VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P158/2022
Permit Application no.WH/2021/101 	
CATCHWORDS	
Section 77 Planning and Environment Act 1987; Whitehorse Planning Scheme; Neighbourhood Residential Zone (NRZ3); Bushfire Management Overlay (BMO); Multi-dwelling development; Significant Landscape Overlay (SLO9); Neighbourhood character; Tree removal: Clause 55; Access and Car parking.	

Applicant	JIA Property Investment Pty Ltd	

Responsible Authority	Whitehorse City Council	

SUBJECT LAND	9 Deep Creek Road
MITCHAM Vic 3132	

HEARING TYPE	Hearing	

DATE OF HEARING	17 October 2022 and 22 November 2022	

DATE OF ORDER	17 March 2023	

CITATION	JIA Property Investment Pty Ltd v Whitehorse CC [2023] VCAT 265	
Order
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:	Apex Building Design Studio	
•	Drawing numbers:	TP0.01, TP1.01, TP01.02, TP1.03, TP2.01, TP2.02, TP2.03, TP2.04, TP3.01, TP3.02, TP3.03, TP4.01, TP4.02, TP4.03, TP4.04, TP4.05 (all Revision C and dated 4 July 2022).	
No permit granted
2	In application P158/2022 the decision of the responsible authority is affirmed.
3	In planning permit application WH/2021/101 no permit is granted.

Shiran Wickramasinghe
Member			
Appearances
For JIA Property Investment Pty Ltd	Mr Jason Sumner, town planner of Apex Town Planning	
	Evidence was called from the following witness:
•	Mr Stephen Williams, arborist of Australian Tree Care Pty Ltd	
For Whitehorse City Council	Mr Angus McGuckian, town planner of Journeyman Planning	

Information
Description of proposal	Construction of four double-storey dwellings, tree removal and buildings and works within 4 metres of protected trees (SLO9).	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Whitehorse Planning Scheme (Planning Scheme)	
Zone and overlays	Neighbourhood Residential Zone – Schedule 3 (NRZ3)
Significant Landscape Overlay – Schedule 9 (SLO9)	
Permit requirements	Clause 32.09-6 – Construction of two or more dwellings on a lot in an NRZ3.
Clause 42.03-2 – Removal of vegetation and buildings and works within 4 metres of protected trees on land in SLO9.	
Land description	The subject site is located on the south-east side of Deep Creek Road and is ‘triangular’ in shape. The north-east portion is the ‘point’ of the triangle while the south-west portion is the widest part where it abuts the property at 11 Deep Creek Road. This triangular parcel of land has a length of 106.5 metres, a road frontage of 113.99 metres and a total site area of 2,164 metres squared. 
The site frontage is set back from the edge of Deep Creek Road pavement and footpath, particularly to the northern end where the distance is approximately 18.0 metres. 
The site has a slope down from the south-west boundary to the north-east tip of the triangle. The south-west corner of the site is at approximately 115.9 AHD and the low point to the north-east is approximately 105.2 AHD, being a fall of around 10.7 metres. 
The site is currently vacant and vegetated, particularly towards its north-east end.
The site abuts six sites along its south-east (rear) boundary. These site front Warnes Road with 2, 6, 8, and 10 Warnes Road occupied by single detached dwellings whilst 4 and 12 Warnes Road are occupied by multi dwelling developments. 
To the south-west (side) boundary the site abuts 11 Deep Creek Road that is occupied by a two-dwelling development. 	
Tribunal inspection	An unaccompanied site inspection was undertaken.	

