VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1476/2019
Permit Application no. SP/2017/258	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Moreland Planning Scheme; Neighbourhood Residential Zone Schedule 1; Development Contributions Overlay Schedule 1; Erosion Management Overlay; Subdivision of land; Repeat appeal, Planning policy; Neighbourhood character; Amenity impacts; Vegetation removal.  	

APPLICANT	Jopsal Pty Ltd	
responsible authority	Moreland City Council	
Referral Authorities	Melbourne Water
Downer Utilities Australia Pty Ltd
Jemena Electricity Networks (Vic) Ltd
Yarra Valley Water	
RESPONDENTs	Patricia Zammit and John Pusello, Robert Logozzo and Others, Gareth Wright	
SUBJECT LAND	33 Mitchell Parade, Pascoe Vale South	
WHERE HELD	Melbourne	
BEFORE	Katherine Paterson, Member	
HEARING TYPE	Hearing 	
DATEs OF HEARING	15 and 16 January 2020 and
4 March 2020	
DATE OF ORDER	27 March 2020	
CITATION	Jopsal Pty Ltd v Moreland CC [2020] VCAT 392   	

Order
1	In application P1476/2019 the decision of the responsible authority is set aside.
2	In planning permit application SP/2017/258 a permit is granted and directed to be issued for the land at 33 Mitchell Parade, Pascoe Vale South in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	the subdivision of land into eight lots with common property
•	the construction and carrying out of works; and
•	the removal of vegetation.

Katherine Paterson
Member			

Appearances
For applicant	Mr Dominic Scally, Solicitor, Best Hooper. He called the following expert witnesses:
•	Mr Nick Hooper, Town Planner, Taylors
•	Ms Charmaine Dunstan, Traffic Engineer, Traffix Group
•	Mr Matthew McFall, Landscape Architect, Melma 	
For responsible authority	Mr Stephen Rowley, Town Planner, RCI Planning.  	
For referral authorities	No appearance	
For Gareth Wright	Mr Gareth Wright, in person	
For Robert Logozzo and others	Mr Chris Mackenzie, Town Planner	
For Patricia Zammit and John Pusello	Ms Patricia Zammit, in person	

Information
Description of proposal	Subdivision of land into nine lots.  Lot sizes range from 335 square metres to 575 square metres in area.  A building envelope has been provided for each lot, restricting the height of future dwellings to two storeys.  Access to the lots is proposed via a central driveway to Mitchell Parade, which is proposed to be held in common property.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Moreland Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 1; Development Contributions Plan Overlay Schedule 1; Erosion Management Overlay.  The site is within an area of Aboriginal Cultural Heritage Sensitivity.  A cultural heritage management plan has been prepared and approved for the site.  	
Permit requirements	Clause 32.09-3 – To subdivide land
Clause 44.01-2 – Construct and carry out works
Clause 44.01-5 – Remove vegetation
Clause 52.17-1 – Remove native vegetation	
Land description	The subject site is an irregular parcel of land with an area of 5341 square metres.  A single dwelling is located on a narrow section of the site, which has vehicle access from Mitchell Parade.  The site has a significant slope towards Moonee Ponds Creek, which abuts the site to the west and contains a large amount of vegetation including a stand of Blackwoods.  	
Tribunal inspection	22 January 2020 	
Decisions referred to 	Shalon Sixteen Pty Ltd v Moreland CC [2008] VCAT 1980, Shalon Sixteen Pty Ltd v Moreland CC [2010] VCAT 686	

Reasons
What is this proceeding about?
1	The land at 33 Mitchell Parade, Pascoe Vale South is a large parcel of land located in the middle of a residential area.  Due to its large size (5341 square metres) and location, over the years its owner has sought to develop the site for more intensive residential purposes.  
2	In 1999, Moreland City Council granted a planning permit for the development of 18 dwellings on the site.  This permit was never acted upon and has subsequently expired.  
3	In 2008 the Tribunal in Shalon Sixteen Pty Ltd v Moreland CC [2008] VCAT 1980 refused to grant a planning permit for the construction of 19 dwellings on the site.  In 2010, a proposal for 16 dwellings was considered and refused by the Tribunal in Shalon Sixteen Pty Ltd v Moreland CC [2010] VCAT 686.  
4	Both decisions concurred that whilst the site was suitable for being developed for additional housing, great care needs to be taken to ensure that a design of the development response to this site’s constraints.  These include:
•	its abuttal with several residential properties
•	its unique topography, which was described by Member Bennett in the 2008 decision as a natural amphitheatre with considerable slope
•	its abuttal with the creek reserve; and 
•	existing vegetation.  
5	In his evidence to the Tribunal, Mr Hooper described the site as a singular, one-off site, which was echoed in the submissions made to the Tribunal which repeatedly described the site as unique.  Mr McFall, who provided the Tribunal with landscaped evidence, described the site as follows:
The site is irregular in shape with access to Mitchell Parade provided by the demolition of an existing building and using the residential block (16.61m) as an entry road.  Once one has traversed this block the site opens up to form an irregular four sided polygon with a total area of 5,340 sqm (including the entry road block).  The site has a level change of approximately 27m from Mitchell Parade down to Moonee Ponds Creek and fall of the land varies from 1:6 to the east, 1:4-5 through the mid section, 1:3 toward the bottom, and at the base of the slope, 1:6-7.  This dramatic grade provides an impressive panorama over the creek and freeway to the western escarpment and suburbs beyond.  
6	Whilst the Tribunal has repeatedly held that the site is suitable additional housing, great care needs to be taken to ensure that any design responds to the unique characteristics of the site.  The Tribunal found that the 2008 and 2010 proposals essentially failed to respond to this unique combination of constraints, and therefore a planning permit was not issued for either developments.  
7	The owner of the land now wishes to subdivide the site into nine allotments, with building envelopes restricting the overall height of new dwellings on the site to two storeys, in a split level configuration to respond to the slope of the land.  If approved, the ultimate design of the houses will be left to the individual property owners.  
8	Moreland City Council refused the application on several grounds but are particularly concerned that the design of the proposed development fails to respond to the neighbourhood character of the area, both at the front of the site and at the rear where it interfaces with the creek reserve.  
9	Nearby residents share Council’s concerns, but are also concerned with:
•	the lack of certainty as to the final design of the dwellings
•	the access arrangements to the site
•	the increase in traffic generated by the proposal 
•	noise impacts generated by traffic leaving the site and additional dwellings
•	loss of views over the site towards the creek and beyond
•	adverse effects on the recreation and environmental values of the creek
•	waste management
•	the potential for new dwellings to be affected by erosion.
What are the key issues?
10	Having considered all the submissions and evidence and inspected the subject land and its locality I am of the opinion that the key issues in this proceeding are:
•	Is the proposal respectful of the neighbourhood character?
•	Are the access arrangements acceptable?
•	Has the proposal responded to the erosion risks of the site?
•	Will the proposal create unacceptable amenity impacts?
•	Is the removal of vegetation acceptable?
•	How should waste be managed from the site?
Summary of findings
11	I have decided to grant a planning permit for subdivision of the site for the following reasons:
•	With the removal of Lot 9, I find that this proposal is an acceptable response to the neighbourhood character of the area.
•	With the changes I have made, and with the proposed landscaping to the rear of the site, I am satisfied that the proposal provides an acceptable response to the creek reserve.  
•	Based on the evidence I find that the access arrangements are acceptable.
•	Based on the geotechnical report submitted with the application, I am satisfied that the proposal provides an acceptable response to the erosion risks of the site.
•	The proposal will not unreasonably affect the amenity of nearby residential properties.
•	Whilst the outlook for the surrounding properties will change, the change in view is not unreasonable.
•	I find that the removal of vegetation is acceptable.
•	I am satisfied that waste can be adequately collected from the site.  
My reasons follow.  
Procedural issues and rulings 
12	During the hearing draft conditions were discussed.  Conditions contained within Melbourne Water’s referral response require the retention of a stand of Blackwoods, identified within the arborist report as Group 22.  It was common ground by the parties that attended the hearing that the trees cannot be retained if the site is to be developed as proposed by the application.  As Melbourne Water did not attend the hearing, and as the deletion of the condition may have affected their interests, I listed this matter for an additional one hour hearing on 4 March 2020 to provide them an opportunity to address the Tribunal on this issue.  Disappointingly Melbourne Water did not attend the hearing, despite being directed to do so by the Tribunal.  For the reasons I give later, my decision has authorised the removal of the stand of Blackwoods, and I have therefore deleted Melbourne Water’s condition requiring their retention.  
13	My order of 17 January 2020 also required the submission of information needed in order for the Tribunal to assess whether a permit should be granted for the removal of native vegetation (being Group 22 and Tree 13) pursuant to Clause 52.17 of the planning scheme.  I have taken this material, as well as the submissions made by the parties who did attend the hearing on 4 March 2020 into account in this decision.  
Is the proposal respectful of the neighbourhood character?
14	At the time of the previous decisions the land was included within a Residential 1 Zone.  The land is now within a Neighbourhood Residential Zone Schedule 1, the purposes of which 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.
15	The schedule to the Neighbourhood Residential Zone requires consideration of the requirements of Clause 22.01 Neighbourhood Character Local Policy.  This policy states that areas within the Neighbourhood Residential Zone are considered the minimum change areas of the municipality where new development should be designed to contribute to a lower density, open and landscaped character.  It is also policy to provide ground level open space which exceeds the requirements of Clause 55.  This desire is not reflected in the schedule to the zone, which has not increased the standard private open space requirements of the scheme, but does require the planting of at least one canopy tree in the front setback of the secluded private open space of each dwelling.  
16	Landscape evidence was provided to the Tribunal by Mr McFall, who prepared a landscape plan as part of his evidence, an excerpt of which I have provided below.  The landscape plan shows a large area for revegetation at the rear of the site, planting of rows of Yellow Box, Honey Box and Lightwoods along the northern and southern boundaries of the site and the planting of Lightwoods, where space will allow along the accessway to the site.  The species chosen are all listed within the Moreland Tree Planting Manual for Residential Zones, 2014.  When mature, Mr McFall estimates that the Lightwoods will reach up to 10 metres in height and the Yellow Box and Honey Box eucalyptus reaching up to 25 metres in height.  The building envelopes proposed for the site show a maximum height of 10 metres, which is consistent with the height requirements of the Neighbourhood Residential Zone.  As such the proposed planting will exceed the height of any dwelling constructed on the lots. 

