Victorian Civil and Administrative Tribunal s6

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

VCAT REFERENCE NO. P699/2017 PLANNING AND ENVIRONMENT LIST PERMIT APPLICATION NO. TPA/46193 CATCHWORDS

Section 77 of the Planning and Environment Act 1987; Monash Planning Scheme; General Residential Zone Schedule 2; Overshadowing; Dwellings under Construction; Two Crossovers; Bulk and Scale; Landscaping Opportunities.

APPLICANT John Yin RESPONSIBLE AUTHORITY Monash City Council SUBJECT LAND 1 Willow Avenue GLEN WAVERLEY VIC 3150

WHERE HELD Melbourne BEFORE Alison Slattery, Member HEARING TYPE Hearing DATE OF HEARING 27 September 2017 DATE OF INTERIM ORDER 27 September 2017 DATE OF ORDER 15 December 2017 CITATION

ORDER 1 In application P699/2017 the decision of the responsible authority is affirmed. 2 In planning permit application TPA/46193 no permit is granted.

Alison Slattery Member APPEARANCES For applicant William Chow of Zoneworks For responsible authority Sally Moser of Moser Planning Services P/Ltd

VCAT Reference No. P699/2017 Page 2 of 13 INFORMATION Description of proposal Construction of two double storey dwellings down the length of the lot with two crossovers 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 Vegetation Protection Overlay Schedule 1 Permit requirements Clause 32.08-4 construction of two or more dwellings Relevant scheme policies and 11, 15, 16, 21.03, 21.04, 21.08, 22.01, 22.04, provisions 22.05, 32.08, 52.06, 55 and 65.

VCAT Reference No. P699/2017 Page 3 of 13 Land description The site is located on the northern side of Willow Avenue near the intersection with Orchard Street. The site is currently developed with a double storey brick dwelling. The site is rectangular in shape and has a frontage of 17.37 metres and a depth of 44.2 metres for a total site area of 767.75 square metres. The site includes a fall from north east to south west of 1.7m and contains a crossover to the centre of the frontage. A 1.83 metre wide drainage and sewage easement traverses the northern (rear) boundary with a further drainage and sewerage easement of 2.44 metres traversing the western (side) boundary. The site is not encumbered by a covenant. The site is sparsely vegetated. Surrounding sites are residential in nature and generally include single and double storey dwellings of varied ages. Dwellings generally include carports or garages set behind the frontage of the dwellings. Multi unit development typology is clearly evident as the emerging typology, usually with two dwellings on a lot, such as directly to the east at 3. Willow Avenue. The site is well served with access to schools, parks and open spaces, and shopping facilities (Glen Waverley and The Glen SC). The site also has good access to community facilities. Public transport is available by way of buses on Willow Avenue (route 736) with regular buses available on Springvale, Highbury, High and Blackburn Roads. Tribunal inspection The tribunal undertook an unaccompanied inspection of the site after the hearing.

VCAT Reference No. P699/2017 Page 4 of 13 REASONS1

WHAT IS THIS PROCEEDING ABOUT? 1 On 9 March 2017 Monash City Council issued a refusal to grant a planning permit for the construction of two double storey dwellings at 3 Willow Avenue, Glen Waverley. 2 The decision was based on Council’s view that the design is contrary to the character of the neighbourhood regarding mass, scale and form and is an overdevelopment of the site. Council contends that this development also does not comply with the objectives of ResCode with regard to neighbourhood character, landscaping, access (crossovers), and design detail. 3 The review applicant, Mr John Yin applied to the Tribunal to review this decision. The applicant, through Mr Chow disagrees with Council and asserts that the design has taken into account the constraints of the site and is responsive. He argued that the areas of non-compliance with the standards of ResCode are justified and contends that the proposal meets the objectives of ResCode. It was his contention that the state and local policies lend support to the proposed development.

WHAT ARE THE KEY ISSUES? 4 The key issues for determination are: a. Does the development represent an appropriate response to the neighbourhood? b. Does the development achieve a satisfactory level of compliance with Clause 55 (ResCode)? 5 The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions with regard to the applicable policies and provisions of the Monash Planning Scheme, I have decided to affirm the Council’s decision. My reasons follow.

INTERIM ORDER REGARDING SHADING TO THE EAST 6 I issued an interim order requiring the submission of plans showing the shading to the east. The order required the plans to show the development at 3 Willow Avenue that is currently under construction, rather than the previous dwelling which has since been demolished. These plans have been accurately provided. Opportunities for comment regarding the plans were provided and availed.

