1)	
Key scheme policies and provisions	Cl. 11, 15, 16, 21, 22.13, 32.08, 43.02, 52.06, 55 and 65	
Land description	The review site is located on the north-eastern side of Hilary Avenue.  It is a 695 square metre lot with a frontage of 15.24 metres and a depth of 45.61 metres.  It is occupied by a single-storey dwelling.  Surrounding and nearby lots area developed in the form of single dwellings and medium density housing.	
Tribunal inspection	An inspection was undertaken after the hearing.	

Reasons
What is this proceeding about?
1	The Mornington Peninsula Shire Council (‘the Council’) has refused a planning permit for the construction of two, two-storey dwellings on the review site.  The grounds of refusal refer to matters of policy, built form, landscaping and non-compliance with selected requirements of clause 55.
2	This is an application to the Tribunal for a review of the Council’s decision.
3	On the basis of the submissions, the key issues for determination may be expressed as follows:
•	Is the proposal an acceptable response to the policy context?
•	Will the development contribute to the preferred neighbourhood character?
•	Will the development result in any unacceptable impacts on the amenity of adjoining properties?
4	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered the submissions, with regard to the relevant policies and provisions of the Mornington Peninsula Planning Scheme, assisted by my inspection, I have determined to set aside the Council’s decision.  My reasons follow.
is the proposal an acceptable response to the policy context?
5	The Mornington Peninsula Strategic Framework Plan at clause 21.04 provides a framework for balanced development and sustainable land use.  The ‘basic land use structure’ includes townships.  Relevant strategic directions are:
•	supporting and strengthening the hierarchy of towns and villages on the Peninsula, having regard to their individual character and functions, their relationships to each other and to adjacent rural, coastal and port development areas
•	defining township growth boundaries as a method of focusing future development in the major towns.  This strategy of distributing future population growth also depends on containing other townships and villages within existing established boundaries.
6	Clause 21.06 sets out objectives and strategies related to the Strategic Framework and the Peninsula’s Settlement Pattern.  It recognises that the distinctive settlement pattern based on a hierarchy of townships and villages contributes to the diversity of residential, commercial, recreational and employment opportunities to residents and the wider community.  It goes on to state that continued demand for housing needs to be managed and integrated with the achievement of other major objectives including conservation, recreation, agriculture and port development.  A key issue is the need to distribute future population growth in support of major township development rather than allowing ad hoc expansion or dispersed population growth throughout the rural area.
7	An objective is to establish an integrated land use pattern that recognises the regional role and character of the Peninsula and ensures that urban development does not prejudice the environmental, recreational and agricultural values of the Peninsula nor the potential for appropriate port related development.  Strategies include:
•	establishing a strategic framework plan that recognises the key strengths and values of the Peninsula, including a hierarchy of towns and villages, capable of meeting the needs of residents and visitors
•	defining clear and stable township boundaries which recognise the character and ‘sense of place’ of individual towns, including the relationship between towns, coastal areas and the rural hinterland.
8	Clause 21.07 provides the objectives and strategies related to guiding future township development.  An objective is to provide for land use and development within township areas which meets the needs and respects the values of local communities.  Strategies refer to directing growth to major townships, and to planning and coordinating the development of townships having regard to the surrounding environment, the character and functions of the particular settlement.
9	Clause 11.03-5S requires consideration of the Mornington Peninsula Localised Planning Statement.  An objective is to protect the role and character of the Mornington Peninsula’s settlements, towns and villages.  Strategies include:
18	The hierarchy of settlements on the Mornington Peninsula will be recognised and maintained, with provisions to reinforce the distinction between major activity centres and other townships through appropriate density, height and built form controls and provisions to avoid out of centre commercial development. For the purposes of commercial centre planning the Mornington Peninsula will be considered separate from metropolitan Melbourne.
19	The townships of the Mornington Peninsula are expected to accommodate at most moderate and generally low levels of housing growth, with many smaller towns and villages intended to accommodate very limited further development. Special regard should be given to the provision for appropriate housing growth in the Western Port area, having regard to employment growth over time associated with the further development of the Port of Hastings and the opportunities this provides.
