VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P371/2021
Permit Application no. M/2020/842	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987: Maroondah Planning Scheme; General Residential Zone – Schedule 1: Significant Landscape Overlay 4; Two dwellings; removal of vegetation     	

Applicant	Casey Wood	

Responsible Authority	Maroondah City Council	
Respondents	Paul Joseph Monks	
SUBJECT LAND	7 Sandgate Avenue
CROYDON  VIC  3136	
HEARING TYPE	Hearing	
DATE OF HEARING	15 October 2021	
date of interim order	17 January 2022	
DATE OF ORDER	8 February 2022	
CITATION	Wood v Maroondah CC [2022] VCAT 83	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
Prepared by:	•	Transcend Building Design Services Pty Ltd	
Drawing numbers:	•	Sheets 1/4; 2/4; 3/4; 4/4.	
Dated:	•	24 August 2021 reference 19376-TP, Rev B	
No permit granted
2	In application P371/2021 the decision of the responsible authority is affirmed.
3	In planning permit application M/2020/842 no permit is granted.

Juliette Halliday
Member			

Appearances
For Casey Wood	Simon Skinner, planning consultant, Planning Sense. Mr Skinner called the following witness:
•	Mr Robert Thomson, landscape architect, Habitat  	
For Maroondah City Council	Michelle Wang, statutory planner	
For Paul Joseph Monks	Mr Monks appeared in person	
For Roy and Loraine Hampson	Mr and Mrs Hampson appeared in person	

Information
Description of proposal	Construction of two double-storey dwellings and removal of three existing trees from the land.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Maroondah Planning Scheme	
Zone and overlays	General Residential Zone – Schedule 1 (GRZ1)
Significant Landscape Overlay – Schedule 4 (SLO4)	
Permit requirements	Clause 32.08-6 Construction of two or more dwellings in the GRZ1
Clause 42.03-2 Removal of vegetation in the SLO4	
Land description	The land is located on the west side of Sandgate Avenue, between Melton Grove and Binbrook Drive. The land is rectangular is shape and has a frontage to Sandgate Avenue of 18.29 metres; a depth of 47.24 metres, and an overall area of 864 square metres. The land is improved with a single-storey brick dwelling with a tiled, hipped roof and a single-storey bungalow to the rear. A driveway with a carport is located along the southern boundary of the land. There is secluded private open space located at the rear of the house which is fenced off to separate the secluded private open space of the house and the bungalow. There are several canopy trees on the land including a Sweet Gum located adjacent to the northern boundary which is approximately 15 metres in height, a Red Flowering Gum; a Purple Plum and a Lilly Pilly. A Smooth Barked Apple tree grows in the nature strip at the front of the land. To the north at No. 9 Sandgate Avenue is a single-storey brick dwelling with a hipped, tiled roof and a carport and driveway located along the southern boundary. At the rear, the land also has an abuttal along the northern boundary to No. 1 Melton Grove, which is improved with a single-storey brick dwelling with a tiled, hipped roof. To the west at No. 2 Luton Court is a single-storey brick dwelling with a tiled, hipped roof, the rear secluded private open space of which abuts the land and has several canopy trees, including a Lemon Scented Gum that is about 15 metres in height. To the south, at No. 5 Sandgate Avenue is a single-storey brick house with a hipped, tiled roof and a driveway and carport along the common boundary with the land. The private open space to the rear includes several outbuildings and canopy trees. Opposite the land to the east is Lipscombe Park Reserve.	
Tribunal inspection	An unaccompanied inspection was carried out after the hearing.      	

