VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P46/2020
Permit Application no. 397/2019/05P	
CATCHWORDS	
Section 82 Planning and Environment Act 1987, Significant Landscape Overlay – Schedule 3, building height, neighbourhood character, landscape character.  	

APPLICANT	Jim Connor	
responsible authority	Nillumbik Shire Council	
RESPONDENT	Michelle and David Juric	
SUBJECT LAND	90 Brougham Street Eltham	
WHERE HELD	Melbourne	
BEFORE	Alison Glynn, Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	30 July 2020	
DATE OF ORDER	10 August 2020	
CITATION	Connor v Nillumbik SC [2020] VCAT 852	

Order
Permit granted
1	In application P46/2020 the decision of the responsible authority is varied. 
2	In planning permit application 397/2019/05P a permit is granted and directed to be issued for the land at 90 Brougham Street, Eltham in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Buildings and works to extend and alter an existing dwelling.

Alison Glynn
Member			

Appearances
For Jim Connor 	Mr Jim Connor, in person.	
For Nillumbik Shire Council 	Ms Briana Barnes, town planner.	
For Michelle and David Juric 	Ms Michelle and Mr David Juric, in person.	

Information
Description of proposal	Alterations and additions to an existing dwelling.  This includes adding a second storey, remodelling the ground floor, including a small extension and adding a new double garage.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit. 	
Planning scheme	Nillumbik Planning Scheme	
Zone and overlays	General Residential Zone – Schedule 1 (GRZ1)
Significant Landscape Overlay – Schedule 3 (SLO3)	
Permit requirements	Construction of a dwelling extension more than 7.5 metres above natural ground level.	
Relevant scheme policies and provisions	Clauses 11, 16, 21.05, 22.12, 32.08, 42.03 and 65.   	
Land description	The site has a frontage of 23.5 metre to the south side of Brougham Street and a depth of 43.1 metres to create an area of 1012.85sqm.  The site contains an existing, single storey weatherboard house.
The site slopes down from east to west.  A number of large trees are included around the site.  To the east and west are single storey houses in a bush setting of similar sized residential lots.	

Reasons
What is this proceeding about?
1	The Shire of Nillumbik has issued a notice of decision to grant a planning permit for alterations and additions to a house at 90 Brougham Street, Eltham (the review site).  The additions that remodel and extend the house will create a building over 7.5 metres high, measured from natural ground level.  Additions over this height, and works within five metres of an existing significant tree, both trigger a planning permit under Significant Landscape Overlay – Schedule 3 (SLO3) of the Nillumbik Planning Scheme.
2	Mr Connor (the review applicant) lives next door to the review site and opposes the decision of the council.  He has asked the Tribunal to review the decision.  In summary he submits that the changes to the house are not supported by the SLO3 as they:
•	Do not ‘retain or enhance’ identified elements that contribute to the preferred character of the area. 
•	Are not consistent with the established neighbourhood character of the area. 
•	Impact on landscape character of the area.  
3	My role is to assess if the alterations and additions to remodel and extend the house are acceptable having regard to the relevant provisions of the Nillumbik Planning Scheme, most notably the provisions of SLO3 that trigger the planning permit, in effect considering the permit application afresh.  I do so below having had regard to the submissions put to me by the council, Mr Connor and also the permit applicants, the Jurics.  
4	From the submissions I find I agree with Mr Connor that the relevant questions for me to determine relate to how the proposal addresses its existing and preferred character, including the landscape character of the area.  I examine these issues in context of the objectives and provisions of SLO3 which directs the need for the permit.  This leads to me find the principal question I need to determine is:
•	When assessed against the relevant decision guidelines of SLO3, does the proposal acceptably meet the objectives of SLO3?
5	Before examining this question, I firstly note a procedural issue and then set out what the proposal is before me.
Procedural issues
6	Parties all acknowledge there are two administrative errors in the Notice of Decision issued on 8 January 2020 for the proposal.  If a permit is to grant the parties acknowledge that corrections, as set out in the council submission, are required.  The council also acknowledged that it had incorrectly added unnecessary drainage conditions.  There was no opposition from parties to these being amended and partly removed.
what is the proposal before me?
7	The Jurics (the permit applicants) propose to refurbish and extend an existing, partly elevated single storey house on their property at 90 Brougham Street, Eltham.  The main section of the existing house includes a low-pitched roof with front gable.  There is then also a recessed, side extension that also has a gable façade and front verandah.  