20	Development within the Urban Growth Boundary, whether within residential, commercial or other areas, will be of a type and scale that maintains the existing valued character of each town or settlement, or supports a change to a preferred future character that is clearly established through community consultation and the adoption of a relevant local area plan. In the assessment of any planning permit application, priority will be given to any local character statement or policy adopted by the responsible authority.
21	The character and functions of the towns and villages will be protected and there will be no linear development between towns along the coast or expansion into the areas between townships. Development within each settlement will only be of a scale and character appropriate to the role, function and location of that settlement.
22	Future planning for the settlements on the Peninsula will be based on principles of good design, Integrated Local Area Planning and Environmentally Sustainable Development, all in accordance with the character, scale, role and functions of each settlement, including:
…
e)	careful attention to achieving good design which responds to and is appropriate to the character and function of the particular place, including consideration of built form and scale, access and connectivity, environmentally sensitive design, heritage, streetscape and landscape values, including the retention of vegetation where this is a key element of township character.
10	The Council has prepared the Mornington Peninsula Housing and Settlement Strategy 2017 (‘the Housing Strategy’).  It is a Council-adopted strategy and forms the strategic basis for proposed Amendment C219 to the Planning Scheme.  The Amendment was submitted to the Minister for Planning for authorisation to prepare and exhibit in February 2018.  At the time of the hearing this authorisation had not been received by the Council.
11	The weight to be given to the Housing Strategy is a matter in dispute between the parties.  This issue has been the subject of the Tribunal’s consideration in several cases, with the Tribunal variously concluding that the weight to be given is limited, at most.
12	In the recent decision of Azzi v Mornington Peninsula SC (‘Azzi’), the Tribunal made the following findings in respect of the weight to be given to the Housing Strategy:
25	The Mornington Peninsula Housing and Settlement Strategy 2017 (Housing Strategy) was adopted at Council’s Planning Services Meeting on 4 December 2017 and aims to outline the directions for future housing and population growth for the municipality.  
26	The Housing Strategy seeks to ensure that values and character are protected.  Its key directions include:
Recognise the limits to the capacity … of individuals towns… to accommodate growth…. The townships… are expected to accommodate at most moderate and generally low levels of housing growth with many small towns and villages intended to accommodate very limited further development…..
Give priority to the protection of residential character and amenity.
Determine appropriate change through a consultative process…and where appropriate the definition of ‘preferred future character’ should occur through a process of community consultation and adoption of a relevant local area plan.
27	The land is in an area on the Housing Distribution Maps within the Housing Strategy that corresponds to a minimum subdivision size of 450 square metres and thus would be rezoned to the Neighbourhood Residential Zone, Schedule 3 (NRZ3).
28	The Housing Strategy forms part of Amendment C219 (C219) which was sent to the Minister for authorisation in February 2018.  
29	C219 seeks a number of changes including but not limited to:
Application of the NRZ with three schedules to all land within the GRZ except for selected areas.
Amendment to the LPPF.
Amendment of the Design and Development Overlays.
(Tribunal emphasis added)
30	At the time of the hearing Council was waiting to hear from the Minister with respect to authorisation of C219.  
31	The Housing Strategy is an adopted policy of the Council and I am able to consider it by virtue of Section 60(1A)(g) of the Act.  However, simply because I am required to consider it does not mean that it is a strategy that I must give effect to.  The central issue is the weight that should be given to the Housing Strategy. 
32	The Council submitted that the adopted Housing Strategy should be considered as part of this application.
33	I have thoroughly reviewed all relevant policy both within the planning scheme and the Housing Strategy and it seems to me that the Council is seeking to actively manage expected population growth by directing moderate and low levels of growth within towns and very low levels within villages.   This is essentially achieved by establishing a settlement hierarchy.  Further, the Council actively seeks to manage this growth by protecting and enhancing the special character of each town and village.  However, with respect to the land there is no character statement within the planning scheme.  The only direction as to character beyond general statements within the planning scheme, including the LPS, is the Housing Strategy.  However, it does not develop character statements, rather it seeks to impose density controls by way of minimum subdivision sizes.  
34	There is nothing unusual in this process except, that it is yet to be fully and thoroughly examined by an independent panel.  C219 has not yet progressed sufficiently through the planning scheme amendment process for me to conclude with any level of confidence or certainty that it will ultimately find its way into the planning scheme in the form proposed or at all.  
