Victorian Civil and Administrative Tribunal s7

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

VCAT REFERENCE NO. P2566/2015 PLANNING AND ENVIRONMENT LIST PERMIT APPLICATION NO. TPA/44111

CATCHWORDS

Section 79 Planning and Environment Act 1987; Monash Planning Scheme; Two-storey multiple-dwelling development with basement car park; Main Road frontage; Garden Suburbs area; Neighbourhood Character; Bulk and scale; Open space; Landscaping.

APPLICANT Mercy Property Pty Ltd RESPONSIBLE AUTHORITY Monash City Council REFERRAL AUTHORITY VicRoads SUBJECT LAND 74 Ferntree Gully Road, Oakleigh East WHERE HELD Melbourne BEFORE Graeme David, Member HEARING TYPE Hearing DATE OF HEARING 24 May 2016 DATE OF ORDER 4 July 2016 CITATION Mercy Property Pty Ltd v Monash CC [2016] VCAT 1106

ORDER 1 The decision of the Responsible Authority is affirmed. 2 In permit application TPA/44111 no permit is granted for the land at 74 Ferntree Gully Road, Oakleigh East.

Graeme David Member APPEARANCES For Applicant Mr Ashley Thompson, Town Planner, Clause 1 Planning. For Responsible Authority Ms Sally Moser, Town Planner, Moser Planning Services Pty Ltd For Referral Authority VicRoads did not appear.

INFORMATION Description of Proposal Development of the land for a two-storey apartment building comprising eight (8) dwellings with basement car parking and landscaping. Nature of Proceeding Application under Section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time1. Zone and Overlays General Residential Zone Schedule 2. (Abuts land in the Road Zone Category 1). Permit Requirements Clause 32.08: Two or more dwellings on a lot. Clause 52.29: Alteration of access to a Road Zone Category 1 Relevant Scheme, policies State: Clauses 11 (11.02, 11.04), 15 (15.01, 15.02). and provisions 16.01, 18.02. Local: Clauses 21.01, 21.02, 21.03, 21.04, 21.13, 22.01, 22.04, 22.05. Other: Clauses 52.06, 52.29,55,65 Land Description The 891m² review site (20.15 m wide by 44.22 m deep) is a single lot on the south side of Ferntree Gully Road, Oakleigh East, to the east of Huntingdale Road. It contains a single-storey dwelling with rear shedding. The land falls 3.6 m from the south to the north (rear to front). There is a single width vehicle crossing at the north-east corner, a single street tree, and a 1m high stone retaining wall at the frontage. The site is bounded to the west by a single dwelling and to the south (rear) and east by double-storey multi-dwelling developments. Tribunal Inspection 14 June 2016. Unaccompanied.

1 Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

VCAT Reference No. P2566/2015 Page 2 of 18 REASONS2

WHAT IS THIS PROCEEDING ABOUT? 1 This is a Section 79 appeal by the permit applicant under the Planning and Environment Act 1987 against the failure of the Monash City Council to decide on a permit application within the prescribed time. The application is for a two-storey apartment building containing eight dwellings and basement parking, with associated landscaping, on land abutting land in a Road Zone Category 1. The Council in fact challenges that it has failed to make a decision within the prescribed time due to extenuating circumstances. 2 Key features of the proposal are:  The 7.8m high building comprising eight dwellings over two levels, being four single-storey 2-bedroom dwellings and four double storey 3-bedroom dwellings. This would be two ground-floor and two first- floor apartments to the front; and four double- storey apartments to the rear, with the front and rear apartments separated by 2m.  Private open space would be provided to the ground floor dwellings with access from living areas. North-facing balconies are proposed for the upper-floor living areas. The SPOS allocations do not satisfy the SPOS provisions applicable to the site, and as modified from ResCode under Schedule 2 of the General Residential Zone.  Pedestrian entry to all dwellings is proposed central front walkway and forecourt entrance facing Ferntree Gully Road, about 2.3m above street level, and situated above the basement ceiling. Pedestrians from the street would be assisted by stairs, or a ‘snaked’ ramp for disabled persons with a platform lift to access the front entrance, all within the front setback area.  A basement carpark with 14 parking spaces (12 for residents; 2 for visitors) access via the existing (but widened) vehicle crossing from Ferntree Gully Road. The basement would also contain elevated 3m3 storage units above the car spaces, an area for refuse/bins, and parking for eight bicycles. The basement is to be partially exposed at the front of the development.  The rear of the development will be excavated below the ground surface by about 1m, with an associated retaining wall set about 1m inside the rear property boundary.  The ground-floor side setbacks are all to exceed 1m. A 2.5m rear setback is proposed. First-floor side setbacks vary from 2m to 6m, with a 3.5m rear upper-level setback. These comply with ResCode Standards.