  Reasons
What is this proceeding about?
1	This is an application for review of the Whitehorse City Council’s (Council) refusal to grant a permit for the construction of four, double-storey dwellings associated buildings and works within 4 metres of protected SLO9 trees and removal of vegetation.
2	Council resolved to refuse the application on the following grounds:
1.	The proposed development is not respectful of the existing or preferred neighbourhood character of the area in terms of the loss of existing vegetation and the inability for an appropriate landscape response. This would be contrary to Clauses 12.04-2 (Landscapes), 15 (Building Environment), 16 (Housing), 21.05 (Environment), 22.03 (Residential Development), 22.04 (Tree Conservation), 32.09 (Neighbourhood Residential Zone Schedule 3), 42.03 (Significant Landscape Overlay Schedule 9: SLO9), Clause 55 Standards B1 (Neighbourhood Character), and B13 (Landscaping).
2.	The proposed development is not site responsive with respect to maintaining the existing and preferred landscape character. This would be contrary to Clauses 21.05 (Environment), 22.04 (Tree Conservation), 42.03 (SLO9) and B13 (Landscaping) of Clause 55.
3.	The development fails to meet the following Standards of Clause 55 (including Standards as varied by the Schedule to the General Residential Zone):
•	B1 (Neighbourhood character)
•	B2 (Residential Policy)
•	B13 (Landscaping)
4.	The provision of turning, width, of the access [sic] would not comply Clause 52.06 to provide for safe, convenient and manageable internal vehicular movements.
5	The subject land is located within an area of cultural heritage sensitivity for the purpose of the Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2008. Pursuant to Regulation 45, the proposed activity (construction of three or more dwellings) is deemed to be a high impact activity, and Council has no jurisdiction to grant a statutory authorisation (permit) for the activity unless a cultural heritage management plan (CHMP) is approved under Part 4 of the Aboriginal Heritage Act 2006.
3	Since the lodgement of the application for review, the applicant circulated amended plans that I substituted for the application plans at the commencement of the hearing. The statement of changes states the following:
Unit 2:
•	Reduction and relocation of the building footprint to be outside of tree number 43 Tree Protection Zone and outside of tree number 52 Critical Root Zone.
•	The building footprint reduced to a maximum of 10% incursion of tree number 52 TPZ.
•	Redesign/reconfigure the ground floor of unit 2.
•	Driveway (turning area) relocated and redesigned. 
•	Driveway (turning area) fill reduced and this is now to be constructed at grade and of a permeable finish.
•	All earthworks at front of dwelling, side and rear within the TPZ’s of both trees 43 and 52 removed including retaining walls typically.
Unit 3:
•	The “floor plan layout” has been retained but the finished floor level has been raised by 0.65m.
•	Removal of all earth works in the rear of the dwelling within TPZ of tree number 43.
•	Deletion of all retaining walls between Unit 2 & 3 and to the back of unit 3 typically.
•	Retention of the deck and pergola as these will be a low impact construction within the TPZ of tree 43.
The intent of these change are to ensure that the building footprints and the layout are considerate of mature vegetation and retains as many trees as reasonably possible on the site
4	The amended plans did not address Councils concerns. 
5	Council’s submission states that post its decision the applicant has supplied an approved Cultural Heritage Management Plan and ground of refusal 5 is withdrawn.
6	A number of Tribunal decisions were referred to by the parties in support of their positions. I have taken them into account.
7	In support of the proposal the applicant states:
1.	The development has been designed to be highly considerate of the site constraints and opportunities.
2.	The development has been designed to be compliant with all relevant planning controls applicable to the site.
3.	The development has been designed to have a high level of respect for the character of the area. 
4.	The development results in removal of vegetation that could not be reasonably expected to be retained when developing the site as proposed. 
what is the relevant planning context?
8	Housing diversity, affordability and urban consolidation are supported by policies within the Planning Policy Framework (PPF). These policies also call for planning to recognise the need for, and as far as practicable, contribute to a high standard of urban design and amenity, and to recognise, support and protect neighbourhood character. Design outcomes that contribute positively to the local context and enhance the public realm are also supported.
9	The site is zoned NRZ3, the relevant purposes of which are:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To recognise areas of predominantly single and double storey residential development.
•	To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
10	Relevant decision guidelines at clause 32.09-13 include:
Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
General
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The purpose of this zone.
•	The objectives set out in the schedule to this zone.
•	Any other decision guidelines specified in a schedule to this zone.
•	The impact of overshadowing on existing rooftop solar energy systems on dwellings on adjoining lots in a General Residential Zone, Mixed Use Zone, Neighbourhood Residential Zone, Residential Growth Zone or Township Zone.
Dwellings and residential buildings
•	For the construction and extension of two or more dwellings on a lot, dwellings on common property and residential buildings, the objectives, standards and decision guidelines of Clause 55.
11	Clause 32.09-4 specifies a minimum garden area of 35% applies to the proposal and clause 32.09-10 specifies a maximum building height of 9 metres and two-storeys. 
12	At clause 4 of Schedule 4 to clause 32.09, there are a number of varied clause 55 standards, which include the following:
(a)	Site coverage: Standard B8, 40% maximum site coverage (compared to the 60% maximum default provision at clause 55.03-3).
(b)	Permeability: Standard B9, 40% minimum (compared to the 20% minimum default provision at clause 55.03-4).
(c)	Landscaping: Standard B13, provision of at least two canopy trees per dwelling that have the potential of reaching a minimum mature height of 12 metres. At least one of those trees should be in the secluded private open space of the dwelling. The species of canopy trees should be native, preferably indigenous.
(d)	Side and rear setbacks: Standard B17, A new building not on or within 200mm of a boundary should be set back 1 metre from the side boundary, 3 metres on the other side boundary and 5 metres from the rear boundary, plus 0.3 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres.
(e)	Walls on boundaries: Standard B18, no walls to be constructed on boundaries.
(f)	Private open space: Standard B28, A dwelling or residential building should have private open space consisting of and [sic] area of 40 square metres, with one part of the private open space at the side or rear of the dwelling or residential building within a minimum area of 35 square metres, a minimum dimension of 5 metres and convenient access from a living room. It cannot include a balcony or roof top terrace.
(g)	Front fence height: Standard B32, a front fence within 3 metres of a street should not exceed 1 metre in ‘other streets’. Front fence height in streets in a Road Zone Category 1 or 2 should not exceed 1.8 metres.