35	Until such time as the Housing Strategy is subject to the planning amendment process or alternatively is introduced into the planning scheme, I can only give it limited weight.  I am aware that the Housing Strategy was placed on public exhibition and that Council received several submissions.  However, without an understanding of the nature of the submissions that is, whether they supported or opposed the Housing Strategy (I suspect both) I cannot draw any conclusions in terms of weight to be attributed to the Housing Strategy.
36	My approach is consistent with numerous decisions of this Tribunal and its predecessors that consider the weight to be given to an adopted policy.  The following factors from the decision of Lyndale & Black Pty Ltd & I.O.  v Melbourne Metropolitan Board of Works assist a decision maker in considering what weight is to be given:
a	The form of the planning proposal – a formal planning scheme amendment will be given much more weight than a planning proposal of a less formal nature.
b	The stage which the planning proposal has reached in the planning process – greater weight will be given to a planning proposal which has reached an advanced stage in the planning process than to a proposal of an embryonic nature.
c	The seriousness with which the responsible authority or state government is pursing the implementation of the planning proposal. [sic]
d	Whether the grant of a permit would impair the objectives of the planning proposal and not merely be inconsistent with the strict letter of the planning proposal.
e	The nature of the development or use for which a permit is sought – for example a planning proposal will generally have greater weight when a permit is sought to develop vacant land or to subdivide land than when a permit is sought to use an existing building especially for temporary purposes.
This list is not intended to be an exclusive list of relevant factors that may determine the weight that should be given to a planning proposal.
37	In respect of this matter I note the following:
•	C219 is yet to receive authorisation some 12 months after seeking such authorisation;
•	It is an amendment embryonic in nature;
•	I cannot conclude with any level of confidence or certainty that it will ultimately find its way into the planning scheme in the form proposed or at all;
•	The permit application will ultimately result in a density that is not consistent with the density controls proposed in C219 and thus is not consistent with the strict letter of the proposal.  However, the relevant policies in the planning scheme require a consideration of the valued character of town. [sic]  That is to be ascertained not only from policy statements but also from an in-depth analysis of the land and its surrounds.  This is discussed below with respect to neighbourhood character. 
38	Having regard to the above, and giving greater weight to the planning scheme, I conclude that the proposal is generally consistent with policy in that it seeks additional housing of a moderate nature, that is two dwellings, within an established town and urban area, with reasonable access to services and recreation facilities.
13	I agree with, and adopt, the findings of the Tribunal in Azzi in relation to the weight that should be given to the Housing Strategy.  The document should only be given limited weight as the required authorisation to prepare and exhibit Amendment C219, which is proposed to implement it, has not been obtained.  As the Tribunal did in Azzi, I give greater weight to the policies and provisions of the Planning Scheme as it currently exists.
14	The review site is within DDO1.  A permit is required pursuant to the provisions of this overlay as the dwellings exceed 5.5 metres in height.  The design objectives relevantly include:
•	To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.
•	To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.
•	To ensure that subdivision proposals will enable new buildings to be integrated with their site and the surrounding area in terms of the relationship to existing buildings, open space areas and the coastal landscape.
15	The decision guidelines at clause 3.0 of the schedule to DDO1 include whether any loss of amenity will result from a variation of the requirements of the schedule; and whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs, including split level and staggered building forms, that follow the natural slope of the land and reduce the need for site excavation or filling.
will the development contribute to the preferred neighbourhood character?
16	The objectives of clause 55.02-1 are to ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character and to ensure that development responds to the features of the site and the surrounding area.
17	Clause 21.07-2 addresses local area character.  The Overview states:
The concept of local area character is still in the process of being defined and translated into operative planning principles and provisions. However, planning on the Peninsula has sought to reinforce the sense of place associated with different townships, and different areas within townships, recognising that this is one of the things that makes the Peninsula special and that it is highly valued by residents and visitors. To this end, efforts have been made to maintain the relationship between townships, coastal areas and rural landscapes by containing expansion and preserving the non-urban areas between and around townships.
18	A related strategy is to ensure that proposed subdivision and development within existing townships demonstrates regard to, amongst others:
•	the established residential fabric
•	maintaining the balance between open space, vegetation and building density
•	building profiles that complement the natural topography of the site
•	the provision of appropriate landscaping and the capacity of drainage systems and other infrastructure.