17	The plan shows that the lower section of the site, where it interacts with the creek reserve is to be planted using indigenous non canopy vegetation, to allow views over the escarpment towards the creek.  Mr McFall’s evidence included the following perspective drawing of the ultimate built form effect down the site:

18	Based on his evidence, I agree that due to the slope of the land and the vehicle access requirements for each dwelling, it is not possible to plant a tree within the front setback of each dwelling.  The application is therefore seeking a variation to the schedule to the zone.  In considering whether this is acceptable, I need to have regard to the character of the area.  
19	The Shalon Sixteen Pty Ltd v Moreland CC [2008] VCAT 1980 case described the site as being influenced by two different neighbourhood characters:
[20]	In my view, the review site needs to respond to two ‘neighbourhood characters’. The character of the eastern part of the land is derived from the Mitchell Parade and Wheeler Street built form. It is a dense built form comprising single and two storey dwellings with pitched roofs. The single storey dwellings are usually the original weatherboard dwellings and these are being replaced by large two storey dwellings, usually with pitched roofs. Dwellings have a relatively standard front setback in the order of seven to nine metres. 
[21]	The character of the western part of the land is very different to its interface with Mitchell Parade. It is one of spaciousness and a ‘natural’ environment. Built form is generally set back in the order of 40 to 50 metres from the pedestrian walkway. Whilst the built form is large and imposing, comprising dwellings up to three storeys, this built form is perceived from the walkway as remote and as a backdrop. This perception arises from large rear yards that remain undeveloped due to slope and the exceptional depth of the lots. The dwellings have been sited towards the street frontage and are large multi level dwellings. They do not extend deep into their lots and their rear fences are remote from the dwellings. 
20	Whilst there have been some new dwellings constructed over the last ten years the character of the area remains consistent with the description provided by Member Rundell in the 2010 decision.   I agree that an application needs to respond to both the more urban character of Mitchell Parade and Wheeler Street and the bush-like character of the reserve.  
21	Council submitted that two aspects of the proposal were inconsistent with the neighbourhood character of the area; the first being Lot 9; and second was its response to the rear, backyard character of the area.  I will consider each in turn.  
22	Lot 9 is the smallest lot proposed by the development, with an area of 335 square metres and width of 8.75 metres.  At least 27% of Lot 9 will be garden area, exceeding the requirements of the Neighbourhood Residential Zone.  Standard C6 of Clause 56.04-2 requires lots less than 400 square metres to be capable to contain a building envelope that has a rectangle measuring 10 metres by 15 metres, or 9 metres by 15 metres if a boundary wall is nominated as part of the building envelope.  Due to the width of the proposed lot, the application is seeking a variation to this standard.  
23	Mr Nick Hooper of Taylors provided the Tribunal with town planning evidence.  Prior to the preparation of his evidence he requested that indicative dwelling layouts be prepared for Lots 4, 5, 6 and 9, as they are the most constrained lots of the site.  I will address Lots 4, 5 and 6 later in my decision, but I have extracted the indicative design from Mr Hooper’s evidence for Lot 9 below:
. 
  