2 I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

VCAT Reference No. P2566/2015 Page 3 of 18  Site coverage would be around 54% with permeable area of around 26% as designated on the application plans. Various building materials would be used including render, face brick, seat boards and timber claddings.  The development would be of a contemporary style with modern materials including render and face brick, and maximum height of 8.025m above natural ground level. Site coverage of 54.6% and permeability of 26.2% are proposed. 3 The site is a single lot on the south side of Ferntree Gully Road, Oakleigh East in the General Residential Zone Schedule 2 (GRZ2) and close to various shopping, community and public transport facilities. It covers 891m² (20.15m wide by 44.22m deep) with a slightly angled frontage to Ferntree Gully Road. There is a 1.83m wide drainage easement inside the eastern side boundary. 4 The site contains a single-storey dwelling across most of the site with rear shedding. It falls 4.4m from the north to the south and also has a slight cross-fall to the lowest point at the south-east corner. There is a single- width vehicle crossing at the north-east corner, a single street tree, and a 1m high stone retaining wall with no fence at the frontage. The site is bounded to the west by a single dwelling, and to the south (rear) and east by double- storey multi-dwelling developments. Ferntree Gully Road comprises six lanes and a central median strip which is replaced by turning lanes immediately in front of the site. It intersects with Huntingdale Road about 100m west of the review site. 5 The Council provided the following description of the surrounding area. Properties along the southern side of the Ferntree Gully Road comprise various ageing single dwellings, and fine-grained contemporary unit developments in a battle axe formation. Most properties have a low stone and mortar retaining wall of about 500mm, with driveways garden beds sloping up from the footpath. The description does not identify a large early-learning centre and a retirement facility that also front Ferntree Gully Road within 80 and 150m of the review site respectively. It also does not identify a nine-dwelling apartment building two lots west of the review site. 6 The abutting lots feature the following:  East (76 Ferntree Gully Road) contains a recent three-unit attached townhouse development, with the driveway and abutting the common boundary with the review site. Number 82 Ferntree Gully Road contains a large purpose built day-care facility of a contemporary non- residential style. It has a large carpark in its frontage and a cantilevered first floor that presents a bold street interface. Further east, number 92 Ferntree Gully Road contains a large aged-care facility, and there is a business park at the intersection with Dublin

VCAT Reference No. P2566/2015 Page 4 of 18 Street. In Council’s words these ‘also inform(s) the mixed use streetscape’ and ‘provide additional commercial flavour to the area’.  West (72 Ferntree Gully Road) has a single-storey dwelling with a 9.5m front setback.  Rear: There is a four double-storey brick and render dwellings development with the rear dwelling sited across most of the rear of the site at about 1.5m from the common boundary of the review site. 7 The purposes of the GRZ that relate to this application are generally to provide housing diversity, and moderate housing growth in areas with good access to services and transport, and to implement neighbourhood character policy and adopted neighbourhood character guidelines. The zone requires a planning permit to construct two or more dwellings on a lot3, and a proposal must meet the requirements of Clause 55 (ResCode) in the planning scheme. A permit is also required to alter access to a Category 1 main road for which VicRoads is the determinative referral authority. 8 The planning permit application was lodged with the Monash Council in March 2015. Various interactions then occurred between the Council and the permit applicant, with the date of the last notice on Council being 14 September 2015. Following advertising in accordance with the Act, one objection was received from 1/76 Ferntree Gully Road. While the objection welcomed multiunit developments to the area it sought for screening at Dwelling 2 to protect the privacy of adjoining properties, and any fence damage resulting from construction to be paid by the developer. These are not matters that influence my decision as they can be addressed via condition, and the objector is not party to the Tribunal proceedings. 9 Council’s internal referrals resulted in no objection from the Drainage Engineer subject to ‘use of easement’ requirements, on-site detention and separate detention for the basement area. The Traffic Engineer identified matters that were subsequently addressed. 10 The Council considered the application on 15 December 2015, which was after the formal prescribed time for a decision. (I discuss this procedural matter below). The Council determined that had it made a decision within the ‘prescribed time’ it would have refused the application because (in summary) of:  Inconsistency with the Monash residential development policy for Garden City Character at clause 21.04 in the Monash Planning Scheme.  Inconsistency with ResCode objectives and design standards at clause 55 relating to neighbourhood character, residential policy, energy efficiency, landscaping, private open space, and solar access to open space.