1 The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

VCAT Reference No. P699/2017 Page 5 of 13 DOES THE DEVELOPMENT REPRESENT AN APPROPRIATE RESPONSE TO THE NEIGHBOURHOOD? 7 Within the Monash Planning Scheme, local policy has as an imperative the protection of existing neighbourhood character through the promotion of the Garden City Character theme. This Garden City Character element of the Monash Planning Scheme is iterated throughout its local policy, and is reflective of the desires within the Monash community. Any new development needs to be respectful of these character considerations.2 8 This Garden City emphasis is reiterated within the Residential Development and Character Policy3 which states:  The Garden City Character, as identified in the Municipal Strategic Statement, is a core value held by the community and Council as a significant and important consideration in all land use and development decisions in most residential areas. 9 Clause 22.01 also seeks to encourage new development that responds to the character of existing residential areas, integrating the theme of Garden City with maintenance of a highly vegetated environment. Specifically Clause 22.01 seeks:  To build upon the important contribution that landscaping makes to the Garden City Character of Monash.  To encourage new development to achieve architectural and urban design outcomes that positively contribute to the neighbourhood character having particular regard to the desired future character statement for the applicable residential Character Type. 10 A relevant residential objective of the Policy at Clause 21.04 includes:  To ensure that development is appropriate having regard to the residential environment of the area, in particular neighbourhood character and amenity. 11 Ms Moser submitted that the policy4 seeks to maintain and enhance the streetscape character of ‘Garden City’ through the minimisation of bulk and the inclusion of landscaping that reduces the impact of new development in the streetscape. She noted that the spacing and rhythm of buildings needs to be designed so that they maintain the spacious streetscape context of the surrounding area in order to enhance the soft quality of residential streets. 12 Council further advised that the site is located within a neighbourhood classified as a ‘C’ Character Area in the Monash Urban Character Study 5 which is described in the following manner:

2 Clause 21.04 3 Clause 22.01-1 4 Clause 22.01-3 5 Clause 22.01-5

VCAT Reference No. P699/2017 Page 6 of 13 “The dominant architectural framework is the double-fronted consistently setback, single storey brick veneer 1950’s/1960’s dwellings with some weatherboards dispersed throughout the area. Within this framework are some two-storey houses constructed mainly of darker red and brown brick. These larger houses are concentrated in the higher, and more topographically diverse, neighbourhoods. They tend to be more visually dominant from the street than the more modest older houses, but still have substantial front gardens. Many properties do not have front walls or fences, particularly in the northern-most neighbourhoods, leaving the garden open to the street. Otherwise, fences and walls are low timber or brick of approximately 900mm, allowing low shrubs in the front gardens to be visible from the street and giving clear views to the buildings.

Front gardens within the Character Type exhibit a wide horticultural diversity and are generally well planted and maintained. In many cases they obscure the architecture. In the higher and more topographically diverse neighbourhoods many properties have large trees and shrubs both in the front and rear gardens. The character of areas adjacent to the creek valleys and the Riversdale Golf Club have been extensively influenced by the proximity of the dense native vegetation, steeply sloping topography and the sounds of native fauna.

The open space pattern within the Character Type includes formal reserves and linear landscape corridors that are a focus for residents and provide ecological habitat and an important naturalistic recreation resource.”

13 The Desired Future Character Statement for this area includes:  The neighbourhood character of this area will develop within a pleasant leafy framework of well-planted front gardens and large canopy trees.  Architecture, including new buildings and extensions, will, in the majority of cases, be secondary in visual significance to the landscape of the Character Type from the street. However, in neighbourhoods that currently have a large proportion of two storey houses, the architecture will gradually become more dominant, although it will always be buffered from the street by a well planted front garden that will ensure the soft leafy nature of the street will be perpetuated.  Setbacks will be generous and consistent within individual streets.  Building heights will vary between neighbourhoods. Those neighbourhoods where the diverse topography and well developed mature tree canopy provide a framework within which redevelopment can occur will have a larger proportion of two storey houses. In the lower, less wooded areas, buildings will be mainly low rise unless