24	Whilst it is only one option of a dwelling that could be constructed on the site, it does highlight the difficulties with designing a dwelling on such a narrow steep lot.  The private open space for the dwelling has been placed at the frontage of the site, which I find is te most likely design outcome for any dwelling on this lot, given that this is the least steep and therefore ‘useable’ section of the lot.  This would necessitate the construction of a tall front fence, contrary to the Neighbourhood Character Policy which at Clause 22.01-3 seeks to ensure the layout and design of new development makes a positive contribution to the public realm, including maximising opportunities for active frontages and casual surveillance.  
25	During the hearing I was provided with the plans considered by the Tribunal in 2008 and 2010.  The 2008 proposal did not include a dwelling at the entrance of the site; instead it had a more centralised driveway at the entrance of the site.  The Tribunal found this response appropriate:
… Provided the amenity impacts to neighbouring dwellings are managed to an acceptable degree, then the demolition of an existing dwelling to provide a generous area for an access drive and landscaping – as in this application – is a site responsive and practical solution.  
26	The 2010 proposal included a two storey dwelling in a similar location to the proposed building envelope for Lot 9.  Member Rundell was critical of this arrangement, finding:
[33]	This application proposes that the entry to Mitchell Parade be developed for a dwelling, with the driveway to the remainder of the site located to the south of the dwelling. The previous design was more generous and allocated this land for an accessway in a landscaped setting. I favour that option. Dwelling 1 is adjacent to the driveway with approximately 160 vehicles per day passing close by. I note that the habitable rooms within dwelling 1 are located away from the driveway. However to achieve this separation from the driveway requires that the habitable rooms on the ground floor are sited one metre from the common boundary to no. 35 Mitchell Parade. I consider that the residents of this dwelling would not enjoy satisfactory amenity. 
[34]	There is an opportunity to create an interesting and attractive entry statement through attractive landscaping. Some visitor car parking could also be located in this area. Locating a dwelling on this part of the land constrains these opportunities without providing satisfactory benefits to the residents of the development or the wider community.
27	Mr Mackenzie, who appeared on behalf of the objectors, drew my attention to the principles regarding repeat appeals, commonly known as the Reichert principles.  There is an extensive case law that has been established for when considering repeat appeals, which I will not recite here.  To put it simply, a Tribunal should have regard to an earlier decision of the Tribunal and give it great weight, and unless there are reasons for the Tribunal to do so, a Tribunal should not depart from an earlier finding.  In this case, there are a number of factors that would warrant the Tribunal taking a different view such as the significant changes to the planning scheme, including the application of the Neighbourhood Residential Zone to the site, significant changes to planning policy, the ten year time period between decisions, and the significant differences in the proposal before me including a significant reduction in the number of dwellings from the previous two proposals.  
28	That being said, I agree with the findings of Member Bennett and Member Rundell that the best approach to this site would be to have no dwelling at the front of the site, leaving space for landscaping and a centralised driveway, which as discussed later in my decision would improve the access arrangements to the site.  It will also ensure the protection of Tree 5, a Box Elder located on the neighbouring property.  It was common ground that the works as currently designed will significantly encroach into the tree protection zone of this tree, and therefore may affect its health.  
29	The removal of this lot would also enable the planting of additional canopy trees at the front of the site, compensating for the limited planting through the middle of the site, and resolving the problems created with a high front fence to the site’s frontage.  I have therefore required the deletion of Lot 9 and its replacement with landscaping and a relocated accessway.  
30	Many residents raised concerns with the lack of certainty created by simply subdividing the land rather than having a medium density development approved for this site.  I disagree.  In many ways, a straight forward subdivision is a better response to the character of the area than would a typical medium density development on this site.  The character of the area is made up of large, two and three storey dwellings, which have been designed to take advantage of the slope and views across the creek valley.  There is no continuity of design, with many different architectural styles and materials present in the area.  The proposed subdivision will result in two storey split level dwellings constructed in a variety of styles and finishes, reflecting the overall character of the area.  
Backyard Character

31	During the hearing, Mr Rowley pointed to the backyard scape of the area, which has been developed partly in response to creek environs in which this area sits, but primarily in response to the slope of the land.  If approved the proposed development will push the built form considerably closer to the creek reserve than other nearby proforperties in Mitchell Parade and Wheeler Street.  Member Rundell described the environs at the creek as:
[21]	… It is one of spaciousness and a ‘natural’ environment.  Built form is generally setback in the order of 40 to 50 metres from the pedestrian walkway.  Whilst the built form is large and imposing, comprising dwellings up to three storeys, this built form is perceived from the walkway as remote and as a backdrop.  This perception arises from large rear yards that remain undeveloped due to slope and the exceptional depths of the lots.  The dwellings have been sited towards the street frontage and are large multi level dwellings.  They do not extend deep into their lots and their rear fences are remote from the dwellings.
32	Since this decision, a number of new dwellings have been built, and others have been extended closer to the boundary to the creek, as shown in the above aerial image, with the setback of built form to the creek along Mitchell Parade and Wheeler Street now ranging between 9 and 50 metres.  The ‘encroachment’ towards the creek is most apparent when entering the trail from Wheeler Street, where the dwellings are clearly visible from the pathway.  As you approach the subject site, the character remains largely consistent with the description given by Member Rundell, although the large elevated forms of the neighbouring properties, in particular the elevated terrace and pool of 27 Mitchell Parade, are clearly visible from the pathway.  
33	A key failing of the 2008 design was its response to the Moonee Ponds Creek environs.  As Member Bennett (as he then was) found:
[14]	While there may be some debate amongst parties as to the number of ResCode standards that have been met, I agree with Council that this is not a well designed medium density development and that it does not warrant approval.  Fundamentally the built form extends too far towards Moonee Ponds Creek with minimal setbacks from the western boundary of the site.  I am not satisfied that two groups of attached three storey dwellings, positioned between 1.794 and 5.588 metres from the creek reserve, and sitting forward of any nearby structures is appropriate for this elevated and quite prominent site within the Moonee Ponds Creek Valley.  I consider that such a building form will be quite at odds with the character along this part of the Moonee Ponds Creek when viewed from various points along the creek the building will stretch from north to south across virtually the whole length of the review site.  While the 4.5 metre wide gap between the two groups of dwellings provides some visual break in the built form, aside from any landscaping within that strip there is only limited space to provide landscaping to filter the building from the creek reserve.
[15]	Fortunately I do not have to consider alternatives but I would strongly encourage the permit applicant to start again with a fresh approach to the scale and character of development that may be possible on this most unusual site – one that is more responsive to the Moonee Ponds Creek reserve.  While residents said that they would not be opposed to a development comprising around 10 dwellings, I do not want to be prescriptive about number so dwellings or site layout, and I do not intend to offer detailed suggestions about an acceptable layout.  However it is obvious in visiting the site that the steepness of the slope increases near some low shrubs located about 15 metres from the western boundary and that development below that point has increasingly significant constraints – both internally and on the potential to adversely affect the character of the Moonee Ponds Creek reserve.  Repositioning the lowest dwellings and the associated north south driveway further up the slope would result in a far more site responsive and therefore acceptable outcome.  It would less the steepness of the driveway, reduce the amount of excavation and fill/retaining walls on boundaries, pull the built form away from the creek reserve, and provide greatly enhanced opportunities for landscaping along the western boundary with the creek reserve.  In the absence of any significant reduction in the size of dwellings, it would also reduce the number of dwellings. 
34	The 2010 proposal included a row of two storey attached dwellings located approximately 4.7 metres from the creek reserve.  Member Rundell found that this arrangement was incompatible with the character of the area finding:
[25]	The western boundary is a highly sensitive interface, given its ‘natural’ form and the steepness of the land.  Member Bennett was particularly critical of the proposed built form to the western boundary.  He did not support three storey built form very close to the interface to the Moonee Ponds creek and public walkway.  He identified a mini escarpment located approximately 15 metres from the western boundary and suggested that development should be to the east of this steep section and not dominate the interface to the creek.  I concur with his strategic approach to this sensitive interface.  
[27]	Dwellings 8, 9, 10 and 11 are sited on the main escarpment.  This is the steepest part of the land.  The western elevation of these dwellings would have a height of approximately ten metres.  Given the slope of the land, the buildings would be in the order of 12 metres higher than the walkway adjacent to Moonee Ponds Creek private open space for these dwellings would be provided on raised decks above natural ground level.  These decks intrude into the setbacks from the western boundary.  Given the slope of the land the decks would be elevated.  
[28]	The effect of this design would be to create a substantial built form close to the public walkway.  The built form, when viewed from the walking track, would have a three storey appearance.  This is unsatisfactory as the built form of the neighbouring dwellings does not intrude into this space.  The proposed dwellings would be a new and highly intrusive element into a space that is tranquil and ‘natural’.  
[29]	I concur with Member Bennett that no dwellings should intrude within 15 metres of the western boundary.  A single storey built form should also be considered, or a second level recessed behind the ground level.  Any private open space should be at natural ground level, with decking or retaining walls limited to providing a small area of secluded private open space adjacent to living rooms.  
35	The application before me includes three allotments located 10 metres from the western boundary of the site, with the section between the proposed lots and creek shown as an easement which is to be revegetated using low lying indigenous plants.  
36	The setback of the proposed building envelopes to the easement are not dimensioned but scaling on the plan indicates that the envelopes are to be set back a minimum of 14.6 metres from the boundary, less than the 15 metres suggested by the Tribunal on two previous occasions.  
37	Mr Hooper’s evidence included some indicative three dimensional building envelopes.  A two dimensional building envelope was not provided for Lot 5, the middle allotment, however the indicative designs included within Mr Hooper’s evidence is that a two storey form is likely to be established on each of the rear allotments.  

