<p>VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL</p><p>ADMINISTRATIVE DIVISION</p><p>VCAT REFERENCE NO. P919/2016 PLANNING AND ENVIRONMENT LIST PERMIT APPLICATION NO. TPA/44605</p><p>CATCHWORDS</p><p>Monash Planning Scheme; dwelling behind existing dwelling; neighbourhood character; rear setbacks; private open space in frontage.</p><p>APPLICANT Frank Penzes RESPONSIBLE AUTHORITY Monash City Council SUBJECT LAND 11 Coane Street, Oakleigh East WHERE HELD Melbourne BEFORE Michael Nelthorpe, Member HEARING TYPE Hearing DATE OF HEARING 28 October 2016 DATE OF ORDER 8 November 2016 CITATION Penzes v Monash CC [2016] VCAT 1884</p><p>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: Cookesley Secatore Designs  Drawing numbers: TP1-TP11 inclusive. All Revision E  Dated: 21 August 2016 2 The decision of the Responsible Authority is set aside. 3 In permit application TPA/44605 a permit is granted and directed to be issued for the land at 11 Coane Street, Oakleigh East in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:  Development of two dwellings on a lot in the General Residential Zone Schedule 2.</p><p>Michael Nelthorpe Member</p><p>APPEARANCES For Applicant Mr Spiro Neofitou, town planner of Planning Vision. He called the following witness:  Mr Robert Thomson, landscape architect of habitat landscape environmental design consultants. For Responsible Authority Ms Adrianne Kellock, town planner of Kellock Town Planning.</p><p>INFORMATION Description of Proposal A new dwelling behind an existing dwelling. 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 Permit Requirements Clause 32.08-4: to develop the land for two or more dwellings. Relevant Scheme, policies Clauses 11, 15, 16, 21.04, 22.01, 22.05, 52.06, 55 & and provisions 65. Land Description This rectangular site is located mid-block on the west side of this street. It has a 16.76 metre frontage, a 44.17 metre depth and an area of 736 square metres. A single-storey dwelling occupies the site. Tribunal Inspection 30 October 2016</p><p>VCAT Reference No. P919/2016 Page 2 of 12 REASONS1</p><p>WHAT IS THIS PROCEEDING ABOUT? 1 Frank Penzes (‘the applicant’) proposes to construct a two-storey dwelling behind the existing dwelling at 11 Coane Street, Oakleigh East. Monash City Council refused to grant a permit, saying the development did not positively contribute to the preferred neighbourhood character, failed to meet relevant ResCode standards, and is an overdevelopment of the site. The applicant seeks a review of this decision. 2 They rely on amended plans that marginally increase the side and rear setbacks of the new dwelling and increase the articulation of its elevations. The plans also limit the amount of fencing in the front yard. They also rely on Mr Thomson’s evidence that the amended proposal provides sufficient space for canopy trees and other landscaping that will contribute to the neighbourhood’s preferred landscape character. 3 I consider that the issues I must address are:  Does the proposal contribute positively to the neighbourhood’s preferred character?  Are the relevant ResCode objectives met?  Is the proposal an overdevelopment of the site? 4 Having heard submissions and evidence, and having inspected the site and surrounds, I have decided to grant a permit. I find that the council has not had sufficient regard for the evolving character of this neighbourhood. The proposal is acceptable in this context. 5 My reasons follow.</p><p>DOES THE PROPOSAL CONTRIBUTE POSITIVELY TO THE NEIGHBOURHOOD’S PREFERRED CHARACTER? 6 The council contends that the design of the new two-storey dwelling is not sympathetic with the neighbourhood’s character. It contends that the dwelling’s ‘box-like’ form fails to provide a suitable graduation in height and scale to its surrounds. It highlights the limited articulation between the ground and first floor and contends that the depth of the side and rear setbacks is not sufficient to allow the dwelling to integrate with its surrounds. Separately, it contends that the dwelling’s design, including its saw-tooth roof profile, is not in keeping with the predominant style and form of nearby dwellings.</p><p>1 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. </p><p>VCAT Reference No. P919/2016 Page 3 of 12 7 In these contentions, the council relies on the statement of desired future character for this neighbourhood. In particular, it relies on the sentences saying that: Redevelopments will be single storey unless there is a graduated change in height or on-site trees and large shrubs to soften the transition between buildings (my emphasis); and Sympathetically designed buildings will be encouraged. 8 Judging from the surrounding development, this guidance regarding the neighbourhood’s future character has been interpreted as allowing two- storey dwellings with recessed first floors and pitched roofs. There are numerous developments of this type along Coane Street and the neighbouring streets to the east and west. Overall, there are so many new developments that it is likely that there are more new dwellings than original dwellings in this neighbourhood. 9 While the overall form is as I have described, there are many subtle variations in scale dependent on the number of dwellings per lot, the number and configuration of rooms, and the mix of single and double storey height. There are also variations in form via façade or roof design, window forms, and/or materials and finishes. Even the dominant recessed first floor form is not consistent or uniform. There are differences in degree, ranging from sheer yet recessed upper floor form to triple-fronted recessed upper floor form. 10 The variations in scale appear to impact on the amount of space available for landscaping. Front setbacks appear to be uniform yet space in rear courtyards is not. Immediately abutting the review site to the south-west is a dwelling built closer to the side and rear boundaries than what is proposed here. Space for landscaping is limited. Immediately to the south is a dwelling with a smaller rear setback than what is proposed, and a larger side setback. 