Victorian Civil and Administrative Tribunal s2

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

VCAT REFERENCE NO. P1945/2016 PLANNING AND ENVIRONMENT LIST PERMIT APPLICATION NO. TPA/45464

APPLICANT GNL Developments Pty Ltd RESPONSIBLE AUTHORITY Monash City Council SUBJECT LAND 19 Panorama Street CLAYTON VIC 3168

WHERE HELD Melbourne BEFORE Dalia Cook, Member HEARING TYPE Hearing DATE OF HEARING 28 April 2017 DATE OF ORDER 8 June 2017 CITATION GNL Developments Pty Ltd v Monash CC [2017] VCAT 773

ORDER 1 Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:  Prepared by: Archimedium Australia Pty Ltd  Drawing numbers: TP03-TP05 (Rev. B), TP06 (Rev. A)  Dated: January 2016 2 The decision of the responsible authority is set aside. 3 In planning permit application TPA/45464 a permit is granted and directed to be issued for the land at 19 Panorama Street, Clayton in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:  Construction of four dwellings on a lot.

Dalia Cook Member

APPEARANCES For GNL Developments Pty Mr Daniel Bowden, Town Planner, Song Ltd Bowden For Monash City Council Mr Dean Savage, Town Planner, Currie & Brown (Aust.) Pty Ltd

INFORMATION Description of proposal Construction of four double storey townhouses, two facing Panorama Street and two facing Fortuna Street. Nature of proceeding Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. Zone and overlays General Residential Zone (Schedule 2), Design and Development Overlay (Schedules 14 and 151) Permit requirements Clause 32.08-6 - construction of two or more dwellings on a lot Relevant scheme policies and Clauses 10, 11, 15, 16, 21, 22.01 (Residential provisions Development and Character Policy), 22.04, 22.05 and 55 in addition to the matters in clause 65 of the Monash Planning Scheme (scheme)

1 Protecting the flight path for the Monash Medical Centre helicopter facility.

VCAT Reference No. P1945/2016 Page 2 of 12 Land description The subject land is located on the north west corner of Panorama Street and Fortuna Street. It has a total area of approximately 810 square metres and is currently developed with a detached dwelling.2 Adjoining land to the north has been developed with two dwellings, one behind the other. Adjoining land to the west contains a single detached dwelling. The character of the immediate surrounds is residential, with a range of housing styles and forms. Original dwelling stock is mixed with townhouse developments of varying intensities and scale. Contextually, the site is within a residential area east of the Monash Medical Centre and south of Monash University. It is also located near Fregon Reserve (to the north west) and west of the Monash Employment Precinct. Tribunal inspection I inspected the subject land and surrounds on an unaccompanied basis following the hearing

2 The land is subject to a 1.83m wide easement along its western boundary.

VCAT Reference No. P1945/2016 Page 3 of 12 REASONS3

INTRODUCTION 1 The applicant proposes to redevelop the subject land with four double storey townhouses. Notice of the application was given but no objections were received. The responsible authority assessed the application in accordance with due process and refused to grant a planning permit for the following reasons (in summary):  the proposal was inconsistent with policy aspirations for the area. More specifically, it would be out of character with existing development and would represent an overdevelopment of the site.  the design response did not meet ResCode objectives in clause 55 of the scheme, including a poor level of internal amenity for future residents of Dwelling 2. 2 The applicant sought review of the responsible authority’s decision. It submitted that the proposal would constitute a good design outcome and would represent urban consolidation within a preferred location where Council is seeking a change in character. It emphasised that the proposal would ensure that impacts on amenity remain within acceptable limits. 3 The applicant relied on amended plans in the proceeding.4 These have been substituted by order of the Tribunal with consent of the parties. The responsible authority advised that it would not have changed its position in any material way as a result of the changes proposed.

CONSIDERATION OF THE APPLICATION 4 There was no dispute in this proceeding that the site is well located to sustain an increase in housing density consistent with planning policies at state and local level. Likewise, the site is well dimensioned and has capacity for redevelopment for a well-designed medium density townhouse proposal. 5 The grounds of refusal do not raise any issues about unreasonable off-site amenity impacts, and I consider that the proposal would provide a suitable interface to both adjacent properties. 6 The concerns of the responsible authority stemmed from a perceived inadequate response of the particular layout, siting and design to the character of the neighbourhood. It also emphasised deficiencies in meeting

3 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. 4 The plans increase the spacing between dwellings 3 and 4 at upper level and replace the garage for dwelling 4 with a carport in recognition of the easement. Changes were also made to dwelling 2 to increase solar access to its private open space.