Reasons

What is this proceeding about?
1	The application is brought by Casey Wood (applicant) under s 77 of the Planning and Environment Act 1987 (Act) seeking a review of the decision of the Maroondah City Council (Council) to refuse to grant a permit for the removal of vegetation and the development of land at 7 Sandgate Avenue, Croydon (land).
2	The proposal is for the construction of two dwellings. The Council refused the application on the basis that the proposal is contrary to:
a.	The relevant residential neighbourhood character policy and the relevant objectives of the GRZ1 and SLO4 that apply to the land; and
b.	Objectives and standards of clause 55 of the Maroondah Planning Scheme (Scheme) including those regarding neighbourhood character and landscaping.
3	Amongst other things, the applicant submits that the proposal respects the preferred character for the area; is consistent with the objectives of SLO4 and other objectives in the Scheme regarding landscaping. He also submits that the proposal meets all of the objectives and standards at clause 55 of the Scheme and will not cause any detrimental impacts to the amenity of adjoining properties.
4	In essence, the respondents submit that the proposal will have a detrimental impact on their amenity due to the impacts related to the visual bulk of the proposal and overlooking. They also submit that the removal of existing trees from the land, particularly the Sweet Gum in the back garden of the land will have a major impact on the landscape of the area due to the removal of this significant canopy tree. 
5	Having considered the submissions and evidence of the parties, and having inspected the site and surrounds, I conclude that the proposal does not achieve an acceptable planning outcome. My reasons follow.
proposal and site context
6	The land and its surrounds are described at page 4 of this decision. 
7	The key elements of the proposal are as follows:
a.	A two-storey dwelling (Dwelling 1) which has two bedrooms (one with an ensuite and walk in robe); a powder room; laundry; open plan kitchen and dining area with a ‘sunken lounge’ at ground floor level. At first floor level are three bedrooms (one with a walk in robe and ensuite), a retreat with a study nook; a separate room nominated as a study, and a bathroom with a balcony facing east towards Sandgate Avenue which is accessed from the retreat;
b.	At ground floor level, Dwelling 2 has a double garage, accessed from the dwelling via a workshop and store located to the east of the dining area. 198.79 square metres of private open space is proposed, with secluded private open space (including a lap pool and a deck) which is 87.78 square metres in area being located to the north of Dwelling 1. The maximum overall height of Dwelling 1 is approximately 8.48 metres;
c.	To the west of Dwelling 1, a two-storey dwelling (Dwelling 2) is proposed which has a living room; powder room; laundry and open plan kitchen and meals area at ground floor level, with secluded private open space of 103.25 square metres located to the west of the dwelling, accessed from the living area. At first floor level Dwelling 2 has 3 bedrooms (one with a walk in robe and ensuite) a bathroom and a retreat. The maximum overall height of Dwelling 2 is approximately 7.18 metres;
d.	A double garage located to the south of Dwelling 2 is proposed which is accessed from a driveway located along the southern boundary of the land;
e.	A contemporary design is proposed with the dwellings having split, angled roof forms. The materials of construction proposed include brown/grey brick veneer at ground floor level; lightweight Colourbond cladding (Monument colour) and timber cladding at first floor level, aluminium framed windows and a Colourbond roof; and
f.	A permit is required for the removal of three existing trees from the land under SLO4, being a Sweet Gum (15 metres in height), a Purple Plum (6.3 metres in height) and a Lilly Pilly (11.3 metres in height).
8	Extracts from the Ground Floor Plan (with north at the top of the page) and the East Elevation (showing Dwelling 1 as it faces Sandgate Avenue) are set out in Figures 1 and 2 below.