11 I find that these characteristics allow for a different expression of the notion of a graduated change in height. In this design, the graduation results from a combination of relatively deep ground floor side and rear setbacks, with a first floor massed over part, yet not all, of its ground floor footprint. While this differs from its neighbours, I find it is acceptable in this neighbourhood. The small, but noticeable, degree of recession assists in this. 12 I find that the direction encouraging ‘sympathetically designed buildings’ has been interpreted liberally in Coane Street and in nearby streets. It appears that the modest size and uncomplicated form of the original dwellings has allowed the relatively uniform, yet subtly diverse, new dwellings now found here. I accept that the proposed dwelling varies from this, yet I find its scale and siting is consistent with many of the multi- dwelling sites nearby. I find it relevant that only two dwellings are </p><p>VCAT Reference No. P919/2016 Page 4 of 12 proposed on this relatively large site, as this ensures a greater spacing of built form than occurs where three dwellings are sited on similarly sized lots. I find that the combination of the subtle diversity of building forms and the relatively generous siting of dwellings on the review site accords with the direction regarding sympathetically designed buildings in this neighbourhood. 13 The council contends that the siting of the existing dwelling’s private open space in the frontage is not consistent with the neighbourhood’s character. I find against this contention because Coane Street contains a number of sites where front yards are appropriated for private open space. As such, what is proposed is not uncommon and will have little impact on the streetscape. Separately, I am influenced by the fact that there will be little apparent change as a consequence of siting private open space in the frontage. This area is already used for this purpose, and the existing dwelling has been renovated to take advantage of this space. To this end, a 1.5 metre to 1.7 metre high pittosporum hedge surrounds the space to the east and south. The only proposed addition is to fence the northern side of this area. I find this is a subtle change that is acceptable. 14 Separately, the council contends that the proposal does not provide adequate space for landscaping that will contribute to the Garden City character of the municipality. It says there is only space for canopy tree planting in the frontage, and that this is insufficient. 15 From my site inspection, I observed that this Garden City character was poorly realised in this neighbourhood. Plantings in most properties are relatively sparse. I find that the implementation of Mr Thomson’s landscape plan will positively contribute to the desired Garden City character in both the front and rear yards of this site. 16 He proposes to introduce a Chinese Elm in the frontage, and I find this can be accommodated without detracting from the use of the frontage for private open space. In the rear setback, he proposes to introduce varieties of Weeping Lilly Pilly, Blueberry Ash and Kanooka. I find these will soften views of the new dwelling from adjoining properties without unduly obstructing the use of this setback as private open space. Further to this, upright pear and magnolias are proposed along the north and south side setbacks respectively, and these will also contribute to the Garden City character. In all, I find this planting scheme is appropriate. My only concern relates to the width of the northern landscape bed, which I will require to be increased to 800mm to the west of the kitchen of the existing dwelling before tapering to the entry of the garage of the new dwelling.</p><p>ARE THE RELEVANT RESCODE OBJECTIVES MET? 17 The council contends the proposal fails to meet relevant ResCode standards for landscaping, private open space, overshadowing, integration with the </p><p>VCAT Reference No. P919/2016 Page 5 of 12 street, energy efficiency, storage and site services. It says that the proposal’s lack of compliance with standards relating to overlooking, dwelling entry and parking location can be addressed by conditions if a permit were to issue. 18 My reasons on neighbourhood character and landscaping address some of these concerns. I note the council’s concern with the 3.5 metre width of the rear setback, yet I consider it acceptable in this context of narrow rear setbacks in new developments in this neighbourhood. As such, I find it satisfies neighbourhood character policy. In terms of the ResCode standard, I find the combination of the new dwelling’s layout and the total area of adjacent private open space meets the objective of clause 55.05-4 as it provides adequate space for the reasonable recreation and service needs of future residents of this dwelling. 19 With regard to overshadowing, I find that the new dwelling’s shadow over the private open space of the dwelling to the south-west does not exceed that of the existing fences after 10am. I find this delivers an acceptable degree of compliance with the objective regarding overshadowing. A similar circumstance applies to the dwelling to the south. 