19	The Council’s principal concern in relation to the proposal’s neighbourhood character implications is the inconsistency with the Housing Strategy as the resultant lot sizes will be less than 450 square metres.  The Council was also critical of the ‘minimal boundary setbacks’, ‘limited scope for planting throughout the site’ and the front setback.
20	As stated earlier, only limited weight can be given to the Housing Strategy.  Notwithstanding, I was not provided with any compelling reason why the failure of the resultant lots sizes to achieve the minimum 450 square metres specified in the Housing Strategy would, of itself, mean that the development represents an unacceptable planning outcome.  This is particularly so when an assessment is undertaken against the existing policies and provisions of the Planning Scheme.
21	In noting the relatively large size of the dwellings, the Council expressed concerns in relation to the adequacy of the boundary setbacks and of the opportunity for landscaping.  More broadly, the Council submitted that the development is at odds with the established streetscape and development pattern in terms of building height, scale and siting.
22	Having undertaken an inspection of the site and surrounds, I am not persuaded that the proposed height is unacceptable in this context.  The overall two-storey height and scale is consistent with what is emerging in this neighbourhood and will not appear out of place.  It will not present as an obtrusive development.
23	The concern regarding the boundary setbacks was confined to the 1.0 metre north-west setback of the living and kitchen wall of Dwelling 2.  As the wall has a height of 3.8 metres, the proposed setback is marginally (6cm) short of the minimum setback required to meet standard B17 at clause 55.04-1.  The applicants advised that the wall height could be reduced to 3.6 metres to achieve compliance.  This non-compliance, for all intents and purposes, is inconsequential.  An additional 6cm to the setback would make no discernible difference to how the siting and appearance of the wall is perceived from the adjoining property, the review site itself or the wider neighbourhood context.
24	The Council submitted that the 200mm wide strip along the north-west side of the driveway will not provide scope for any meaningful landscaping.  In the Council’s opinion, a minimum 500mm width is required.  A broader criticism of the landscaping opportunities throughout the site drew reference to the ‘minimal’ setbacks, and the extent of paving within the secluded private open space areas.
25	The applicants’ submission is that there are opportunities for landscaping in the front, middle and rear sections of the site, and that the extent of landscaping which can be achieved is appropriate to the site’s context.  The applicants went on to submit that the landscaping will not compromise the useability of the private open space areas and observed that the majority of the planting in this neighbourhood occurs within the road reserves, with the dominant elements on lots being the dwellings themselves.  In the applicants’ view, this is not a heavily vegetated area and the landscaping outcome on the land will be equal or better than what is found on most properties in the area.
26	I agree with the Council that the 200mm wide strip along the north-western edge of the driveway is insufficient to provide planting of any meaningful substance.  What planting may be able to be accommodated in this narrow space will be ineffectual in softening the appearance of the hard-paved driveway.  I agree that a minimum width of 500mm should be provided in order to achieve an acceptable level of planting along this interface.
27	The secluded private open space areas of Dwelling 1 and Dwelling 2 are nominated as 53.87 square metres and 64.48 square metres respectively.  These exceed the minimum required to meet standard B28 at clause 55.05-4.  Within this space, the planting beds are to have widths of 1.5 metres and 2.0 metres, leaving paved areas measuring 8.0 metres by 3.0 metres for use by occupants.  The outcome is acceptable.  Small canopy trees, in addition to lower level species can be accommodated in these courtyards and will contribute to the character of the neighbourhood, in addition to the amenity of the development itself.
28	The provision of two driveways has the effect of reducing the opportunities for planting within the front setback.  However, it will be possible to provide two canopy trees within this space, together with lower level planting.  The outcome will not be dissimilar to what has occurred on other sites within the immediately surrounding neighbourhood where two crossovers have been provided for two-dwelling developments.
29	The Council submitted that a minimum front setback of 6.39 metres is required to meet standard B6 at clause 55.03-1.  It does not consider the minimum 6.16 metre setback to be sufficient.  The applicants submitted that the staggered profile provides a transition between the setback of the two neighbouring dwellings and is an acceptable response to the site’s context.  I agree with the applicants.  The 6.16 metre setback at the north-western end and the 6.86 metre setback at the south-eastern end will achieve a suitable transition between the dwellings on either side and will be an outcome that allows for the successful integration of the development into the streetscape.