Figure 1 - Photo of site, as taken from Mr Connor's submission
8	The existing ground level footprint of the house is proposed to be remodelled to include different window placements and external finishes.  This includes converting the existing verandah to the western, front part of the dwelling (to the right in the photo of Figure 1) into an internal space and then constructing a new flat roofed, double width garage in front of this existing footprint.  This is generally where there is an existing low picket fence and gravel paving in front.  The only other ground floor extension to the dwelling is to accommodate a 2.4 x 1.2 metre toilet to the rear of the house.  The house will therefore retain its 10 metre setback to the street, with the new garage sitting slightly forward with a 9.0 metre setback to the street.
9	Most of the proposed additional floor area is obtained by constructing a second storey to the house.  This will sit somewhat centrally over the existing two gable forms visible from the street.  The combined second storey extension, new roof pattern and garage will give the house a new appearance to the street as depicted in Figure 2 below.

Figure 2 - North elevation of dwelling from application plans
does the proposal acceptably meet the objectives of SLO3?
10	SLO3 sets out relevant tests to assess the proposed new appearance of this dwelling.  Under the header provision of clause 42.03 – 5 the first relevant decision guideline considers the statement of the nature and key elements of the landscape and the landscape character objective contained in the schedule to the overlay.  Key elements of the significant landscape as set out in SLO3 are:
•	The visual dominance of vegetation including large native and indigenous trees and bush garden planting. 
•	The way in which the majority of development sits within the landscape with minimal excavation, and dwellings are partly obscured from view.
•	The hillsides appear to be covered by trees even when developed with houses. 
•	Dwellings with colours that blend with the landscape. a general lack of front fencing
11	The relevant landscape character objectives to be achieved in the SLO3 area are then:
•	To retain the dominance of vegetation cover in keeping with the bush garden character. 
•	To ensure that development is compatible with the scale, setbacks and character of existing development. 
•	To ensure that development is sensitive to the natural characteristics of the land including slope, terrain, services and any existing vegetation. 
•	To ensure that development does not penetrate the tree canopy.
•	To ensure that the health of existing trees is not jeopardised by new development.
12	I summarise relevant decision guidelines of the SLO3 as follows:
•	Whether the proposed development conforms with the preferred character of the area as stated in the relevant Shire of Nillumbik Neighbourhood Character Study brochure for the area.
•	The impact of the scale, shape, bulk, design (including height and siting) and external finishes of the proposal on the landscape qualities of the area. 
•	Whether the proposal keeps buildings below the predominant tree canopy height and is sited below the ridge line. 
•	Whether the proposed development minimises excavation. 
•	The need to ensure new buildings and works, including driveways fit within the landscape and topography of the land. 
•	The need for additional landscaping and screen planting to maintain the existing and preferred landscape qualities identified in the Neighbourhood Character Study.
13	Clause 22.12 - Neighbourhood Character Policy applies to all land in GRZ1 and has objectives:
•	To ensure that development is responsive to the preferred future character of the area. 
•	To retain and enhance the identified elements that contribute to the character of the area. 
•	To implement the recommendations of the Shire of Nillumbik Neighbourhood Character Study 2000 and the Nillumbik Residential Design Guidelines 2000. 
•	To recognize the potential for change as a result of new social and economic conditions, changing housing preferences and State and local housing policies.
14	The Nillumbik Neighbourhood Character Study brochure relevant to the area is also linked to clause 22.12.  The brochure and the policy identify the site within an area of Bush Garden Precinct 4 (BG4) where the preferred future character is set out.  Key elements of this reflect elements of SLO3 that I summarise as:
•	Development is sited to minimise disruption to landform and vegetation.
•	Buildings maintain the pattern of orientations and setbacks of adjoining properties and the streetscape.
•	Driveways and car storage areas should occupy the minimum functional area.
15	I have also reviewed the Precinct BG4 brochure being the relevant neighbourhood character brochure for the review site area.  This includes relevant design response directions.  These reiterate the need for a landscaped setting and direct that materials and building details should complement the dominant pattern within the streetscape.  
Assessment
16	In summary, the review applicant, Mr Connor, submits that the new presentation of the house to the street will result in a prominent, non-compatible design that will stand up high and out from others in the local neighbourhood, with a bulky appearance.  This is particularly given that it will take many years for any reasonable landscaping to be established around the house to soften this form.  He submits the prominence of the dwelling is exacerbated by the proposed skillion roof form.  He also contends that the materials and finishes proposed are not in keeping with the character and SLO3 objectives applying to the land.
