In Birt v Banyule CC [2009] VCAT 2233 (23 October 2009) the Tribunal affirmed the decision of the Council to refuse a permit to construct two double story dwellings due to it being an over development of the site.

The Council determined to refuse the application on a number of grounds that, in summary, the proposal is not respectful of the neighbourhood character and is contrary to Vegetation Protection Overlay Schedule 1 (VPO1) and Design and Development Overlay Schedule 8 (DDO8) due to the extent of vegetation removal and the impact this will have on the existing bush character and the health of existing trees both on and off the site.

The Tribunal agreed with the Council's view that the neighborhood character is not about the buildings within it, but rather it is about the bushland setting. The Tribunal also agreed with the Council's view that the proposed development did not meet the objectives of VPO1 and DDO8. The Tribunal observed that:

The distinctive bushland character of this area is recognised in VPO1 and DDO8. The objectives of VPO1 include conserving the existing pattern of vegetation, landscape quality and ecosystems within the area and promoting retention of existing indigenous vegetation wherever possible. The combination of the proposed driveway, turning area for the rear dwelling, and the footprint of the two new dwellings results in a significant loss of vegetation from this site. Mr Lewis stated at least 2 further trees (in addition to those proposed to be removed) may be lost if the dwellings are permitted because they have canopies that overhang the proposed buildings[1]. He acknowledged the inclusion of 5 Red Box Eucalypt trees in the landscape concept plan was good, but advised the Council is generally looking for 3 new trees to be planted to replace every one tree that is removed, and this is not achievable as part of this development. In my opinion, even a replacement of one tree for one tree would be difficult to achieve in this development. Given the significant loss of vegetation from the site and the inability to provide sufficiently for their replacement, I am not persuaded the VPO1 objectives have been satisfactorily met.

DDO8 contains design objectives to ensure the heavily vegetated character of the area is respected by new development and to ensure the health of existing trees is not jeopardised by new development. Again, I find this development does not meet these objectives because of the significant loss of vegetation from this site, the potential loss of additional trees because their canopies are within 2 metres of the proposed dwellings, and the inability to provide sufficiently for the replacement of the lost vegetation.

As the proposed development could not meet the requirements of VPO1 and DDO8, the Tribunal was of the opinion that the proposed development was an over development of this site and should be refused.

• The full decision is available on Austlii