30	The Council’s submission described the development as comprising two large dwellings each containing four bedrooms and multiple living areas.  Within both Hilary Avenue and the wider neighbourhood, there is evidence of an emergence of larger two-storey dwellings, similar to what is proposed here.  These more recent developments are of a contemporary style and stand in marked contrast to the low-scale, modest houses which have historically characterised this area.  The construction of two large homes on the review site will not appear out of keeping with the streetscape or wider neighbourhood character.
Will the development result in any unacceptable impacts on the amenity of adjoining properties?
31	The only concern expressed by the Council in respect of the development’s impact on the amenity of adjoining properties is that of overlooking from first-floor habitable rooms and a balcony of Dwelling 2.  Specifically, this concern is in relation to the window of Bedroom 4 and the balcony which adjoins the sitting area.
32	The applicants submitted that the existence of post and wire fences allows for views between properties, including their rear yards, and it is not necessary to provide screening to address overlooking.  While this may be an accepted condition in the context of single-storey dwellings and deep back yards, the proposal will result in a two-storey dwelling sited proximate to the yards of neighbouring properties and will allow views from an elevated position.  Further, such views will be available at all times, and not solely when occupants are outdoors.  The overlooking will be unacceptable and can be addressed by a condition of permit.
other
Bushfire
33	The site is located within a bushfire prone area designated in accordance with regulations made under the Building Act 1993.  This was not addressed in the officer’s report or in the parties’ submissions.  Accordingly, subsequent to the hearing, an order was made directing the parties to provide submissions addressing this issue.  Responses were received from both the Council and the applicants, and these have been considered.
34	Policy at clause 13.02-1S applies to all planning and decision making under the Planning and Environment Act 1987 relating to land within such an area.  The objective is to strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life.  When assessing applications in a designated bushfire prone area, it is policy to:
•	Consider the risk of bushfire to people, property and community infrastructure.
•	Require the implementation of appropriate bushfire protection measures to address the identified bushfire risk.
•	Ensure new development can implement bushfire protection measures without unacceptable biodiversity impacts.
35	The Council’s submission is that the development is within an urbanised context and the construction of buildings to meet Australian Standard AS3959-2009 Construction of Buildings in Bushfire-prone Areas is considered appropriate and sufficient to meet the objective of clause 13.05-1S.  The Planning Scheme includes the ‘Mornington Peninsula Fire Protection Policy’ at clause 22.11.  The objectives of this policy, as set out at clause 22.11-2, are:
•	To assist efforts to mitigate the risk to life, property and the environment for m uncontrolled fire. [sic]
•	To ensure that landuse and development does not increase the level of fire risk. [sic]
•	To ensure that land use and development includes adequate fire protection measures.
36	For residential, industrial and business areas, it is policy that:
•	Road access to and within the site should be designed to provide safe access to both fire fighting vehicles and other vehicles at all times.
•	Adequate water supplies should be readily available for a reticulated water supply with a hydrant located not more than 200 metres, via road travel, from the next available hydrant. Where a hydrant is located at the end of a main it should be located no more 130 metres from any building envelope. [sic] In existing areas without reticulated water supply alternative water supply arrangements providing an adequate supply of water with suitable flow rates and appropriate couplings for Country Fire Authority equipment may be considered.
•	Land use or development associated with residential or public use should incorporate fire protection measures in accordance with the relevant fire management guidelines.
37	In addressing the requirements of this policy, the Council’s submission is that there is a fire hydrant within 30 metres of the review site, and that the development provides for safe access to both fire-fighting vehicles and other vehicles at all times.  The Council submitted that the development is designed appropriately for a bushfire-prone area and will be built in compliance with the AS3959-2009, as assessed at the building permit stage.
38	The applicants similarly highlighted that the development will be subject to a BAL assessment as part of the building permit process, which will identify the construction requirements for the dwellings to ensure that the risk to future occupants is reduced to an acceptable level.  They consider that this is the appropriate mechanism to address bushfire risk.  The applicants submitted that the only proximate vegetation is the patches of shrubs adjacent to the nearby roads and that these narrow strips are not classifiable vegetation as they satisfy nominated exclusions in AS3959-2009.  Finally, the applicants submitted that the risk to future residents will be less than that to existing residents who reside in a dwelling that was constructed without consideration to bushfire risk.