38	As shown in the above extracts from Mr Hooper’s evidence the proposed three dimensional envelopes do not appear to have included the setback from the easement for Lots 4 and 6 and have incorrectly shown the site boundary.  The three dimensional envelope for Lot 4 shows a two storey form, reaching a maximum height of 10 metres as allowed under the provisions of the Neighbourhood Residential Zone Schedule 1.  The building envelope for Lot 6 is shown to have a lesser height of approximately 6.8 metres above natural ground level.  
39	Mr Hooper also asked for indicative house designs to be created for Lots 4, 5 and 6, which are extracted below:

40	Disappointingly western elevations for these designs were not provided, however the plans indicate that there could be a level of recession between the ground and first floor.  This is not reflected in the building envelopes, which whilst showing a stepped design, show a two storey form at the closet point to the boundary with the creek reserve.  
41	I have therefore based my assessment on the ‘worst case scenario’ of a 10 metre sheer form located approximately 14.6 metres from the creek reserve.  As the level of the footpath has not been shown, I have adopted Member Rundell’s assessment that the path of the creek reserve is approximately two metres lower than the site.  Like the proposal before him, the built form will read as a 12 storey building from this point.  A key difference with the proposal before me is the increased setback from the reserve.  
42	Whilst this increase in setback will assist in mitigating the bulk of the form, more needs to be done to ensure that the built form has a minimal impact on the reserve.  I have therefore required the westernmost portion of the envelopes to have a maximum height of 6.3 metres, with the middle section then stepping up to the 10 metres allowed under the zone.  I consider that the building envelope should commence 15 metres from the western boundary of the site, which will assist in mitigating the impact of the built form when viewed from the reserve.  I therefore required a three dimensional envelope to be shown for Lots 4, 5 and 6, set back a minimum of 15 metres from the western boundary of the site, with the western section of the envelope for Lots 4 and 6 lowered to have a maximum building height of 6.3 metres.  As Lot 5 is shown as a single level, I have restricted the height of this dwelling, which will be the most prominent from the reserve, to be 6.3 metres, allowing a low two storey or more likely tall single dwelling on this lot.  I will allow for variations to the building envelope, so that if a taller design is desired, its impact on the reserve can be assessed at that time.  
43	I have also required the planting of some canopy trees within the easement.  Whilst this may alter views from the existing and proposed dwellings over the escarpment, it will assist in screening the development from the creek reserve and assist in retaining the natural appearance of the creek reserve at this interface.  
44	In response to my order of 17 January 2020, the permit applicant advised that the relevant EVC for the subject site was Riparian Woodland.  Mr McFall’s landscape evidence indicates that the ‘easement’ is to be planted with low lying plants from the relevant EVC.  Based on the Bioregion benchmark for the EVC 641: Riparian Woodland within the Victorian Volcanic Plain Bioregion and the requirements of the Moreland Tree Planting Manual of 2014, as well as the low lying plantings this area should accommodate some canopy tree plantings, including a minimum of one River red gum and two Blackwoods.  A stand of 35 Blackwoods is  proposed to be removed to accommodate the proposed development, as these are a species that is only found locally, Council has requested that prior to their removal that seeds be collected.  Given their removal, it seems appropriate that the same local species are used within the easement.  I have required a revised landscape plan showing these plantings, which will assist in filtering views of the dwellings from the creek reserve as well as improving the biological values of the site, as desired by Melbourne Water.  Given that these trees are to be planted within an easement, I have required them to be sited in accordance with Melbourne Water’s guidelines for planting within easements.  I have required these changes via conditions on the planning permit.  
45	With these changes in place, I find that the proposed development will be an acceptable response to the backyard character of the area.  
Are the access arrangements acceptable?
46	On a site such as this, consideration needs to be given to both vehicle access and pedestrian access to the site.  I will consider each in turn.
47	Traffic evidence was provided to the Tribunal by Ms Dunstan, traffic engineer of Traffix Group.  After viewing the plans and the subject site she made a number of recommendations for alterations to the accessway and car parking arrangements for each lot.  She also made recommendations for the provision of a footpath, which she submitted was necessary due to the slope of the land.  
48	Mr Wright was critical of the location of the driveway, which is proposed to be placed along the southern boundary of the property, in close proximity to his dwelling.  He was concerned that the proposal will unreasonably affect the amenity of his property through noise, particularly as vehicles will need to ‘gun it’ to exit the driveway and was concerned that there was no landscaping to soften the impact of the driveway onto his dwelling.  He recommended that Lot 9 be removed, to enable a more centralised driveway with landscaping on both sides.  
49	I agree.  Whilst Ms Dunstan was comfortable that it was acceptable for the driveway to be narrowed to 3 metres opposite Lot 9 as there would be limited traffic movements, I disagree.  Given the slope of the land, I consider it would be better if the access way was widened to be a minimum of 5.5 metres for its entire length, and more centrally located to enable landscaping either side, in a similar arrangement to what was considered by the Tribunal in 2008.  I have required this as a condition of permit.  
50	Because of the slope of the land, access to each lot may be difficult and, as such, great care needs to be taken with the design of the position and level of the access way and garages.  I am satisfied that provided the garages and access way is constructed in accordance with Ms Dunstan’s recommendations access to the garages will be convenient.  I have therefore required the building envelopes for all lots to be amended to show the access way and garage locations and levels generally in accordance with Ms Dunstan’s evidence.  
51	In terms of access for emergency vehicles, I am satisfied based on the swept path diagrams contained in Ms Dunstan’s evidence that an emergency vehicle may enter and exit the site in a forward direction.  
Pedestrian access
52	Due to the slope of the land, Ms Dunstan submitted that a footpath was essential to ensure that there is no conflict between vehicles and pedestrians.  A footpath has been shown on the plans, which I find to be appropriate.  The footpath currently ends with a series of steps providing access through the easement to the Moonee Ponds Creek Reserve.  Whilst Council sought to have this element deleted, I have retained it as it will provide a useful and pleasant connection for the residents of the dwellings and the creek reserve.  Ideally this connection would be left open to the public to enable access for all users, such as residents in Mitchell Parade.  During the hearing I explored if there was any ability for the accessway to be considered a road.  I was told that due to its width and slope, that even at 5.5 metres wide, it could never meet Council’s requirements for public roads and therefore must be held within common property.  It will therefore be up to future owners corporation as to whether this path is gated at the creek reserve or left open to the general public.  
53	Currently the proposed path to the creek reserve requires the removal of Tree 24, which is identified as a group of Drooping She-Oaks.  Whilst Mr Scally suggested that it may be possible to redesign the path around the tree, having viewed the tree and based on the evidence provided to the Tribunal I am satisfied that it is acceptable for the tree to be removed.  I will however require its replacement with two Sweet Bursaria, which is another species listed as indigenous to the EVC 641: Riparian Woodland.  
Has the proposal responded to the erosion risks of the site?