17	I assess each of these concerns against the relevant provisions of the Nillumbik Planning Scheme with particular reference to the parts set out above.  To do this I firstly address the proposed new shape and form of the house, including its roof line.  I then consider the material selection and landscaping proposed.  
New building and roof form 
18	The neighbourhood character statement refers to the broader BG4 area as having an existing predominance of hip gable and split gable forms.  My understanding of a ‘split gable form’ is somewhat skillion in appearance.  The proposed roof form has skillion elements but is not a traditional skillion form.  So while the roof may have skillion elements, it is perhaps closer to being described as a split gable form in that it has gables to the street that slope to either side of the site but sit at different angles so they do not meet at a central pitch.  In any event, there is nothing in the SLO3 provisions or neighbourhood character policy material that directs a skillion roof must or must not be used.  
19	From my assessment of the preferred character statement and relevant objectives of SLO3 there is nothing to indicate that only a hip roof can or should be provided, even if the area is dominated by hip roofs.  The only relevant direction is contained within the character policy objective to retain or enhance the existing elements that contribute to the existing character.
20	I share the council’s observation that there is not a strong consistency in a specific roof design to deem that providing a specific hip roof form, rather than another is required to meet this objective.  I do not consider the range in roof forms is as broad as the council suggests, as I accept there is a predominance of hip and gable forms in the area, but these vary in their height, angle and complexity of form.  There are also roofs other than a traditional hip roof.  This includes what I consider to be a split gable / skillion presentation at 103 Brougham Street.  Mr Connor’s house at 88 Brougham Street is also not a suburban hip roof.  It has a much lower hip profile and an almost flat roof carport.  I understand his house was designed by Alistair Knox, a founding building designer of Eltham.  It was pointed out to me that there are three houses in the general vicinity designed by Mr Knox.  The vast majority of houses close to the review site are a range of more conventional suburban houses with different pitches, complexities and materials of hip or gable roofs.  This includes some with multiple roof sections and smaller upper level roof forms, such as the two dwellings at 101 Brougham Street.  
21	I am satisfied that a roof that uses gables to the street, with pitches form a type of split gable roof so is not out of tune or opposing to the other roofs in the area.  I am therefore satisfied the roof form retains and enhances elements of the predominant (yet varied) roof forms in the area.  Importantly the house retains a gable façade, which is a predominant element in the neighbourhood and generally does not come forward of its existing setting.
22	The SLO3 objectives seek buildings to follow the topography of the land and sit below a tree canopy line.  Parts of the roof pitch run counter to the slope of the land, but it enables the roof form to maintain some sense of a front split gable form across an existing wide footplate.  The overall building endeavours to appear as being stepped down the slope by retaining the elevated single storey form in the lower part of the site with this part of the pitch running with the land and the double storey form being to the centre and east of the site, where the land rises.  
23	The central section of the dwelling will certainly be more prominent than the existing dwelling on the site but I am satisfied it will continue to sit below the dominant tree line and be consistent with general heights of other double storey dwellings in the area.  This is noting the topography of the land leads to dwellings often having a two storey or higher appearance.  By example, the relatively modern dwelling at 86 Brougham Street includes a hip roof but still has a distinctly two storey form sitting above a lower level garage, accommodating the slope of the land.
24	The relevant objectives and policy directions also direct buildings to minimise excavation and excessive building footprints.  The use of the existing ground floor footprint is a positive response to these directions.  While it means the existing elevated floor plate is retained, it makes efficient use of the existing site and building and minimises new excavation of the land for a different floorplate.  
25	The only material extension to the ground floor building footprint is the flat roof single storey garage that will project slightly forward of the dwelling but will still be set back nine metres from the street.  A number of other dwellings in the street have garages visible in their front setbacks or aligned with their houses.  The low profile of the garage, its location on the low side of the site and stone and wood appearance I find consistent with the directions of the character policy and SLO3 provisions.  Its location and setting means it occupies a minimum to meet its functional needs and sits low to the site and overall building setting.  
26	Overall, I am satisfied the new shape and form of the house is an acceptable response to the SLO3 objectives, decision guidelines and relevant policy at clause 22.12 of the planning scheme.  It includes setbacks that are consistent with the area (mostly replicating the existing footprint) and is a scale that is consistent with other two storey forms on sloping sites in the area.  Importantly the height is not above the tree canopy of the surrounding area.