39	In the context of the review site, and for the reasons stated in the Council’s and applicants’ submissions, I consider that the bushfire risk is acceptably managed.  This arises from the property’s urbanised setting, the absence of classifiable vegetation within 150 metres of a fire hydrant within 30 metres, the provision of access for fire-fighting vehicles and the requirement that the dwellings be constructed in accordance with AS3959-2009 to the required BAL.
Subdivision
40	The only concern raised by the Council in respect of the proposed subdivision is that it fails to respect the preferred neighbourhood character.  This was made in reference to the Housing Strategy.  I have made findings in these reasons regarding both the weight to be given to the Housing Strategy and the acceptability of the proposal from a neighbourhood character perspective.  It follows that the subdivision is acceptable.
Conclusion
41	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Bill Sibonis
Member			

Appendix– Permit Conditions

Permit Application No	P18/1149	
Land	33 Hilary Avenue, McCrae	

What the permit allowS	
The construction of two dwellings and the subdivision of the land into two lots in accordance with the endorsed plans.	
Conditions
1	Before the developments starts, amended plans to the satisfaction of the responsible authority must be submitted to, and approved by, the responsible authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions.  The plans must be generally in accordance with the plans identified as TP.01A, TP.02A and TP.03A, Job No. JR1813, Town Planning Issue - 07.06.2018, prepared by J. R Design Australia Pty Ltd, and Plan of Subdivision PS 823686W prepared by Speedie Development Consultants Pty Ltd but modified to show:
(a)	a minimum 500mm width for the planting strip adjacent to the north-western side of the driveway.  A minimum 3.0 metre width for the driveway must be provided;
(b)	screening of the Bed 4/study window, sitting room window and deck on the north-east elevation of Dwelling 2 in accordance with Clause 55.04-6 (Overlooking objective) of the Mornington Peninsula Planning Scheme;
(c)	a landscaping plan prepared by a suitable landscape professional, that must show:
i	a survey (including botanical names) of all existing vegetation to be retained and / or removed;
ii	details of surface finishes of pathways and driveways;
iii	a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant (at least one (1) canopy tree within the front setback and at least one (1) canopy tree in each of the secluded private open space areas);
iv	vegetation marked for retention to be marked with protection barriers;
v	all species selection must be to the satisfaction of the responsible authority. 

Approved development not altered
2	The development, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the responsible authority. 
Colours/Materials
3	The materials and colours of the exterior finish of the development must be in accordance with the endorsed plans unless with the further written consent of the responsible authority.
Finishes on a boundary
4	Before the development is occupied, external finishes must be completed to a professional standard to the satisfaction of the responsible authority.
Driveway/Crossover
5	Before the development is occupied, a vehicular crossing must be provided to the standards of the responsible authority, to its satisfaction.
6	Before the development is occupied, a driveway must be provided to the land and surfaced to the satisfaction of the responsible authority.
7	All disused or redundant vehicle crossings must be removed and the area reinstated with nature strip, kerb and channel, and footpath to the satisfaction of the responsible authority. 
Landscaping
8	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the responsible authority.
9	Before the development is occupied (or other time agreed to in writing by the responsible authority) the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.
10	The landscaping must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.
11	Before the development starts, appropriate tree protection fencing must be erected in accordance with Australian Standard AS4970 – 2009 (Protection of trees on development sites).  The tree protection fencing must remain in place until the completion of the development.
12	Outdoor lighting must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.
Screening
13	Prior to the initial occupation of the development, all required privacy screening devices and fencing shown on the endorsed plans must be installed and completed to the satisfaction of the responsible authority.
