Victorian Civil and Administrative Tribunal|2010-03-09

Altarelli & Anor v Moreland CC [2010] VCAT 357 (9 March 2010)

Section 77 of the Planning and Environment Act 1987, Moreland Planning Scheme, Residential 1 zone.

Altarelli & Anor v Moreland CC [2010] VCAT 357

Leave is given to the applicant to substitute for the permit application plans the following plans filed with the Tribunal:
- Prepared by: Zinc Melbourne
- Noted: Revision C
- Drawing Nos: TP01 to TP06, TP06A, TP08
The decision of the Responsible Authority is set aside. In permit application MPS/2008/419 a permit is granted and directed to be issued for the land at 262 Reynard Street, Coburg. The permit will allow Development of land for three double storey dwellings in accordance with the endorsed plans and subject to the conditions contained in Appendix A.

The proposed development fails Clauses 22.10 (Neighbourhood Character) and 55.01-1 (Neighbourhood Character Objective) in particular:
- The bulk, lack of articulation and inadequate side and rear upper level setbacks of Dwellings 3 is inconsistent with the open rear yard character.
- The double storey of Dwelling 3 is not a graduated increase in dwelling height to the predominant surrounding single storey development and does not respect the immediate surrounding rear open yards.
- The proposal provides insufficient space for meaningful landscaping to allow for the provision of a canopy tree within the rear yard of each dwelling, which is characteristic of the area.
The development fails to provide meaningful landscaping areas within the rear yards of each dwelling failing to meet the objectives of Clause 55.03-8, Landscaping Objectives - Standard B13.

The height of proposed western boundary wall of Dwellings 2 and 3 is considered inappropriate as it fails to meet the objectives of Clause 55.04-2, Walls on Boundaries Objective - Standard B18.
The south facing secluded private open spaces areas for Dwellings 1 and 2 is inappropriate as it fails to meet the objectives and required setbacks of Clause 55.05-5, Solar Access to Open Space Objective - Standard B29.

The site is located on the northern side of Reynard Street, Coburg. It is rectangular in shape with a frontage of 9.1 metres, a depth of 40.87 metres and a total site area of 374.2 square metres.

This is an application to review the decision by Moreland City Council ('the Council') to refuse to grant a permit for the construction of three two storey dwellings at 262 Reynard Street, Coburg.
Mr How Ng made an application to amend the plans to those prepared by Zinc Melbourne Revision C. The plans were circulated in accordance with the practice note of the Tribunal and no submissions were received. I accepted these plans as amended plans.
Mr Dezarn and Mr How Ng submitted that Council now consented to the development based on the amended plans and conditions of permit.

The parties were advised orally of the reasons for this decision at the conclusion of the hearing, and they are summarised below.
In coming to my decision, I have considered the matters raised in the submissions, the relevant matters under the Moreland Planning Scheme ('the Planning Scheme'), together with the details of the proposal.
I do not intend to provide a description of the site, surrounds, the planning policies or controls that apply to the site.
Mr Dezarn submitted that Council's primary concerns related to the impact of the proposed development on the amenity of adjoining properties, the internal amenity of future occupants and the bulk and massing of the development. Mr Dezarn submitted that the amended plans prepared by Zinc Melbourne Drawing No TP-01 - TP06, TP06A and TP08 address these concerns. He further submitted that the are appropriate for the following reasons:
- The site is residential 1 with no overlays.
- The plans reduced the length of the wall on the western boundary.
- The plans increase the first floor setback from the northern boundary.
- The plans improve the internal amenity for dwelling 2.
- There is an overall reduction in the bulk and massing of the development.
- The development is consistent with the character of the neighbourhood.
- The development provides housing diversity and affordability consistent with Council's policies.
- The amended development satisfies the provisions of ResCode.
I accept that there has been an agreement between the parties and that the concerns of Council have been addressed with the amended plans.
I will order that a permit be issued subject to conditions.

