Banyule House VCAT Order (as of 24/09/13)



administrative DIVISION

planning and environment LIST

vcat reference No.P3243/2012

permit Application no. P905/2012







Banyule Management Pty Ltd


Banyule City Council


Friends of Banyule Inc., Heidelberg Historical Society Inc., Ms Claudia Trasancos, Mr Ed Kolodziejczk, Ms Sarah Wood, Mr Steven James Gilbert, Ms Jane Crone, Mr Kevin Biaggini, Mr Maxwell Congdon, Mr Leon Jules Frederick Le Rossignol, Ms Jeni Tippet, Ms Olivia Clements and Ms Rosemary Simpson.


60 Buckingham Drive Heidelberg




S. R. Cimino, Member




29, 30 and 31 May 2013


23 September 2013






1               Under clause 64 in schedule 1 of theVictorian Civil and Administrative Tribunal Act1998 the permit application is amended by:

(a)         Substituting plans circulated prior to the hearing under Practice Note PNPE9 as the permit application plans.

2               The decision of the responsible authority in relation to permit application no. P905/2012 is affirmed. The permit application is refused.






S. R. Cimino






For Banyule Management Pty Ltd

Mr T. Ludeman, Town Planner.


Mr S. Petrakis, Project Architect.

Ms H. Hellman, Landscape Architect, Tract.

Mr D. Simonsen, Consulting Arborist, Treemap Aboriculture.

For Responsible Authority

Ms T. Cincotta, Solicitor, Best Hooper.


Mr R. Milner, Town Planner, 10 Consulting Group.

Mr G. Lewis, Consulting Arborist, Stem Arboriculture.

Mr L. Kern, Ecologist, Practical Ecology Pty Ltd.

For Friends of Banyule Inc.

Mr Dennis O'Connell, Secretary.

For Heidelberg Historical Society Inc.

Mr Graham Thorley, Committee Member.

For Ms Claudia Trasancos and Mr Ed Kolodziejczk

Ms Claudia Trasancos and Mr Ed Kolodziejczk in person.

For Mr Steven James Gilbert

Mr Steven James Gilbert in person.

For Ms Sarah Wood

Ms Sarah Wood in person.

For Ms Jane Crone, Mr Kevin Biaggini, Mr Maxwell Congdon

Ms Jane Crone in person.

For Mr Leon Jules Frederick Le Rossignol

Mr Leon Jules Frederick Le Rossignol in person.

Ms Jeni Tippet, Ms Olivia Clements, Ms Rosemary Simpson

No appearance





Description of Proposal

The proposal involves the retention of an historic homestead, development of three townhouses over the southern part of the land and the subdivision of the land into four lots; one containing the homestead, the others the new townhouses. Vegetation removal is also proposed.

Nature of Proceeding

Application under Section 77 of thePlanning and Environment Act1987. 

Zone and Overlays

Residential 1 Zone [R1Z]

Environmental Significance Overlay - Schedule 4 [ESO4]

Significant Landscape Overlay - Schedule 1 [SLO1]

Heritage Overlay - Schedule 13 [HO13]

Permit Requirements

Clause 32.01-2: Subdivision of land in R1Z

Clause 32.01-4: Construct more than one dwelling on a lot within R1Z

Clause 42.01-2; Construction of buildings and works and subdivision of land in ESO4.

Clause 42.03-2: Construct buildings and works and removal of vegetation specified in the schedule

Clause 52.17: Removal of native vegetation

Other relevant policies and Clauses

Clauses 10.04, 11, 12.04, 16, 18, 21.04, 21.05, 21.06, 22.02, 55, 56 and 65.

Land Description

The subject land comprises an irregular lot with a frontage of about 137.6 metres and overall area of about 9085 square metres. A large historic homestead known as Banyule House occupies the land. Contextually the land is located within an established residential area with properties to the north, west and south occupied by dwellings. The land is set on sloping terrain, at the top of an escarpment overlooking the Banyule Flats and Yarra River corridor to the east.

Cases referred to

National Trust of Australia (Victoria) v Australian Temperance and Mutual Life Assurance Society Ltd [1976] VR 595League.

Victorian National Parks Association Inc v Illuka Resources Ltd [2004] VCAT 20.

Watkins v Boroondara CC (Red Dot) [2013] VCAT 824

Tribunal inspection

10 August 2013 (unaccompanied)



What is this matter about?

1               The matter relates to an application by Banyule Management Pty Ltd under Section 77 of the Planning and Environment Act 1987 to review the Banyule City Council's decision to refuse a permit for the construction of three dwellings on the land and subdivision on land known as 60 Buckingham Drive Heidelberg. Vegetation removal is also proposed.