3 Clause 32.01- 4

VCAT Reference No. P2566/2015 Page 5 of 18  Inappropriate design response through excessive mass, bulk and scale that are contrary to existing local development and detrimental to amenity of surrounding land and to streetscape and neighbourhood character generally.  Poor internal amenity for future residents. 11 The main determinative issues before me in this decision relate those in the Council’s opposition to the proposal. The matters are considerably interlinked. 12 The Tribunal must decide whether the proposal will provide a reasonable planning outcome when assessed against the land use zone provisions and other relevant policies and provisions in the Monash Planning Scheme, and all other information before it. If the proposed development is considered appropriate for the site, the Tribunal must then decide on the conditions that are to apply. I also note that it is not the task of the planning process and hence the Tribunal to determine if a proposal presents the ‘best’ planning outcome for a site. The notion of ‘best’ is subjective and its interpretation differs between individuals. 13 On consideration of all matters before me I have decided on balance to affirm the decision of the Responsible Authority. No permit is to issue. My reasons follow. 14 I note in summary that strong positions were put to me by the Council and the agent for the permit applicant. Overall, I found that the Council did not adequately consider the extent to which the development in, and character of the immediate area has changed along Ferntree Gully Road, and Elizabeth Street to the rear from the vision presented in the planning scheme. I find that Ferntree Gully Road as a wide main road demonstrates a robustness and variation that differs substantially from that within the abutting residential hinterland. I have not refused the application on the basis of neighbourhood character, but I am not satisfied with the allocation of secluded private open space. I consider the space allocations to be deficient for all dwellings against the provisions specifically designated in GRZ2 as modified from those in ResCode. I regard this to be a significant deficiency that will impact on the amenity of the residents of all eight dwellings for the life of the building dwelling. This is the primary matter that has caused me to find against the permit application.

PROCEDURAL MATTERS 15 During the Hearing it was noted that because the review site abuts the Road Zone Category 1, VicRoads had been notified of the matter. It had provided a response that registered no objection subject to the inclusion on permit of basic conditions relating to the construction of a new crossover and the replacement of any redundant crossovers, but had not done so by the time the Council made its decision. As VicRoads had not provided explicit conditions in its response, following the Hearing the Tribunal requested (on 26 May 2016) notification from VicRoads of permit conditions for

VCAT Reference No. P2566/2015 Page 6 of 18 consideration in the event of a permit being approved. The conditions were provided by VicRoads in correspondence dated 14 June 2016. 16 During the hearing the permit applicant applied for reimbursement of filing costs, in accordance with section 115CA of the Victorian Civil and Administrative Tribunal Act 1998 on the basis of the Council exceeding the prescribed period within which a decision is required following the submission of a planning permit application (being around 93 days instead of 60 days). The Section presumes that the Responsible Authority is liable for the application fee for the Tribunal appeal unless the Tribunal is satisfied that an assessment against the relevant tests determines otherwise. At Section 115CA(3) of the Act the following tests are provided: a. The nature and complexity of the permit application; b. The conduct of the applicant in relation to the permit application; and c. Any other matter beyond reasonable control of the Responsible Authority. 17 I issued an Order seeking the Council to provide reasons by 10 June 2016 for not making a decision within the prescribed time, and any response from the permit applicant to the Council’s reasons by 24 June 2016. The Council’s response to the Tribunal of 10 June 2016 contained a detailed 18- point explanation that is held on the Tribunal’s files. This concluded that the Council had not determined the application on time due to it waiting for the permit applicant to provide requested information to VicRoads, and a response from VicRoads. The Council further stated that (my summary):  The initial permit application was amended in August 2015 following various requests and time extensions for the submission of additional information, and the amended application was forwarded to VicRoads for comment soon after, and VicRoads then soon after that sought additional information from the permit applicant.  Final information including completed plans was provided from the permit applicant on 12 November 2015.  As VicRoads is a determinative referral authority its response was necessary.  The failure of Council to receive a VicRoads response in time to make a decision within the prescribed period was noted in the Council planning officer’s report on the application.  Decision was required by the full Council rather than by delegation due to the application being for a complex matter valued at $2.5m. 18 The permit applicant responded in writing on 24 June 2016, with reasons challenging the Council’s response. The main bases of its position were that:

VCAT Reference No. P2566/2015 Page 7 of 18  The Council had erred in not forwarding the permit application to VicRoads in a timely manner.  The Council made its ultimate determination to refuse the application without receipt of VicRoads position.  The reasons for Councils decision to refuse the permit do not include VicRoads-related matters. 19 Overall, I accept that the permit application process including plan amendments, referrals, and requirements by Council and VicRoads for additional information, and the provision of such information by the permit applicant was convoluted. With due respect to the permit applicant, I accept the Council’s explanation that matters occurred that were beyond its reasonable control. I therefore do not order the Council to reimburse the permit applicant with filing fees.