VCAT Reference No. P1945/2016 Page 4 of 12 ResCode objectives, especially in providing adequate secluded private open space for Dwelling 2.

Response to neighbourhood character 7 The starting point is to consider the purpose of the zone, which include encouraging development that respects the neighbourhood character of the area. This is to be balanced with encouragement of a diversity of housing types and housing growth, especially in locations such as this. 8 There is also a need to consider planning policy at State and local level, including clause 22.01. The subject land is included in Character Area B under the Council’s Urban Character Study.5 The statement of current character recognises evenly distributed and consistently set back dwellings of a functional architectural style. It notes that multi dwelling developments occur ‘intermittently’ (generally closer to commercial centres and collector roads) and are mainly single storey. Well planted front gardens are present, together with low fences and walls. 9 This is a case where the existing character and policy aspirations do not align well with the character of emerging development and do not reflect an area that is genuinely in transition in character terms. 10 This was recognised fairly by the responsible authority in its submissions at the hearing, but was not addressed as directly in the delegate’s report that led to the refusal. 11 The permit applicant submitted that medium density residential development is in fact a defining characteristic of the immediate setting. While I would not necessarily go so far at the present time, I would accept that this form of housing is prevalent and increasing in popularity. 12 The Monash Housing Strategy is a policy document adopted by the Council in late 2014. It recognises that built form in this area will change, influenced by the location of the subject land within the Monash National Employment and Innovation Cluster.6 13 This transition has been acknowledged by Council in so far as Amendment C125 to the planning scheme seeks to rezone the land. This Amendment is currently with the Minister for Planning and, as far as I am aware, has not been approved as at the date of this decision. 14 The Amendment would potentially include the land in the General Residential Zone (Schedule 6)7, covered by the Design and Development Overlay (Schedule 13). In policy terms, the land would be included in the

5 This study was undertaken in 1997. 6 As included in Plan Melbourne (refresh document). The land would be covered by Categories 3 and 8. 7 Under that schedule, the minimum street setback would be reduced to 4 metres, rear setbacks would be increased to a minimum of 4 metres and the minimum area for private open space areas would be reduced to 50 square metres. By contrast, the Panel had recommended the continued application of Schedule 2 to the subject land.

VCAT Reference No. P1945/2016 Page 5 of 12 higher order Housing Diversity Area. This would represent a significant change to existing conditions, and this Amendment is to be regarded as seriously entertained and a relevant consideration under section 60(1A)(h) of the Planning and Environment Act 1987. 15 To the extent that policy for Character Area B seeks future character to take the form of ‘modest and unassuming’ residential development, I consider that this level of change is being intensified both ‘on the ground’ and in terms of anticipated planning policies. 16 At the same time, the aspects of the future character statement that remain potentially the most relevant are that development should be ‘appropriate in scale and form’ to existing dwellings, unified by a ‘general consistency in building setback’.8 Low front fences with views to well planted front gardens are encouraged to create a ‘buffer’ between dwellings and the street. I have further considered and applied policy in clause 22.01-3 as it becomes more specific to guide its implementation. 17 In terms of this particular proposal, the responsible authority accepted that the subject land could sustain an increase in the number of dwellings. It did not inherently take issue with the notion of providing four townhouses on the subject land, although it appeared to consider that the development of three townhouses on this property was preferable, since it would provide increased scope for a design response that was sensitive to neighbourhood character. 18 However, it considered that the built form proposed would be unacceptable because it would provide attached double storey forms to both site frontages with little recession from the level below. It further submitted that the setback to the corner of the property was inadequate, that there would be an inadequate transition to adjacent single storey dwellings and that the garages would be overly dominant.9 It emphasised concerns that there would be excessive hard surfacing and limited scope for landscaping. 19 Having the benefit of the submissions of the parties, confirmed by my site inspection, I find that the proposal would represent an appropriate response to both the existing and emerging character of the neighbourhood. This is balanced with its contribution to consolidating housing in an established urban area that has been identified for increased diversity and densities. 20 The proposal has a number of positive features assisting it to integrate into its built form setting, including:  the built form segmented into two clusters of development, noting that attached building forms are prevalent in the immediate area. The townhouses are limited to a conventional double storey height. Upper level dwelling modules would be separated by 3.8 metres;

8 The policy also expresses a preference for single storey development with some provisos (i.e. graduated change in height or landscaping to soften transition). 9 It did not favour the proposal for two crossovers, which it considered was not in line with policy at clause 22.01.

