Victorian Civil And Administrative Tribunal

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

VCAT REFERENCE NO. P1672/2016 PLANNING AND ENVIRONMENT LIST PERMIT APPLICATION NO. TPA/44797 CATCHWORDS

Section 77 Planning and Environment Act 1987; Monash Planning Scheme; Clause 32.08 General Residential Zone; Amendment VC110; Neighbourhood Character; Neighbourhood Character Type C; Garden City Character; Landscaping; Scotchmans Creek.

APPLICANT Pylon Developments Pty Ltd RESPONSIBLE AUTHORITY Monash City Council RESPONDENT Stephen E Jenkins, Raymond Unwin SUBJECT LAND 65 Wave Avenue, Mount Waverley VIC 3149 WHERE HELD Melbourne BEFORE Karina Shpigel, Member HEARING TYPE Hearing DATE OF HEARING 23 February 2017 DATE OF ORDER 29 June 2017 CITATION Pylon Developments Pty Ltd v Monash CC [2017] VCAT 970

No permit granted 1 In application P1672/2016 the decision of the responsible authority is affirmed. 2 In planning permit application TPA/4479 no permit is granted.

Karina Shpigel Member APPEARANCES For Pylon Developments Pty Mr How Ng, Town Planner. He called Ms Ltd Alida McKern, Landscape Architect. For Monash City Council Ms Sally Moser, Town Planner, Moser Planning Services. For Mr Jenkins Mr Jenkins, in person. For Mr Unwin Mr Unwin, in person.

INFORMATION Description of proposal Four double storey dwellings sited around a central driveway. Each dwelling has three bedrooms and has been provided with a double garage. Nature of proceeding Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. Planning scheme Monash Planning Scheme. Zone and overlays General Residential Zone, Schedule 2 (GRZ2). Permit requirements Clause 32.08-4 Construct two or more dwellings on a lot. Relevant scheme policies and 21.02, 21.03, 21.04, 22.01, 22.05, 32.08, 52.06, provisions 55, 65. Land description The land is located on the western side of Wave Avenue, where it terminates and forms a bowl. The land is irregular in shape with a narrower frontage of 13.47 metres to the street and widens out into a triangular shape to the rear. The total site area is approximately 1,052 square metres. The land has a downwards slope of approximately 3.95 metres. The site is encumbered by two drainage easements adjacent to the southern and western boundaries. The land is developed with a single storey brick dwelling with tile pitched roof. A crossover and driveway is located on the north-west boundary. The site was vegetated with canopy trees, these were removed before the permit application was

VCAT Reference No. P1672/2016 Page 2 of 9 submitted. To the rear of the dwelling is the Scotchman’s Creek linear path. Tribunal inspection 2 March 2017, unaccompanied

VCAT Reference No. P1672/2016 Page 3 of 9 REASONS

WHAT IS THIS PROCEEDING ABOUT? 1 This is an application under section 77 of the Planning and Environment Act 1987 for review of the decision of Monash City Council (responsible authority) to refuse to grant a permit for the development of four double storey dwellings at 65 Wave Avenue, Mount Waverley (land). 2 The responsible authority refused the development because it considered the proposal to be inconsistent with the garden city character objectives in the Monash Planning Scheme (planning scheme) and the preferred neighbourhood character. The responsible authority expressed concern about the extent of continuous built form at the ground level of the development, the extensive amount of hard paving through the central driveway and the limited opportunities for canopy tree planting along the perimeter of the site. 3 The respondents are both residents of Wave Avenue and are opposed to the development. They expressed concern about the traffic and parking impacts of the development, and impacts on the amenity of the neighbourhood, and the adequacy of the proposed landscape treatment. 4 The applicant contends that the development has achieved total compliance with Clause 55 standards and should be approved because it is supported by the zoning provisions and urban consolidation policies in the planning scheme. 5 Having considered the site and surrounds, the submissions made and expert evidence provided at the hearing and the policies and provision of the planning scheme, I have decided that a permit should not be granted. I am not satisfied that that the development respects neighbourhood character and the garden city character objectives in the planning scheme. My reasons follow.

PLANNING SCHEME AMENDMENT VC110 6 Following the conclusion of the hearing, the planning scheme was amended by Amendment VC110 on 27 March 2017. The amendment applied to all planning schemes in Victoria. 7 By order dated 4 April 2017, I provided the parties with an opportunity to file written submissions addressing the implications of the amendment for the application. 8 All of the parties filed written submissions and I have considered them. 9 I agree with Mr Ng that the minimum garden area requirement that is now contained in Clause 32.08-4 is not applicable to the proposal as a result of the transition provisions set out in Clause 32.08-14. The same applies to the maximum building height requirement in Clause 32.08-9.