54	As shown in the above extract from Vic Plan the rear portion of the site is included within an Erosion Management Overlay.  A planning permit is required under the provisions of the overlay to construct a building or construct and carry out works, remove vegetation or subdivide land.  Whilst there are some exemptions that apply, it is highly likely that a planning permit will be required under the provisions of the overlay for the future owners to construct a dwelling on Lots 3, 4, 5 and 6.  
55	A landslip risk assessment has been prepared for the site by AW Geotechnical Pty Ltd.  Based on soil tests and observations they divided the site into two risk areas; the eastern section of the site was identified as no hazard, with the steeper western section of the site defined as Hazard 2.  Proposed Lots 4, 5 and 6 are within the Hazard 2 area.  The hazard that could affect the site was known as ‘creep’.  The report includes some illustrations taken from an academic paper prepared by Cruden and Varnes.  In that paper, creep is defined as:
… those slope movements that were “proceeding at an imperceptible rate. Typical creep is a continuous movement which proceeds at an average rate of less than a foot per decade.  Higher rates of creep movement are uncommon.”
…Vames (1978, 17) pointed out that “creep has come to mean different things to different persons, and it seems best to avoid the term or to use it in a well-defined manner. As used here, creep is considered to have a meaning similar to that used in the mechanics of materials; that is, creep is simply deformation that continues under constant stress.”
The term creep should be replaced by the appropriate descriptors from Figure 3-17, either very slow or extremely slow, to describe the rate of movement of landslides.
56	AW Geotechnical Pty Ltd assessed the potential for the Hazard 2 section of the site to be affected by ‘creep’ as low.  In the unzoned area, the assessment was ‘very low’.  Given that the rate of movement is likely to be very slow, and the risk of it occurring on the site at all is low, I am satisfied that the construction of a dwelling on a lot is acceptable.  
57	To further mitigate the risk across the site, AW Geotechnical Pty Ltd report makes several recommendations for the construction of a dwelling on all lots, as well as the construction of the access way and drainage works.  I have required the implementation of these recommendations as permit conditions, including where required the preparation of a Section 173 agreement to ensure that future owners are aware of the requirements.  
Will the proposal create unacceptable amenity impacts?
58	Concern was raised that the proposed development would unreasonably affect residents through noise, visual bulk and loss of views.  I will consider each in turn.  
Noise
59	A key concern of residents was the level of noise generated by vehicles exiting the site via the steep driveway.  
60	In the 2008 decision, Member Bennett (as he then was) found:
[18]	… There is no doubt in my mind that cars will be noisier as they drive up the slope to exit the site and that there is potential for the neighbours to be disturbed by such movement, particularly during sleeping houses.  Any redesigned development should retain the sort of landscaping now proposed but also include some form of effective acoustic fencing to shield the two neighbouring dwellings.  
61	It was Ms Dunstan’s evidence that vehicles would not need to ‘gun it’ as feared by the objectors, and therefore the level of noise generated by vehicles would not be significantly greater than that from other residential properties.   I am not convinced by this evidence.  Given topography of the land, I agree with the previous findings of the Tribunal that the adjoining property owners may be adversely affected by noise.  I therefore consider it appropriate for an acoustic report to be prepared which makes recommendations, if necessary, to ensure that the surrounding residential properties are not unreasonably affected by vehicle noise.  Measures are likely to include requirements for acoustic fencing.  I have required this as a condition of permit.  
Visual Bulk
62	During my site inspection I was able to view the subject site from the backyards and living rooms of most of the dwellings which have an outlook over the subject site.  Most dwellings have been constructed with elevated terraces and living areas which take advantage of both the slope of the site but also views over the subject site.  Backyards have also responded to the slope of the site, with most properties having the more ‘useable’ spaces on the upper sections of their sites, with most properties incorporating terracing to create spaces for outdoor play and vegetable gardens.  Lower more steep sections of properties were often neglected or used for vegetation.  
63	Most adjoining properties are elevated above the subject site, which limits the potential for these properties to be affected through visual bulk.  As part of Mr Hooper’s evidence, indicative three dimensional building envelopes were prepared for all lots except Lot 5, which provides an indication of how each lot may be constructed and how it responds to each interface.  
64	Due to the difference in site levels and proposed setbacks, I am satisfied that the adjoining dwellings are unlikely to be adversely affected through visual bulk.  I have required the three dimensional building envelopes to be endorsed as part of this permit as they provide a level of certainty as to the built form outcomes for each lot.  
Loss of views
65	There is no doubt that the outlook for the adjoining and nearby properties will be altered as a result of the development.  I agree with the findings of Member Bennett who found:
[16]	I accept that most [of the adjoining properties] have retained large backyards leading down to the creek reserve but almost any medium density development on the review site will seek closer to the creek than the existing single dwellings and neighbours will certainly notice a big difference in outlook compared to any existing views over a vacant ‘paddock’.  It is a truism that any development on the review site will significantly change the current view and sense of openness from adjoining properties.  The owners have benefitted from living next to undeveloped land and in a sense have been borrowing the cleared review site for their own feelings of spaciousness.  But given the built up urban character it is not unreasonable that new dwellings be constructed and that neighbours will be able to see them across boundary fences and in the foreground when they are looking at distant views to the west and south west.  
66	This proposed development will likely result in the construction of large two storey homes, which like their neighbours will be designed to take advantage of both the slope and the views.  Whilst the outlook for the existing dwellings will be significantly altered, given the subject site’s inclusion within the Neighbourhood Residential Zone, the development of this site for residential purposes is anticipated by the scheme, albeit on a lesser scale than formally envisaged by the Residential 1 Zone.  
Is the removal of vegetation acceptable?
67	The application proposes the removal of vegetation on the site, including native vegetation, which requires a permit to be removed under the provisions of the Erosion Management Overlay and Clause 52.17 of the scheme.  Most of the vegetation is in poor condition and adds little to the landscape or environmental values of the site.  The parties did not seek to retain the vegetation, and I also find its removal to be acceptable.  I note that Council’s environmental officer, whilst accepting that it was appropriate for the existing Blackwoods to be removed, requested an opportunity for seeds to be collected from the trees prior to their removal, as they are a species that is only found locally.  I consider that this is appropriate, and I have included conditions to this effect.  I have also included conditions requiring the provision of an offset, as required by Clause 52.17 of the Moreland Planning Scheme.  
68	I note that Melbourne Water has requested that the existing canopy vegetation within proposed Lots 4, 5 and 6 be retained to lessen the visual impacts to Moonee Ponds Creek.  For the reasons given above, I consider that with the changes I have made the proposal will not have an unreasonable visual impact on the creek, particularly given my requirement for the planting of some canopy vegetation within the easement, which should enhance the environmental values of this section of the creek.
How should waste be managed from the site?
69	A key concern from several residents was how waste was to be collected from the site.  A Waste Management Plan has been prepared by Leigh Design for the project and submitted as part of the application materials.  
70	The report identifies that because the proposed accessway will not support the requirements for Council’s 8.8 metre trucks, the waste will be collected via a private contractor using 6.4 mere long trucks.  It is proposed to have two collections per week, one for recycling and the other for general rubbish.  
71	Ms Dunstan in her evidence submitted that as turning circles indicate that a larger 8.8 metre vehicle can comfortably use the accessway to exit and enter in a forward direction on the site, the site can easily accommodate the smaller private waste collection vehicle.  I agree with this assessment and find the proposed waste removal arrangements to be satisfactory.  
What conditions are appropriate?
72	Draft conditions were discussed at the hearing, and any changes to those conditions reflect those discussions plus further consideration by the Tribunal.  
73	Condition 32 requires an acoustic report to assess the noise impacts generated by the City Link Freeway, and the implementation of any requirements via a Section 173 agreement.  The subject site is approximately 45 metres from land included within the City Link Project Overlay and is approximately 55 metres from a large sound wall that has been constructed along the eastern edge of the freeway.  
74	Clause 13.05-1S of the scheme seeks to ensure that development is not prejudiced and community amenity is not reduced by noise emissions, using a range of building design, urban design and land use separation techniques as appropriate to the land use functions and character of the area, and requires consideration of A Guide to the Reduction of Traffic Noise (VicRoads 2003).  
75	CityLink is identified as part of Melbourne’s Principal Freight Network (PTN), within Freight Futures: Victorian Freight Network Strategy for a more prosperous and liveable Victoria (Victorian Government, 2008).  This document states:
The anticipated doubling in the Victorian freight task over the next 20 years will lead to increased levels of freight exposure for many local communities – particularly those in close proximity to high volume elements of the PFN. In responding to this growth, the use of larger, more productive vehicles will be critical to maintaining and enhancing freight efficiency.  Fewer vehicles will be required to carry the same freight task and these vehicles will employ the latest technologies to minimise air and noise emissions.
Nevertheless, to manage the potential impacts of the growing freight task on the PFN, the Government has announced, in The Victorian Transport Plan, additional funding support for measures to mitigate the impact of freight activities. This will be primarily through noise walls consistent with current noise policies. Other noise attenuation measures may be considered on a case by case basis. Funding will be targeted at high volume freight routes within urban areas on the PFN, including Melbourne’s freeways.
76	A sound wall has already been constructed in close proximity to the site, significantly reducing the noise generated from the freeway.  Nonetheless, I accept that more may need to be done to ensure that the future occupants are reasonably protected from noise.  I have therefore retained the condition.  
77	I have also included the Tribunal’s standard condition for permit expiry, and added the mandatory expiry condition required for native vegetation removal pursuant to Clause 52.17 of the scheme.
Conclusion
78	I find that this proposal, with the changes I have made, has now overcome the shortcomings of the previous two proposals, and is now an acceptable response to the requirements of the Moreland Planning Scheme.  
79	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Katherine Paterson
Member			