13	Clause 7 of Schedule 4 to clause 32.09 provides the following additional relevant decision guidelines to those specified in clause 32.09:
•	Whether the vegetation in the street setback will contribute to the preferred neighbourhood character and the public realm. 
•	The potential for trees and vegetation to be provided between dwellings on the same site. 
•	Whether there is sufficient permeable space that is not encumbered by an easement to enable the planting of canopy trees. 
•	Development should provide for the retention and/or planting of trees, where these are part of the character of the neighbourhood. 
14	The site is also located within SLO9, the relevant purposes at clause 42.03 are:
To implement the Municipal Planning Strategy and the Planning Policy Framework. 
To identify significant landscapes. 
To conserve and enhance the character of significant landscapes.
15	At clause 42.03-5 the relevant decision guidelines include:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The statement of the nature and key elements of the landscape and the landscape character objective contained in a schedule to this overlay.
•	The conservation and enhancement of the landscape values of the area.
•	The need to remove, destroy or lop vegetation to create a defendable space to reduce the risk of bushfire to life and property.
•	The impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.
•	The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area.
•	The impact of buildings and works on significant views.
•	Any other matters specified in a schedule to this overlay.
16	Clause 1.0 of schedule 9 to clause 42.03 relates to the Neighbourhood Character Areas of Whitehorse for which the following statement of nature and key element of landscape are provided:
The Bush Suburban Neighbourhood Character Area generally has a mix of formal and informal streetscapes with wide nature strips and streets are dominated by vegetation with buildings partially hidden behind tall trees and established planting.
Gardens are less formal, consisting of many canopy trees and property boundary definition can be non-existent or fenced. Buildings appear detached along the street and generally comprise pitched rooftops, with simple forms and articulated facades.
The Bush Suburban Neighbourhood Area includes parts of Blackburn, Box Hill South, Vermont South, Mitcham, Nunawading and Mont Albert North as shown in the Neighbourhood Character Precincts Map contained in the Neighbourhood Character Study 2014.
17	Clause 2.0 of schedule 9 to clause 42.03 also includes the following landscape character objectives:
To retain and enhance the canopy tree cover of the Garden and Bush Suburban Neighbourhood Character Areas.
To encourage the retention of established and mature trees.
To provide for the planting of new and replacement canopy trees.
To ensure that development is compatible with the landscape character of the area.
18	Relevant decision guidelines at clause 5.0 of schedule to clause 42.03 are as follows:
•	The contribution of the tree to neighbourhood character and the landscape.
•	The need to retain trees that are significant due to their species, age, health and/or growth characteristics.
•	Where the tree is located, its relationship to existing vegetation and its role in providing habitat and corridors for fauna and their contribution to local ecological systems.
•	The cumulative contribution the tree makes with other vegetation to the landscape and the impact of the incremental loss of trees.
•	Where the location of new and existing footings and impervious areas are in relation to the root zone of established trees.
•	The compatibility of any buildings and works with existing vegetation proposed to be retained.
•	The effect of any proposed lopping on the significance, health or appearance of the tree.
•	Whether there is a valid reason for removing the tree and whether alternative options to removal have been fully explored.
•	If retention cannot be achieved, or a tree is considered appropriate for removal, consider whether:
•	a replacement tree has been provided; and
•	the site provides adequate space for offset planting of trees that can grow to a mature height similar to the mature height of the tree to be removed.
•	If it is not appropriate to select an indigenous or native tree species, the selected species should be drought tolerant.
•	Whether the planting location of the replacement tree(s) will enable the future growth of the canopy and root system of the tree to maturity.
•	Whether the replacement tree species and planting locations conflict with existing or proposed overhead wires, buildings, easements and existing trees.
•	Whether the proposal is consistent with the Whitehorse Neighbourhood Character Study (April 2014), the Municipal Wide Tree Study Options and Recommendations Report (June 2016) and the Municipal Wide Tree Study Part 2: Additional Analysis in Garden Suburban and Bush Suburban Character Precincts (March 2019).
19	Pursuant to clause 21.06 the site is included in a ‘Limited Change Area’, which is the lowest level of the three categories of housing change identified in the Planning Scheme. Areas of ‘Substantial’ and ‘Natural’ change are together expected to make the greater contribution to increases in housing in the municipality.
20	With respect to Limited Change Areas, the Planning Scheme states the following (amongst other things):
•	Limited Change areas enable specific characteristics of the neighbourhood, environment or landscape to be protected through greater control over new housing development. These areas represent the lowest degree of intended residential growth in Whitehorse.
•	Conserve and enhance those elements which contribute to the valued environmental, heritage and neighbourhood character of the place.
•	Ensure new development protects and reinforces the environmental, heritage values and/or preferred future neighbourhood character of the area.
•	Ensure new development mainly takes the form of renovations to existing houses, replacement of single dwellings with new dwellings and some limited medium density development.
•	Maintaining the preferred neighbourhood character of Limited Change Areas.
•	Providing adequate space for substantial vegetation in Limited and Natural Change Areas.
•	To limit dwelling densities in the limited change areas identified as having either character, heritage, environmental or infrastructure constraints.
•	Ensure residential development is of a scale, form and character that is consistent with the surrounding area, and will predominantly comprise detached dwellings and semi-detached dwellings.