VCAT Reference No. P699/2017 Page 7 of 13 existing vegetation or a gradation in height softens the scale contrasts between buildings.  The built-form will be visually unified by well-planted front gardens that contain large trees and shrubs and street tree planting. Neighbourhoods that are influenced by the naturalistic landscape of the creek valleys or on highpoints and ridges will have a predominance of native trees in both the public and private realm. Trees within lots to be redeveloped will be retained wherever possible in order to maintain the established leafy character.  Streets which have a majority of gardens currently lacking fences will continue to do so. Walls and fences in other streets will be low to allow plants in the front garden to be visible from the street. Colours and materials will be sympathetic to the architecture of the house.  The soft quality of streets derived from the nature strips will be protected by ensuring that each lot frontage has only one single crossover. Landscape elements such as remnant indigenous vegetation and the large old coniferous wind-rows will be retained until horticulturally unstable.  The character of existing public open spaces within the Character Type, particularly those naturalistic corridors such as Damper Creek and Valley Reserve, will be protected by ensuring that buildings directly adjacent to such areas are set back and buffered with planting that complements that within the public open space. 14 Ms Moser submitted that the proposed development did not respond appropriately to the policy which seeks to enhance the valued low scale character of the area through the implementation of styles and scale that are sympathetic to the area whilst maintaining and enhancing the landscaped streetscape. She submitted that the development fails to respect the quality and style of surrounding development and is discordant with the neighbourhood character of the area, both existing and preferred character. She cited concerns with the dual crossovers, limited upper floor recession and articulation, limited fenestration, and limited opportunities for landscaping. 15 Policy points to this area as being able to sustain a moderate level of change to accommodate future increases in dwelling stock. It also seeks to enhance the valued low scale character of consistent streetscapes the area through the implementation of styles and scale that are sympathetic to the area. I partly accept that the proposed dwellings satisfy the policy at Clause 22.01 with regard to ensuring “new development is successfully integrated into existing residential environments, with minimal streetscape or amenity impact, and designed to achieve outcomes that enhance the Garden City Character of the area”. I am satisfied that the maximum height of 7.96 metres responds well to the scale of the buildings on the immediately adjoining properties to the east and west where dwellings are constructed to

VCAT Reference No. P699/2017 Page 8 of 13 a double storey scale as I noted during my site visit. It appears that the streetscape is experiencing change by way of multi-unit development construction, mostly of two storey scale. I am satisfied that the scale of the dwellings will not dominate the Willow Avenue streetscape as the two storey scale responds well to the built form scale in Willow Avenue, with dwellings ranging from one to two storeys. Recent development in the immediate area includes higher density development of 2 storeys directly to the east at 3 Willow Avenue. I am satisfied that the height of the development is appropriately responsive to built form in the street. 16 I do not share Ms Moser’s concerns regarding the built form presentation to the west. I am satisfied the form is well set back and appropriately articulated with the first floor, whilst cantilevered, appropriately recessed to the streetscape. The development includes a driveway to the western elevation, with setbacks ranging from 3.7 to 5.2 metres. I am satisfied that these setbacks are generous and will reduce the perception of bulk to the west. There are also opportunities for planting of canopy trees to the rear secluded open space of dwelling 1 (mid-block) that will assist in minimising the extent of built form to the west. Additionally, to the west of dwelling 2 opportunities exist for planting of trees, albeit located within the easement area. 17 I do not agree that the inclusion of two crossovers will detrimentally impact on the opportunities for appropriate landscaping and will result in an awkward closeness of crossovers. During my site visit in noted the existence of several crossovers located within 3 metres of another crossover. I am not persuaded that the provision of two crossovers near each other is out of keeping with the character of the street. 18 I am satisfied that a reasonable level of planting can occur in the front setback, which has two unimpeded areas of around 15 and 30 square metres (my measure) in which two canopy trees can be located. This can be further complemented with lower order planting to the frontage in line with the objectives of policy. To this end, I do not agree that the construction of two crossovers will unreasonably limit opportunities for appropriate landscaping to the frontage. That said, I agree with Ms Moser that the construction of built form to the eastern elevation either located on or near the boundary (in most parts set back 1.2 metres with a small portion set back 2.5 metres from the boundary) unreasonably limits opportunities for planting of this area. This length of built form extends along the western elevation from within 7.6 metres of the frontage to within 3.0 metres of the rear boundary. I find that this extent of built form, close to the boundary will result in an unreasonable level of built form that cannot be readily alleviated through screen planting. 19 To the east the development will increase shade falling over the secluded private open space of the new dwellings at 3 Willow Avenue. The shade will be increased from 2-3 pm and does not comply with ResCode Standard B21. I have not been persuaded that this level of encroachment into the