The planning framework 20 The planning framework within Victoria’s planning schemes broadly includes state and local policy and strategic sections together with zone and overlay provisions and other specific and general matters. State policies. provide the ‘big picture’ directions that in this case relate to increased urban density, increased housing diversity, improved housing affordability, good design and environmental practice. The Monash Planning Scheme includes reference to Plan Melbourne and advocates increased population and the need for broader housing choice4 within its key drivers for future development. As the current State policy for the future development of metropolitan Melbourne, Plan Melbourne encourages development around larger activity centres within a 20 minute walking distance. 21 The Local Planning Policy Framework in the Monash Planning Scheme acknowledges the above ‘big picture’ matters and retains the Garden City Character5 as a core municipal value. This historically relates to a ‘general feeling of greenness’ that is in turn associated with tree canopy cover, large vegetated setbacks and areas of open space. Relevant to this, the Tree Conservation Policy at Clause 22.05 within new developments it seeks the planting of semi-mature canopy trees with spreading crowns in open space areas, along boundaries adjacent to neighbouring open space, and within front setbacks. 22 The planning scheme places the review site within the B Neighbourhood Character Area6. The Area covers substantial areas of the south east of the municipality and is characterised overall as being a typical post-WWII housing area featuring: single and double-storey dwellings of timber of brick, with single crossovers accessing carports or garages to the side or rear of dwellings; moderate vegetation cover; and hipped rooflines with eaves. The Council noted in its submission to the Tribunal that Ferntree

4 Clauses 21.02-3, 21.04, 22.01 5 Clause 21.01-3 6 Clause 22.01

VCAT Reference No. P2566/2015 Page 8 of 18 Gully Road in this area contains low front fencing or retaining walls with some high fences, and that there are smaller established canopy trees in the area of the review site. I note that the ‘Contributory elements’ statement for the B Area designates 7.5m wide streets, which is clearly a key point of difference for Ferntree Gully Road. 23 The GRZ is the most flexible of Victoria’s residential zones. Within GRZ areas it is expected that changes will occur to accommodate the above population and housing trends, subject to provisos including need for respect of neighbourhood character (including preferred future character), good design including environmental sustainability, and reasonable internal and external amenity impacts, the latter of which are linked to ResCode at Clause 55 in the planning scheme. In this case the site is not within 20 minutes walking distance of a larger activity centre, but it is on a major road that is well serviced by public transport (buses), and proximate to various community facilities and other services. The Council acknowledges that the review site is appropriate for multi-dwelling development. On these bases the permit proposal which provides at least for increased population density, and housing diversity, is clearly supported by broad State and local policies, and I provide little further comment on this. As identified above, the key issues for consideration here are neighbourhood and site-specific. 24 On 31 May 2016 the Council determined to refer proposed Amendment C125 that includes changes to Monash’s residential zones for review by an independent planning panel. The Amendment would introduce the Monash Housing Strategy 2014 (adopted by Council in 2014 as a reference document), update the Local Planning Policy Framework (LPPF) and apply new residential zones based on the Housing Strategy. It is stated by the Council to propose more protection from large over-developments while affording local families the flexibility to redevelop properties to meet their needs. As the panel hearing is not expected until later in 2016, the Amendment as a whole cannot be given much weight in this decision. However as the Monash Housing Strategy 2014 has been adopted by Council I provide some weight to that as a seriously entertained planning document. In fact it provides little implication for the review site relative to the status quo. 25 The above-mentioned housing strategy identifies the review site within the Garden City Suburbs which is more broadly categorised as ‘areas suitable for incremental development’. The Garden City Suburbs more generally cover all residential suburbs excluding parts specifically identified in other categories, which does not apply to the review site. It retains most of the features of the current Residential Character Type ‘B’ which I have previously identified. 26 The site does not contain Overlays or constraints apart from the 1.83m wide drainage easement inside the eastern boundary. I also note that Schedule 2 to the GRZ (GRZ2) varies some Clause 55 (ResCode) standards. Relevant to the current application these are as follows.

VCAT Reference No. P2566/2015 Page 9 of 18 B6 Front setback 7.6m

B28 Private open POS consisting of: space (POS)  an area of 75m² with one part of the POS at the side or rear of the residential building with a minimum area of 35m², a minimum width of 5m and convenient access from a living room; or

 a balcony of 8m2 with a minimum width of 1.6m and convenient access from a living room.