2               The subject land comprises a large irregular shaped site measuring just over 9000 square metres. A large historic homestead known as Banyule House occupies the land. Surrounded to the north, south and west by suburban residential development, the land's east boundary sits at the top of an escarpment with the Banyule Flats and the Yarra River Corridor to the east.

3               The Council received 37 objections and a petition opposing the grant of the permit. The Council decided to refuse the permit on 12 grounds[2].

4               The grounds of refusal assert that the strategic context of the land does not support the scale and intensity of development, the design of the proposal will have an adverse impact on the amenity of the area and it is incompatible with the neighbourhood character. The extent of vegetation removal and space for landscaping are considered inappropriate.  The grounds also raise concerns about the car parking layout and drainage matters. Further, the Council's grounds assert that the proposal fails to achieve satisfactory compliance with Clause 55.

5               The respondent objectors support the Council's reasons for refusing the proposal; however, they also raise other concerns. They say that refusal of the permit is also justified because the proposal will have an adverse impact on the heritage significance of 'Banyule House'. They also raise concerns about the impact on amenity including visual bulk, overlooking,  overshadowing, traffic and parking. 

6               Banyule Management's application seeks an order to set aside the Council's decision and a direction that a permit be granted for the proposal. In doing so, Banyule Management relies on amended plans substituted as the application plans at the commencement of the hearing. Banyule Management submits that the proposed development will not have an adverse impact on the significance of Banyule House demonstrated by the issue of a permit by Heritage Victoria. It also submits that the proposal responds appropriately to both the opportunities and constraints presented by the subject land, with respect to its environmental conditions and context, presents an acceptable interface with both the Yarra River Corridor and neighbouring residential properties and represents a satisfactory response to the neighbourhood character. It maintains that the design allows for the retention of trees, the proposal will not result in unreasonable impacts on amenity.

7               The issues in this case are:

  • Can additional dwellings be constructed on the land having regard to the context?
  • Does the proposal respond appropriately to the land's environmental constraints?
  • Is the proposed development respectful of the neighbourhood character?
  • Will the proposed development result in unreasonable impacts on the amenity of neighbouring residential properties and the area generally?

8               I must decide if a permit should be granted and if so, on what conditions. Having considered the submissions and evidence, the details of the proposal, the relevant matters under the planning scheme and legislation, I conclude that a permit should not be granted. The subject land has capacity to accommodate additional dwellings having regard to it physical attributes and strategic context. However, the land is subject to constraints that temper its redevelopment potential. The proposal does not respond appropriately to its immediate context, namely the interface with the river corridor and the immediate neighbouring property to the south. While most potential amenity impacts are managed appropriately, or could be managed through conditions, the visual bulk presented to the secluded private open space of 58 Buckingham Street is intrusive and inappropriate. I set out my reasons below.   

Background -

The subject land and locality:

9               The subject land fronts the east side of Buckingham Drive, directly opposite Dorset Avenue. The land is irregular in shape, with a frontage of 137.6 metres, a maximum depth of about 85 metres and overall area of about 9085 square metres. The land is on sloping terrain, falling by about 12 metres from north to south and at the top of an escarpment overlooking Banyule Swamp, the wider Banyule Flats and Yarra River Corridor located to the east.

10          'Banyule House', a large historic dwelling constructed in the mid 1800's and listed on the Victorian Heritage Register, occupies the central part of the land. Part of the land, between the dwelling and the southern boundary, was developed and once used as a car park associated with a former use of the building as an art gallery during the mid 1970s. Bluestone and asphalt associated with the car park remain, but vegetation over this part of the land including native trees, remains while understorey vegetation seeks to re-establish. A tennis court exists in the area to the north of the dwelling. 

11          Contextually the land is located within an established residential area. Single and double storey dwellings, ranging from the post World War 2 period to late 20th century typically occupy properties in Buckingham Drive and the wider area.

The proposal:

12          The proposal involves the construction of three townhouses, in a detached dwelling layout, between the existing homestead and the southern boundary. The existing homestead is retained and not subject to any works.

13          The site layout sees Unit 1 with direct frontage to Buckingham Drive, with a front setback of about 6.3 metres. Units 2 and 3 are located to the rear of Unit 1. They are adjacent to each other along the east boundary with an outlook towards the Banyule Flats. The townhouses typically provide for open plan living areas at the lower level and three bedrooms.

14          Open space is in the form of courtyards.

15          A double garage is provided for each townhouse. The garages for Units 2 and 3 are within basements. Access to the garages is from a single crossover point to Buckingham Drive.     