VCAT Reference No. P699/2017 Page 9 of 13 shading is appropriate. These open spaces are small and will need to avail themselves of all the amenity they can afford. I do not think it appropriate to further reduce the shade to such small areas. Any new development needs to look to protecting the amenity of these open spaces appropriately, including through minimising shade and bulk. 20 As such, I have not been persuaded that the eastern elevation can maximise the landscaping opportunities that enhance the Garden City Character of the streetscape. This response does not accord with policy at Clause 22.01 which seeks to include “planting of semi-mature canopy trees with spreading crowns be incorporated in open space areas, along boundaries adjacent to neighbouring open space and in front setback areas to reinforce the Garden City Character of the area.” 21 While I have found that the development interface to the east is fatal to the proposal, I note that I am generally satisfied that in other ways the proposal represents an appropriate response to the broader objectives and policy in Clause 22.01 Neighbourhood Character Policy. I say this for the following reasons: The location is appropriate for medium density due to the close vicinity of Glen Waverley shopping precinct, which caters to daily shopping and community needs, including providing good public transport options. The existing building is not an intact 1950s-1960s dwelling and its loss will not impact on the character of the street. There is no impact on places of environmental or heritage significance The development siting allows for reasonable levels of planting to the front (southern) elevation. This will serve to soften the appearance of the building from the streetscape. Planting in the frontage to Willow Avenue includes opportunity for layered planting of lower order shrubs interspersed with taller feature trees. The ground floor plan indicates the inclusion of 2 large (canopy) trees to the frontage of the site. The development will not detract from the character of the area where built form typology is inconsistent ranging from single and multi-unit dwellings through 1 to 2 storeys. To the street frontage, the setback ranges from 7.6 metres to 8.6 metres at first floor. I am satisfied that this setback reflects the reasonably consistent front setback in the streetscape where front setbacks range from around 7 to 9 metres. Appropriate provision of car parking is provided with a garage provided for each dwelling. The garage for unit 2 is not overly visible in the streetscape.

VCAT Reference No. P699/2017 Page 10 of 13 22 While the proposal generally represents an appropriate response to local policy requirements at Clauses 21.04, 22.01 and 22.05, I find that the interface to the east is not appropriate, resulting in unreasonable bulk and shading that cannot be ameliorated via condition. DOES THE DEVELOPMENT ACHIEVE A SATISFACTORY LEVEL OF COMPLIANCE WITH CLAUSE 55 (RESCODE)? 23 Several areas of ResCode compliance were raised as being of concern to the Council. These include neighbourhood character, landscaping and shading. 24 As noted above, I am satisfied that the preferred future character of the area will not be properly respected within the proposed development. While I am satisfied that the scale of the development reinforces the 1-2 storey character of the streetscape, I am not satisfied that the interface to the east responds to the landscaped character of the area where vegetation is an important character trait. I found that the proposal will not allow for the planting of trees in line with the character of the area. In this way, the proposed development represents an inappropriate response to State and Local Policy objectives. 25 Additionally, as noted previously, I am not satisfied that the proposal appropriately minimises shading impacts to the adjoining dwellings to the east at 3 Willow Avenue. The areas in question have less than 40 square metres of unshaded open space and this will be further shaded by the proposed development for the hours of 2-3. This is not appropriate, and contrary to Mr Chow’s submission, I find this encroachment to be significant, due to the small size of these open spaces. As noted above, any new development needs to be more aware of the sensitivity of this eastern interface. 26 Apart from these matters, I am generally satisfied that the proposed development complies with the remainder of the objectives of Clause 55 (ResCode). I say this for the following reasons a. The maximum height of the building is approximately 7.96 metres and responds appropriately to the preferred character for Willow Avenue as sought within state and local policy. This height responds well to the adjoining single storey dwellings that are built to a height of around 7 to 8 metres. b. The front setback of 7.6 to 8.6 metres responds appropriately to the character of the area where setbacks range from 7 to 8 metres. c. The development provides an active frontage to the street frontage with easily identifiable pedestrian access points and windows to the front elevation d. Infrastructure is readily available. e. The site coverage is 41.58% f. The permeability is 36.66%.

VCAT Reference No. P699/2017 Page 11 of 13 g. Energy efficient housing will be promoted, including reasonable access to light and cross ventilation. The design includes good north facing windows reducing energy consumption for lighting, heating and cooling. Open space areas are also appropriately located with access to northern light. h. Reliance on borrowed light is avoided. i. No north facing windows are impacted upon and other windows of adjoining properties are properly protected and receive adequate light. j. Adequate provision is made for storage and bins. k. Mailboxes can be appropriately located to the frontage of the site, subject to conditions l. Parking spaces have reasonable access to dwellings m. A ground level bedroom is provided for both dwellings providing opportunities for those of limited mobility. n. Secluded private open spaces for dwellings are provided by way of a gardens at ground level ranging from 48 to 82 square metres with total open space of between 97 and 99 square metres. I am satisfied that the private open space areas for the dwellings are practical and useable with reasonable depth and dimensions and have good access to living areas. This ensures open spaces satisfy the objective which seeks “to provide adequate private open space for the reasonable recreation and service needs of residents.” o. Overlooking is minimised with sill heights and screening to 1.7 metres above FFL where required. p. I see no sources of noise that are located close to boundaries, such as mechanical devices. 27 While I find that the development interface to the east is fatally flawed, I find that the remainder of the development incorporates a reasonable design that adequately responds to the character of the area and protects the amenity of the surrounding properties. In this way I am satisfied that, with the exception of Standards B13 and B21, the standards and objectives of ResCode are met.

CONCLUSION 28 For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Alison Slattery

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