Materials and finishes
27	The proposal uses a range of render, stone and timber finishes with a colorbond roof.  Mr Connor commented in his verbal submissions that he considers the colour scheme does not reflect the need for earthy tones.  This is particularly in relation to a preference of the permit applicants to change the roof colour, from Dulux ‘windspray’ as identified in the application plans to a Dulux ‘monument’ colour.  The council is not opposed to the colour change.
28	The complete colour and materials palette is generally in keeping with the context of the area, borrowing from many examples of other dwellings in the street and uses earthy tones.  Given ‘windspray’ is a more grey, metallic colour whereas ‘monument’ is a charcoal grey colour I find that the change is a positive one and one that is more in keeping with other existing examples in the street, such as at 101 Brougham Street and is a colour that has a more earthy tone, mimicking natural blacks and charcoals found in nature.
29	I will therefore vary the decision of the council to require the roof to be changed to the monument colour.  With this I note that downpipes are not shown on elevations of the plans.  I am not clear if these have simply not been nominated, or if they will be hidden within the wall cladding.  This matter should be clarified in plans to be endorsed with downpipes shown, if they are exposed, in an appropriate colour to fit in with the design of the dwelling. 
Landscaping
30	Mr Connor is particularly concerned that the house will not be able to sit in a landscaped setting due to an existing lack of vegetation on the site, exposing the dwelling to the street.  
31	As was noted at the hearing several large trees previously existing on the site were legally removed in 2019 under bushfire protection exemptions in the planning scheme.  This means there is less existing canopy planting in the front yard.  
32	I do not see that the existing, more exposed nature of the site, as it now exists, means that the proposed two storey form is inappropriate or unacceptable.  This is simply because there are many other examples of double storey dwellings nearby that are clearly visible to the street.  This is on both the high (south) and low (north) side of the street.  Canopy planting is more comprehensive on some sites but not on others in the area around the review site.  Many, however, have clearly visible double storey facades to the street and this forms part of the existing character of the street.
33	A landscape plan that forms part of the application plans includes two new canopy trees in the front setback as well as new planting in the rear garden.  The two new canopy trees in the front setback are both proposed to the higher side of the site, where they are not impeded by the new driveway and have good capacity to frame and soften the form of the house.  These will take some time to grow, but existing and new lower shrubs are also included that are consistent with landscaping in the street.  
34	The combined use of landscaping and setback and form of the house is such that I am satisfied the relevant SLO3 objectives to ensure there will be a dominance in vegetation and landscape setting as new vegetation grows.
35	Ms Juric, on behalf of the permit applicants noted that she had been refining the planning proposed with additional planting recommended by a landscape designer who works in the local area.  This includes adding two additional silver princess gum trees (Eucalyptus caesia) into the front yard.  
36	Mr Connor questioned the use of this species as it is not locally indigenous.  The council is satisfied with the species that is already included in the rear garden.  The council submits that it seeks the majority of planting to come from its indigenous plant list, and the proposal does this.  Having some other complementary planting is accepted by the council so as to offer some variation in the street.  I have no issue with additional planting being added to the landscape plan and am satisfied from the council’s comments that the existing plant schedule that includes the use of the silver princess gum is acceptable.  If there are additional trees proposed this is a positive element and a matter the council can address in endorsing plans as part of its condition 1 approval.  
37	Mr Connor finally submits that to the western side of the site, west of the driveway, many of the new plantings proposed are within a 1.83 metre wide easement.  Mr Connor submits the plans do not show the easements.  My review of TP01 is that both easements along the southern and western boundary are shown.  This plan is then used as the base of the landscape plan.  There is no proposed building I can identify in the easement.
38	The planting is proposed along the western boundary but as the council submits, planting in easements is not prohibited.  Indeed, there is existing planting in the easement and photos tabled indicate that previous vegetation that was removed was also in the easement.  It does not mean the landscaping proposed is inadequate or inappropriate.  It simply means that if there are servicing works that need to occur in the easement then the landowner will need to rectify any damage to landscaping affected by the works.  I am satisfied the landscaping proposed is sufficient to provide a responsive design to the SLO3 and neighbourhood character provisions.
Conclusion
39	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.  This includes varied conditions to include use of the monument colour in the roof design.  I will also direct the corrections identified by the council to be made.