Figure 1

Figure 2
9	The land is located within a residential area comprised of original 1960s-1970s detached dwellings which are predominantly single and double-storey brick with hipped, tiled roofs, some having a garage or a carport along one side boundary. Front setbacks are generally in the order of nine metres. There are some more recently constructed single and double-storey developments in the area, including two, double-storey dwellings at No 13 Sandgate Avenue and a row of attached double storey townhouses at 2-4 Sandgate Avenue, oriented towards Lipscombe Reserve.
10	Low (or no) front fences with open garden settings are common in this area. The prevailing landscape character of the area comprises generously sized front and rear gardens with well-established gardens with mature native and exotic canopy trees in the front and (or) rear gardens ranging in height from small to very tall. This, together with mature canopy trees within the nature strips and the tall canopy tree vegetation that fringes Lipscombe Reserve contributes to the well vegetated landscape setting of the area.
11	The land has good access to transport, shopping and community facilities, including Lipscombe Reserve opposite, Lipscombe Park Kindergarten; Good Shepherd Lutheran Primary School; Yarra Valley Grammar School; Luther College and the McAdam Square shops (including a grocery store, post office and pharmacy all within walking distance). Bus routes 380 and 672 are located within walking distance on Plymouth Road. 
Procedural issues & rulings 
12	Mr and Mr Hampson lodged a statement of grounds with the Tribunal, although they were not original objectors to the permit application. Although they have not been joined as parties to the proceeding, I gave Mr and Mrs Hampson an opportunity to be heard under s 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998, pursuant to which the Tribunal may inform itself as it sees fit.
13	After the hearing, the parties were given the opportunity to provide written submissions with respect to the implications arising from the gazettal of Amendment C130 to the Scheme. I have considered the responses received from the Council and the applicant in this regard.
what is the planning and policy context?
Zoning 
14	The land is within the GRZ1, the purposes of which include the following:
To implement the Municipal Planning Strategy and the Planning Policy Framework. 
To encourage development that respects the neighbourhood character of the area. 
To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
…
15	The Schedule to the GRZ1 contains modifications to the requirements of clause 55 of the Scheme regarding side and rear setbacks; front fence height and private open space (being an area 80 square metres, with one part having a minimum area of 60 square metres and a minimum dimension of 5 metres).
Overlay
16	The land is affected by SLO4 (Landscape Canopy Protection), the statement of nature and key elements of landscape for which is as follows:
The combination of canopy trees and steep to undulating topography contribute to major elements of the urban character of Maroondah. Canopy trees in particular soften the impact of buildings in the environment and provide a distinct leafy character to Maroondah. 
The continuous nature of the canopy vegetation throughout Maroondah provides a strong character element and is valued by the community. The canopy vegetation is a defining element of the urban character of Maroondah.
17	The landscape character objectives to be achieved for the SLO4 are as follows:
To conserve the existing pattern of vegetation, landscape quality and ecosystems within the area. 
To encourage the re-generation of vegetation. 
To maintain a dense vegetation canopy that contributes to the special environmental character of Maroondah. 
To maintain the overall scenic beauty of the municipality.
State and local planning policy
18	There are a range of State and local policies which are relevant to the application, including the following:
a.	Clause 12.05-2S (Landscapes) which seeks to protect and enhance significant landscapes that contribute to character, identity and sustainable environments through strategies such as ensuring development does not detract from the natural qualities of significant landscape areas;
b.	Clause 15.01-1S (Urban design) which seeks to create urban environments that are safe, healthy, functional and enjoyable and that contribute to a sense of place through strategies such as requiring development to respond to its context in terms of character, cultural identity and surrounding landscape (amongst other things);
c.	Clause 15.01-2S (Building design) which seeks to achieve building design outcomes that contribute positively to the local context and enhance the public realm through strategies such as ensuring that development responds and contributes to the strategic and cultural context of its location and encouraging development to retain existing vegetation;
d.	Clause 15.01-5S (Neighbourhood character) that seeks to recognise, support and protect neighbourhood character, cultural identity, and sense of place through strategies such as ensuring that development responds to its local context by respecting the underlying natural landscape character and significant vegetation and the neighbourhood character values and built form that reflect community identity;
e.	Clause 16.01-1S (Housing supply) which seeks to facilitate well-located, integrated and diverse housing that meets community needs through strategies such as facilitating diverse housing that offer choice and meets changing household needs by widening housing diversity through a mix of housing types;
f.	Clause 16.01-2S (Housing affordability) which (amongst other things) seeks to deliver more affordable housing closer to jobs, transport and services through strategies such as improving housing affordability by increasing choice in housing type and tenure;