16          The dwellings present a contemporary design style.

17          To facilitate the development, a number of trees are to be removed.

18          The development is to be subdivided into four lots, one containing the existing homestead, the other three containing the proposed townhouses. The townhouse lots range in size from about 570 square metres to 625 square metres. The driveways and access to dwellings is from common property. The lot containing the existing homestead would have an area of at least 6500 square metres. 

Planning Scheme:

19          Under the planning scheme, the land is zoned Residential 1 [R1Z] and subject to three overlay controls; the Significant Landscape Overlay - Schedule 1 [SLO1]; the Environmental Significance Overlay - Schedule 4 [ESO4] and the Heritage Overlay - Schedule 13 [HO13].

20          Under the provisions for the R1Z, a permit is required to construct more than one dwelling on a lot. For a permit to be issued, a proposal must meet all the objectives at Clause 55. A permit is also required under the R1Z for the subdivision of land.

21          Under the provisions of ESO4, a permit is required to construct buildings and works within the critical root zone (as defined in ESO4) of significant trees on the land, to remove, destroy or lop any significant tree or area of vegetation specified in the table to this clause and for subdivision. There are two significant trees on the land, a Bunya Bunya pine located near the existing driveway and a Deodar Cedar. The proposal involves works in the vicinity of the Bunya Bunya pine. Relevant matters to consider include the statement of environmental significance, environmental objectives to be achieved and the specific decision guidelines in the schedule.

22          Under the provisions of the SLO1, a permit is required for the construction of the proposed development as the wall height exceeds 8 metres at two points[3] and the removal of native vegetation. Native trees are to be removed. Relevant matters to consider include the statement of nature and key elements of the landscape, the landscape character objectives to be achieved and specific decision guidelines set out in the schedule.

23          The land is also covered by the HO13. Under the provisions of this overlay, a permit is usually required to construct building and works and to subdivide land. However, under Clause 43.01-2, no permit is required in this case under this overlay as the land is a heritage place included on the Victorian Heritage Register.

24          Under Clause 52.17, a permit is required to remove native vegetation given the overall size of the land. In doing so, consideration must be given to Victoria's Native Vegetation Management - A Framework for Action[NVF] applying the principles of avoiding and/or minimising the removal of native vegetation, and if this cannot be achieved, the provision of appropriate offsets.

25          General decision guidelines are at Clause 65. These require consideration to be given to a range of matters including planning policy, the purpose of the zone and overlays that apply, orderly planning, amenity and various matters relating to subdivision as set out in Clause 65.02. 

Consideration of the issues:

Can additional dwellings be constructed on the land having regard to the context?

26          A threshold issue in this case is whether the land can accommodate any additional dwellings at all. While the Council expresses the view that the proposed development is excessive for the land and it has not responded appropriately to the land's context and constraints, it does not go as far as saying that no additional dwellings can be developed on the subject land. While not supporting the proposal, Mr Milner, a town planner called on behalf of the Council, did not express the view that there is no scope to allow additional dwellings on the land. On examining the context and attributes of the land, Mr Milner concludes that the subject land is capable of 'careful infill and more efficient use of its grounds'[4].

27          The respondent objectors hold a different view. In particular, they say that the subject land is unique and supports a heritage building of state and local importance. They say that any development on the land will detract from the setting within which the historic homestead sits, and will detract from its appearance from various vantage points including the adjacent river corridor and Buckingham Street. They maintain that any development will change the context in which the homestead sits to such an extent, that it will detract from its historic significance.    

28          The subject land presents as a very large single lot of over 9000 square metres. There is no question that the land is much larger than the residential properties that surround it which are more akin to those found in residential suburbia. The mere size of the land is, however, only one factor to take into account. In this case, the historic homestead is positioned toward the middle of the land. This means that a substantial vacant area exists to the south. On face value, this area offers some opportunity for development. The land is set on sloping terrain, and at the edge of an escarpment to the river corridor. The slope of the terrain on the land itself is moderate and can be managed. Given its location within an existing urban area, infrastructure is available to the land. While the grounds of refusal assert that there are drainage difficulties, the Council did not pursue its concerns in presenting its submissions.

29          All of these factors support the land's potential to accommodate additional development.

30          There is no doubt, however, that the land is subject to other factors that may constrain or temper its redevelopment potential. The historic significance of the homestead and the protection of its significance is one of those.

31          However, in this case, Heritage Victoria has granted a permit which allows the proposed development to proceed. The granting of that permit means that the relevant authority finds the proposal to be acceptable on heritage grounds. The planning scheme's provisions say that no permit is required under the Heritage Overlay in this case. Heritage matters have been considered under the relevant legislation and found acceptable by the determining body, Heritage Victoria. As such, matters relating to the impact on the historic significance of the homestead are not open to my consideration. It is on this basis that the Council does not pursue heritage issues in this case, albeit that it opposed the application to Heritage Victoria.