VCAT Reference No. P1945/2016 Page 6 of 12  providing a front setback of 7.6-8.10 metres that complies with ResCode requirements for the principal frontage (Panorama Street) as well as to the site street (set back 2 metres to the corner, increasing to 5 metres then reducing back to 3 metres before increasing to over 5 metres where it abuts the adjoining property to the west);  building to the boundary is limited, confined to the carport of dwelling 4 and the side of dwelling 1;  site area is limited to 40%, with site permeability of 38%;  sizeable, open rear setbacks capable of supporting landscaping are provided at the interface with the two dwellings on the adjoining land to the north;  areas for landscaping would support sporadic, medium canopy tree planting supplemented by lower level planting. Reasonably sized areas are provided in two locations along the Panorama Street frontage, with a more confined area in front of the sitting rooms of dwellings 3 and 4.  the entire frontage to Panorama Street and a high proportion of the frontage to Fortuna Street (except for a 7 metre stretch of higher fencing) would remain open to views from the street in line with policy aspirations  the styling and detailing of the dwellings reflects the presentation and materials of newer dwellings in the area. In my opinion, it is also respectful of the features of older dwellings that contribute to neighbourhood character as outlined in the character statement for Character Area B; and  car parking requirements are met on site in accordance with clause 52.06. 21 In my opinion, the fact that the development presents a broader façade to the street is not problematic in character terms. In my opinion, each of the two building modules is generally comparable to the massing and scale of a medium sized conventional double storey dwelling in this area. 22 To the extent that the upper levels of the dwellings were regarded by the responsible authority as ‘top heavy’, the upper levels of dwellings 2, 3 and 4 would incorporate meaningful additional setbacks to Fortuna Street. A series of pitched roof forms would be used and conventional fenestration and commonly used external materials would be applied. Although dwelling 4 would include a western cantilever, this element is very confined and is still set back suitably from the common boundary. It has also facilitated an increased setback at the upper level to 7 metres from the property boundary. 23 I find that the proposal would represent an improved streetscape outcome to Fortuna Street, where the current presentation is of a solid garage built to

VCAT Reference No. P1945/2016 Page 7 of 12 the boundary and a tall side timber paling fence. By contrast, the proposal would activate this corner and bring the form and siting of residential development more in line with prevailing buildings opposite and nearby. 24 The proposal includes two crossovers for vehicular access. The permit applicant conceded that this was not a common feature of the area and that it was not a preferred feature in policy terms. However, in character terms this is not dissimilar to the double crossover provided on the other side of Fortuna Street. It is also relevant to consider the dimensions of this site. The crossovers would comply comfortably with ResCode standard B14, at 26% of the frontage. This is a further indication that the streetscape presentation would not be dominated by the provision of vehicular access. 25 It is relevant that this permit application benefits from the transitional provisions in clause 32.08-14, following Amendment VC110 to the General Residential Zone. Nevertheless, I have considered the extent to which the proposal would comply with these newer provisions. 26 I was advised that the proposal would provide approximately 40% garden area, compared with the newly introduced provision of 35% (although this does not technically apply because of transitional provisions).10 The proposal would also comply with the future requirements for maximum building heights in the area.

ResCode considerations 27 I accept the position of the permit applicant, that the proposal represents a generally sound response to the objectives and standards of ResCode. 28 The responsible authority was concerned that Dwelling 2 did not have a northern orientation, and that its private open space would not comply with the B29 Standard in ResCode in terms of solar access to private open space. It regarded this as an indication of excessive density of development. 29 It is true that the private open space for Dwelling 2 does not comply with B29. The question is whether it meets the relevant objective, to allow solar access into the secluded open space of new dwellings. A relevant decision guideline is the useability and amenity of the space based on the sunlight it will receive. 30 The permit applicant advised that the floorplan for that unit could be amended to meet the ResCode standard. This would entail a further set back of the private open space 0.6 metres from the southern boundary. 31 Having regard to the shadow diagrams and the overall layout of that unit, I consider that it strikes an appropriate balance in terms of liveability for future residents. There is still a clear area closest to the dwelling (around a third of the area) that would not be overshadowed from around 12 noon onwards, and overall the needs of residents of this relatively compact unit would be met suitably.