g.	Clause 21.06 (Built form and urban design) which (amongst other things) seeks to encourage development that provides and creates high quality urban places through strategies such as ensuring that new residential development contributes to achieving the preferred neighbourhood character of the neighbourhood area; 
h.	Clause 21.07 (Housing and residential land use) which (amongst other things) seeks to protect and enhance the environment and neighbourhoods through strategies that seek to ensure new residential development contributes to achieving the preferred neighbourhood character of the neighbourhood area and enhance areas of special environmental quality in Maroondah;
i.	Clause 21.10 (Natural resources) which (amongst other things) seeks to encourage the preservation and enhancement of the natural environment including the maintenance of clean air and water and protection of canopy vegetation through strategies such as preventing any form of degradation below the existing levels of visual and aesthetic amenity.
19	Clause 22.02 (Residential neighbourhood character) seeks to ensure that Maroondah is provided with diverse sustainable high quality residential environments and to ensure that all new residential development contributes to the maintenance and enhancement of the canopy vegetation of Maroondah (amongst other things). Policies at clause 22.02-3 seek to ensure that:
a.	residential development is responsive to site constraints and the existing character of the area; and
b.	Developments make provision for the planting of at least one canopy tree in the private open space to each dwelling. The canopy tree should grow to a height that exceeds the roof height of the dwelling (amongst other things). 
20	The land is within the ‘Neighbourhood area 3 Nyora’, the preferred neighbourhood character objectives for which are set out at clause 22.02-3 as follows:
The preferred future character will be achieved by: 
•	Ensuring a mix of dwelling styles and non-dominant building forms.
•	Ensuring dwellings are sited to accommodate vegetation, including indigenous and canopy trees. 
•	Ensuring car parking structures and manoeuvring areas do not dominate the streetscape. 
•	Encouraging low front fences. 
•	Ensuring development adjacent to the creek parkland responds to and complements the landscape character of the area.
21	The Maroondah Neighbourhood Character Study from which the preferred neighbourhood character objectives referred to above are drawn is referred to as a policy document at clause 22.02-4 of the Scheme.
What are the key issues?
22	I consider that the development of two dwellings on the land is consistent with the purposes of the GRZ1 which contemplates further development to achieve broader planning objectives, such as facilitating well-located and diverse housing, subject to the design responding to other relevant provisions of the Scheme, including the SLO4 and clause 55. Relevantly, the proposal complies with several numeric standards of clause 55. The overall permeability of the proposal is 62.03%, which exceeds the 20% minimum specified in Standard B9. The site coverage of 37.97% is less than the 60% maximum set out in Standard B8. There are also features of the design response that respond well to other provisions in clause 55 including the orientation of the living area of Dwelling 1 to the north and the minimal overshadowing of SPOS of the adjoining dwellings at the equinox.
23	However, I consider that these positive features are outweighed by other elements of the proposal. In my view the proposed design has not adequately responded to the landscape character objectives to be achieved under SLO4. On this basis, and having regard to the submissions and evidence presented to the Tribunal at the hearing, the key issues for consideration are:
a	Is the proposed tree removal an acceptable response to the SLO4 and the relevant policies in the Scheme?
b	Is the landscaping proposed appropriate? 
Is the proposed tree removal an acceptable response to the SLO4 and the relevant policies in the Scheme?
24	A permit is required under SLO4 to remove three of the four trees proposed for removal, as follows: 
a.	Tree 7 being a Purple Plum tree which is 6.3 metres in height;
b.	Tree 8 being a Sweet Gum tree which is 15 metres in height;
c.	Tree 10 being a Lilly Pilly which is 11.3 metres in height.
25	Photos of these trees extracted from the arborists’ report which was submitted with the permit application (Report) are set out at Figures 3, 4 and 5 below.

Figure 3: Purple Plum tree (Tree 7) with Sweet Gum (Tree 8) visible on left side of image

Figure 4: Sweet Gum tree (Tree 8)