32          The Heidelberg Historical Society submits that heritage considerations remain relevant to my decision given the objectives of the Planning and Environment Act 1987, various policies in the scheme and the provisions of Clause 65. This raises the question of law, namely whether heritage matters are before me. For reasons given orally at the hearing, the objectives of the Act, the policies of the planning scheme and the decision guidelines at Clause 65 need to be considered, as appropriate, having regard to the provisions of the planning scheme that trigger the need for a permit. This accords with what is commonly known as the National Trust principle set down by the Supreme Court[5]. I appreciate that the Historical Society and other respondents, such as Ms Crone, do not agree with Heritage Victoria's decision, whether it be the grant of the permit and whether the conditions go far enough in requiring funds to upgrade the homestead. However, Heritage Victoria's decision is not the subject of this review, nor can I change aspects of its decision such as increasing the amount of money to be spent on repairs to the homestead over and above what is specified in the permit under theHeritage Act 1995. Put simply, the issue of a permit by Heritage Victoria is sufficient to satisfy heritage matters.

33          The land's context adjacent to the Yarra River Corridor, particularly its elevation at the top of an escarpment is another possible constraint given the potential for the observation of development from long-range views.  The contribution that existing trees and vegetation make to the environmental and landscape values of the area and neighbourhood is another factor that requires consideration. Further, the land is located within an existing residential neighbourhood. As such, any design response must respond to and respect the neighbourhood character as well as amenity. All these factors 'temper' the land's development potential compared to another site that is free of such constraints.

34          The above analysis relates to the physical context. However, a decision must also have regard to the strategic context that applies. Various policies and strategic outcomes envisaged under the planning scheme must be weighed and balanced to achieve an acceptable outcome. The web of policies and strategies that apply in this case is quite complex requiring the balancing of competing interests, namely development opportunity against environmental values, character and amenity.

35          State policy at Clauses 11 and 16 clearly encourages the most intense housing development close to activity centres, strategic redevelopment sites and near public transport. The subject land does not have such a strategic context. However, the planning scheme's housing policies, both within the State and local sections, also call for development that adds to choice, makes better use of existing infrastructure and is energy efficient. The proposal contributes to these policy outcomes.

36          Under the 'Residential Areas Framework' at Clause 21.06, the subject land is within a 'Limited' area. The 'Limited' classification typically applies to land of heritage significance and/or presents environmental constraints. In relation to 'Limited' areas, the MSS says:

These areas support single dwellings with some limited opportunity for medium density housing, if designed to respect and be sensitive to the valued attributes of the existing neighbourhood character.

37          The decision to include the subject land within the 'Limited' area seems quite targeted. However, as stated above, properties in this area can provide 'some limited opportunity for medium density housing'.

38          The land is not within easy walking distance of an activity centre or public transport. This is a factor that may weigh against the intensity of development that may be appropriate, but in most urban areas, will rarely be a reason for not allowing modest increases in density, bearing in mind that outcomes such as the provision of diverse dwelling types at a range of densities is part of the purpose of the R1Z

39          Further, given the land's interface with the river corridor, state policies, such as those at Clauses 11.04-8 and 12.04 come into play. The policies in these clauses clearly call for the protection of significant river corridors. Strategies at Clause 11.04-8 include:

Ensure development responds to and respects the significant environmental, conservation, cultural, aesthetic, open space, recreation and tourism assets of the Yarra River and Maribyrnong River corridors.

Ensure new development is sensitively designed and sited to maintain and enhance environmental assets, significant views and the landscape along the Yarra River and Maribyrnong River corridors.

40          Consideration must also be given to the role that vegetation plays in bio diversity and the area's ecological functions.

41          My conclusion is that the subject land is not in an area where policy outcomes supporting urban consolidation and provision of more housing outweigh those which support the protection and enhancement of the natural environment. The land is not in an area where the development opportunity is to be maximised or optimised. Rather, a restrained approach which places the balance in favour of achieving an appropriate environmental and character outcomes is warranted here. However, like Mr Milner, I am unable to conclude that the only way for this to be achieved is by maintaining the 'status quo' on the land as far as additional development goes. On balance, I conclude policy does not inhibit opportunity for some additional development on this land, provided that the design response clearly demonstrates an outcome that responds to the environmental context and neighbourhood character in a sensitive way.            

Does the proposal respond appropriately to the land's environmental constraints?

42          The land presents three areas of environmental sensitivity. The first relates the land's relationship with the Yarra River Corridor. The second relates to the impact on the ecological value of the land given the loss of trees and understorey planting over the area where the townhouses are proposed. The third relates to the impact of tree removal on the landscape quality of the land. Although I have identified three areas of environmental sensitivity, to some extent they are interrelated.