10 Private open space would be provided in excess of 75 square metres per dwelling.

VCAT Reference No. P1945/2016 Page 8 of 12 32 On balance, I prefer not to reduce the internal ground floor area for the dwelling to provide increased depth of open space. The ground floor area is already relatively compact and should not be diminished in this case to achieve slightly improved solar access to the courtyard.11 33 I accept that the orientation of dwelling 2 is not ideal. However, it is evident that there are other ways by which a dwelling can be energy efficient, aside from just relying on a favourable orientation. This aspect would be acceptable as part of the integrated development of the site proposed in this application.

PERMIT CONDITIONS 34 I have adopted the general content of the conditions proposed by the responsible authority and accepted by the permit applicant. As is the Tribunal’s practice, I have deleted matters that refer to additional permissions being granted, such as engineering permits for new crossings. It may be more appropriate that the permit holder be advised of these issues separately by the responsible authority, such as by a covering letter attaching the permit.

CONCLUSION 35 For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Dalia Cook Member

11 Noting that because of its location and orientation, part of it will be overshadowed at relevant times irrespective.

VCAT Reference No. P1945/2016 Page 9 of 12 APPENDIX A – PERMIT CONDITIONS

PERMIT APPLICATION NO TPA/45464

LAND 19 Panorama Street CLAYTON VIC 3168

WHAT THE PERMIT ALLOWS Construction of four dwellings in accordance with the endorsed plans

CONDITIONS 1 Before the development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. The submitted plans must clearly delineate and highlight any changes. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the amended plans submitted to VCAT, but modified to show: (a) The shared vehicle crossing for dwellings 1 and 2 on Panorama Street is to be 5m wide. The associated shared driveway is to be at least 5m at the eastern property boundary. (b) A corner splay or area at least 50% clear of visual obstructions (or with a height of less than 1.2 metres), which may include adjacent landscaping areas with a height of less than 0.9 metres, extending at least 2.0 metres long x 2.5 metres deep (within the property) on both sides of the Unit 1 and 2 shared vehicle crossing and the Unit 3 vehicle crossing as well as on the eastern side of the Unit 4 vehicle crossing to provide a clear view of pedestrians on the footpath of the frontage of the road. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority. 2 All common boundary fences are to be a minimum of 1.8 metres above the finished ground level to the satisfaction of the Responsible Authority. The fence heights must be measured above the highest point on the subject or adjoining site, within 3 metres of the fence line. 3 A landscape plan prepared by a landscape architect or a suitably qualified or experienced landscape designer, drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority prior to the commencement of any works. The plan must show the proposed landscape treatment of the site including:

VCAT Reference No. P1945/2016 Page 10 of 12 (a) The location of all existing trees and other vegetation to be retained on site. (b) Provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development (being two canopy trees within the front garden area, one canopy tree within each of the secluded private open space areas of the proposed dwellings). (c) Planting to soften the appearance of hard surface areas such as driveways and other paved areas. (d) A schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material (e) The location and details of all fencing. (f) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site. (g) Details of all proposed hard surface materials including pathways, patio or decked areas. When approved the plan will be endorsed and will then form part of the permit. All work within the dripline of any tree to be retained must be supervised by a qualified landscape architect or horticulturist who must ensure that the works are done in a manner which protects and minimises any damage to those trees. 4 Before the occupation of the buildings allowed by this permit, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority. 5 Before occupation of any dwelling, all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected. 6 All on-site stormwater must be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from each driveway onto the footpath and must connect to the nominated point of discharge. Such a system may include either: (a) A trench grate (150mm minimum internal width) located within the property; and/or, (b) Shaping the driveway so that water is collected in a grated pit on the property; and/or,

VCAT Reference No. P1945/2016 Page 11 of 12 (c) Another Council-approved equivalent. 7 Stormwater discharge must be detained on site to the predevelopment level of peak stormwater discharge. Approval of any detention system is required by the Responsible Authority, prior to works commencing. 8 The cover of the stormwater pit adjacent the crossover of dwelling 4 must be replaced with a medium duty cast iron cover at full cost to the permit holder. 9 The proposed crossovers must be constructed to the satisfaction of the Responsible Authority. 10 All new crossovers must be a minimum of 3 metres in width. 11 All driveways must be at least 3 metres wide in accordance with Clause 52.06-8 of the Monash Planning Scheme. 12 The walls on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority. 13 Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority. 14 In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:  The development is not started before 2 years from the date of issue of this permit; or  The development is not completed before 4 years from the date of issue of this permit. In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months afterwards. – End of conditions –

VCAT Reference No. P1945/2016 Page 12 of 12