APPENDIX A: PERMIT CONDITIONS FOR 262 REYNARD STREET, COBURG

Before the development commences, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the VCAT substituted plans (Drawing No: TP-01 to TP-05 Revision C) prepared by Zinc Melbourne circulated by Melbourne Planning Pty/Ltd on 19 November 2009 but modified to show:
- (a) The internal dimensions of the garages at least 6m long by 3.5m wide.
- (b) The garage doors to be at least 3 metres wide.
- (c) A 4 metre inner radius on the approach from the north and south to the garages commencing at a tangent point on the edge of the 3 metre wide portion of the right-of-way and terminating at the closest edge of the nearest garage door with all obstructions deleted from the plan.
- (d) The western edge of the dwelling 1 garage door no further west than 3.6 metres from the eastern boundary of the property and the vehicle crossing aligned to match.
- (e) The widened vehicle crossing with a 1 m straight splay on either side across the full width of the footpath to the kerb.
- (f) A cross section of the vehicle crossing in Reynard Street, stating the levels of the road, channel invert, vehicle crossing; accessway and garage floor, showing that the design level of the garage floor will allow the footpath portion of the vehicle crossing to be constructed with a slope of I in 40 over a lateral distance of 1 metre and allow the B85 template in Figure C1 of the Australian Standard for Off-Street Parking (AS2890. 1) to access the property without 'grounding'.
- (g) Location of the public street light and pole in accordance with condition 4 of this permit.
- (h) All mailboxes placed at the Reynard Street frontage of the site.
- (i) A landscape plan in accordance with Condition 5 of this permit.
- (j) The location of any air-conditioning units and other plant equipment, including any screening.
- (k) A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples (3 copies in a form that can be endorsed and filed).
The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
The existing 3 metre wide bluestone pavement within the existing 3.8 metre to 4 metre wide right-of-way is to be reconstructed from Reynard Street to apposite the northern boundary of the site to provide a suitable quality environment for the rear dwellings and to drain the laneway. The construction is to extend from the eastern fenceline of the right-of-way to a line 300mm inside the site consisting of a 3 metre wide vehicular traffic lane on the eastern side and a pedestrian footpath on the western side. It is to be constructed to Council's standards using construction plans approved by Council and the works supervised by Council.
A public street light and pole are to be installed in the right-of-way to illuminate public access to the new dwellings at the cost of the permit holder to the satisfaction of the Responsible Authority.
Prior to the commencement of any development works, a landscape plan must be submitted to and approved by the responsible authority. The landscape plan must provide the following:
- (a) A schedule of all proposed trees, shrubs and ground covers (including numbers, size at planting, size at maturity and botanical names), as well as sealed and paved surfaces. The flora selection and landscape design should be drought tolerant and based on species selection recommended in the Moreland City Council landscape Guidelines and Technical Notes.
- (b) Identification of any existing tree(s) and vegetation proposed to be removed and retained. Vegetation retainment must include strategies for the retainment (i.e. barriers and signage during the construction process).
- (c) The provision of canopy trees within the front setback(s) to assist in the integration of the development within the existing streetscape.
- (d) Details of the location and type of all paved and sealed areas. Extensive hard surfaces are not supported. The adoption of porous/permeable paving, rain gardens and other water sensitive urban design features is encouraged.
Following completion of the development the areas designated as garden areas on the endorsed landscape plan must be maintained and used as garden areas.
Prior to the occupation of the development, all visual screening measures shown on the endorsed plans must be installed to the satisfaction of the responsible authority. All visual screening and measures to prevent overlooking must be maintained to the satisfaction of the responsible authority. Any screening measure that is removed or unsatisfactorily maintained must be replaced to the satisfaction of the responsible authority.
All stormwater from the land, where it is not collected in rainwater tanks for reuse, must be collected by an underground pipe drain approved by and to the satisfaction of the responsible authority (Moreland City Council, City Infrastructure Department).
Prior to the commencement of the development, a legal point of discharge is to be obtained, and where required, a stormwater drainage plan showing how the site will be drained from the property boundary to the stated point of discharge, must be submitted to and approved by the responsible authority.
All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the responsible authority.
Unless with the prior written consent of the responsible authority, any plumbing pipe, ducting and plant equipment must be concealed from external views. This does not include external guttering or associated rainwater down pipes.
Stormwater from the land must not be directed to the right-of-way to the satisfaction of the responsible authority
A mailbox, with separate aperture for newspapers and other non-mail articles must be provided for each of the premises at the street frontage. The mailbox dimensions, placement and numbering must comply with the Australia Post - General Post Guide 2004 (Point G4.3) as published on its website to the satisfaction of the responsible authority.
Prior to the occupation of the development, all boundary walls must be constructed, cleaned and finished to the satisfaction of the responsible authority.
The garage doors are to be automatic remotely controlled to the satisfaction of the Responsible Authority.
This permit will expire if one of the following circumstances applies:
- (a) the development is not commenced within two (2) years from the date of issue of this permit;
- (b) the development is not completed within four (4) years from the date of issue of this permit.

The responsible autho1ity may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Environment Act 1987

Altarelli & Anor v Moreland CC [2010] VCAT 357

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Altarelli & Anor v Moreland CC [2010] VCAT 357 (9 March 2010)

Parties

Legislation Cited (1)