Appendix A – Permit Conditions

Permit Application No.	SP/2017/258	
Land	33 Mitchell Parade, Pascoe Vale South	

What the permit allowS	
In accordance with the endorsed plans:
•	the subdivision of land into eight lots with common property
•	the construction and carrying out of works; and
•	the removal of vegetation.	

Conditions
1	Before the plan of subdivision is endorsed and prior to the certification of the plan of subdivision, amended plans must be submitted to and approved by the responsible authority. These plans must be generally in accordance with plans prepared by SACBW (drawing numbers TP100, TP200, TP300, TP301, and TP302) but must be amended to show:
a)	Deletion of Lot 9, with the resultant area to be either landscaped, including the planting of canopy trees or access way.
b)	A three dimensional envelope must be provided for all lots.  This envelope must be generally in accordance with the envelopes shown on TP200 prepared by SACBW dated 3 December 2019 but modified to show:
i	the western section of the envelopes for lots 4 and 6 to have a maximum height of 6.3 metres 
ii	the envelope for Lot 5 must have a maximum overall height of 6.3 metres 
iii	the rear setbacks of lots 4, 5 and 6 must be a minimum of 15.00 metres from the western boundary
iv	clearly show the car park location and level for each dwelling, generally in accordance with the plan prepared by SACBW drawing TP101 dated 14 January 2020.  The garages of lots 1 to 8 must be set back a minimum of 5.4 metres from the common property to allow for additional visitor cars to be parked without impeding upon the common property driveway.  The gradient of the driveways from the access way to the garages must not exceed 1:8 
c)	The access way widened to be a minimum of 5.5 metres its entire length, with the entry from Mitchell Parade repositioned to be located more centrally on the site, with the pedestrian path on its northern side and landscaping either side of the access way and footpath.  A sight triangle must be provided either side of the access way where it connects with Mitchell Parade.  The access way and footpath levels must be generally in accordance with the plan prepared by SACBW drawing TP101 dated 14 January 2020, except where required to be modified to widen the access way to 5.5 metres.  
d)	Any design changes as a consequence of the recommendations of the report prepared by AW Geotechnical Pty Ltd dated 10 July 2015.
e)	Any design changes recommended within the acoustic report endorsed under condition 30 of this permit
f)	All easements necessary to allow for the efficient removal of stormwater, drainage and sewerage from land within this plan, when the outfall drain is proposed to go through an allotment.
g)	Mailboxes for lots 1-8 located along the Mitchell Parade frontage that must be wholly contained within the Common Property.
h)	The proposed title boundaries on the Design Response plan to be clearly dimensioned and identifiable.
i)	The signage and lighting plan as required by condition 22.
All amended plans must be made to the satisfaction of the responsible authority.
2	The subdivision as shown on the endorsed plan must not be altered without the consent of the responsible authority.
3	Prior to the certification of any plan of subdivision three copies of building design guidelines must be submitted and approved by the responsible authority for lots 1 to 8 inclusive. The building design guidelines must be given effect in the form of either a restriction on the certified plan of subdivision or through an agreement with the responsible authority under Section 173 of the Planning and Environment Act 1987 which is recorded on the Certificate of Title to the land. The restriction or agreement for the building design guidelines must provide for, but is not limited to:
a)	A dimensioned building envelope applying to each of the proposed lots, as per condition 1 of this permit.
b)	That no building or part of a building may be constructed outside of a building envelope except with the written consent of Moreland City Council.
c)	That each of the proposed eight lots will not contain more than one dwelling.
d)	That each dwelling must be provided with a minimum of two undercover car parking spaces.
e)	Except with the written consent from the responsible authority, the collection of household waste from this site must be performed by a private waste contractor in accordance with the Waste Management Plan prepared by Leigh Design dated 11 August 2014 and that all waste will only be collected from the Common Property driveway.
f)	That except with the written consent of the responsible authority, all earthworks and drainage must be designed and constructed in accordance with the recommendations of the report prepared by AW Geotechnical Pty Ltd dated 10 July 2015 
g)	That the dwellings must be designed to be consistent with the recommendations of the Acoustic Report required by condition 29.
Where entered as a section 173 agreement on title, the owner of the land must: 
a)	do all things necessary to enable the responsible authority to register the agreement with the Registrar of Titles in accordance with section 181 of the Act; and
b)	pay to the responsible authority its costs and disbursements incurred in relation to the negotiation, preparation, execution and registration of the agreement on the certificate of title to the land.
4	Prior to the issue of a Statement of Compliance, a Development Infrastructure Levy must be paid to Moreland City Council in accordance with the approved Development Contributions Plan. The Development Infrastructure Levy amount is charged per dwelling/lot (x7) in accordance with the approved Development Contributions Plan.
5	Prior to the issue of Statement of Compliance, the applicant or the owner must pay to the Municipal Council a sum equivalent to 3.4% of the site value of all the land in the subdivision (in accordance with the Schedule of Clause 53.01 of the Moreland Planning Scheme) intended to be used for residential, commercial or industrial purposes. The applicant/owner must:
a)	make a written request to Council for a valuation of the land to determine the invoice value; and
b)	upon the applicant/owner’s receipt of the valuation, make a written request to Council for an invoice for payment of the Public Open Space Contribution.
If payment of the Public Open Space Contribution is not made within 12 months of the valuation date, the land will be re-valued at each anniversary of the first issue date of the original valuation. Any and all costs associated with the re-valuation of the land will be at the applicant/owner’s expense. The applicant/owner must then pay the percentage rate of the re-valuation.
6	Prior to the issue of a Statement of Compliance, the existing dwelling partially contained within Lot 9 and the Common Property must be demolished to the satisfaction of the responsible authority.
Erosion Management
7	Except with the written consent of the responsible authority, all works including the removal, destruction or lopping of any vegetation, construction of the access way and footpath, and provision of services must be done in accordance with the recommendations contained within the report prepared by AW Geotechnical Pty Ltd dated 19 July 2015.
8	Prior to the commencement of any buildings and/or works, including the removal, destruction or lopping of any vegetation, and/or the certification of any plan of subdivision, certification by way of a completed ‘Geotechnical Declaration and Certification’ form generally in accordance with the Geotechnical Declaration and Certification Form, Moreland City Council, November 2012, must be lodged with the responsible authority.
Completion of Works in accordance with Approved Plans
9	Prior to the issue of a Statement of Compliance, all works shown on the endorsed plans, including mailboxes and landscaping, must be completed to the satisfaction of the responsible authority.
Native Vegetation
10	Before works start, the permit holder must advise all persons undertaking the vegetation removal and works on site of all relevant conditions of this permit.