VCAT Reference No. P1672/2016 Page 4 of 9 10 I consider that the key changes for this application arising from Amendment VC110 is the amendment to the zone purposes. The purpose of the zone no longer contains the objective “To implement neighbourhood character policy and adopted neighbourhood character guidelines.” In addition the zone purpose previously encouraged the provision of “moderate housing growth” but the word moderate has now been removed. 11 Having said that, I consider these changes to be minor and they do not alter the range of considerations before me or the submissions that were put to me at the hearing. The purpose of the General Residential Zone is still to encourage development that respects the neighbourhood character of an area and neighbourhood character remains an important consideration throughout the polices in the planning scheme and in clause 55. This is a case about character and the design response, it is not about the extent of growth proposed and whether it is supportable.

ASSESSMENT 12 The land is located in the quiet bowl end of Wave Avenue between a transmission line linear reserve and the Scotchmans Creek Trail. The surrounding properties are predominately detached single storey post war housing stock, with the exception of 57 Wave Avenue which is a double storey dwelling. The area has a notable leafy, treed character. 13 I consider that the land is large enough to accommodate medium density development and is reasonably well located to public transport, facilities and services. 14 The redevelopment of the site with medium density housing would certainly meet a number of strategic housing objectives in the planning scheme. This includes the General Residential zoning of the land which supports “a diversity of housing types and moderate housing growth in locations offering good access to services and transport”.1 State planning policy encourages housing growth and development in existing urban areas and the provision of housing diversity.2 The Municipal Strategic Statement also recognises that the demand for medium and high density housing in Monash is increasing because of the ageing population, decreasing household sizes, changing family structures and issues around housing affordability.3 15 It was not in contention that the proposal achieves a high level of technical compliance with clause 55 numerical standards, including 44% site coverage, 39.5% permeability, 7.648 maximum building height and private open spaces that exceed the minimum requirement in varied standard B28.4

1 Clause 32.08 General Residential Zone, Purpose. 2 Clause 11.02 Urban Growth; Clause 16 Housing. 3 Clause 21.01-3 Municipal overview – Population, Family Structure; Clause 21.02-3 Changing lifestyle choices and the demands of an ageing population; Clause 21.04-2 Key issues. 4 Varied by Schedule 2 to Clause 32.08 General Residential Zone.

VCAT Reference No. P1672/2016 Page 5 of 9 16 But as I have already said, the key issue in this application is the design response and I am not satisfied that the proposal is an acceptable planning outcome for this neighbourhood for the following reasons.

Built Form 17 At the ground floor level, the four dwellings are all attached forming a continuous and unbroken “U” shaped building mass. Whilst I recognise that the design contains some articulation, this style of attached building form is too intense and out of character with the spacing and rhythm of the neighbourhood which is comprised of detached single storey dwellings with spacing around them. The design response is contrary to the policy objective repeated throughout Clause 22.01-3 for building design to reflect the spacing and rhythm of the existing streetscape. 18 I agree with the responsible authority that the presentation of the development to the streetscape is unsatisfactory. Dwellings 1 and 2 will present as two narrow and unusually articulated facades that are divided by a prominent central driveway. The frontage of Dwelling1 has a width of approximately 2.4 metres at ground floor and 2.6 metres at upper storey. The upper storey consists of a mainly blank wall with upper sill bathroom window. Dwelling 1’s presentation to the street will be dominated by a 1.9 metre high paling fence that extends 5.7 metres to the northern boundary. 19 Dwelling 2 is slightly wider with a ground floor width of 5 metres and narrows to 3.3 metres at the recessed upper storey. I consider that this dwelling has an extremely poor presentation to the streetscape with bathroom windows at ground and upper floor oriented to the frontage of the site contrary to Standard B5 and out of character for the neighbourhood. 20 I recognise that the proposal has achieved good separation between the upper stories of the four dwellings and this is a positive feature of the design. However I do not consider that the upper stories are satisfactorily set back behind the bulky because they are minimally articulated above the ground floors. The upper floors are set back just 0.4 metres by my measurement and this is contrary to the objectives set out in Clause 22.01 Residential Development and Character Policy which calls for:

 A high degree of articulation and detailing be exhibited.

 Higher degrees of articulation be provided where double storey development is sought in streets where the predominant built form is single storey.5 21 I consider that the intensity of the upper stories will also be exacerbated by the length of wall presented on the north and east elevations. On the eastern boundary, the upper storey of Dwelling 2 extends for approximately 7.5 metres and is set back just 2 metres from the boundary. On the western boundary, the upper storey of Dwelling 1 is also minimally articulated and

5 Clause 22.01-3 Policy – Built form and scale of development.

VCAT Reference No. P1672/2016 Page 6 of 9 extends for 8.2 metres. I consider that the minimal articulation of the upper stories combined with the length of wall results in a bulky development that is out of scale with the surrounding development. This impact is unsatisfactory, particularly as the opportunities to soften the development with landscaping are limited.