Figure 5: Lilly Pilly (Tree 10)
26	Whilst the Council did not oppose the individual removal of Trees 7, 8 and 10, its position is that:
a.	The effect of the removal of the trees on the landscape character of the area without appropriate replacement landscaping will be significantly detrimental;
b.	The landscape design should be driven by the need to conserve and maintain a dense vegetation canopy, rather than being driven by the built form determined for the development;
c.	The vegetation to be removed is significant to the character and environment of the area;
d.	The proposal does not allow for replanting capacity on the land capable of restoring the vegetation coverage or to facilitate a new and well-considered landscape response capable of contributing to the canopy character of the area;
e.	The proposed landscaping response drives a net negative environmental and landscaping impact for an area in which landscaping is an important and prominent feature;
f.	The treed canopy valued by the community and evidenced within the neighbourhood will not be strengthened by this development;
g.	The design, siting and proposed landscaping fails to maintain and enhance the treed environment of Maroondah.
27	Amongst other things, Mr Monks submits that:
a.	The upper parts of Dwelling 1 or 2 will be visible from the surrounding neighbourhood in the ‘hole’ left by the removal of major canopy trees; and
b.	Tree 8 is in no danger of failure in the immediate future, as stated in the original arborist’s report, and this tree suffered no damage in extreme storms which left this block without power for five days;
c.	The development could work around Tree 8 and a choice has been made to remove Tree 8 as its health is not really in question;
d.	Tree 8 can be seen from surrounding streets such as Melton Grove and Luton Court and its removal will leave a ‘gap’ in the existing tree canopy in the area.
28	The applicant submits (amongst other things):
a.	Whilst existing vegetation within the land is ‘green and leafy’ and makes a contribution to the landscape character and removal of this vegetation will be noticeable in the short term, there is no justification for its retention based on arboricultural principles;
b.	Council’s environmental planners have identified in their internal referral comments that the proposed removal of Trees 7, 8 and 10 from the land is supported on the basis that these specimens have low retention value, poor health or structural issues; and
c.	When assessed against the purposes and decision guidelines of SLO4, the proposal has adopted a respectful planning approach to landscape and environmental values, particularly with respect to re-generation of vegetation; maintenance of a dense canopy and maintaining the overall scenic beauty of the municipality.
29	The Report states that two of the larger trees on the land displayed significant structural deficiencies that are not treatable with typical arboricultural methods. It also states that:
a.	the long term stability of both trees is questionable and although significant components of the landscape retention is not recommended; and
b.	Tree 8 has significant decay in the main trunk and it likely to be infected with Botryosphaeria with no known treatment.
30	In the body of the Report (at Table 7-1) the arboricultural value of the Purple Plum and the Sweet Gum (Trees 7 and 8) is assessed as ‘Low’ and that of Lilly Pilly (Tree 10) is assessed as ‘Moderate’. 
31	‘Low’ rated trees are assessed in the body of the Report to be ‘generally not considered to be worthy of retention and are either small in size, a common species which can be replaced readily, have very poor vigour, required design changes that outweigh the benefits to the landscape or have significant structural defects that will not respond to arboricultural treatments.’
32	In direct contrast to these statements, the table at Table 11 of the Report (Tree data) states that:
a.	The Purple Plum (Tree 7) has ‘good’ vigour; ‘fair’ structure’ a useful life expectancy of 10-20 years and ‘moderate’ arboricultural value; and
b.	The Sweet Gum (Tree 8) has ‘good’ vigour; ‘fair’ structure; a useful life expectancy of 10-20 years and ‘high’ arboricultural value. 
33	The Report describes ‘good’ vigour as:
The tree is demonstrating good or exceptional growth for its species. The tree should enable a full canopy of foliage and have only minor pest or disease problems. Foliage colour size and density should be typical of a healthy specimen of that species.
34	The Report describes ‘high’ arboricultural value as:
Tree of high quality in good to fair condition. Generally, a prominent arboricultural feature. The tree is capable of tolerating changes in its environment. These trees have the potential to be a medium to long term component of the landscape if managed appropriately. Retention of these trees is highly desirable.
35	The Report is inconsistent with respect to the health and arboricultural value of the Sweet Gum tree. On the one hand, in one part of the Report the Sweet Gum is assessed as having ‘significant decay’ and ‘low’ arboricultural value. On the other hand, in another part of the Report the Sweet Gum tree is assessed as having ‘good’ vigour with only minor pest or disease problems and ‘high’ arboricultural value, with a useful life expectancy of 10-20 years. There has not been an explanation regarding this discrepancy. 
36	If I accept that the arboricultural value of the Sweet Gum tree is ‘high’ and that it has a useful life expectancy of 10-20 years, then the removal of the Sweet Gum is inappropriate based on its high arboricultural value and its useful life expectancy as well as its other values, including its contribution to the landscape character and tree canopy vegetation of the area. 