43          The first impact to consider is that on the Yarra River Corridor. Contextually the land is located at the top of an escarpment which has a direct interface with the Banyule Flats in the river corridor. The 'flats' is a broad floodplain, which supports large expanses of open space supporting vegetation, a large billabong and used for both passive and active recreational purposes by the community. There is a joint cycling/pedestrian pathway running immediately to the east of the subject land at the bottom of the escarpment.     

44          Banyule Management contends that the proposed development has been designed appropriately having regard to its interface with the river corridor.  It says that the proposal would appear as two detached dwellings which would be viewed at some distance from the surrounding open space/corridor area. It submits that in such context, the dwellings would not appear as a dominant visual element, but rather, would be seen as part of the urban development that runs along the top of the escarpment while views of the homestead would not be impeded.

45          A permit is required under both the ESO4 and SLO1 for this development proposal.

46          While Banyule Management contends that a permit is not required under the ESO4, this view does not take into account that subdivision is proposed. The schedule does not say that no permit is required for subdivision. However, it would be fair to say that the purposes of ESO4 is fundamentally directed toward the protection of the significant trees on the land, that is, the Bunya Bunya Pine and the cedar. The evidence of both arborists is that the proposed development, will not have an adverse impact on those trees. The other vegetation on the land is not listed as significant under ESO4. Given the proposal would not effect the two trees protected under the ESO4, the proposal achieves an acceptable outcome under this overlay.

47          The land is also affected by the SLO1 which applies to 'watercourse environs'.  The statement of nature and key elements of landscapes is:

The areas covered by this overlay are part of, or are directly adjacent to, significant landscapes, which consist of substantial areas of open space, golf courses, wetlands, vegetation and other natural habitat along the Yarra River and lower reaches of the Plenty River. Such landscapes provide extensive views and an opportunity for a sense of remoteness in the valleys of the watercourse with only limited intrusion of built forms. Some areas consist of lower density housing where the landscape predominates.

48          Landscape character objectives include:

  • To protect areas along watercourses and their immediate environs from visual intrusion caused by the inappropriate siting or appearance of buildings and works.
  • To encourage development in keeping with the character and appearance of the area.
  • To protect and enhance a sense of remoteness in the valley of the watercourse.

49           Decision guidelines at Clause 4.0 of the SLO1 include:

  • Whether the location, bulk and appearance of the building or works will be in keeping with the character and appearance of the area.
  • Whether the location, bulk, outline and appearance of the building or works will be in keeping with or enhance the vista when viewed from the watercourse, its banks, nearby streets, adjoining public open space, or from prominent scenic view points within the watercourse environs.
  • The need to ensure adequate screening of buildings and works, for example:
    • when viewed from the river or its banks, the outlines of buildings on ridgetops are totally screened;
    • when viewed from within Metropolitan and State Park boundaries, at least half of each building and structure is screened.

50          Banyule Management submits that the proposal responds appropriately to this interface. In particular, it relies on the Heritage Impact Statement which, amongst other things, says that minimal views of the subject land are available from the river flats given the impact of the escarpment and trees obscuring long range views. The statement also says that the design takes advantage of the topography of the site and setback sufficient not to overwhelm neighbouring properties.

51          I consider that care needs to be taken in placing too much weight on the Heritage Impact Statement. This is because the statement was produced for the purpose of considering the heritage impact rather than the visual and environmental impact of the development having regard to matters such as the policies at Clauses 11.04-8 and 12.04, and SLO1.

52          Although Banyule Management asserts that the proposed buildings will be screened from view by landscaping, I find the landscaping proposed along the east boundary to be quite limited and insufficient.

53          At this eastern interface, Units 2 and 3 have a minimum setback of about 2.6 metres from the property boundary. A setback of this width would be regarded as relatively narrow and opportunity for adequate landscaping limited in most middle suburban contexts, let alone one where the land is at the interface with a significant river corridor.

54          Further, the landscape design involves the provision of extensive timber deck areas which seek to accommodate existing trees, but again limit opportunity for new planting. The landscaping provided is appropriate for the space which has been allowed by the design, but this appears to be an example of the landscape concept following the design of the proposal.

55          The proposal involves two double storey dwellings at the top of an escarpment. While urban development exists along properties abutting the escarpment, my observation is that dwellings on those properties provide much greater setbacks. This is evident from perusing the site context plan, aerial photography and walking within the river flats area.     

56           It is also evident that the proposal is designed to provide opportunities for views at ground level toward the flats. Designing a building to take advantage of views is appropriate as it enhances amenity. However, this should not be at the expense of providing an appropriate setback and landscaping that will work toward largely screening the visual impact of the proposed dwellings and providing a soft interface with the river environs. In my view, a combination of greater setback and better landscaping is required given the intensity of development proposed in this case.    