20 The amended plans address some of these concerns. The area of private open space allocated for the new dwelling now meets the standard and outdoor storage is shown for both dwellings. 21 I note the council’s concern regarding the potential for overlooking of the dwelling to the north from the upstairs bedroom 3 window of the new dwelling. I do not accept these concerns. Vertical slit windows are proposed within a frame. These design elements encourage forward views and limit angled views. Here, the potential impact derives from angled views that I find unlikely to be dominant or intrusive. Further to this, the degree of non-compliance is minimal because the views are only available approximately 9 metres from these windows. As such, I find it acceptable to leave these windows unscreened.</p><p>IS THE PROPOSAL AN OVERDEVELOPMENT OF THE SITE? 22 The council contends the proposal is an overdevelopment because it has been designed to minimum standards. I find against this submission because it is poorly justified. ResCode is not a set of prescriptions. It does not refer to nor mandate ‘minimum standards’. It is structured so that an applicant can seek to persuade the decision-maker that the standards are met, or that the design justifies a variation to these standards because the objectives of ResCode are met. It is simply incorrect to rely on a reference to ‘minimum standards’. 23 Separately, the proposal to retain the existing dwelling and construct only one additional dwelling results in relatively spacious siting on this site in comparison to many of its neighbours. This has influenced my decision.</p><p>VCAT Reference No. P919/2016 Page 6 of 12 OTHER MATTERS 24 The garage of the new dwelling significantly encroaches on the Tree Protection Zone of a 4 metre high Desert Ash on the adjoining property to the north. Conditions on the permit require less-invasive building techniques to protect this tree. However, they also provide for the possibility that this tree may be removed prior to construction of the new dwelling. This possibility was discussed at the hearing where I was informed that the council regard this species as a weed, and that an application for redevelopment of the affected property that included removal of this tree had been lodged with the council. I find this is an acceptable outcome.</p><p>WHAT CONDITIONS ARE APPROPRIATE? 25 The draft conditions circulated by the council were discussed at the hearing. I have modified these conditions to reflect my reasons. Separately, I have made the following changes: 26 I have revised sub-condition 1b) to require only a single sight triangle on the driveway as this complies with the relevant Australian Standard; 27 I have deleted the first section of sub-condition 1g) because the plans show that the north-facing study window of the new dwelling has obscured glazing; 28 I have revised draft conditions 1k), l) and m) and Condition 3 to include the possibility that the Desert Ash discussed above will be removed prior to construction of the new dwelling; and 29 I have referred to Mr Thomson’s landscape plan in Condition 4.</p><p>CONCLUSION 30 For the reasons explained above, the decision of the Responsible Authority is set aside. A permit is issued subject to conditions.</p><p>Michael Nelthorpe Member</p><p>VCAT Reference No. P919/2016 Page 7 of 12 APPENDIX A</p><p>PERMIT APPLICATION NO: TPA/44605</p><p>LAND: 11 Coane Street, Oakleigh East</p><p>WHAT THE PERMIT ALLOWS:</p><p>Development of two dwellings on a lot in the General Residential Zone Schedule in accordance with the endorsed plans.</p><p>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 plans circulated by the permit applicant prior to the VCAT hearing, prepared by Cookesley Secatore Designs, labelled TP05 to TP09 Rev E and dated 21/08/2016, but modified to show: a An increased width of the northern landscape bed to 800mm to the west of the kitchen of the existing dwelling before tapering to the entry of the garage of the new dwelling; b Labelling of the existing vehicle crossover for dwellings 1 and 2 to be fully reconstructed to Council’s satisfaction. c Provision of a corner splay or area at least 50% clear of visual obstructions (or with a height of less than 1.2 metres) extending at least 2.0 metres long by 2.5 metres deep (within the property) on one side of the vehicle crossing to provide a clear view of pedestrians on the footpath of the frontage road. d Floor plans and elevation plans of the existing dwelling, including the location of windows/doors and any proposed demolition works. e All alterations to the existing dwelling, including changes to window/doors, on the floor plan and elevation plans. f A notation that Dwelling 1’s lounge room must not be used as a bedroom. g Minimum sill heights of at least 1.7 metres above finished floor level to Dwelling 2’s two (2) rumpus room windows.