37	The contribution that the Sweet Gum tree makes to the surrounding landscape (as distinct from its arboricultural values) means that even if I accept that its arboricultural value is ‘low’, then the removal of the tree is still inappropriate. This is because its removal would diminish and detract from the character and the tree canopy vegetation of the area, in a context where the SLO4 identifies canopy vegetation as the defining element of the urban character of Maroondah. 
38	In reaching my conclusion regarding the Sweet Gum tree, I have taken into account the inconsistency in the Report regarding the Sweet Gum tree, and I have balanced the issues surrounding the arboricultural values of the Sweet Gum tree with its contribution to the character and environment of the area. Based on the facts and circumstances of this matter, I have not been persuaded that the removal of the Sweet Gum tree is justified on the basis of its poor arboricultural values. 
39	The applicant’s submission acknowledges that the trees on the land make a contribution to the landscape. I consider that the Sweet Gum tree is a significant component of the character and environment in the area because of its height (approximately 15 metres) and the fact that its canopy can be seen from points around the surrounding neighbourhood including when standing on the oval at Lipscombe Park (as shown in the photo contained in Mr Monks submission). For these reasons, I consider that the Sweet Gum tree contributes to the landscape and environmental qualities of the area. 
40	I acknowledge that the landscape plan prepared by Mr Thompson proposes planting of twelve canopy trees that can attain a height of between 7 to 10 metres and that the existing Red Flowering Gum (Corymbia) be retained. However, based on the facts and circumstances of this matter, I have not been persuaded that the removal of the Sweet Gum tree is consistent with the purposes of the SLO4 for the following reasons:
a.	The design of the proposal has failed to conserve and enhance the landscape character objectives of the area because it has not accommodated the retention of the Sweet Gum tree; 
b.	The Sweet Gum tree is a tall canopy tree which is a significant component of the character and environment of the area due to its visibility from points in the surrounding neighbourhood. Its removal would detract from, and diminish the character and the tree canopy vegetation of the area, in a context where SLO4 identifies canopy vegetation as the defining element of the urban character of Maroondah;
c.	The removal of the Sweet Gum tree is inconsistent with the landscape character objectives to be achieved for SLO4 because:
i.	it does not conserve the existing pattern of vegetation and landscape qualities within the area;
ii.	it does not maintain the vegetation canopy that contributes to the special environmental character of the area; and
iii.	it does not maintain the overall scenic beauty of the area.
41	In failing to accommodate the retention of the Sweet Gum tree, the design of the proposal has failed to respond adequately to the following provisions in the Scheme:
a.	Clause 21.07-2 (Housing and residential land use) which (amongst other things) seeks ensure that new residential development contributes to achieving the preferred neighbourhood character of the neighbourhood area and enhance areas of special environmental quality in Maroondah (refer to objective 5 and relevant strategies at clause 21.07-2);
b.	Clause 22.02-3 (Residential Neighbourhood Character) which seeks to achieve the preferred future character for the ‘Neighbourhood area Nyora 3’ by ensuring that dwellings are sited to accommodate vegetation, including canopy trees (amongst other things);
c.	Clause 21.10-2 (Natural resources) which (amongst other things) seeks to encourage the preservation and enhancement of the natural environment including protection of canopy vegetation through strategies such as preventing any form of degradation below the existing levels of visual and aesthetic amenity (objective 3 and relevant strategy at clause 21.10-2);
d.	Clause 12.05-2S (Landscapes) which seeks to protect and enhance significant landscapes that contribute to character through strategies such as ensuring development does not detract from the natural qualities of significant landscape areas;
e.	Clause 15.01-1S (Urban design) which seeks to create urban environments that are enjoyable and that contribute to a sense of place through strategies such as requiring development to respond to its context in terms of character and surrounding landscape (amongst other things); 
f.	Clause 15.01-2S (Building design) which seeks to achieve building design outcomes that contribute positively to the local context through strategies which include encouraging development to retain existing vegetation; and
g.	Clause 15.01-5S (Neighbourhood character) which seeks to recognise, support and protect neighbourhood character, cultural identity, and sense of place through strategies such as ensuring that development responds to its local context by respecting the underlying natural landscape character and significant vegetation and the neighbourhood character values.
42	Based on the material before me, I am satisfied that the removal of the Purple Plum tree (Tree 7) and the Lilly Pilly tree (Tree 10) is acceptable. The removal of these trees is an acceptable response to the purposes of the SLO4, and it would have an acceptable impact on the existing pattern of vegetation and landscape qualities of the area. I consider that the removal of these trees would not significantly detract from the vegetation canopy in the area, on the basis that the existing Sweet Gum tree is retained.
Is the landscaping proposed appropriate? 
43	The Council submits that landscaping considerations still appear to be an afterthought and there are limited opportunities to undertake replacement landscaping within the secluded private open spaces and along the common driveway. 
44	The applicant submits that:
a.	Private and secluded open space yards in excess of amended Standard B28 provide the opportunity for understorey and canopy tree planting to enhance the development layout and compensate for the loss of three canopy trees;
b.	The design response significantly exceeds that which is sought at clause 22.02-3 (Landscaping) because the proposed landscape plan prepared by Mr Thompson shows nine canopy trees which can exceed 8 metres in height with four trees that can attain 10 metres in height, and the existing Tree 4 (Red Flowering Gum) is successfully retained; and
c.	In light of Mr Thompson’s evidence, it is erroneous to suggest that the street setback, driveway alignment and secluded private open space will be unable to sustain vegetation that enhances landscape character.
45	Amongst other things, it is Mr Thompson’s evidence that:
a.	There are no significant trees and no high value trees in terms of horticulture, habitat, aesthetic or cultural values on the site;
b.	The retention of the existing Corymbia (Tree 4) minimises any change to the streetscape in terms of established tree canopy;
c.	The proposed landscaping includes the provision of twelve canopy trees of 7 metres or higher and over two hundred shrubs/tussocks which will contribute to the garden character and environmental values of the area. The maturing landscape as designed will create a garden setting for the proposed development consistent with the objectives of planning policies and leading to an improved streetscape presentation and canopy cover; and
d.	The proposed landscaping can provide an integrated and sustainable landscape in terms of balancing residential development and environmental and aesthetic character values by providing an increase in the amount and quality of canopy and other vegetation cover compared to existing conditions on site and to other developed and undeveloped sites in the area.
46	Mr Monks submitted that it is unclear how the proposed landscaping will grow, given many of the trees proposed would compete with large existing trees on adjoining land, and he questions the effectiveness of the proposed landscaping in screening the proposed dwellings.
47	Relevantly, the ‘Landscaping objectives’ at clause 55.03-8 are as follows:
To encourage development that respects the landscape character of the neighbourhood. 
To encourage development that maintains and enhances habitat for plants and animals in locations of habitat importance. 
To provide appropriate landscaping. 
To encourage the retention of mature vegetation on the site.
48	I acknowledge that it is proposed to retain the existing Corymbia within the front setback and to plant twelve canopy trees which can grow to between 7 to 10 metres in height, and that this outcome is consistent with the policy at clause 22.02-3 that seeks at least one canopy tree in the private open space to each dwelling that can grow to a height that exceeds the roof height of the dwelling. 
49	However, on balance, I have not been persuaded that Standard B13 has been met, or that the landscaping objectives at clause 55.03-8 have been achieved for the following reasons:
a.	The existing Sweet Gum tree is a tall canopy tree which is a significant component of the character and environment of the area due to its visibility from points in the surrounding neighbourhood;
b.	The landscape layout and design has not protected, or provided for the retention of the Sweet Gum tree, which in my view is a significant feature of the neighbourhood;
c.	The failure to retain the existing Sweet Gum tree is an inadequate response to the:
i.	landscaping objectives at clause 55.03-8 which amongst other things, seek to encourage development that respects the landscape character of the neighbourhood and which encourages the retention of mature vegetation on the site;
ii.	the Residential neighbourhood character objectives at clause 22.02-2 which seek to ensure that all new residential development contributes to the maintenance and enhancement of the canopy vegetation of Maroondah, and to ensure that all new dwellings are sited in a manner that contributes to, and enhances the preferred character of Maroondah;
iii.	the policy at clause 22.02-3 that seeks residential development that is responsive to site constraints such as the existing Sweet Gum tree and to the existing character of the area; and
iv.	the preferred future character for the ‘Neighbourhood area 3 Nyora’ which is to be achieved by ensuring that dwellings are sited to accommodate vegetation, including canopy vegetation (clause 22.02-3 of the Scheme).
50	On this basis, I conclude that the landscaping objectives at clause 55.03-8 have not been achieved.  
Are there any other issues?
51	Amongst other things. the respondents raised issues regarding visual bulk and overlooking into adjoining properties from windows along the northern and southern elevations of the proposed dwellings. In this regard, I am satisfied that apart from the rear setback of the garage of Dwelling 2, the proposal generally complies with relevant side and rear setback requirements at Standard B17 (Side and rear setbacks objectives); Standard B21 at clause 55.04-5 regarding overshadowing of open space and Standard B22 at clause 55.04-6 regarding overlooking. 
52	I have determined that the proposal does not provide an acceptable response to the SLO4 and the relevant policies in the Scheme, and that the landscaping proposed does not meet the landscaping objectives at clause 55.03-8 due to the failure to design the proposal to accommodate the existing Sweet Gum tree, which is a significant component of the character and environment of the area. On this basis, I am satisfied that no permit should be granted for the proposal, and it is not necessary for me make findings regarding the other matters that were raised in this application including those regarding design detail and site services.
Conclusion
53	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Juliette Halliday
Member