B32 Fence height A front fence within 3 m of a street should not exceed 1.2m

27 While the application before me satisfies the 7.6m setback requirement, there are matters within it that require consideration, and no front fence is proposed. However, the private open space provisions are not satisfied in the application 28 ResCode was introduced as a contributing means of assuring and assessing reasonableness. It provides Objectives and quantitative and qualitative Standards that cover various matters for application and use in assessing applications in residential areas. While Objectives must be met the Standards should be met. This is because all sites differ and it is not reasonable to expect that a ‘one-size-fits-all’ code can be developed. Also, rigid application of standards could stifle good or innovative design that may use alternative means of achieving objectives. It follows that an application should not necessarily fail due to non-compliance with a single or even several Standards, if the overall Objectives are being achieved. The rationale for this has been described in many Tribunal decisions, and I do further discuss the rationale in this decision. 29 I further accept that as GRZ2 modifies the ResCode provisions as identified above, the matters that have been modified have been given specific consideration. It follows that strong rationale should be provided where the GRZ2-revised standards are not being met in an application. This a primary determinative factor in my decision.

Is the proposal consistent with neighbourhood character within the GRZ and Garden City Character policy? 30 In assessing this application against the wider Garden City Suburbs character objective and more specifically that for Residential Character Type B, and the review site’s immediate local character, I apply strong weight to the latter. I make the following observations. 31 It is inevitable that considerable character variations occur within and between local and wider neighbourhoods across Monash’s Garden City Suburbs. This is confirmed for example in the following extract from clause 21.02-67 (my emphasis):

7 Clause 21.02-6: The importance of neighbourhood character and heritage.

VCAT Reference No. P2566/2015 Page 10 of 18 ‘….An important element contributing to neighbourhood character in most areas is the Garden City Character, which describes the tree- lined and vegetated aspect of the municipality.’ It follows that flexibility should be applied in interpretation of the policy. 32 The desired future character statement for Residential Character Type ‘B’. contains the following main elements (in summary):

 Modest and assuming character with multi-housing developments appropriate in scale and form to existing dwellings, including presentation to the street.

 Generally consistent setbacks.

 Sympathetically designed buildings.

 Low front fences with landscaping (including native and exotic plants) in the front to soften the interface between development and street.

 Single vehicle crossovers. 33 The Future Character statement for the Garden City areas in the Housing Strategy 2014 seeks lower-scale residential development with new development comprising a mix of single dwellings and medium density units and townhouses. It states the following. On larger sites, apartment development may be appropriate, provided the development is sited within generous open space, is well landscaped while still retaining the ‘open landscape character’ of the garden suburban setting and any development tapers down in scale to the boundaries of the site. 34 As the current proposal is for a lower to medium-scale apartments development on a conventional sized lot it does not formally satisfy the above statement. While the policy infers that apartments developments are not desired on conventional sized lots, this is policy rather than prescription, and site context is important. Within this I consider the scale and presentation of the building within its local context, and I note that the Council itself approved a nine-dwelling apartment building at 70 Ferntree Gully Road two lots from the review site. 35 Further to the above policy thrusts, the objectives of ResCode Standard B1 Neighbourhood Character include:

 To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.

 To ensure that development this responds to the features of the site and the surrounding area. The accompanying B21 Standard states that:

 The design response must be appropriate to the neighbourhood and the site.

 The proposed design must respect the existing or preferred neighbourhood character and respond to the features of the site.