</p><p>VCAT Reference No. P919/2016 Page 8 of 12 h The finished floor level of the garage serving the existing dwelling and its boundary wall height above natural ground level. i Removal of the paling side fence within the front setback area of the existing dwelling. j The Structural Root Zone and Tree Protection Zone (TPZ)of Tree No. 1 (Desert Ash) within the neighbouring rear yard to the north (9 Coane Street). k Notations that within the TPZ of Tree No. 1 that if this tree is retained prior to construction of Dwelling 2, then: o Foundations must be constructed of pier and beam or other root sensitive construction methods, such as suspended slab or bridged footings. o There must be no below grade construction or excavation (except for the purposes of piers and supports if required). o Piers and supports (if required) must be selectively placed to provide a clearance of at least 0.3 metres from any significant tree roots (deemed roots greater than 40mm in diameter) in accordance with the recommendations of an arborist. o There must be no installation of underground services. l Details of existing site levels within the area of Dwelling 2’s proposed garage and within the part of the driveway located in front of the garage, if this tree is retained prior to construction of Dwelling 2. m That if this tree is retained prior to construction of Dwelling 2, then the finished floor level of Dwelling 2’s garage increased so that below grade construction is not required within the TPZ of Tree No. 1. Any consequential changes must: o Maintain a maximum average northern garage boundary wall height of 3.2 metres or less. o Not increase the overall building height of Dwelling 2 or the height of the southern boundary wall. o Ensure that the driveway grade provides both dwellings with safe, convenient and manageable access. n A reduction in the extent of the pedestrian path and adjoining landscaping area serving Dwelling 2 to improve ease of vehicle access to the existing dwelling. 2 The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority. 3 That if Tree No. 1 is retained prior to construction of Dwelling 2, then a qualified arborist must be present on site to supervise all works within the TPZ of Tree No. 1 and any necessary pruning of overhanging branches or root pruning must be undertaken by the arborist. Written advice is to be </p><p>VCAT Reference No. P919/2016 Page 9 of 12 provided to Council’s planning department that all of the requirements of Condition 1j) have been carried out within 30 days of such works, or at such later time as agreed by the responsible authority. 4 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 be generally in accordance with the Landscape Plan prepared by habitat landscape and environmental design consultants titled ’11 Coane Street, Oakleigh East dated October 2016 and show: o the location of all existing trees and other vegetation to be retained on site p provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development q planting to soften the appearance of hard surface areas such as driveways and other paved areas r 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 s the location and details of all fencing t the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site u 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. 5 No building material, demolition material or earthworks shall be stored or stockpiled under the canopy line of any tree to be retained during the construction period of the development hereby permitted. 6 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. 7 The nominated point of connection for the site is the north east corner of the property where the entire site’s stormwater must be collected and free drained via a pipe to the kerb and channel to be constructed to Council Standards. (A new pit is to be constructed if a pit does not exist, is in poor condition or is not a standard Council pit).</p><p>VCAT Reference No. P919/2016 Page 10 of 12 If the point of discharge cannot be located then notify Council’s Engineering Division immediately. 8 All on-site stormwater is to 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 driveways onto the footpath. Such a system may include either: a trench grates (150 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 c another Council approved equivalent 9 Stormwater discharge is to be detained on site to the predevelopment level of peak stormwater discharge. Approval of any detention system is required by the City of Monash prior to works commencing. 10 Any new drainage work within the road reserve or connection into a Council easement drain requires the approval of the City of Monash’s Engineering Division prior to the works commencing. Three printed copies of the plans (A3-A1 size) for the drainage works must be submitted to and approved by the Engineering Division prior to the commencement of works. The plans are to show sufficient information to determine that the drainage works will meet all drainage conditions of the permit. A refundable security deposit of $500 is to be paid prior to the drainage works commencing. 11 Engineering permits must be obtained for new or altered vehicle crossings and for new connections to the kerb and channel Council drains/pits and these works are to be inspected by Council (telephone 9518 3555). 12 Before occupation 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. 13 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. 14 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority. 15 The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority. 16 Approval of each proposed crossing, and a permit for installation or modification of any vehicular crossing is required from Council’s Engineering Department.</p><p>VCAT Reference No. P919/2016 Page 11 of 12 17 The proposed crossing is to be constructed in accordance with the City of Monash standards. 18 All new crossings must be a minimum of 3.0 metres in width. 19 This permit will expire if one of the following circumstances applies: (a) The development is not started within two years of the issued date of this permit. (b) The development is not completed within four years of the issued date of this permit. In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition. --- End of Conditions ---</p><p>VCAT Reference No. P919/2016 Page 12 of 12</p>