Landscaping 22 The maintenance and enhancement of the Garden City Character is a key objective of the Planning Scheme. The landscaping objectives in Clause 22.01-3 include preserving existing vegetation or providing new vegetation and landscape treatments that are sympathetic to the existing landscape character and planting semi-mature canopy trees in open space areas, along site boundaries adjacent to neighbouring open space.6 The desired future character for character type “C” states: … the neighbourhood character for this area will develop within a pleasant leafy framework of well-planted front gardens and large trees. 23 I consider that the landscaping proposed for the front setback to be acceptable. The front garden space will accommodate the planting of canopy trees as is required by Clause 22.01-2 and the landscaping treatment designed by Ms McKern will make a positive contribution to the streetscape. 24 However I consider that the amount of built form though the remainder of the site, including the limited side setbacks and the lack of spacing between dwellings, have constrained the level of meaningful planting that can be achieved by the development. I do not consider that the planting of one canopy trees for each dwelling to be sufficient to achieve the Garden City Character or soften the built form and frame it in a green canopy. 25 On the western boundary, dwelling 4 is set back just 1.5 metres from the boundary, not providing sufficient space for any meaningful planting. Similarly the eastern side of dwelling 2 is set back just 1 metre from the boundary. 26 I am also concerned about the amount of hard paving through the centre of the development. The central driveway has a length of over 30 metres down the site with a width of 2.5 metres at the entrance to the land that widens to around 12 metres through the centre of the development (between the garages on the east and west boundaries). This presents a lot of hard paving with very little opportunity for landscaping. Ms Moser described this area as a “sea of hard surface” and I agree with this description. 27 The planning scheme encourages the provision of landscaping on both sides of the driveway and Ms McKern agreed that the landscaping opportunities around the driveway were limited. Her view was that the visual impact to the streetscape would be reduced by the curved shape of the driveway. I do

6 Clause 22.01-3 Policy – Landscaping.

VCAT Reference No. P1672/2016 Page 7 of 9 not accept this explanation because the purpose of providing landscaping around driveways is not only to soften the presentation of the driveway to the streetscape but also to reduce the visual impact of the development.7

Interface to Scotchmans Creek Reserve 28 I also have serious concerns about the way in which the proposal has addressed Scotchmans Creek Reserve to the south. It is policy pursuant to Clause 22.01 for: Adjoining public open space be respected, having regard to the visual impact, scale bulk, mass and height of the proposed development.8 29 The landscaping objectives in the policy also encourage the provision of new landscaping that “enhances linear landscape corridors and abutting public open space areas”.9 The desired future character statement supports the protection of the character of existing public open spaces by ensuring that: … buildings directly adjacent to such areas are set back and buffered with planting that compliments that within the public open space.10 30 The setback of Dwelling 3 from the southern boundary is 2.4 metres at ground floor and between 3 and 3.4 metres at first floor. Landscaping opportunities in this area are severely constrained by the existence of a 2.4 metre wide easement which extends across the entire southern boundary of the land. Ms McKern’s expert opinion was that light planting could still occur in the easement area and she has included a row of Callistemon (slim bottlebrush) in the landscape plan. 31 However I agree with the responsible authority that the planting of large shrubs on the southern boundary is not a satisfactory contribution to the adjoining public open space area which is heavily vegetated with mature canopy trees. I also do not consider that the planting of large shrubs will satisfactorily soften the visual impact of the upper storey of Dwelling 3 to Scotchmans Creek Reserve.

Removal of existing vegetation 32 Finally I share the responsible authority’s disappointment about the removal of five mature canopy trees11 from the land prior to the lodgement of the permit application. The nearmap aerial photographs show that those trees had large spreading canopies and I consider they would have made a positive contribution to the leafy treed character of the area. This is not to suggest that the removal of those trees was unlawful or should be a basis for refusing the application, but rather is another instance of how the design of

7 Ibid. 8 Clause 22.01-3 Policy – Built form and scale of development. 9 Clause 22.01-3 Policy – Landscaping. 10 Clause 22.01-4 Residential Character Type “C” – Desired future character statement. 11 The development plans note that two trees were removed from the front setback and three were removed from the rear garden.

VCAT Reference No. P1672/2016 Page 8 of 9 this development has not responded to planning scheme policy, which explicitly encourages the retention of existing mature canopy trees.12

CONCLUSION 33 For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Karina Shpigel Member

12 Causes 22.01-3 Policy – ‘General’ and ‘Landscaping’; Clause 22.01-4 Residential Character Type “C” – Desired future character statement; Clause 22.05 Tree Conservation Policy;

VCAT Reference No. P1672/2016 Page 9 of 9