•	Ensure the scale and appearance of new housing respects the appearance of surrounding development and the environmental, heritage and neighbourhood character values of the area.
•	Encourage the retention of older dwellings in areas where these buildings dominate, and limit new development to two dwellings per lot.
21	The site is within the Bush Suburban 9 precinct under the Council’s adopted Neighbourhood Character Study which is a policy reference at clause 22.03-9. The preferred character statement for the Bush Suburban 9 precinct is as follows: 
The bushy landscape character afforded by substantial native shrubs and tall canopy trees will remain a key characteristic of the area. Modest dwellings will continue to be partially hidden behind vegetation, and adhere to the regular setback patterns of the street. Buildings will be absorbed into the vegetation-dominated landscape and reflect the topography by being designed to step down the site and follow the contours.
The streetscape will retain an informal character due to the lack of front fencing and dominant landscape surroundings. The tall, native eucalypts in streets and private gardens will continue to provide a significant contribution to the tree canopy across the precinct. Properties abutting and close to the Dandenong Creek corridor will contribute to the bushy landscape character of the public realm, incorporating large canopy trees and native vegetation.
The openness of the streetscape will be enhanced by the absence of front fencing, or low open style front fences, allowing views into private gardens.
The areas within this Precinct will be investigated for possible inclusion in the Bush Environment character type.
22	Relevant policy at clause 22.03-1 relating to Residential Development seeks to:
•	Maintain and enhance the character of the City’s residential areas. 
•	Ensure that residential development is consistent with the three categories of housing change and the housing objectives of clause 21.06.
•	Specify the preferred built form, landscape and neighbourhood character sought by Council and the community for each of the Character Precincts.
•	Ensure that development is of high quality and compatible with the character and appearance of the area and provides adequate open space and landscaping for new development.
23	Relevant objectives at clause 22.03-2 include:
•	To ensure that residential development within the City of Whitehorse is consistent with the built form envisaged for the three categories of housing change, those being limited, natural and substantial change.
•	To ensure development contributes to the preferred neighbourhood character where specified. 
•	To ensure that new development minimises the loss of trees and vegetation. 
•	To ensure that new development does not detract from the natural environment and ecological systems.
•	To ensure that new development provides adequate vegetation and gardens consistent with the preferred neighbourhood character. 
•	To accommodate the population increases in the municipality in the areas identified as being able to sustain higher density based on environmental and infrastructure considerations. 
•	To recognise that areas of substantial and natural change will make a significant contribution to increases in housing stock.
•	To limit dwelling densities in the limited change areas identified as having either character, heritage, environmental or infrastructure constraints.
24	Policy at clause 22.03-3 requires consideration and application of the Preferred Character Statement and the relevant Precinct Guidelines within the Neighbourhood Character Study 2014. The relevant Precinct Guidelines include objectives, design responses and outcomes to be avoided with respect to development.
25	The policy basis at clause 22.04-1, Tree Conservation, recognises that the importance of tree conservation is set out in the Municipal Strategic Statement and that the retention of existing trees and provision of sufficient space for regeneration are therefore key strategies to preserve and enhance the amenity of the City.
26	Relevant objectives at clause 22.04-2 include:
•	To improve the tree canopy cover in residential areas across the municipality.
•	To protect and strengthen the preferred neighbourhood character of residential areas within the municipality.
•	To recognise the positive contribution of tree canopy to development and built form outcomes.
•	To assist in the management of the City’s tree canopy by ensuring that new development minimises the loss of significant trees.
•	To ensure that new development does not detract from the natural environment and ecological systems.
•	To identify techniques to assist in the successful co-existence of trees and new buildings or works.
•	To promote the regeneration of trees through the provision of adequate open space and landscaping areas in new development.
27	Clause 22.04-3 includes policy with respect to tree retention, buildings and works near existing trees, techniques for successful tree retention and tree planting as follows:
Tree retention 
•	All trees that are sound in health, reasonable in structure, of an appropriate species, and are in a location that can be reasonably designed around be retained.
•	All trees that are significant for aesthetic, neighbourhood character, ecological, cultural or historic reasons, so that they are important beyond the immediate surrounds of the site, be retained.
•	Trees that have been identified by Council or a suitably qualified arborist as being dangerous, or identified by Council as an environmental weed, be removed.
•	All trees that are to be retained on a development site be protected with appropriate measures, particularly during the construction phase. 
Buildings and works near existing trees 
•	Appropriate minimum separation distances between any tree to be retained and proposed buildings and works be provided and maintained to ensure that an adequate proportion of the root system is protected from disturbance, and that adequate oxygen and nutrients are available for the tree to survive in the long term.
Techniques for successful tree retention 
•	Site responsive designs for buildings, hard surfacing and other such works be encouraged to minimise potential damage to trees and their root systems, particularly where separation distances are at a minimum and the size and species of a tree requires additional steps to be taken to ensure its long-term health. 
Tree replanting 
•	New upper canopy trees be planted and significant trees that are unable to be retained be replaced to ensure that the treed canopy of the City is maintained in the long term. 