57          In Watkins v Boroondara CC[6], a case involving the construction of a medium density development on land adjacent to the Yarra River, the Tribunal made the following observation:

The character of this reach of the river from publicly accessible areas is overwhelmingly one of a naturalistic and vegetated landscape setting. While buildings are present these are not the dominant feature. It is the vegetation, particularly in the foreground and middle-ground together with the river and the dramatic landform which rises steeply on the east bank that capture the viewer's attention. Whilst there are visual clues to the corridor's urban context, including glimpsed views of dwellings albeit with substantial river setbacks and boating infrastructure closer to the river's edge, the environment is primarily experienced as one of remoteness from this urban context.

58          In my view, the same observation applies here. I accept that the context and relationship between the river and the proposed dwellings is different to what was proposed in Watkins, however, the flats present an unquestionable sense of remoteness given their expansive open areas. Urban development is visible at the top of the escarpment, and it is clear that the flats have an edge with an established urban area. However, existing development is not intrusive, and the setback from the escarpment contributes to this.

59          What is proposed is out of keeping character and appearance of the area, conflicting with the pattern of development, in terms of setbacks to the escarpment. It would set an inappropriate benchmark for development to be allowed as close to the edge of the escarpment as proposed. I therefore find that the proposal does not respond in an appropriate way to the nature and key elements of the landscape as well as the landscape objectives of SLO1. Nor does it achieve an outcome that is consistent with the strategies at clause 11.04-8.  This finding alone warrants rejection of the proposal.

60          The second area of environmental sensitivity relates to the loss of trees and understorey having regard to the land's ecological values. The proposal involves the removal of both native and exotic trees as well as understorey planting which has regenerated over the former car park area. Mr Kern expresses the view that development area presents itself as a woodland habitat with a mixture of indigenous, native and exotic trees and shrubs, understorey cover, rocks and logs. He says that the vegetation is likely to be of local significance supporting local birds and mammals such as possums and possibly reptiles.

61          The loss of this vegetation goes to the ecological values of the site which is located adjacent to the Banyule Flats and Yarra River Corridor.

62          While I accept that there would be some loss of habitat, I note Mr Kern's evidence that this '… not be an overly significant impact on its own but could possibly be one small part of an incremental loss of habitat along a significant habitat corridor over time.'[7] 

63          The land is of limited ecological value. The part of the land where the townhouses are proposed was developed and used as a car park associated with the use of the homestead as an art gallery. Although trees planted by the former owner of the land remain, so do remnants of the former car park. Understorey planting plays a fundamental role in providing habitat. No significant work has been undertaken to restore the understorey. Further, much of this site, particularly to the rear and north of the homestead is clear of significant vegetation. In addition, the land is clearly enveloped by urban development on three sides. Such development contributes to the degradation of environmental values.   

64          In fairness, Mr Kern acknowledged that the ecological significance of the land is not high given its condition and context, and noted during his evidence that a large River Red Gum [Tree 17] located outside the land's east boundary, is the most significant environmental asset to be protected.

65          In my view, given the context and condition of the land, it would be unreasonable to refuse a permit on ecological grounds. The appropriate approach here is to off set losses as provided for under the NVF.

66          This brings me to the third of the three areas of sensitivity, the removal of trees.

67          In coming to my conclusions as to whether the extent of tree removal is reasonable and whether adequate steps have been taken to protect tress to be retained, I have taken into account the evidence of the two arborists, Mr Lewis for the Council and Mr Simonsen for Banyule Management.

68          While respondents such as Ms Crone suggest that all the trees should be retained, I do not accept this view. In considering the merits of proposals like this, an assessment must be made as to the environmental value of the trees. This assessment should not just be limited to the visual impact, but also the appropriateness of the species having regard to the environmental values of the area. For example, Ms Crone submits that the sugar gums should be retained, however, Mr Lewis, the arborist called by the Council, supports their removal as they are an environmental weed.

69          In considering proposals like this, it is often tempting to seek to retain as many of the mature trees as possible simply to limit change and to provide an instant filter of vegetation. This approach is acceptable if the trees in question are appropriate species, display sufficient health and good structure; and have a reasonable life expectancy. However, in some cases, it is appropriate to remove trees and install new planting which complements the new development and will contribute to its appearance in the medium to long term.