11	Prior to any native vegetation being removed from the site, evidence must be provided to Council that the offset requirement has been secured to the satisfaction of the responsible authority.  The offset requirement is 0.003 general biodiversity equivalent units (GBEU) with a minimum strategic biodiversity score of 0.082 to be located within either the municipality of Moreland City Council or the area governed by the Port Phillip and Westernport Catchment Management Authority.  This offset must meet the offset requirements set out in this permit and be in accordance with the requirements of Permitted clearing of native vegetation – Biodiversity assessment guidelines (DEPI 2013) and the Native Vegetation Gain Scoring Manual. Offset evidence can be either:
a)	a security agreement, to the required standard, for the offset site/s including a 10-year offset management plan; or
b)	a credit register extract from the Native Vegetation Credit Register.
Landscaping
12	Prior to the issuing of the Statement of Compliance, a landscape plan prepared by a suitably qualified person must be submitted to and approved by the responsible authority. The landscape plan must show the location, quantity, size and botanical names of all proposed trees, shrubs and ground covers, the treatment of all landscape surfaces, the specifications of any furniture items and be in accordance with the Moreland Landscape Guidelines and Technical Notes. An endorsed copy of the landscape plan will form part of this permit. The landscape plan must be generally in accordance with the plan prepared by Memla Landscape Architects dated 20 December 2019 but modified to show:
a)	The revised location of the access way and additional landscaping including canopy trees in the front portion of the site.  
b)	A proposed schedule of planting within the rear easement, to be revegetated generally using the species listed within EVC 641: Riparian Woodland for the Victorian Volcanic Plain Bioregion.  The plantings must include:
i	a minimum of one River Red Gum (Eucalyptus camaldulensis) 
ii	a minimum of two Blackwood trees, either using stock grown from seeds collected from the Blackwood trees to be removed from the site or Acacia melanoxylon; and
iii	a minimum of two Sweet Bursaria (Bursaria spinosa ssp. Spinosa).
The trees must be sited in accordance with Melbourne Water’s recommendations for planting within easements.
13	Prior to the issue of a Statement of Compliance, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.  The landscaping shown on the endorsed plans must be maintained thereafter to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.
Tree protection measures
14	Prior to development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), all council trees and the trees marked on the endorsed plans as being retained must have a Tree Protection Zone (TPZ) to the satisfaction of the responsible authority. The fencing associated with this TPZ must meet the following requirements:
a)	Extent
The tree protection fencing (TPF) is to be provided to the extent of the identified TPZ within Appendix 3 of the Arboricultural Assessment & Report prepared by Stem Arboriculture Pty Ltd dated 6 November 2014.
If works are shown on any endorsed plan of this permit within the confines of the calculated TPZ, then the TPF 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 TPZ.
The TPF must be erected to form a visual and physical barrier and must be a minimum height of 1.5 metres and of wire mesh or similar fencing material 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 TPF clearly stating ‘Tree Protection Zone – No Entry’, to the satisfaction of the responsible authority. 
d)	Irrigation
The area within the TPZ and TPF must be irrigated during the summer months with 1 litre of clean water for every 1cm of trunk girth measured at the soil/trunk interface on a weekly basis.
e)	Provision of Services
All services (including water, electricity, gas and telephone) should be installed underground, and located outside of any TPZ, wherever practically possible. If underground services are to be routed within an established TPZ, they must be installed by directional boring with the top of the bore to be a minimum depth of 600mm below the existing grade, to the satisfaction of the responsible authority.
Bore pits must be located outside of the TPZ or manually excavated without damage to roots, to the satisfaction of the responsible authority.
f)	Access to TPZ
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).
15	Prior to the issue of a Statement of Compliance, the TPZ works including fencing associated with the TPZ must be removed from the site.
16	Prior to the removal of any of the native vegetation (Blackwoods) the owner or their landscape consultant must collect seeds from the Blackwood trees. The owner or their landscape consultant must liaise with Council’s Open Space Unit prior to the collection of the seeds. Once collected, all the seeds must be provided to Council’s Open Space Unit for later propagation. If practicable some of the propagated plans should be planted within the easement at the western boundary of the property.  
17	Prior to the commencement of any works a tree management plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. This plan must identify any works (demolition and construction works) including services >10% incursion of the TPZ of any of the retained vegetation or vegetation on adjoining properties. Vegetation protection measures are required for significant trees on adjoining land that are noted for retention on the Landscape Concept Plan. The subdivision as proposed may result in trenching and construction of retaining walls which will have a significant impact on the structural root zone of neighbouring trees. A condition of works is that they accord with the Australian Standards, namely AS 4970 and AS 4373.
Engineering
18	Prior to the commencement of any works, the owner must obtain a Legal Point of Discharge for the whole of the land in the subdivision from the responsible authority.
19	Prior to the issuing of the Statement of Compliance, a stormwater drainage plan showing how the site will be drained to the stated point of discharge, is submitted to and approved by the responsible authority and constructed (not bonded) to the satisfaction of the responsible authority.
20	Council charges plan checking (0.75%) and supervision (2.5%) fees on the cost of constructing the drain.
21	The design of the Common Property driveway must consider and incorporate the following:
a)	The future use of the driveway that includes the later delivery of concrete, brick, tiles etc for the construction of all future dwellings;
b)	The surface of the Common Property driveway must be designed and constructed to achieve maximum traction during inclement weather that may include, but not limited to, the use of saw cuts.
c)	The inclusion of a fire hydrant located in front of the proposed Lot 8.
22	Prior to the certification, plans must be submitted to the responsible authority that show the following:
a)	Provision of a car parking signage plan that prohibits the parking of vehicles on the other side of the Common Property driveway.
b)	The proposed lighting along the Common Property driveway. The lighting must be baffled to prevent light affecting the adjoining properties. This lighting must be operational between dusk until dawn every night.
23	Prior to the issue of a Statement of Compliance, the works along the Common Property driveway must have reached the stage at which full completion has been achieved.  This includes the construction of all services (water, electricity, sewerage, gas and telecommunications), drainage, crossovers, the reinstatement Council’s assets, communal lighting, parking signage and all other communal facilities, to the satisfaction of the responsible authority.
The owner must also provide to the responsible authority a letter from a suitably qualified engineer that states all works undertaken in the common property area have been completed to the relevant standards.
ESD
24	Prior to the commencement of works, a Water Sensitive Urban Design (WSUD) Report and MUSIC Model(s) demonstrating that water sensitive urban design initiatives to be included as part of the subdivision(s) comply with the best practice stormwater management targets to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority.
If an on-site response on the site is not technically feasible, the applicant may explore offsets through the Melbourne Water offsets scheme process (subject to the approval of the responsible authority).