•	New trees have sufficient space and separation from buildings and impervious areas to successfully obtain their optimum height, avoid any damage to property in the future and to minimise competition from other tree canopies. 
•	The species of new trees be considered, to determine if they are appropriate for the location, soil type and neighbourhood character. 
•	Juvenile trees be used for replanting, as opposed to advanced species, as they are better able to adapt to their surroundings and develop a strong, healthy root system.
28	Clause 22.04-4 includes performance standards for tree retention and buildings and works near existing trees as follows:
Tree retention
•	Trees be retained except if: 
o	The tree is in a location which in the opinion of the responsible authority makes it impractical to be retained.
o	The structure of the tree is unsound.
o	The tree has not been identified as being significant for aesthetic, neighbourhood character, ecological, cultural or historic reasons.
o	The species of the tree is unsuitable for the site.
Buildings and works near existing trees
•	For areas not included within the Significant Landscape Overlay - Schedules 1-8 or a Vegetation Protection Overlay, a minimum separation distance of 3 metres between the tree trunk and any building or works.
Techniques for successful tree retention 
•	Application of the following techniques as part of a site responsive design, if relevant: 
o	Sensitive footing systems (pier and beam or waffle slabs as opposed to the usual strip footings or slabs).
o	If a hard surface needs to be within 3 metres of the tree trunk, a surface which will allow the penetration of water, such as crushed rock. 
o	If a driveway needs to be within 3 metres of the tree trunk, a driveway constructed on top of natural ground level so that no excavation occurs, and the introduction of filling is avoided.
o	Investigation of the installation of air and drainage vents if a significant proportion of the tree’s roots may be affected by the introduction of hard surfacing.
o	Locating services such as drainage and cabling outside of the tree’s root zone or a minimum of 3 metres from the tree trunk. If this cannot be achieved, services are to be thrust bored under the root system. 
o	Avoidance of stripping topsoil from around the tree as most of a tree’s absorbing roots are located in this area.
o	The erection of tree barriers a minimum of 3 metres from the tree trunk to avoid damage to the tree and minimise soil compaction and disturbance during construction.
Tree replanting,
The site for a new tree should be:
•	Separated by a minimum distance of 3 metres from a building.
•	For land not within a bush environment character precinct and included in a Significant Landscape Overlay, situated in a minimum area of 35m2 of open ground with a minimum dimension of 5 metres that is free of buildings and impervious surfaces and of other tree canopies, to minimise competition and facilitate normal growth.
•	Is not within land encumbered by an easement.
•	Juvenile trees should be used for replanting.
29	Clause 12.05-2S includes an objective that seeks to protect and enhance significant landscapes and open spaces that contribute to character, identity and sustainable environments. Relevant strategies include:
Ensure development does not detract from the natural qualities of significant landscape areas.
Improve the landscape qualities, open space linkages and environmental performance in significant landscapes and open spaces, including green wedges, conservation areas and non-urban areas.
Recognise the natural landscape for its aesthetic value and as a fully functioning system.
Ensure important natural features are protected and enhanced.
30	Clause 15.01-2S, Building design incudes an objective that seeks to achieve building design and siting outcomes that contribute positively to the local context, enhance the public realm and support environmentally sustainable development. Relevant strategies include:
Ensure a comprehensive site analysis forms the starting point of the design process and provides the basis for the consideration of height, scale, massing and energy performance of new development.
Ensure development responds and contributes to the strategic and cultural context of its location.
Encourage development to retain existing vegetation.
Ensure development provides landscaping that responds to its site context, enhances the built form, creates safe and attractive spaces and supports cooling and greening of urban areas.
What are the key issues?
31	Having regard to the submissions, the key issues for determination relate to whether the development acceptably responds to the preferred neighbourhood and landscape character and whether the proposed tree removal is acceptable. 
32	Having considered the submissions and the evidence, with regard to the relevant policies and provisions of the Planning Scheme and assisted by my inspection, I have determined to affirm Council’s decision. My reasons follow.
Does the development acceptably respond to the preferred neighbourhood and landscape character?
33	The applicant in support of the application submits:
•	The site is located within a Neighbourhood Residential Zone and residential development is allowed subject to a planning permit. 
•	Planning controls require consideration of the proposed vegetation removal and there are no statements that development is prohibited to protect trees. The emphasis is that development applications must make a ‘fair and reasonable’ attempt to realistically retain protected trees.
•	The proposal respects and responds to the urban character of the area and the retention of vegetation on the site which can be retained.
34	The subject site has a distinct vegetated character in comparison to surrounding land that has been developed for residential purposes. The site is currently undeveloped and was described as previously being part of five separate lots, prior to the realignment of Deep Creek Road. The site supports approximately 53 trees and has a bushy character. The extent of existing canopy trees differentiates the site from surrounding sites to the south-east and south-west that front Deep Creek Road and Warnes Road respectively that are occupied by dwellings. The existing canopy trees and vegetation rather than built form is a dominant characteristic of the site and environs at this end of Deep Creek Road due to its proximity to the Mullum Mullum Reserve and Schwerkolt Cottage Reserve that are located to the north and west. The diagram below shows the location of the site.