70          I have no difficulty with the removal of the trees identified as having low retention value. There can be a legitimate difference of opinion with respect to the value of some others. In this case, it seems to me that the key area of dispute between the arborists relates to whether sufficient measures are taken to protect trees are to be retained. In particular, Mr Lewis asserts that the proposed development intrudes excessively into Tree Protection Zone [TPZ] of several trees, essentially more than the 10 per cent allowed under AS4970-2009. He also expresses concern about the provision of decking around some trees and the proximity of some trees prone to limb drop adjacent to secluded open space areas. He suggests that future residents will put pressure on the Council to approve the removal of such trees.

71          The consideration of this issue is not black and white. While AS4970-2009 says that encroachments of up to 10 per cent into TPZs are acceptable, that does not mean that this is the only way that trees may be retained. For example, while an elevated deck may intrude within the TPZ more than 10 per cent, it may be supported by a limited number of piers which, by their nature, require the removal of less root mass compared to a 10 per cent loss allowed under AS4970-2009. The deck may also prevent or reduce soil compaction around trees. I would think that provided the deck is elevated, does not require cutting through major roots and allows water to permeate into the root zone, an acceptable outcome could be achieved. By and large, I find the measures taken to protect trees are reasonable and accept the evince of Mr Simonsen. However, I agree with Mr Lewis that tree retention should be managed under the supervision of a qualified arborist should development proceed on this part of the site.

72          I consider that concerns raised by Mr Lewis about the proximity of deck area to Tree 17 to be a valid. Any redesign should setback formal secluded open space areas, such as decks and pools away from this tree.    

Is the proposed development respectful of the neighbourhood character?

73          Concerns were raised by both the Council and respondent objectors about the proposal's appropriateness having regard to neighbourhood character considerations. The Council submits that the contemporary styling of the design, particularly the flat roof form, is appropriate as it is consistent with the geometric form of the homestead and reduces building bulk. However, the Council considers that greater front and side setbacks should be provided to allow for the retention of existing trees. Its main concern with respect to the proposal is the response to the eastern edge of the land, where the double storey form of Units 2 and 3 extends well past the rear wall line of the neighbouring property at 58 Buckingham Drive. The Council submits that the extent to which the townhouses extend to the east boundary will be intrusive on the 'backyardscape' or green spine along the top of the escarpment created by the setbacks of other dwellings on Buckingham Drive.

74          Other respondents are concerned about the scale of development as well as impacts on the streetscape.

75          State and local planning policy as well as the objectives of clause 55 call for a development outcome that is respectful of the neighbourhood character. On many occasions, various divisions of the Tribunal have found that the notion of respecting the neighbourhood character does not mean more of the same, no increase in density or for new development to replicate the appearance buildings that already exist. The notion of respecting neighbourhood character must embrace the change envisaged by other planning polices including those which support the provision of additional dwellings in established urban areas.

76          Clause 22.02 sets out the residential Neighbourhood Character Policy. Under the policy, which was recently amended[8], the land is within garden Suburban Precinct 2. Amongst other things, the statement of preferred future neighbourhood character calls for:

  • Designing new infill dwellings and extensions in a scale and architectural style that is sympathetic with existing dwellings in the precinct.
  • Maintaining the overall one or two storey scale of the dwellings outside accessible areas.
  • Ensuring the scale of new dwellings in the accessible areas is sympathetic to the existing dwellings on neighbouring properties and the surrounding precinct.

77          In those parts of the precinct outside 'Accessible Areas'[9], the character statement notes:

These areas will protect and enhance the garden suburban character of the precinct with an emphasis on protecting trees and creating new opportunities for vegetation throughout sites. They will provide for a mix of well-designed single dwellings and medium density dwellings in garden settings, with space around and between dwellings to create an attractive, treed landscape setting.

78          I agree with Mr Milner's observation that the there is an eclectic mix of residential styles with a consistent one to two storey scale in the immediate neighbourhood. I also agree with his view that the retention of the large hedge along the frontage, the two storey scale of Unit1 and limiting the number of crossovers to Buckingham Drive all work toward an outcome that is acceptable from a streetscape viewpoint. I have no difficulty with the front setback which provides a reasonable response to the angled street alignment in this case.

79          In my view, the 'Achilles heel' of this proposal from a neighbourhood character perspective relates to the extension of the built form close to the east boundary. As noted by the Tribunal in Watkins case[10]:

It has been often held by the Tribunal that the features that define an area's character are not just limited to the streetscape. Rather, the features around which a development is sited including the space at the sides and rear are relevant, in what is often termed the "backyard-scape".


80          Earlier in these reasons, I found the proposal's response to the river corridor unacceptable given its proximity to the rear boundary, noting the inconsistency with the pattern of development at the rear of Buckingham Drive properties which provide much larger setbacks to the escarpment.