VCAT Reference No. P2566/2015 Page 11 of 18 36 The above provides the context for my following discussion, as no physical issues are identified that would render the proposed development inappropriate for the site. 37 I find that the Council has not given adequate weight to the extent that the neighbourhood of the site has changed. I contend that the Council has focused on a vision that has passed and cannot be regained, rather than on what now constitutes the neighbourhood. 38 Ferntree Gully Road is a major road in the RD1Z that is managed by VicRoads. It presents markedly different and more robust characteristics than those that prevail in the suburban hinterland separated from such main roads. I have confirmed this in my previous description of development in the immediate area of the review site. In properties along Ferntree Gully Road this includes:  To the east, a large early learning centre (four lots to the east), double- storey and single-storey multi-dwelling developments (at the two lots to the immediate east), a large retirement home facility occupying five or six consolidated lots on Ferntree Gully Road extending through to Elizabeth Street that is parallel to Ferntree Gully Road at the rear.  To the west various large multi-dwelling developments including a recent Council-approved (2011) and now constructed two-storey apartment building containing nine dwellings at 70 Ferntree Gully Road two lots from the review site. Aerial photographs of this site identify a range of features that are similar to the review site in terms of site coverage, side and rear setbacks, and landscaping.  The lot immediately at the rear of the review site and the six lots immediately to its east that all front Elizabeth Street, contain mostly double-storey multiple dwelling developments. 39 All of the sites identified in the above paragraphs occupy large proportions of their sites through to short rear setbacks that are down to around 2m deep. Their built forms dominate their sites and immediate surrounds and do not to any extent (front or rear) convey the current or future Garden City Suburbs character intent that the Council has used as a main basis for opposition to the proposed development. 40 The above was evident to me on my site inspection. From in front and from the rear of the site, the view is dominated by the built forms of the multi- dwelling developments on the abutting site to the east (72 Ferntree Gully Road) and to the rear (south). While the site to the west is not so developed, the site immediately to the west of that site (being two lots from the review site) contains the double-storey dwellings development that I have previously referred to that is prominent from the front and rear of the review site. All of the above-mentioned developments are large and recent, and do not seemingly conform with the Garden City Suburbs future character intent. I find that the scale of the proposed development is not out of context with them in the ‘big picture’. Conversely, I find that the

VCAT Reference No. P2566/2015 Page 12 of 18 development and associated open space currently on the review site are ‘out-muscled’ by the immediately surrounding development, and that a substantial development is required on the review site to counterbalance this impact. 41 Further to the above, review of the surrounding area from aerial photographs tendered to the Tribunal identifies that of the approximately 20 lots along the 400m section of Ferntree Gully Road between Dublin Street to the east and Huntingdale Road to the west, only about seven randomly located sites (including the review site) retain what could reasonably be described as a traditional open back yard with any amount of tree cover and general landscaping. All but one of those sites (at the Ferntree Gully Road / Huntingdale Road intersection) has a ‘recent’ multi-dwelling development on at least one side, with development occupying most of the rear of the respective sites. 42 It follows that of the nearby properties, only the neighbouring property to the west at 72 Ferntree Gully Road and the property behind that, which is diagonally behind the review site contain ‘traditional’ open domestic ‘back yards’. Furthermore, and as previously inferred, architectural form varies considerably from that alluded to in policy description. 43 It must be concluded from the above analysis that the Garden Suburbs Character and the Residential Character Type ‘B’ that the Council seeks to preserve in opposing the proposed development, is all but now removed from the Ferntree Gully Road and Elizabeth Street in this location, and cannot realistically be reinstated. This carries significant weight in my decision, and it is appropriate to apply considerable flexibility in interpreting the Garden Suburbs Character in this setting. This relates for example to respect required for the style of surrounding development, and minimising the impact of bulk and scale of development. In short, if a site is surrounded or dominated by larger-scale developments of fairly uniform scale in a demonstrably ‘changed’ neighbourhood that contains various architectural styles, it seems reasonable that new development of similar scale could be permitted on that site if broader planning policy and character objectives, and importantly amenity of external parties are not being unreasonably compromised. I believe that this scenario applies in this case. 44 It follows that issues relating to the scale of the proposed development within its local setting largely revert to design-form differences including the breadth and rhythm of the developments on their respective sites.

Built form 45 Policy for built form and scale of development at Clause 21.018 in part seeks for the height and scale of existing development to be protected, and for side boundary setbacks to maintain the spacing and rhythm of existing ‘dwellings’ to be respected. In this instance the review site is largely

8 Residential Development and Character Policy

VCAT Reference No. P2566/2015 Page 13 of 18 surrounded double-storey multi-dwelling developments, that provide the above-mentioned ‘height and scale of existing development’. 46 Other policy considerations at Clause 21.01 include:  building materials and ‘high degrees’ of articulation (particularly where the dominant local building form is single-storey);  roof form including pitches;  high quality design relating to bulk and boundary setbacks;  low-key scale and bulk of double-storey buildings at the rear of properties, adjacent to single storey dwellings, potentially via strong articulation and deep side setbacks that provide for landscaping incorporating canopy trees.  visible front gardens. 47 My assessment of these points is as follows:  The dominant local building form is not single-storey and I am satisfied with articulation overall, and that the appearance from either side is ‘fragmented’ with a 2.5m upper level separation between the front section containing Dwellings 1,2, 7 and 8, and the rear half containing the other four dwellings. I find that from either side the development could be ‘read’ as three dwellings. I consider that this is in context with surrounding developments. I do not consider this to present unreasonable amenity issues in this local setting for the properties at either side, subject to appropriate visual screening as sought in the objection from the neighbouring property to the west.  The roof forms including pitches are consistent with the roof forms on most other surrounding and local developments along Ferntree Gully Road.  I accept that reasonable effort has been devoted to the design in the elements I have discussed above, and in the stepping back of the building at the sides from the ground to upper levels, and that the side and rear boundary setbacks adequately comply with ResCode, and are not out of character with surrounding multi-dwelling developments.  While the review site is adjacent to a single-storey dwelling to its west, the double-storey rear aspect of the proposed development is adjacent to the rear open space, and is consistent with both the double- storey rear development on the site further to the west and with all other adjacent multi-dwelling developments. Also, the owner of that single-storey dwelling has not objected. It can reasonably be assumed that at some future time the property will be subject to a redevelopment proposal. Under such circumstances and subject to ResCode compliance, I consider that it would be inappropriate to refuse the application on the basis of the rear portion of the development being double-storey. Furthermore, I am satisfied that the