25	Prior to the commencement of works, a Water Sensitive Urban Design (WSUD) initiative implementation schedule to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. This must identify the different areas of responsibility and provide a schedule for implementation, ongoing management, maintenance and monitoring of WSUD initiatives included in the approved WSUD Report and MUSIC Model.
26	All works must be undertaken in accordance with the approved Water Sensitive Urban Design (WSUD) Report and MUSIC Model including the type and area of treatment measures specified and to the satisfaction of the responsible authority. No alterations to the WSUD Report and MUSIC Model(s) may occur without written consent of the responsible authority. An application to amend the WSUD Report and MUSIC Model(s) must be accompanied by an updated WSUD Report and MUSIC Model(s) and WSUD implementation schedule to the satisfaction of the responsible authority and must incorporate the proposed changes.
27	Prior to the issuing of the Statement of Compliance, a report from the author of the Water Sensitive Urban Design (WSUD) Report and MUSIC Model(s) approved pursuant to this permit, or similarly qualified person or company, must be submitted to the responsible authority. The report must be to the satisfaction of the responsible authority and must confirm that all measures specified in the WSUD Report and MUSIC Model have been implemented in accordance with the approved report.
28	Prior to the commencement of works detailed plans of stormwater treatment initiatives and devices shall be submitted and approved to the satisfaction of the responsible authority. Once approved the Stormwater Treatment Plan shall form part of the endorsed plans and all initiatives must be incorporated into any development in the subdivision to the satisfaction of the responsible authority.
Acoustic Report
29	Prior to the endorsement of plans pursuant to this planning permit an assessment of the noise emanating from CityLink must be carried out and submitted to the responsible authority. The recommendations of the Acoustic Report including any required maintenance of obligation on individual lot owners in the design and construction of a dwelling must form part of the building design guidelines required by condition 3 of this permit and subsequently registered on title. The report must include, but not be limited to the following:
a)	Noise impacts generated from the adjoining CityLink road arterial upon future dwellings as part of this subdivision. It must include an assessment over a 24-hour period and across both weekdays and weekends.
b)	If required, recommendations of acoustic attenuation measure/s to be incorporated into any future residential development in the subdivided lots. 
c)	Guidance for future builders about how to comply with condition b) above; ie guidance about glazing types, acoustic insulation and other noise mitigation strategies.
30	Before the plan of subdivision is endorsed and prior to the certification of the plan of subdivision, a report prepared by a suitably qualified person must be prepared which calculates the likely noise generated by vehicles exiting the site and assesses this impact on the amenity of surrounding properties must be submitted to the responsible authority.  When approved the report will be endorsed to form part of this permit.  If considered necessary, the report must include recommendations to mitigate this noise, such as the provision of acoustic fencing.  
General
31	Prior to the issue of a Statement of Compliance:
a)	Reticulated water, sewerage and electricity must be available to each lot shown on the endorsed plans to the satisfaction of the responsible authority.
b)	Each lot shown on the endorsed plans must be drained to the satisfaction of the responsible authority.
c)	All public works relating to the construction of footpath, crossing and the reinstatement of Council’s assets must be constructed or bonded to the satisfaction of the responsible authority.
Yarra Valley Water
32	The owner of the subject land must enter into an agreement with Yarra Valley Water for the provision of water services.
33	The owner of the land must enter into an agreement with Yarra Valley Water for the provision of sewerage services.
Melbourne Water
34	Prior to Certification, an easement, MCPAA1107 - Wetland floodway drainage and storm water quality management must be created in favour of Melbourne Water 10.0 metres from the interface of Lots 4, 5, and 6 and the adjacent waterway corridor reserve as shown on the submitted Plan of Subdivision.
35	Runoff from the site is to be treated through onsite treatment works to Best Practice Standards for pollution removal, complying with Clause 56.07 of the Victoria Planning Provisions. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water’s drains or watercourses.
36	Prior to Certification, a stormwater management and drainage strategy must be submitted and approved by Melbourne Water, demonstrating the proposed alignment for the 1 in 5 year drainage infrastructure and the overland flow path directions for the 1 in 100 year ARI flood event. The strategy must demonstrate how stormwater runoff from the subdivision will achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater. This strategy must also detail the proposed outfall to Moonee Ponds Creek.
37	Prior to the issue of a Statement of Compliance, a separate application (on-line) direct to Melbourne Water, must be made for any new or modified stormwater connection to Melbourne Water’s watercourse. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system.
38	Prior to the issue of a Statement of Compliance, the proponent will need to formally apply to Melbourne Water’s Asset Services Team to conduct any works on or near a Melbourne Water asset (including waterways). Prior to undertaking any works, the proposal must be accepted by Melbourne Water and the contractor must be in receipt of a Melbourne Water Permit to Work. Please contact Melbourne Water’s Asset Services Team on telephone 9679 6614 for more information.
39	Prior to Certification, the plan of subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.
Jemena
40	The plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to Jemena Electricity Networks (Vic) Ltd in accordance with Section 8 of that Act.
41	The applicant shall:
a)	Enter into an agreement for the extension, upgrading or re-arrangement of the electricity supply to lots on the plan of subdivision as required by Jemena Electricity Networks (Vic) Ltd. (A payment to cover the cost of such work will be required and easements internal and external to the subdivision and provision of sites for substations may also be required.)
b)	Where buildings or other installations exist on the land to be subdivided and are connected to the electricity supply, they shall be brought into compliance with the Supply and Installation Rules issued by the Local Government Electricity Supply Association (Vic) and Distribution Authorities to the extent determined by Jemena Electricity Networks (Vic) Ltd.
Downer
42	The plan of subdivision submitted for certification must be referred to AusNet Gas Services in accordance with Section 8 of the Subdivision Act 1988.
Telecommunications
43	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.
44	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.
Other
45	Permit conditions numbers 1 to 47 inclusive must be satisfied prior to the issue of a Statement of Compliance.
Expiry of permit for subdivision
46	This permit as it relates to development (subdivision) will expire if one of the following circumstances applies:
a)	The plan of subdivision has not been certified within two (2) years of the issue date of this permit.
b)	A statement of compliance is not issued within five (5) years of the date of certification.
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.
Expiry of permit for native vegetation removal
47	This permit will expire if one of the following circumstances applies:
a)	The removal, destruction or lopping of native vegetation does not start within two years of the date of this permit.
b)	The removal, destruction or lopping of native vegetation is not completed within ten years of the date of this permit
Expiry of permit for development
48	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 –