81          I find that the proposal is unsatisfactory from a neighbourhood character viewpoint having regard to the proximity of development to the rear boundary. The proposal involves relatively large two storey dwellings which extend into the line of consistent setbacks created by existing dwellings. Considered in the context of the land's adjacency to the Banyule Flats, this is not an appropriate approach.

82          I put to Mr Milner the proposition that dwellings at the rear of this land be setback from the escarpment a distance which is similar or commensurate with that of other dwellings on Buckingham Drive. He expressed the view that a development positioned on the land in this way, together with landscaping would be much closer to achieving an acceptable outcome. I agree with him. The proposal is also refused for failing to respond appropriately to this aspect of the neighbourhood character.

Will the proposed development result in unreasonable impacts on the amenity of neighbouring residential properties and the area generally?

83          The Council and objectors also raise concerns about the impact on amenity. I will set out my findings with respect to the matters they raise.

Visual bulk

84          Ms Trasancos and Mr Kolodziejczk, the residents of the dwelling at 58 Buckingham Drive raises concerns about the visual impact of the proposed development on the amenity of their property, particularly the outlook to the rear.

85          The rear of the dwelling at 58 Buckingham Street offers superb outlook toward the river flats. The rear open space area is improved with decks and swimming pool. It is an area that provides a high level of amenity and relatively free from obstruction from buildings on neighbouring properties which have similar setbacks.

86          The presentation of a large double storey dwelling directly adjacent to the rear open space area will bring about substantial change and greatly diminish the amenity of the rear secluded private open space to an unacceptable level.  


87          Ms Trasancos and Mr Kolodziejczk raise concerns that the proposal will result in unreasonable potential for overlooking of their property, thus reducing amenity by loss of privacy.

88          The proposed development is set on sloping terrain. The land falls toward the south. The property at 58 Buckingham Street is set on lower terrain. To provide usable flat surfaces for open space, decks elevated above ground level are proposed for Unit 2. This gives rise to the potential for overlooking over boundary fences into backyards.

89          The objective relating to overlooking, as set out at Clause 55.04-6 is:

To limit views into existing secluded private open space and habitable room windows.

90          While the objective seeks to limit views, it does not equate to an expectation that there would be no potential for overlooking whatsoever. It must be remembered that in this environment, the ability to see out and take advantage of views available is desirable from an amenity viewpoint. Provided that reasonable measures are taken to prevent opportunities for direct views into sensitive areas, this would be sufficient to achieve compliance.


91          While the proposed development would cast additional shadows over 58 Buckingham Street, these would be well within the parameters allowable under Standard B21 at Clause 55.04-3. Shadow impacts are acceptable.

North facing windows:

92          Based on my understanding of the position of north facing windows on the dwelling at 58 Buckingham Street and the relationship with the proposed development, it seems to me that the compliance with Standard B20 is achieved as the windows are opposite open space areas rather than southern walls.


93          Applying readily accepted traffic generation rates for dwellings in this type of location, the proposed development could be expected to generate between 24 and 30 vehicle movements per day. In a residential situation, about 10 per cent of movements occur in both the morning and afternoon peak hours. This equates to about 3 movements in each peak hour. While Buckingham Drive is a quiet residential street, the amount of additional traffic is minor and barely discernable.

94          I do not accept that the proposal presents traffic difficulties given the amount of additional movements and the context.


95          The proposal provides for two car parking spaces per dwelling. This meets the requirements of Clause 52.06 and is acceptable.


96          I accept that the subject land presets some opportunity for increased development over the southern part of the land. However, the land is subject to heritage and environmental constraints. In this case, the proposal fails to respond appropriately to its context. I suspect that too much development is proposed over the southern part of the land. A reduced development which provides for an appropriate setback from the homestead and escarpment boundary, suitable landscaping and does not present unreasonable visual bulk to the rear open space of 58 Buckingham Drive is required.

97          I will affirm the Council's decision. The permit application is refused.












S. R. Cimino






[1]           I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Refer to Refusal to Grant a Permit issued by the Banyule City Council

[3] As acknowledged in paragraph 25 of submissions presented on behalf of Banyule Management

[4] See Expert report of R Milner, dated May 2013 page 8

[5] See National Trust of Australia (Victoria) v Australian Temperance and Mutual Life Assurance Society Ltd [1976] VR 595League. See also Victorian National Parks Association Inc v Illuka Resources Ltd [2004] VCAT 20.

[6] [2013] VCAT 717 at para. 40

[7] See Practical ecology Statement of Evidence page 6.

[8] Amendment C68. parties were aware of the impending amendment. They indicated that the proposed provisions for the precinct are similar to those in previously in place and they did not seek to make further submissions on this matter.

[9] As identified in the Residential Framework

[10] [2013] VCAT 717 at para 33

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