VCAT Reference No. P2566/2015 Page 14 of 18 design including its articulation and varied side setback elements does provide for some landscaping incorporating canopy trees in the side courtyard spaces for Dwellings 3 and 4 where the front and rear portions of the development are separated by 5.3m at the upper level. This is at least equivalent to that provided for in most surrounding developments.  The front garden would be visible. 48 While the rear open space behind the proposed development is limiting at around 2.5m at the ground level and would not contribute to the feel of spaciousness sought for the Garden Suburbs I note the following:  It complies with ResCode and can accommodate screen planting along the rear boundary and a canopy tree in each rear corner.  It is comparable with the 2.7m rear setback on the new double-storey multi-dwelling development on the abutting site to the rear, and with ResCode compliant windows on both developments there will be no unreasonable adverse amenity impacts shared between the two developments. 49 On the matter of built form, I am then left to consider the presentation to Ferntree Gully Road. The elevation plans identify a prominent presentation which is a stated concern of Council that requires discussion. The Council’s concerns regarding the front of the site relate to the following:  The combination of the 5m wide crossover/driveway access to the basement carpark (relative to a standard 3m wide driveway) and the footpath and the longer alternatively graded disabled access pathway to the front entrance result in excessive pavement area and inadequate landscaping opportunity in the front of the site relative to Garden Suburbs policy.  Loss of spaciousness at the front presentation resulting from the absence of a driveway and associated deeper side setbacks that would occur where basement carparks are not proposed.  Inadequate front setback of the upper-level behind the ground level, combined with the almost 2m elevation of the ground floor level above the street, to provide a net effect that is excessively bulky. This is despite the height of the building complying with the 9m B7 ResCode Standard.  The upper level side setback for 5.6m behind the building façade is considered inadequate to reduce the perceived bulk of the building’s appearance from the street.  The basement retaining walls would be close to the front boundary, and would produce a harsh visual impact to the street. 50 I have previously responded to the Council’s opposition relating to side and rear perceptions of bulk and mass, which I consider to be over-stated by the Council in context of the site’s context within its neighbourhood.

VCAT Reference No. P2566/2015 Page 15 of 18 51 The Council places importance on the absence of a side setback of about 4m on one side of the property to provide for a driveway, as featured at other local multi dwelling developments. This has also not occurred at the Council-approved apartments development at 70 Ferntree Gully Road. While the Council states that development at number 70 is not characteristic of local neighbourhood character it did nonetheless approve the development. I place limited weight on the Council’s follow-on argument that the development at number 70 has deeper side front setbacks than those proposed in the current development, as appropriate landscaping including the use of canopy trees as proposed here can assist to moderate the impacts of such differences were they deemed to be of concern at the review site. I consider the difference between the two is marginal and of little practical significance, in this decision. The forward front façade is 11m wide which is 55 percent of the 20m lot width. On either side of this the ground and upper-storey facades are setback a further 5m by 3m wide. I consider that when viewed from the public realm diagonally or from in front of the site, the perception of bulk will be diminished, to be not unlike that at the apartments development two lots away at 70 Ferntree Gully Road. Also, while the ground-floor will be elevated about 2m above street level, this is a partial function of the topography that increases the prominence of any double-storey development on this side of Ferntree Gully Road. With the building height being compliant with the 9m B7 ResCode building height standard, I find this acceptable. Consistent with this I also identify that the wide and busy Ferntree Gully Road is a non-sensitive viewing location, and such detail is unlikely to be identified by passing traffic or from residential properties on the opposite side of the road. 52 Basement car parking provides for efficient use of the land surface, including the use of a short single, albeit widened, crossover/driveway. 53 Based on my above reasoning I find that within the range of scale and types of development along the south side of Ferntree Gully Road between Dublin Street and Huntingdale Road, any lack of built form rhythm will not be significant. 54 In context of the surrounding multi dwelling developments in the immediate area that I have previously discussed, I will not refuse the application on the basis of lack of landscaping potential within side setbacks. 55 Therefore while I acknowledge the Council’s concerns regarding bulk the built form, mass and scale, I find that on balance and in context of the immediate locality including Ferntree Gully, I accept this element of the of the proposed development. I add that this is a site-specific response that cannot be considered to have carry-over precedent implications for the wider suburban hinterland per se.