Source: Council submission
35	The context of the site is consistent with that described by the Tribunal in Brown v Whitehorse CC as provided in Council’s submission:
140.	The vegetative context of the area was acknowledged by Member Taranto in Brown v Whitehorse CC [2018] in relation to a proposed two dwelling development at 13 Deep Creek Road (two properties south of the review site) where she set the context of that site in the following manner:
12.	In terms of its broader physical context, the site is located in an area which is characterised by its undulating landform sloping towards the Mullum Mullum Creek valley adjacent to East Link. Large areas of heavily treed public open space on the opposite side of Deep Creek Road and along the creek valley together with and mature vegetation in the private realm and nature strips including canopy trees give this area a distinctive vegetated, naturalistic and informal landscape quality. Vegetation rather than built form is the dominant characteristic at this end of Deep Creek Road, while built form including newer multi-dwelling development has a more obvious presence as one travels closer towards Maroondah Highway.
[Emphasis added]
36	The proposal seeks to construct four two-storey dwellings and remove 35 of the 53 trees located on the site. Of these, 15 trees require a permit for removal pursuant to the provisions of the SLO9. The proposed tree removal and resultant impact on neighbourhood character are key reasons for Council’s refusal of the application.

Source: Applicant
37	The applicant called arboricultural evidence from Mr Williams and also provided an arboricultural report prepared by Australian Tree Care dated 13 August 2022 (the Arboricultural Report) in support of the application. The applicant’s evidence provides the following with respect to the trees on site:
6.0	Trees within subject property
6.1.	Fifty-three trees were assessed within the subject site. Thirty-five trees that will require removal to allow for the development. Six trees that are to be removed are exempt from permit requirements in accordance with the 10/30 Rule (TREE 35, 43, 46, 47, 48 and 51), fifteen trees require a permit in accordance with SLO9 (TREE 36, 39, 53, 54, 55, 59, 61, 62, 63, 65, 66, 67, 70, 72 and 73), and thirteen trees have no significance and are exempt from permit requirements (TREE 37, 38, 40, 41, 42, 44, 49, 50, 56, 57, 60, 64 and 71). Nineteen trees (TREE 43, 52, 69, 70, 72, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86 and 87) [sic] will be retained and protected during the development of the subject site. 
6.2.	Where major Tree Protection Zone encroachments for trees proposed to be retained were to occur, the design has been modified to allow for tree retentions. The design changes include permeable driveways constructed to grade to minimize root disturbance and deck areas on pier and beam footing to minimize excavation and avoid root damage. Measures such as these are acceptable to reduce impacts in accordance with Australian Standard 4970-2009 Protection of trees on development sites. 
38	The Arboricultural Report identifies 35 trees to be removed and classifies the trees using the TreeAZ assessment methodology. The methodology includes a categorisation system where, as relevant to this proposal, Category A trees are defined as being ‘Important trees suitable for retention for more than 10 years and worthy of being a material constraint’ and Category Z trees defined as being ‘Unimportant trees not worthy of being a material constraint’. Category A and Z have sub-classifications of A1 to A4 and Z1 to Z12. 
39	Trees classified as A1 are defined as having no significant defect and could be retained with minimal remedial care.
40	The sub-categories for Z classified tress are as follows:
•	Classification Z1, Z2 and Z3:  Local policy exemptions: Trees that are unsuitable for legal protection for local policy reasons including size, proximity and species.
•	Classification Z4, Z5 and Z6: High risk of death or failure: Trees that are likely to be removed within 10 years because of acute health issues or severe structural failure.
•	Classification Z7 and Z8: Excessive nuisance: Trees that are likely to be removed within 10 years because of unacceptable impact on people.
•	Classification Z9, Z10, Z11, and Z12: Good management: Trees that are likely to be removed within 10 years through responsible management of the tree population.
41	With respect to the trees on the site, the Arboricultural Report states there are 14 trees on the site that have an A1 classification (trees 43, 46, 52, 53, 54, 55, 59, 62, 63, 65, 69, 76, 80, 81) and, of these, 10 trees are proposed to be removed (trees 43, 46, 53, 54, 55, 59, 62, 63, 65). With respect to the 18 trees to be retained five trees have an A1 classification (52, 69, 76,80, 81) whilst the remaining 13 trees have a Z classification (45, 68, 74, 75, 77, 78, 79, 82, 83, 84, 85, 86, 87).
Neighbourhood Character
42	The applicant submits the removal of the trees is acceptable on the basis of relevant policy at clause 22.04-3 and a related performance standard at clause 22.04-3. The applicant submits:
5.70	This policy is quite clear that vegetation should be retained and protected, where they are in a location that can be reasonably designed around be retained. This policy statement is crucial to our position as it does not state that trees cannot be removed, but rather that they need a clear justification.
43	I am not persuaded that sufficient justification has been provided for the extent of proposed vegetation removal. I accept the shape of the site and the location of existing vegetation (particularly the trees that are classified A1 and require a permit for removal) constrain the area available for development. However, these are the circumstances that must be acceptably addressed in a site analysis and design response in the context of the relevant zone, overlay and policy provisions.
44	A relevant purpose of the NRZ3 seeks to manage and ensure development respects the identified neighbourhood character or landscape characteristics and decision guidelines state development should provide for the retention and/or planting of trees, where these are part of the character of the neighbourhood.
45	Having inspected the site and surrounding area I find it has a distinctive landscape character resulting from the 53 on-site trees and its proximity to the Mullum Mullum Creek Reserve. The existing vegetation is a key attribute of the site that contributes to the preferred character of this part of Deep Creek Road.
46	I am not satisfied the proposal has adequately addressed the preferred character sought for the area that seeks the maintenance of a bushy landscape character with modest dwellings that are partially hidden behind vegetation and absorbed into the vegetation dominated landscape.
47	The proposal includes the removal of 10 of the 14, A1 classified trees and a further 25 less significant tress from the site. The proposed tree removal results in 10 (71 per cent) of the existing A1 classified trees being removed and 35 (66 per cent) of all trees being removed, noting that only 15 trees (30 percent) require a permit for removal. This design response results in a significant loss of trees that are located within or proximate to the development footprint that will impact the preferred bushy character of the area as shown below.

Source: Applicant
48	With respect to the 18 trees to be retained, the applicant’s evidence states 13 trees have a Z classification that are defined as unimportant trees not worthy of being a material constraint. Further it is stated that the Z classified trees are likely to be removed within 10 years or are unsuitable for protection. Therefore, based on the evidence, a further 13 (24 per cent) of the existing trees are likely to be removed in approximately 10 years resulting in a potential loss of approximately 48 trees from the site.
49	Having regard to the above, the proposal will result in a significant loss of vegetation that will unacceptably impact on the prevailing bushy character. This outcome is inconsistent with relevant objective that seeks to maintain and strengthen the bush dominated setting of dwellings, avoid removal of large established trees and provide for the planting of new canopy trees.
50	Further, the preferred character statement seeks development to be partially hidden behind vegetation, and adhere to the regular setback patterns of the street. The proposed extent of vegetation removal is inconsistent with the character outcome sought as the tree removal will significantly reduce the opportunity for development to be ‘hidden’ as sought. The impact of the clearing will be more evident mid-site proximate to the location of trees 52, 53, 54 and 55 all of which are A1 classified trees.
51	In this context I am not satisfied the proposal is in keeping with the preferred character of the area. Therefore, I find the proposal is an unacceptable response to the relevant provisions of clause 22.03 - Residential Development, clause 32.09 – NRZ3, clause 42.03 - SLO9) and Clause 55.02-1 - Standards B1 (Neighbourhood Character).
Vegetation Removal
52	The design response proposes the removal of 15 trees (36, 39, 53, 54, 55, 59, 61, 62, 63, 65, 66, 67, 70, 72, 73) that require a permit for removal under the SLO9. In addition the applicant intends to remove six trees in accordance with the 10/30 Rule (35, 43, 46, 47, 48 and 51). 
53	The applicant submits the proposed tree removal is acceptable and states the following:
5.85	The trees proposed to be removed are either of a poor quality, exempt or simply not able to be retained.
5.86	In particular, tree 55 is a large and prominent mature canopy tree. Ideally this tree would be retained. 
5.87	 However, the location of the tree, the shape of the property and the limitations on vehicle access opportunities has meant that the retention of the tree would significantly restrict the development ability of the site. It is therefore not practical or logical to retain this tree. 
5.88 	The retention of vegetation does not take precedence over the development of land. Rather, it is a consideration of the development and the design.
54	Council is concerned about the extent of tree removal in particular the ‘high retention value’ trees (43, 46, 53, 54, 55, 59, 62, 63 and 65) identified by the applicant’s arborist. Further, Council raises a specific concern regarding the removal of tree 55, a large old Eucalyptus melliodora (Yellow Box) that is 14.0 metres high with a 14.0 metre canopy spread. Tree 55 is said to be the best, healthiest and most visually conspicuous native tree on the site (see below).

Source: Council submission
55	The applicant relies upon the evidence statement of Mr Williams and the Arboricultural Report. With respect to the trees to be removed, his evidence stated:
The trees are mainly low value specimens that are presenting with suppressed form due to the density of plantings, trees with poor structure and weeds.
56	Further, the Arboricultural Report states:
The site is currently an unmaintained allotment with remnants of garden plantings as well as natural regrowth coming from the road and creek verge. The trees are mainly low value specimens that are presenting with suppressed form due to the density of plantings, trees with poor structure and weeds. 
The site is to be developed with the construction of multiple dwellings. Tree removals are required to allow for access to the site and for its meaningful development. The location is within Schedule 9 to Clause 42.03 Significant Landscape Overlay (SLO9) and a Bushfire Prone Area (BPA). The several [sic] of the trees within the site require permits to be removed in accordance with SLO9 but there are also trees that are exempt under the 10/30 Rule from the SLO9.
Where major Tree Protection Zone encroachments were to occur, the design has been modified to allow for tree retentions. The design changes include permeable driveways constructed to grade to minimize root disturbance and deck areas on pier and beam footing to minimize excavation and avoid root damage. Measures such as these are acceptable to reduce impacts in accordance with Australian Standard 4970-2009 Protection of trees on development sites. 
Assessment of the plans indicate that trees [sic] removals are necessary to allow for a meaningful development of the subject site. Further detail regarding the tree population and tree protection measures is contained within the report.
57	Relevant objectives at clause 22.03-2 seek to ensure development contributes to the preferred neighbourhood character where specified and minimises the loss of trees, and vegetation. Clause 22.04-3 includes policy that seeks retention of trees that are sound in health, reasonable in structure, of an appropriate species, and are in a location that can be reasonably designed around. A related performance standard at clause 22.04-4 seeks the retention of trees except if the tree is in a location which in the opinion of the responsible authority makes it impractical to be retained.
58	Further, the relevant landscape character objectives at clause 2.0 of schedule 9 to clause 42.03 seek to encourage the retention of established and mature trees and ensure development is compatible with the landscape character of the area. Whilst relevant decision guidelines require consideration of the contribution of the tree to neighbourhood character and the landscape and the need to retain trees that are significant due to their species, age, health and/or growth characteristics. If retention cannot be achieved, or a tree is considered appropriate for removal, consider whether a replacement tree has been provided.
59	The trees to be removed are located throughout the site, however the majority are located within the south-west portion and mid-site. The trees located in the north-east portion of the site are generally proposed to be retained. Having inspected the site and the subject trees, it is evident a number of trees located in the south-west portion and mid-site as identified by Council (trees 43, 46, 53, 54, 55, 59, 62, 63 and 65) make a visible contribution to the bushy character of the area. This is particularly the case with respect to tree 55. These trees as identified in the Arboricultural Report range in height from 5.0 metres to 17.0 metres and have a medium to long useful life expectancy. Whilst existing vegetation located in the road reserve screen the middle and north-east portion of the site from the street front, I do not consider this circumstance provides justification for the proposed extent of tree removal.
60	The location of the existing trees calls for a sensitive design response that seeks to retain the valued A1 classified trees. The site, whilst presenting some constraints provides a development opportunity. However such an opportunity is tempered by the weight of policy, zone and overlay provisions that seek the retention of trees. 
61	I do not find the proposal to remove 10 of 14, A1 classified trees and with 13 of the 18 trees to be retained comprising a Z classification to satisfy the relevant policy and overlay provisions. These include the landscape character objective that seeks to retain and enhance the canopy tree cover of the Garden and Bush Suburban Neighbourhood Character Areas and policy that seeks to minimise the loss of trees that have been identified to be of sound health.
62	Further, I have not been persuaded by the applicant the trees are located so as to make them impractical for retention or their removal is acceptable having regard to the relevant performance standards at clause 22.04-4. Whilst I accept not every tree must be retained, I find that a design response that seeks to remove 10 of the 14 trees A1 classified trees to be unacceptable. Further there was no evidence or submission that indicates the species of the existing trees is unsuitable for the site. 
63	Having regard to the above, I find the proposal fails to meet the relevant policy at clause 22.03 - Residential Development, clause 22.04 - Tree Conservation and the objectives and decision guidelines at clause 42.03 - SLO9.
Bushfire protection exemptions
64	In addition to the trees to be removed pursuant to SLO9, the applicant also intends to remove six trees in accordance with the 10/30 Rule 35, 43, 46, 47, 48 and 51).
65	Clause 52.12-2 exempts from a planning permit the removal, destruction or lopping of any vegetation along a boundary fence between properties in different ownership if all of the following requirements are met:
•	The fence must be located in an area that is designated as a bushfire prone area under the Building Act 1993.
•	The fence must have been constructed before 10 September 2009.
•	The clearing alongside both sides of the fence when combined must not exceed 4 metres in width, except where land has already been cleared 4 metres or more along one side of the fence, then up to 1 metre can be cleared along the other side of the fence.
66	Council acknowledged the site was in a bushfire prone area but submitted the above provisions do not exempt the removal of trees as it has not been demonstrated that all of the exemption requirements are met. It submitted that no confirmation has been provided as to age of the variety of sections of fencing surrounding the site or whether land has already been cleared on either side of the fence.
67	I make no findings with respect to this matter and note there was no verifiable information provided with respect to the age of the fences.
are there anyother matters
68	Council’s areas of concern with respect to clause 55 of the Planning Scheme (including Standards as varied by the Schedule to the NRZ3) relate to Standard B1 (Neighbourhood character), Standard B2 (Residential Policy) and Standard B13 (Landscaping). 
69	Having regard to my findings that the proposed vegetation removal is unacceptable and not in keeping with the preferred neighbourhood character, I see no utility in assessing the proposal with respect to the remaining Objectives and Standards of clause 55. Similarly I do not intend to address the concerns raised by Council regarding  the proposal’s compliance with clause 52.06 of the Planning Scheme relating to safe, convenient and manageable internal vehicular movements.
Conclusion
70	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Shiran Wickramasinghe
Member