Alison Glynn
Member			

Appendix A – Permit Conditions

Permit Application No:	397/2019/05P	
Land:	90 Brougham Street, Eltham	

What the permit allows	
In accordance with the endorsed plans:
•	Buildings and works to extend and alter an existing dwelling.	

Conditions:
1	Before the development commences, three copies of amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of this permit.  The plans must be generally in accordance with the plans prepared by Levan Design dated 24 October 2019, but modified to show:
(a)	Details of materials and finishes including use of ‘Monument’ colour for roofing.
(b)	Details of the material and colour of any exposed drainpipes.
(c)	Location of a 2000 Litre holding water tank.
(d)	Additional Tree Protection Zone Fencing to Trees 4, 5 and extended Tree Protection Zone Fencing to Tree 10.  Accurate dimensions of all Tree Protection Zone Fencing must be shown. 
(e)	The Aboricultural Tree Assessment Report – Section 12 prepared by Climbing High Tree Services dated 30 September 2019 must be amended accordingly.
(f)	Re-location of the south-east corner shed from the easement.
(g)	The driveway constructed of asphalt or suitably coloured concrete per Condition 12.
2	The development as shown on the endorsed plans must not be altered unless with the prior written consent of the Responsible Authority.
3	The nature and colour of building materials employed in the construction of the buildings and works hereby permitted shall be harmonious with the environment, to the satisfaction of the Responsible Authority. 
4	The materials to be used in the construction of the buildings and works hereby permitted shall be of non-reflective type and with muted tones, to the satisfaction of the Responsible Authority.
5	No vegetation on-site shall be removed, destroyed, felled, lopped, ringbarked, uprooted or otherwise damaged except with the prior written consent of the Responsible Authority.
6	Unless with the prior written consent of the Responsible Authority, within three (3) months of occupancy, the landscaping works shown on the endorsed plans must be carried out, completed and maintained to the satisfaction of the Responsible Authority.
7	Prior to development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), 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. 
	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 chain mesh or similar fence with 1.8 metre support posts 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). 
(g)	Supervision of Works
	All works within TPZs must be supervised by a suitably qualified arborist. Any roots uncovered are pruned with sharp/sterile hand tools and wrapped in damp hessian by a qualified arborist.
8	Prior to the commencement of the approved works (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the erected tree protection fences must be inspected and approved by the Responsible Authority.
Once erected to the required standard, the tree protection fencing shall be maintained in good condition and may only be removed upon completion of all development works, to the satisfaction of the Responsible Authority. 
9	The following actions must not be undertaken in any tree protection zone as identified in this permit, to the satisfaction of the Responsible Authority: 
(a)	Materials or equipment stored within the zone; 
(b)	Servicing and refuelling of equipment and vehicles; 
(c)	Storage of fuel, oil dumps or chemicals; 
(d)	Attachment of any device to any tree (including temporary service wires, nails, screws or any other fixing device); 
(e)	Open cut trenching or excavation works (whether or not for laying of services); 
(f)	Changes to the soil grade level; 
(g)	Temporary buildings and works; and 
(h)	Unauthorised entry by any person, vehicle or machinery. 
10	Vehicular access and egress to each dwelling from the roadway must be by way of a vehicle crossing constructed/upgraded to the requirements of the Nillumbik Shire Council, to suite the proposed driveway and the vehicles that will use the crossing.  The Responsible Authority must approve the location, design and the disturbed area reinstated to the satisfaction of the Responsible Authority.  All vehicle crossing works are to be carried out with Council supervision under an Infrastructure Works permit.
The width of the driveway at the property boundary must match the width of the vehicle crossing.
The vehicle crossing must comply with the “Vehicle Crossing Policy” Version 1.0 January 2013 and to Standard Drawing (NS3000, NS3010, NS3020, NS3021 or NS3030) unless written approval has been granted from Council’s Infrastructure department.
11	If the vehicle crossing is closer than 1 metre to another authority’s assets, written approval from the relevant authority must be obtained.  A copy of the written approval must be provided to Council stating that there is no objection to the location of the vehicle crossing near/within 1 metre of the asset.
12	The driveway must be constructed in concrete, asphalt or similar surface and maintained in a continuously useable condition.  All works are to be carried out to the satisfaction of the Responsible Authority.
13	The development, including any new paved areas, must be drained so as to prevent the uncontrolled discharge of stormwater from the subject site across any road or footpath or onto any adjoining land.
14	Stormwater from the roof of the dwelling must be directed to an independent holding tank with a minimum storage capacity of 2000 litres.  The overflow from the tanks must be directed to the nominated point of discharge.  Water in the holding tank may be used for one or more of the following purposes: toilet flushing; property irrigation; vehicle washing and any other purpose approved by the Responsible Authority.
15	No polluted, effluent and/or sediment laden runoff from the development site is to be discharged directly or indirectly into Council’s drains, Melbourne Water’s drains or watercourses or adjoining private property during the construction of the development.  In this regard, sediment fencing and/or pollution/litter traps must be installed on site and serviced accordingly, all to the satisfaction of the Responsible Authority.
16	This permit will expire if one of the following circumstances applies: 
(a)	The development is not commenced within 2 years of the date of this permit. 
(b)	The development is not completed within 4 years of the date of this permit. 
17	The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within 6 months afterwards if the development has not commenced, or 12 months after if the development has commenced but is not yet completed..
- End of conditions -