VCAT Reference No. P2566/2015 Page 16 of 18 Internal amenity 56 My decision not to grant the permit relates to amenity for future residents, and most particularly the provision of private open space. 57 As identified earlier in this decision the applicable ResCode Standards are varied Schedule 2 to the RGRZ that provide for the following:  an area of 75m² with one part of the POS at the side or rear of the residential building with a minimum area of 35m², a minimum width of 5m and convenient access from a living room; or  a balcony of 8m2 with a minimum width of 1.6m and convenient access from a living room. 58 Dwellings 1-6 vary in their provision of between 39m2 to 54.3m2 total SPOS with minimum dimensions varying from 3.83m to 5.29m. The upstairs Dwellings 7 and 8 have balcony areas of 6.5m2 and 7.0m2 with minimum dimensions of 1.755m and 1.9m (which both exceed the minimum dimension). The permit applicant presented through the Clause 55 assessment within the permit application content and in presentation to the Tribunal that while the areas provided are less than the Standard ‘they meet reasonable expectations for apartment-styled development’. The applicant also stated with regard to solar access that the site is located ‘within 20 m of a public reserve as well as a number of other public open spaces within proximity to the site’. I regard these statements individually and collectively to be unsubstantiated and inadequate reasoning for the provision of non- compliant private open space, where the SPOS area designations have been specifically considered through GRZ2, and where the deficiencies apply to all dwellings in the complex that include four three-bedroom dwellings. The deficiencies will remain for residents for the life of the building. I find this to be an unsatisfactory planning outcome, that if approved would signal incorrect precedence messages, and the matter cannot be addressed via permit condition, It has swayed my decision on balance to refusal of the permit. 59 The permit applicant advised that while 3.36m3 storage capacity is provided for above the basement car parking space for each dwelling, this could be increased to achieve the ResCode B30 Standard by adding outdoor storage space in the ground-level outdoor SPOSs for dwellings 1, 2, 5, 6, 7, and 8. Given the above discussed spatial inadequacies in the SPOS areas, I find that this would be unacceptable. Storage capacity is important, and its inadequacy increases ‘pressure’ within the dwellings that is likely to impact adversely on internal amenity. 60 During the hearing it was proposed that internal amenity at Dwellings 5 and 6 would be improved by the addition of roof skylights above the ground level south facing living areas. This would be appropriate if approval was to be granted.

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Front setback 61 There is no existing vegetation for preservation in the front setback area and in theory, the 8.3m front setback and vehicle access arrangements provide satisfactory opportunity for landscaping including canopy trees. However the available area for this is limited by the provision of a ‘snaked’ disabled access ramp to the building entrance from the front street located within the western side of the setback area. The Council has sought for the access to be removed in the event of permit approval, and the permit applicant agreed during the hearing that the ramp access can be removed as other (unspecified) forms of disabled access can be provided. I consider that due in part to the site topography, good landscape design could provide for retention and visual disguise of the access from the wider public realm. However I accept that the landscape outcome can be improved if alternative disabled access can be provided. 62 Overall, I find that a suitable approved landscape plan would enhance the existing landscaping on the site, which is currently modest at best.

ResCode 63 The proposal satisfies the ResCode standards for front setback (B6), building height (B7), site coverage (B8), site permeability (B9), access objectives, including driveway access width and forwards in and out movements (B14), parking location (B15), side and rear setbacks (B17), walls on boundaries (as no walls are proposed on boundaries) (B18), daylight to existing windows (B19), north facing windows (B20), overshadowing (B21), overlooking (B22), internal views (B23) . 64 As the site is orientated in a north south direction Dwellings 5 and 6 at the rear have less internal and external exposure to sunlight. The provision of skylights above the ground floor living areas can improve the internal situation. I do not consider this to be fatal to the overall proposal. The upper-storey bedrooms are proposed to have windows to the east and west respectively that will receive morning and afternoon sunlight.

CONCLUSION 65 For the reasons explained above, the decision of the Responsible Authority is affirmed. No permit is to be issued.

Graeme David Member

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