Engineering conditions
14	After the endorsement of Condition 1 plans and before any works associated with the development start, engineering plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The plans must be drawn to scale with dimensions and may be emailed to devengadmin@mornpen.vic.gov.au in pdf format. The plans must show:
(a)	all areas of the development being drained by means of an underground drainage system to retain a post development 1 in 100 year storm event for the critical storm duration. Discharge from the site must be limited to an equivalent pre-development flow based on a 1 in 2 year storm event for the critical storm duration and be connected to the existing underground drainage system within the easement at the rear of 32 Foothills Avenue via a 150mm minimum diameter concrete drainage pipe;
(b)	all surface areas of private open spaces being drained by a minimum 100mm diameter drainage pipe connected to the storm water system;
(c)	a drainage system on the site being designed to ensure storm water runoff exiting the site meets the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999);
(d)	a drainage surcharge route within the development to avoid inundation of any dwellings;
(e)	details, including levels of the driveways within the site;
(f)	the reinforced concrete vehicle crossing being a minimum width of 3.0 metres at the property boundary;
(g)	the design of all vehicle movements entering and exiting the property to and from Dwelling 2 being in a forward direction;
(h)	reinforced concrete vehicular crossings to Council standards, with any redundant crossing or vehicle laybacks being removed and replaced with kerb and channel, including reinstatement of the nature strip fronting the site;
(i)	sight distance for vehicles and pedestrians not being unduly restricted at the exit from the site by fencing or landscaping works.
15	Before any works associated with the development commence, drainage computations for the proposed drainage system, including consideration of any drainage catchment external to the development that may drain to the proposed drainage system, must be submitted to the responsible authority.
16	Before the development is occupied drainage works within the development must be constructed in accordance with approved engineering plans, and to the satisfaction of the responsible authority.
17	Before the development is occupied, vehicle crossings, and areas set aside for the parking of vehicles and driveways as shown on the endorsed plans must be constructed in accordance with approved engineering plans, surfaced with reinforced concrete and drained to the satisfaction of the responsible authority.
Car spaces, access lanes and driveways must be kept available for these purposes at all times.
18	Before the issue of a Statement of Compliance pursuant to the Subdivision Act 1988, works must be completed in accordance with engineering plans and specifications approved by the responsible authority and must include:
(a)	each lot being provided with a property drainage inlet located within that lot;
(b)	discharge from the site being connected to the underground drainage system within the easement at the rear of 32 Foothills Avenue;
(c)	a reinforced concrete vehicular crossing being constructed to service each lot with any redundant crossing or vehicle laybacks being removed and replaced with kerb and channel, and reinstated nature strip to the satisfaction of the responsible authority.
19	Before the issue of a Statement of Compliance pursuant to the Subdivision Act 1988 the owner must:
(a)	demonstrate to the responsible authority that water quality features have been implemented in accordance with clause 56.07-4 of the Mornington Peninsula Planning Scheme; 
and/or
(b)	submit a completed “Stormwater Quality Offset Contribution Form” to the responsible authority to forward to Melbourne Water and demonstrate by way of advice from Melbourne Water that Melbourne Water Stormwater Quality Contributions has been paid.
Subdivision conditions
20	The subdivision as shown on the endorsed plan must not be altered or modified without the consent in writing of the responsible authority. 
21	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas services to each lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time. 
22	All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created. 
23	The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act. 
Section 173 Agreement 
24	Unless the development approved by this permit has been substantially completed in accordance with the endorsed plans to the satisfaction of the responsible authority, before the Plan of Subdivision is certified, the owner must enter into an agreement with the responsible authority, pursuant to Section 173 of the Planning and Environment Act 1987.  The agreement must require that any building constructed on a lot resulting from this subdivision is in general accordance with the plan endorsed as part of Planning Permit P18/1149. 
A memorandum of the Agreement is to be entered on Title and the costs of the preparation and execution of the Agreement and entry of the memorandum on Title are to be paid by the owner.
25	Unless the common property areas and drainage detention have been completed in accordance with engineering plans approved by the responsible authority, to its satisfaction, before a Statement of Compliance is issued pursuant to the Subdivision Act 1988, the owner of the land must enter into an agreement with the responsible authority, pursuant to Section 173 of the Planning and Environment Act 1987.  The agreement must require that the common property and drainage detention are completed in accordance with the engineering plans approved by the responsible authority as part of this planning permit, to its satisfaction.
A memorandum of the Agreement is to be entered on Title and the costs of the preparation and execution of the Agreement and entry of the memorandum on Title are to be paid by the owner.
Telecommunications
26	The owner of the land must enter into an agreement with:
(a)	a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time; and 
(b)	a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre. 
27	Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
(a)	a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and 
(b)	a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre. 
Expiry 
28	This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –