VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11167/2021
Permit Application no. M/2020/272	
CATCHWORDS	
Application under section 77 of the Planning Environment Act 1987: Review of a refusal to grant a planning permit.  Four lot subdivision with common property for access.  Maroondah Planning Scheme.  Neighbourhood Residential Zone.  Significant Landscape Overlay applies.  Whether response to landscape character acceptable.  Whether future development on lots would be acceptable.	

Applicant	Tristone Pty Ltd	

Responsible Authority	Maroondah City Council	
Respondents	Jacqui Hansen	
	Natalie Lanyon-Town & Mark Lanyon	
Referral Authorities	Ausnet (Electricity)	
	Melbourne Water (Drainage)	
	Multinet Gas - Subdivision Officer	
	Yarra Valley Water (Sewer & Water)	
SUBJECT LAND	2/24-26 Waterloo Street
HEATHMONT  VIC  3135	
HEARING TYPE	Hearing	
DATE OF HEARING	18 February 2022	
DATE OF ORDER	29 April 2022	
CITATION	Tristone Pty Ltd v Maroondah CC [2022] VCAT 454   	

Order

1	Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, permit application M/2020/272 is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Site and Context Description, Drawing No. 25168P1 Version 3;
•	Design Response Plan, Drawing No. 25168P3 Version 5;
•	Proposed Subdivision Plan, Drawing No. 25168P2 Version 6; and
•	Tree Removal &Driveway Plan, Drawing No. 25168P4 Version 4, 
all dated 16/12/2021 and prepared by Millar Merrigan.  
2	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the Responsible Authority’s grounds of refusal are amended as follows:
(a)	Ground 5 about garden area compliance is withdrawn.
(b)	Ground 2 is amended to read as follows:
The proposal fails to respond to the decision guidelines of the Significant Landscape Overlay Schedule 3 including the vegetation character, canopy and environment of the area. In particular, the siting and layout of the building envelopes (‘available build areas’) results in a lack of sufficient space for new landscaping including canopy trees to soften the scale of future built form in keeping with the existing and preferred landscape character.
3	The decision of the Responsible Authority is set aside.
4	In permit application M/2020/272 a permit is granted and directed to be issued for the land at 2/24-26 Waterloo Street Heathmont in accordance with the endorsed plans and on the conditions set out in Appendix A.  The permit allows:
•	Four lot subdivision (in two stages);
•	Removal of vegetation.

Ian Potts
Senior Member	

Appearances
For Tristone Pty Ltd	Hew Gerrard, town planner from Glossop Town Planning.
	
For Maroondah City Council	Irene Plakidis, town planner from Refine Town Planning.
	
For Jacqui Hansen	No attendance.
	
For Natalie Lanyon-Town & Mark Lanyon	Natalie Lanyon-Town in person.  
	
For Referral authorities	No appearances	
Information
Description of proposal	A subdivision of a residential lot of 2,608sqm is proposed in two stages to create four lots and common property access.  The four lots would be located behind an existing lot (of 1,255sqm) created by a previous subdivision of what was then known as 24 Waterloo Street (Lot 8 of LP6625) in 2005.  Each lot would have designated building exclusion zones.  
Access from Waterloo Street to the four residential lots would be by an existing cross over and access lane.  
Stage 1 would see the two rear lots (Lots 3 and 4) and the access lane developed.  Stage 2 would follow with the creation of Lots 1 and 2.  	
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	Neighbourhood Residential Zone – clause 32.09 and schedule 3. 
Significant Landscape Overlay – clause 42.03 and schedule 3.  	
Permit requirements	Subdivision of land in a Neighbourhood Residential Zone – clause 39.02-3.  
Removal of vegetation (9 trees) from land subject to a Significant Landscape Overlay – clause 42.03-2 and schedule 3.  	
Relevant scheme policies and provisions	Clauses 11, 12, 15 and 16 of the State Planning policy Framework.  Clauses 21.02 and 21.07 of the Municipal Strategic Statement and clause 22.02 of the Local Planning Policy Framework.  	
Land description	The subject site is located on the western side of Waterloo Street in a residential area of Heathmont.  It has an irregular, axe like shape being the rear lot of a 2005 two lot subdivision.  The land area of 2,608 square metres (sqm) includes a 6.33 metre wide by 52 metre long accessway along the southern side of the front lot.  The access steps out to a frontage of 7.69 metres at Waterloo Street.  The accessway flares to provide a rectangular area with a width of 32.79 metres and a depth of 65.81metres.  A 2 metre wide drainage easement extends along the northern boundary.  
The subject land is presently developed with a single storey dwelling and part-paved part-gravel driveway.  A mix of established mature exotic and native trees and shrubs are present on the subject land.  The trees are largely located around the boundary of the site. 
The land falls 6.31 metres from east to west. 	
Tribunal inspection	An inspection of the locality was conducted after the hearing.  	

Reasons
Introduction
1	Tristone Pty Ltd (Tristone) seeks planning permission to subdivide a 2,608 square metre (sqm) lot accessed from Waterloo Street in Heathmont (review site).  Tristone proposes to subdivide the review land into four lots with common property access.  On 14 May 2021, the Maroondah City Council (Council) refused to grant planning permission.  It did so on seven grounds (now amended to six).  Tristone seeks a review of the decision by the Tribunal.   
2	Respondents to the review application are local residents who opposed the permit application and now support the Council’s decision.  Their reasons for opposing the proposal reflect the grounds of the Council, that I will address shortly.  For now, I record that in principle neither these residents or the Council oppose the subdivision of the review land.  All acknowledge that as a large lot within an established residential area, a subdivision to create additional residential lots would be consistent with relevant planning policy and the purposes of the Neighbourhood Residential Zone (NRZ) which the land is subject to.  It is the intensity and layout of the subdivision for four lots and the nature of the possible future development that are opposed.  
3	Tristone maintains that the four-lot subdivision is an appropriate response to the site’s context and the planning scheme requirements.  
What is proposed
4	The arrangement of the lots and common property accessway are shown in Figure 1 below.  The development includes the removal of ten trees, of which planning permission is required for nine.  
5	The four new residential lots would include areas designated as ‘building exclusion zones’.  The proposed plan of subdivision includes the following annotation about these zones:
No buildings as defined by the Planning and Environment Act 1987 may be constructed within the nominated building exclusion zones with the exception of fences and sheds and similar which do not require any footings, unless with the prior written consent of the responsible authority.
6	The following table summarises details of the lot areas and tree losses and retention based on these building exclusion zones.  
Proposed Lot Number	Lot area (sqm)	Area not in building exclusion zone (sqm)	Trees nominated for removal	Trees retained on the review site	
1	500	240	None	Five	
2	500	252	None	Two	
3	437	175	One (39)	One	
4	567	308	Three (28, 29 & 30)	Seven	
Accessway	606	Not nominated	Six (9, 12, 16, 18 & 43)	Ten	

Figure 1: Proposed subdivision and tree removal (Source: Plan 25168P4, Version 4 16 February 2022, Millar Merrigan)
7	In the hearing, Tristone submits that the areas outside the building exclusion zones (i.e. within the building areas) would not mean the whole of that area would be built on.  It is submitted that the ‘building exclusion zones’ are intended to mark out areas where building would not occur, save for the construction of fences or sheds and buildings that do not require footings as provided for in the above annotation to the subdivision plan.  This is opposed to the remaining areas of each lot where dwellings and associated works and hard stand areas could be constructed.  
8	As I will explain later in these reasons, the nature and extent of these building exclusion zones and where and what form building would occur is central to the concerns of the Council.  For now, it is I record here that in having regard to the intent of the building exclusions zones, my assessment of the planning controls and policy objectives set out in the planning scheme it is appropriate to proceed on the basis that the building exclusion zones should, with the exception of boundary fencing, exclude both buildings and works as defined under the Planning and Environment Act 1987 (PE Act).  When so read in conjunction with the definition of ‘dwelling’ under the planning scheme including appurtenances to a dwelling, this amended definition of the ‘building exclusion zones’ will support the landscape character outcomes sought under the planning scheme; these being matters that I address later in these reasons.    
The character of the Site and surrounds
9	The review site’s configuration arises from a two lot subdivision in 2005.  Cadastral plans (see below) and aerial imagery show that other lots along this side of Waterloo Street were of a similar size prior to subdivision and development.  
10	The overall landscape around the review land is one of undulating low rises and falls.  The land generally has an overall fall from east to west while undulating from north to south.  
11	South of the review land (from the intersections of Waters Grove and Dirkala Avenue) moving northward, the road falls until Blenheim Street and then rises up to Cuthbert Street.  Up to Blenheim Street the character on both sides is generally of 1960’s to 1970’s single storey dwellings on lots with areas between 630sqm to 700sqm that present a reasonably uniform width and sense of depth to the street.  Mature vegetation in established private gardens present to the street at eye level with tree canopies above roof and horizon levels evident in wider views.  Street trees dominate the vista along the road.  
12	Beyond Blenheim Street however the character along the west side of the street varies from that to the east.  The review land lies within this western section of Waterloo Street.  
13	Beyond Blenheim Street the land on the west side of Waterloo Street slopes down to the west.  The presence of canopy height trees is accentuated by this fall with building forms sitting lower and under these large trees.  Views between dwellings that front Waterloo Street are also more open due to larger lots of over 3,500 sqm having been progressively subdivided and developed with dwellings where gardens are, for the most part, less mature and accessways provide vistas between and beyond the new dwellings.  

Figure 2: Review site and surrounding cadastral layout (source: Vicplan)
14	Because of this open condition, new single and two storey dwellings have a more robust presentation to Waterloo Street than the older developments. These newer developments nonetheless remain framed under the canopy of larger trees present in the wider locality, i.e. not necessarily by trees immediately around each building but rather the tree canopy formed by trees in the general locality. 
15	To the immediate north of the review site are three, single storey dwellings located on three lots created by a series of two lot subdivisions granted planning permission in 1998 and 2010.  Substantive trees that contribute to the canopy level landscape of the street and beyond are located within each of these lots and along the boundaries.  
16	The subject land makes little contribution to the streetscape within the confines of the street corridor.  This is because the bulk of the land sits behind the established dwelling and gardens of No 1/24 Waterloo Street, which has a deep setting and prominent, mature vegetation.  It is this development that contributes to the streetscape corridor.  That said, the large trees generally distributed around the boundaries of the subject land contribute to the visible canopy vegetation in the wider western vista.  
The planning controls and policy context
The Zone and overlay controls
17	As noted earlier the land is subject to the NRZ, of which schedule 3 also applies (NRZ3).  Amongst others, the purposes of the NRZ3 include:
To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
18	Clause 32.09-1 of the planning scheme requires a schedule to the zone to contain:
…the neighbourhood, heritage, environment or landscape character objectives to be achieved for the area. 
19	Schedule 3 is headlined as ‘Canopy Cover Ridgeline Protection’.  However, it does not contain any neighbourhood character objectives.  It also does not specify a minimum subdivision area or contain any decision guidelines.  
20	Modified clause 54 and 55 requirements under NRZ3 apply to side and rear setbacks, private open space provisions and front fences.  While these are not relevant in this proposal, in the sense that there are not buildings forming part of this proposal, the nominated building exclusion zones have dimensions that accommodate the modified NRZ3 private open space requirements.  
21	A permit is required under the NRZ3 for the proposed subdivision.  Clause 32.09-3 requires that a four lot subdivision must meet the objectives and should meet the standards of clause 56, except for policy implementation (56.02-1), liveable and sustainable communities (56.03-1 to 56.03-4), public open space provision (56.05-2), integrated mobility (56.06-1), public transport network (56.06-3 and 56.06-6).  The Council raises issues with compliance with standards C6, C7, C8, C12, C21, C29 and C30.  I will return to those clause 56 elements that are relevant to this application later in my reasons.    
22	As noted earlier, Schedule 3 of the Significant Landscape Overlay (SLO3) applies to the review land (and surrounds).  A permit is not required under the SLO3 for the subdivision.  However, its controls in respect to developments for buildings and works are relevant to the potential future development of the land and landscape impacts.  
23	Permission is required under the SLO3 for the removal, destruction or lopping of specified vegetation.  
24	Council agrees with the applicant that nine of the ten trees proposed for removal require permission.  Council does not oppose their removal.  Originally some residents opposed the removal of the vegetation and in fact sought to include another tree for removal.  The amended plans retain the trees referred to in the grounds of the residents.  
Planning policy 
25	There is no dispute that subdivision of the review site is appropriate when having regard to policy settings seeking consolidation of urban areas, diversification in housing choices and variations in neighbourhood density and lot sizes.  The determinative issues in this application are about the response to neighbourhood character and landscape outcomes as sought under the NRZ3 and supported by the planning policy framework.  
26	In respect to the policy settings, local provisions at clauses 21.02, 21.06 and 21.07 identify that:
•	the subject site is located in a landscape protection area;
•	‘dense canopy vegetation’, ‘attractive streetscapes’ and a ‘high quality natural environment’ are characteristics of the municipality;
•	development and maintenance of diverse and sustainable housing opportunities is important to achieving municipal housing strategies while protecting existing urban and environmental quality;
•	encouraging development of ‘high quality urban places’ is to be achieved by ensuring new residential development contributes to the preferred neighbourhood character of a neighbourhood area as set out in clause 22.02;
27	Having regard to this framework of policy outcomes, the landscape and neighbourhood character outcomes as set out under clauses 22.02 are a key consideration in determining whether the subdivision would be an acceptable planning outcome.  
28	The objectives of clause 22.02 include amongst others, to:
…identify neighbourhood character and design elements that are special to maintaining and enhancing the character of the residential areas of Maroondah.
…ensure that all new residential development contributes to the maintenance and enhancement of the canopy vegetation of Maroondah.
…provide policy guidance to ensure that new development occurs in a manner that contributes to the preferred neighbourhood character of Maroondah
29	Relevant policy guidance is divided between matters of a general nature, residential objectives, landscaping, and specific neighbourhood character area guidance.  I address the relevant elements of this policy guidance in the reasons that follow.  
Why the subdivision is an acceptable outcome 
30	The Council submits that the proposed subdivision fails to respond to the neighbourhood and landscape character set out in the policy framework and the established neighbourhood character.  In its submissions it explained that this was for the following reasons:
•	The existing character reflects the policy aspiration for built form ‘nestled into the landscape’ and to be subservient to the natural landscape character of leafy canopy with canopy vegetation framing buildings.  
•	The proposed removal of vegetation is not contested however the proposed ‘building exclusion zones’ do not provide sufficient space between and around the ‘building areas’ for new canopy trees to be planted to offset losses and soften future built form.   
•	The arrangement of ‘building exclusions zones’ and therefore the corresponding ‘building areas’ is apprehended to result in the development of near continuous built form across the four lots.  This would be an outcome that is out of character with the area and character policy objectives for the area.  
31	The respondents support the Council’s assessment and apprehension of a future development outcome that would be out of character with the area.  It is also submitted that future development on Lot 3, with a building exclusion zone depth of 1.2 metres from the southern boundary would result in poor amenity outcomes to the neighbouring residents.  
32	As I have set out earlier, there are no neighbourhood character objectives under the schedule of NRZ1.  These are found instead under clause 22.02 and it should be noted in respect to landscape character outcomes, the objectives of SLO3.  
33	Many provisions of clause 22.02 apply to building form and dwelling developments and do not have a direct relevance to the subdivision.  The Council argues however that they may still be considered in anticipation of how the lot sizes, orientation and building exclusion zones will influence such future development.  
34	Many of the provisions of clause 22.02 also address streetscape outcomes.  This has application where lots would have a direct interface with the street.  Given the deep setback from Waterloo Road, and the wide and dominant presence of 1/24-26 in the street which I have described earlier, such matters have limited applications in this instance.  
35	That said, the proposal avoids a gun barrel driveway, which is a relevant and positive outcome in response to clause 22.02.  It is also clear that one cross over for access to Waterloo Street is a satisfactory neighbourhood character response.  Front fence provisions of this policy are however irrelevant in this case given the lack of any boundary to the street.  
36	Key issues raised against this proposal are that the building exclusion zones do not provide sufficient area for landscaping outcomes set out under clause 22.02-3, specifically:
•	The provision of space for one canopy tree in the private open space of each dwelling.
•	The provision of space to retain or support the planting of trees that will provide for canopy above roof height of a dwelling and frame the buildings on the site.  
37	The provision of canopy trees in front yards and private open space is an outcome that requires a deeper consideration of the objectives of this policy.  In this respect, the relevant policy for the character area (Heathmont Gardens) states that the preferred future character will be achieved by, amongst other outcomes:
Encouraging a low scale building form nestled into the landscape.
Ensuring development on sloping land is designed with the topography, avoiding excessive excavation and removal of vegetation.
Strengthening corridors of native trees in streets and gardens.
Ensuring setbacks reflect the established pattern and provide space for the retention and planting of substantial vegetation.
Encouraging the use of planting at frontages, as an alternative to front fencing.
38	Having regard to these outcomes, the existing character of the street and site conditions and the subdivision proposal I find that:
•	The sloping conditions of the subject land means that building heights that would be consistent with the NRZ3 would fall away from the street level and be anticipated to achieve a nestled character within the landscape.  Ultimately however, whether a proposed building height on the land would be excessive and contrary to this outcome would be addressed through the controlling provisions of the SLO3, where a permit is required for more than 2 storeys or 8 metres above natural ground level.  
•	No excavation is proposed in this subdivision and the retention of significant canopy vegetation within the common property has been provided for in the design of the access way.  The question of whether future development would threaten canopy trees retained within the lots is addressed through the layout of the building exclusion zones. 
•	The existing canopy height trees that are retained do and will continue to contribute to the corridor of native trees as seen from vistas along Waterloo Street.
•	The proposal does not result in any lot having a street frontage to Waterloo Street.  The utility of plantings in any lot frontage is therefore somewhat irrelevant in respect to the acceptability of the proposal’s street character response.   
39	Given these outcomes, I pose the question what is to be achieved by requiring additional setbacks or open areas for planting of more canopy trees in addition to those being retained?  The Council maintains that more space should be provided to offset or replace trees that will be removed.  
40	In my view there is little additional character benefit for such offset or additional planting.  The retained trees are mature, already frame existing building form in the area and are of such a height and extent that they would frame future development on the proposed lots.  The provision of building exclusions zones around these existing trees provides sufficient room for their protection and any future planting should the retained trees fail and or otherwise need to be replaced.  Each lot therefore retains the capacity for ongoing contribution to the landscape character of the area.  
41	The same can be said of the common property garden areas along the accessway.  
42	I acknowledge that other than proposed Lot 2, the lots would not have allocated ‘building exclusions zones’ to the front of each lot.  However, the contribution to landscape from the combination of existing retained trees in the private and common area spaces would achieve the same landscape character outcomes sought by local policy as set out above.  In my view there is no need to seek additional open areas and tree plantings on the lots to achieve the landscape outcomes sought under the character policy.  The building exclusion zones and retention of the trees in the accessways is sufficient.  
43	I turn now to the matter of potential built form outcomes apprehended by the Council and respondents, which is the other key issue raised against this proposal.  
44	I first note that other than general references to development responding to and making a positive contribution to neighbourhood character, the precinct guidance and more general provisions do not refer to or provide any direction about building massing or bulk.  This is to be compared to other precincts where preferred character objectives seek ‘well articulated site responsive buildings’ (see Neighbourhood area 1) or ‘non dominant building forms’ (see Neighbourhood area 3).  
45	It is also true that in other character precincts, it is a policy object to ensure ‘building setbacks allow space between dwellings for vegetation’. However in the Heathmont Gardens precinct, the relevant policy character objective is to have building setbacks that ‘reflect the established pattern and provide space for the retention and planting of substantial vegetation’.  Notwithstanding submission to the contrary from Council the outcome is not have such setbacks all around the dwellings or in this case the building areas.  The question arises therefore more properly framed is whether the ‘building exclusion zones’ can support the outcomes as set out for the Heathmont Garden precinct?   
46	The prevailing character of the more recently subdivided lots to the south and north of the subject land, as well as further along the western side of Waterloo Street is one of shallow and deeper side setbacks to common boundaries, while the depth of rear setbacks varies depending on lot and building orientation.  Overall, however, these shallower setbacks are still sufficient for screening landscaping by hedges or other vegetation which adds to the landscape character of the neighbourhood.  
47	I am satisfied that other than proposed Lot 3, the use of the ‘building exclusions zones’ would result in building setbacks to the perimeters of the subject land that are consistent with this established pattern.   
48	In respect to proposed Lot 3, the 7 metre deep western setback is acceptable.  It is the southern 1.2 metre setback that is in problematic.  This southern interface is to north-facing private open spaces where dwellings are setback some 4 metres or more from the common boundary.  A proposed 1.2 metre setback is not reflective of this space or the surrounding general character of existing development along the western side of Waterloo Street.  While I accept that the ‘building area’ may accommodate works other than a building, there is no limitation proposed under the subdivision to prevent a building being constructed to the edge of the ‘building exclusion zone’.  Such outcome on the southern boundary of Lot 3 would not be a positive response to the local neighbourhood character.  
49	Given the local established character for space between adjoining building forms and some level of screen planting, I conclude that a deeper setback is required.  I have included a condition for amended plans to provide for a 2 metre setback.  This amendment will be respectful of the sense of space between interfacing building forms and provide sufficient room for landscaping consistent with the character of the area.  
50	Turning to the question about building massing within the site, the key concern of the Council is that if no other planning permissions are required for development, then it will have no control over this outcome.  It says that such a massing of built form would be contrary to the character policy outcomes.    
51	It is true that if single dwellings are proposed on each of the lots, no planning permissions would be required under the NRZ3.  It is also true that this may result in built form within the subject site being built close to or n part along internal lot boundaries.  This is a consequence of the planning controls within the Maroondah planning scheme that apply to this land and for single dwelling developments.  That said, even if planning permission under the zone is not required, the building exclusion zones enable built form to meet the varied clause 54 standard under the NRZ3 in respect to building setbacks and private open space with these clause 54 standards applying through the building permit scheme.  
52	Further scrutiny of a proposal for more than one dwelling per lot would of course occur under the zone, clause 55 and relevant policies, as referred to earlier, about character outcomes would therefore come into play.    
53	In respect to the impact of future development on landscape character, the key control for future development is presently through the SLO3.  Whether further planning permission would be required under this control will depend on whether the triggering measures under clause 3 of the SLO3 are engaged.  
54	In response to the Council’s grounds, the applicant highlights that a key trigger for a planning permission under SLO3 is when building coverage of more than 40% of the site planning is proposed.  Several relevant matters arise from this trigger.  
55	First this control applies to any building, not just a dwelling.  Second it is cumulative and so takes account of all buildings and their coverage on a site.  If subdivided as proposed, a reference to the site in this control would be a reference to each lot.  
56	The permit applicant says that for each proposed lot area, a 40% building coverage is less than the nominated building area indicated on the plan of subdivision.  The coverage and nominated building area values are shown in the following table.  
Proposed Lot Number	Lot area (sqm) 	Nominated build area (sqm)	40% of lot area as sqm and as a % of building area	
1	500	240 
(12m x 20m)	200	83%	
2	500	252
(14m x 18m)	200	79%	
3	437	255
(15m x 17m)	175	69%	
4	567	308
(14m x 22m)	227	74%	

57	It is submitted that proposals for building coverage necessary to result in the outcomes apprehended by the Council would therefore result in scrutiny under the SLO3 because it would require coverage above 40% of each lot area.  
58	The applicant’s analysis does not persuade me that low coverage developments that would not be subject to SLO3 triggered scrutiny would necessarily prevent boundary to boundary development occurring.  Given the orientation of the building exclusion zones, notably across Lots 2, 3 and 4, it is conceivable that dwelling developments might result in built form that could be clustered close together or even have an some attached form even if less than 40% coverage occurs on each lot.  That said, the lower level of coverage over such an outcome, as evidenced in the tables above, means greater areas would be available for open space and/or tree planting.  Such outcome could potentially ameliorate the massing of building form arising from such clustering and contribute to positive landscape character outcomes.  
59	I accept however that proposals for high coverage of built form, as apprehended by the Council, does means the Council will have an opportunity to assess and determine whether the objectives of the SLO3 will be met and whether building forms are responsive to this overlay’s objectives.  Therefore there will be an appropriate level of review and testing of such proposals.  
60	Finally, however, I observe that neither the objectives and design guidelines under clause 22.02 or the landscape objectives of SLO3 seek to the specifically control the massing of building form.  Under this policy at best what is referred to is ‘low scale’ building form.  
61	The overwhelming emphasis within the policy of clause 22.02, as it applies to this neighbourhood character area, and the SLO3, is a landscape response that supports the dominance of canopy trees under which building form should sit.  I am satisfied that the layout of the proposed lots, subject to modifications as set out in this order, would enable future development that can meet these landscape outcomes.  
Other elements of the subdivision 
62	The Council’s other grounds against this proposal are about the failure of the proposal to meet various standards clause 56 in respect to neighbourhood character (standard C6), lot diversity and distribution (standard C7), lot area and building envelopes (standard C8) and integrated urban landscape (standard C12).  It also raises grounds about accessway design, lighting, and provision of fire hydrants.  
63	The matters of lighting and fire hydrants are readily dealt with by permit conditions.
64	In respect to the access way design, there are two issues raised.  One is that the bends in the accessway are too tight with swept paths indicating vehicle overhangs into garden areas.  This is particularly the case for light commercial vehicles (such a waste collection vehicles) attempting to turn at the end of the accessway and negotiating bends along it.  It is also submitted that pedestrian access should be separated from the vehicle access.   
65	The applicant submits that separate access is not needed for pedestrians given the low speed environment of the accessway and available sight lines up and down it.  I accept this submission noting that other subdivisions of a similar nature on the west side of Waterloo Street have adopted the same approach.  Subject to the installation of appropriate lighting I conclude that a shared access path is a safe and acceptable outcome.  
66	The applicant also acknowledges that a realignment of lot boundaries and common land is appropriate to accommodate turning manoeuvres at the end of the accessway, i.e. between Lots 2 and 4.  I agree and have included conditions to amend the plans to provide for these amendments.  
67	In respect to the other grounds of clause 56 non-compliance, it follows from my earlier reasons that:
•	The objective of clause 56.03-5 to which standard C6 applies, has been met.  I am satisfied that the proposal will protect sufficient existing significant vegetation on the site to respond to and integrate with the surrounding urban environment and be respectful of the policy objectives for the Heathmont Gardens character precinct as set out earlier.  
•	The proposal satisfactorily addresses the objectives of clause 56.04-1 for lot diversity and distribution.  This is by way of the different lot sizes that are proposed and achieving increased housing density while satisfying the landscape character outcomes sought under the planning scheme.   
•	The lot area orientation and building areas are consistent with the standards for building envelopes for lots between 300sqm and 500sqm, allows for the retention of significant vegetation that contributes to landscape outcomes under clause 22.02 and will be capable of supporting development consistent with SLO3.  
•	To the extent relevant, in that much of clause 56.05-1 to which standard C12 applies, the subdivision retains significant canopy trees which contribute to the character and identify of the Heathmont Gardens precinct.  That said, much of the elements of standard C12 and the objectives of this clause are directed integrated urban landscape outcomes where subdivisions create new streets or public spaces.  These are not applicable in this proposal, given no new street or open public space is being created.  
Permit conditions
68	It follows from the above reasons that subject to amendments of the proposal a satisfactory planning outcome will be achieved.  Conditions in the permit will require the following:
•	An increase in the depth of the building exclusion zone along the southern boundary of Lot 3 to 2 metres.  This will require a consequential realignment of the entry point into Lot 3 from the common accessway.
•	A realignment of the boundaries of Lots 2 and 4 at the entry points from the common accessway to provide an increase area for the common accessway for vehicle manoeuvring.
69	To avoid doubt the intended outcomes of these conditions are shown in Figure 3 below. 
 
Figure 3: Form of amendment outcomes to Lot 3 and common accessway arrangements
70	In addition to these conditions, amendments are to include shielded pedestrian lighting along the common accessway, adjustments to the radius of curves in the accessway to prevent swept path incursions into garden areas, and installation of fire hydrants in compliance with standard C29.  
71	Finally, I note that the draft permit conditions put forward by the Council contain requirements or conditions that seek to address its grounds.  This includes landscaping plans for each lot and a requirement to enter a section 173 Agreement under the PE Act to comply with these lot landscaping plans when dwellings are developed.  It follows from what I have set out earlier that the nature of each dwelling development on each lot is a matter for future proposals.  That is the appropriate time to address landscaping outcomes if the proposal triggers permission under the SLO3.  If the proposal does not trigger such permissions, any future development should have the usual benefits of a single dwelling development on a lot like any other similar development in the neighbourhood.  
Conclusion
72	For the reasons explained above, I conclude that the proposal will result in an acceptable planning outcome subject to amendments that can be achieved through permit conditions.  Given this conclusion, it is appropriate to set aside the decision of the Responsible Authority and direct the grant of a planning permit that is subject to the conditions set out in this order.

Ian Potts
Senior Member	

Appendix A – Permit Conditions

Permit Application No:	M/2020/272	
Land:	2/24-26 Waterloo Street
HEATHMONT  VIC  3135	

What the permit allows	
In accordance with the endorsed plans:
•	Four lot subdivision (in two stages);
•	Removal of vegetation.  	

Permit Conditions:
Amended Plans
1	Before the plan of subdivision is certified, amended subdivision 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 form part of the permit.  The plans must be generally in accordance with the VCAT amended plans Rev. 6 dated 16 December 2021 but modified to show:
(a)	An increase in the width of the building exclusion zone along the southern boundary of Lot 3 to two (2) metres with a consequential re-alignment of the common accessway and eastern boundary alignment of Lot 3 and consequential increase in the width of the garden area along the southern boundary.  
(b)	Realignment of the accessway entry to Lot 2 by moving the south-west corner of that lot to align with the northern edge of the building exclusion zone on that lot and corresponding reduction in the south-east corner of Lot 4 to provide an additional 55 square metres of turning area for vehicles in the common accessway.  
(c)	A notation on the plans that the existing double width vehicle crossing is to be reinstated to Council standard MCC-501 to match the proposed and existing internal driveways.
(d)	The notation on the plan of proposed subdivision to be amended as follows:
Except for boundary fences, no buildings or works as defined by the Planning and Environment Act 1987 may be constructed within the nominated building exclusion zones, unless with the prior written consent of the responsible authority.
(e)	The common accessway to be re-aligned to facilitate all “common” vehicular movements within the common property, occur within the boundaries of the common accessway and vehicles do not overhand garden areas or private property boundaries.  Compliance with this requirement is to be demonstrated by resubmitted swept paths.  Resubmitted vehicle swept paths must have regard to the following dimensions and settings:
i	Use of the appropriate base dimensions for a B85 vehicle specified in Appendix B of AS/NZS 2890.1:2004;
ii	Use of appropriate vehicle design speed no lower than 5km/h;
iii	Use of appropriate lock to lock times;
iv	Ensure vehicles do not ‘turn from stop’ when travelling in a forward direction unless proceeding forwards directly after a reverse movement; and
v	Use of appropriate clearances and ensure clearances are kept clear of obstructions over 150mm in height.
(f)	Fire hydrant(s) or fire plug(s) in accordance with the requirements of standard C29 (Fire hydrants) at clause 56.09-3 of the Maroondah Planning Scheme or similar be located in common property to the satisfaction of the relevant fire and water authorities (unless otherwise agreed to the satisfaction of the Responsible Authority).
Layout not altered – Subdivision
2	The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
Payment in lieu of open space
3	Prior to the issue of a Statement of Compliance for Stage 1 under the Subdivision Act 1988, a payment equivalent to 5% of the value of the land in the subdivision as determined by the Responsible Authority must be made to the Responsible Authority as a contribution for public open space in accordance with the schedule to clause 53.01 of the Maroondah Planning Scheme.
Common property accessway
4	Prior to the issue of a Statement of Compliance for Stage 1 under the Subdivision Act 1988, the accessway within the common property must be completed in accordance with the endorsed plans to the satisfaction of the Responsible Authority.
Construction of vehicle crossing
5	Prior to the issue of a Statement of Compliance for Stage 1 under the Subdivision Act 1988, the owner must at its cost remove the existing vehicular crossing and replace with a new concrete vehicle crossing to Council Standard MCC-501, at right angles to the road to match the proposed and existing adjoining driveways to the satisfaction of the Responsible Authority.  The vehicle crossing must be a minimum 1.0 metre offset from any existing tree or utility service assets. 
Removal of Buildings
6	Before the Statement of Compliance of Stage 1 is issued under the Subdivision Act 1988, all buildings or parts of existing building within the common property must be removed and brought into compliance with the relevant building regulations to the satisfaction of the Responsible Authority.
7	Before the Statement of Compliance of Stage 2 is issued under the Subdivision Act 1988, all buildings on lots 1 and 2 must be removed to the satisfaction of the Responsible Authority.
Construction plans for drainage required
8	Prior to certification of a plan of subdivision for Stage 1, Drainage 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 form part of this permit.  The Drainage Plans must show:
(a)	All drainage works associated with the development including any drainage works required outside the land.
(b)	The nominated legal point of discharge.
(c)	The conveyance of stormwater runoff by means of underground drains to the nominated legal point of discharge.
(d)	The mechanisms used to prevent overland flows from having a detrimental effect on the land, the environment or adjoining properties. 
(e)	The mechanisms used to limit the Permissible Site Discharge (PSD) to the lesser of the equivalent of a 35% impervious site coverage or the pre-developed discharge rate. 
(f)	Stormwater detention storage that limits the maximum discharge rate to the PSD.  
Drainage works required
9	Before a Statement of Compliance is issued under the Subdivision Act 1988, the drainage and associated works shown on the endorsed Drainage Plans must be constructed in accordance with those plans to the satisfaction of the Responsible Authority.  Within 14 days of the completion of the drainage works, a letter or report from a suitably qualified engineer must be submitted to the Responsible Authority certifying that works have been completed in accordance with the endorsed Drainage Plans to the satisfaction of the Responsible Authority.  
Water Sensitive Urban Design (WSUD) – 100% best practice on site
10	The stormwater drainage system on the land must be designed such that stormwater runoff exiting the land complies with the current best practice performance objectives for stormwater quality, in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999) to the satisfaction of the Responsible Authority.  
Common Property External Lighting 
11	Before any plan of subdivision is certified, a common property lighting design plan (including illumination plan) prepared by a suitably qualified electrical engineer in accordance with Australian Standard / New Zealand Standard 1158:3.1:2020 Lighting for roads and public spaces – Part 3.1: Pedestrian area (Category P) lighting – must be submitted to and approved by the Responsible Authority.  When approved, the Lighting Plan will be endorsed and will form part of this permit.  The common property lighting design plan must be designed to ensure the common accessway is adequately lit for safe pedestrian movement, including but not be limited to: 
(a)	Activation of motion sensor lighting of the accessway between dusk to dawn.  
(b)	Use of light temperatures no greater than 2700K.
(c)	Appropriate baffles and designs to reduce upward light spill.
(d)	Consideration of overspill light on the residential properties and mitigating measures (if required) to ensure overspill is in accordance with the requirements of AS/NZS 4282:2019.
12	Before the Statement of Compliance for Stage 1 is issued under the Subdivision Act 1988, the lighting within the common property must be installed in accordance with the endorsed Lighting Plan and be operational to the satisfaction of the Responsible Authority.
Naming of Common Property Accessway
13	Before the certification of the plan of subdivision for stage 1, a plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plan will be endorsed and will form part of this permit.  The plan must show the name of the private common property access.  The name must comply with the Naming rules for places in Victoria Guidelines and is to be to the satisfaction of the Responsible Authority.
14	Before the issue of a Statement of Compliance for Stage 1 under the Subdivision Act 1988, a common property accessway identification sign(s) must be displayed within the common property accessway in a location clearly visible from the connecting road to the satisfaction of the Responsible Authority. The sign(s) must: 
(a)	Comply with Council’s standard drawing SD-J02.
(b)	Clearly identify the common property accessway as being private common property.
(c)	Not display the Maroondah City Council logo.
Tree Protection Conditions 
15	Concurrent with the endorsement of plans or prior to the commencement of any works at the site (including demolition and excavation whether or not a planning permit is required), whichever occurs sooner, a Tree Protection Plan (TPP) to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority.  The TPP must be prepared by a suitably qualified arborist and clearly show:
(a)	for each tree shown to be retained on the land or on neighbouring land, a Tree Protection Zone (TPZ) and Structural Root Zone (SRZ) calculated in accordance with the Australian Standard for Protection of Trees on Development Sites (AS4970-2009). 
(b)	the development layout, all built features, including pavement, retaining walls, and drainage infrastructure.
(c)	tree protection requirements for retained trees within and adjoining the subject site (including the road reserve), in accordance with the Australian Standards for the Protection of Trees on Development Sites (AS 4970-2009), including tree protection fence alignments, which must be constructed from farm fencing, and areas of ground protection, i.e. where fencing cannot adequately afford tree protection or access across the TPZ is required. 
(d)	any other specific tree protection/management requirements e.g. low impact construction measures or any remedial measures for retained trees to enhance their long-term viability.  
16	The approved TPP must be printed on A2 weatherproof paper, must be displayed at the site entry and must be highly visible on the site.
17	Prior to the commencement of any building and or demolition works for the land, Tree Protection Measures as detailed on the approved Tree Protection Plan, must be established and subsequently maintained until completion of all buildings and works, including landscaping, to the satisfaction of the Responsible Authority.
18	The Tree Protection Fences must remain in place until the commencement of landscape works for each Lot; and their removal will require the written consent of the Responsible Authority.  
19	Prior to the commencement of any works at the site (including demolition and excavation whether or not a planning permit is required), a letter of engagement must be provided to the Responsible Authority from the project arborist selected to oversee all relevant tree protection works.  The project arborist must be an appropriately experienced and qualified professional (minimum Cert IV or equivalent in experience).
20	The project arborist must advise the Responsible Authority in writing that the Tree Protection Measures have been installed to their satisfaction. 
21	The project arborist must maintain a log book detailing all site visits.  The log book must be made available to the Responsible Authority within 24 hours of any request.  
Landscaping of Common Property
22	Before any plan of subdivision is certified, a landscape plan for the common property areas must be submitted to and approved by the Responsible Authority.  When approved, the landscape plan will be endorsed and will then form part of this permit.  The landscape plan must address Maroondah City Council’s Landscape Plan Guidelines, must be drawn to scale and its content must reconcile with all other plans which form part of this permit.  The landscape plan must show:
(a)	The accurate location of existing canopy trees on the land and within 5m of the property boundary, clearly indicating if each tree is to be retained or removed.  Each tree shall be identified by species and with any corresponding ID number as provided in the Arboricultural Impact Assessment (Burgess 2021).
(b)	For each tree shown to be retained on the land or on neighbouring land, a Tree Protection Zone (TPZ) and Structural Root Zone (SRZ) calculated in accordance with the Australian Standard for Protection of Trees on Development Sites (AS4970-2009). 
(c)	Low impact construction measures specified, to the satisfaction of the Responsible Authority, wherever buildings, pavements or services are located within a Tree Protection Zone and which encroaches greater than 10% of the TPZ area, unless otherwise demonstrated that the tree will remain viable by the consultant arborist.  All low impact construction measures must be detailed through cross-section drawings.
(d)	Sympathetically planted garden beds to the fullest extent of TPZs as is practical.  
(e)	At least 2 small canopy trees (minimum 2m tall when planted) which will achieve a mature height of more than 5m to be provided in the common property area (to replace Trees 4, 5 and 6).
(f)	Suitably robust tussock/groundcover species located immediately adjacent to the driveway.
(g)	Suitable landscape protection measures such as fencing or other barriers which protect plantings from vehicular damage.
(h)	A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.  All species selected must be to the satisfaction of the Responsible Authority
23	Before the Statement of Compliance for Stage 1 is issued under the Subdivision Act 1988, landscaping within common property as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.  Landscaping must then be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.
Section 173 Agreement - subdivision
24	Before the Statement of Compliance is issued under the Subdivision Act 1988, the land owner must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 with the Responsible Authority to provide that: 
(a)	In accordance with Section 181 of the Planning and Environment Act 1987 the agreement will be registered with the Registrar of titles and will run with the land; 
(b)	Except with the written consent of the Responsible Authority, except for boundary fences no buildings or works (including swimming pools, outbuildings, decks, retaining walls, cut or fill, etc) may occur within the building exclusion zones nominated on the endorsed plans; 
(c)	Tree protection measures must be implemented in and maintained in accordance with the endorsed Tree Protection Plan and conditions of the subdivision permit;
(d)	All landscaping shown on the endorsed plans for the common areas must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are replaced.
(e)	Landscaping within 0.3m of either side of the common area accessway must be kept to a height of 150mm or lower, to prevent damage to vehicles and landscaping.
25	All costs (including legal costs) associated with the preparation and review of the agreement and the registration of the agreement on the Certification of Title for the land must be paid by the owner. 
Telecommunications 
26	The owner of the land must enter into an agreement with:
(a)	A telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time and
(b)	A suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
27	Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
(a)	A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time and
(b)	A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
Ausnet conditions
28	The plan of subdivision summitted for certification must be referred to AusNet Pty Ltd in accordance with Section 8 of the Subdivision Act 1998.
29	The owner of the land must:
(a)	Enter into an agreement with AusNet Electricity Services Pty Ltd for the extension, upgrading or rearrangement of the electricity supply to lots on the plan of subdivision.  A payment to cover the cost of such work will be required.
(b)	Provide electricity easements internal and external to the subdivision in favour of AusNet Electricity Services Pty Ltd to service the lots on the plan of subdivision and/or abutting lands as required by AusNet Electricity Services Pty Ltd.  The provision of reserves for electricity substations may also be required.
Multinet Gas conditions
30	A Statement of Compliance must be obtained from Multinet Gas prior the plan of subdivision being released from the Titles Office.  
Expiry of permit
31	This permit will expire if any of the following circumstances applies:
(a)	The plan of subdivision (for any stage) is not certified within two years of the date of issue of this permit; or
(b)	The registration of the subdivision (or any stage of the subdivision) is not completed within five years of the date of certification of the plan of subdivision.
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 -