1. Leave granted to amend the application by substituting the plans dated July 2011.
2. The decision of the Responsible Authority is set aside.
3. In permit application WYP4557/10, a permit is granted and directed to be issued for the land at 8 Marseilles Way, Point Cook, in accordance with the endorsed plans and on the conditions set out in Appendix A. This permit allows the development of three single storey dwellings.

As amended, three single storey dwellings. Two are attached and face the street. The third is at the rear of the two front units. Each dwelling provides two bedrooms and a single garage.

The site is on the east side of Marseilles Way, a street that runs west of Monte Carlo Drive that turns in a southerly direction, Point Cook. It is nearly regular in shape, with a frontage of 19.11 metres, a rear width of 23.96 metres, a depth of 32.5 metres, and a site area of 699.9 sq m. It is vacant land. Adjoining the site to the north is a lot of similar size and dimensions, also vacant. Other abutting developments are single dwellings.

Marseilles Way is part of a recent subdivision, with most lots developed for single dwellings of various styles of single and double storey heights, but mostly with hipped or pitched roofs. Vacant land, similar to the review site, is still available. The styles of buildings can be described as neo-classical, drawing on period features.

1. The permit applicant seeks to develop the land for two double storey dwellings facing Marseilles Way and a single storey dwelling at the rear of the front two dwellings. Council has determined the application and issued a notice of refusal, despite its officer's recommendation to approve subject to conditions. The grounds of refusal relate to neighbourhood character and the proposal not promoting proper and orderly planning.
2. As the permit applicant has lodged an application to review this refusal, the Tribunal must decide whether to affirm or set aside Council's decision, and decide on permit conditions, should a permit issue. In doing so, it must give effect to the Wyndham Planning Scheme ("the Scheme").
3. I record leave granted to amend the application to substitute the plans. The substituted plans dated July 2011, revised the design of the development to all the three dwellings now single storeys.
4. Despite the amendment of the design, Council and respondents maintained their opposition to the development.
5. The issues of this review are the proposal's design response to the character of the area and respondents' concerns.

Whether the design of the new dwellings an acceptable response to the neighbourhood character of the area?

1. The general thrust for urban consolidation and increased housing diversity and types are housing themes of the Scheme. In terms of neighbourhood character, the Scheme does not have a specific policy for the Point Cook area. There is a local policy for the Point Cook Growth area (clause 22.01, Werribee West, Wyndham North and Point cook Growth Area Planning) where it is policy for development to accord with the concept plan for a particular growth area, in this case, the Point Cook Concept Plan. The site is in the residential area of this concept plan. Development of the land for residential purposes is consistent with this Concept Plan.
2. The consideration of neighbourhood character, thus, falls back on the existing neighbourhood character. The existing neighbourhood character is one of single dwellings, although denser development in the form of attached built form can be found in nearby Mickleton Grove. I have been advised that there was covenant on the area restricting subdivision and development of more than one dwelling on a lot. This covenant has expired on 3 December 2005. This may explain the current dominance of single dwellings in the area.
3. Council submitted that the previous single dwelling covenant has shaped the development pattern of the area. Respecting the existing neighbourhood character, Council contends, is to respond to the features found in the neighbourhood. It submitted that the proposal has failed to do so in the following ways:
   • The breadth and width of Unit 3 across the backyard of the land not consistent with the large backyard character of the area;
   • The private open space of the units do not reflect the openness of backyards of dwellings in the area;
   • Presentation of hard paved areas in the two driveways, one of which is double width for the garage of Unit 2 and the driveway for Unit 3; and
   • Encroachment in the front gardens in the form of the dividing fence between Units 1 and 2, and front porches of these two units.
4. Respondents submitted that they are attracted to the area because of the large blocks. They object to the development of three units on the land.
5. Ms. Gray, on the other hand, pointed out that Point Cook is a growth area, and development of the site for a medium density development is consistent with this theme. She also pointed out that the Tribunal has approved similar developments in Point Cook[1], and that each time the Tribunal formed the view that there is no policy direction in the Scheme to preclude medium density development in the Point Cook area.
6. She submitted that Council and respondents have failed to understand the fundamental principle of neighbourhood character, that a development resulting in eventually smaller allotments is not a failure of neighbourhood character. To her, existing dwellings, although one dwelling on a lot, involves a level of site coverage and scale that makes the house a dominant structure on the land. She submitted that the amended design to show a single storey built form is less intrusive than the surrounding dwellings, and that the face brickwork external materials and tiled hipped roof forms are also consistent with development in the area.
7. With regard to car parking and driveways, she submitted that dominant car parking structures are a common feature of houses in the area.
8. My inspection of the site and area confirmed the substantial size of single dwellings in the area and the variety in building styles of these buildings.
9. As a neighbourhood character consideration, the proposed single storey scale at the front is modest compared to the abundance of two storey building scale in the area. The single storey scale of Unit 3 at the rear is an appropriate transition of building scale from the adjoining backyards.
10. With regard to Council's concern of excessive hard paved area because of the two driveways, one of which is double width, the width of the lot is over 19 metres and can accommodate two driveways, as long as the percentage of frontage taken up meets Standard B14 of Clause 55.03-9, and the street tree in the way of the wider crossover is replanted in another location and at the cost of the permit holder.
11. In all, I find the scale of the proposed development and design response to the neighbourhood an acceptable one, subject to the width of the crossovers meeting Standard B14 and replacement of the street tree.

1. Apart from neighbourhood character, another relevant consideration is amenity impact on adjoining dwellings. On this score, the proposal meets all the amenity impact standards of Clause 55.04.
2. I now turn to respondents' other concerns.
3. One of these is the type of likely residents of the dwellings. Respondents expressed concerns that residents of these dwellings may not be long term.
4. The proposal is to add to the housing diversity and types of Point Cook. Two bedroom accommodation will attract residents who do not need more bedrooms or larger backyards. It does not mean they will not be long term residents, just residents who have different needs.
5. Another of these concerns is what they consider as unsatisfactory internal amenity, such as 'apartment style' laundries which do not have direct access to an open area, and bathrooms which do not have windows. The secluded private open space of Unit 3 was described as of 'cricket pitch' size.
6. The proposed dwellings are compact. Not having a stand-alone laundry such as Unit 1 or laundries not opened to an open yard is not fatal to a proposal, as long as the facilities are functional and meet building regulations. With regard to bathrooms not having windows, ventilation is the crux, which can be by mechanical means and as long as it can meet building regulations. Bathrooms with mechanical ventilation are actually quite common. With regard to the size of private open space as being too small, each dwelling (two bedrooms) is provided with more than 40 sq m of secluded private open space in accordance with Standard B28, not including private open space that is not secluded. The proposal meets the test of for private open space in Clause 55.
7. With regard to the proposal causing traffic hazards to the children of the area, this is an unsubstantiated statement. Most vehicles in the area reverse into the street. The proposal involves three vehicles reversing into the street. It is no more dangerous than all the other development with two or three garages reversing into the street.
8. With regard to the proposal not providing adequate car parking and thus imposing on-street parking in an area where the street is narrow, the proposal provides one parking space for each dwelling, each of which provides two bedrooms. This is a parking rate that meets Standard B16 of Clause 55.03-11.

1. During the submissions of the parties, it emerged that the garage of Unit 3 is built over an easement. Although Council made no submission whether permission has been given to construct over this easement, Ms. Gray was confident that a garage, or a carport, can be constructed over the easement.
2. I will impose a permit condition for the replacement of the garage with a carport if no permission can be obtained for a fully enclosed space.

1. Urban consolidation and provision of housing diversities and types are themes for residential development in Wyndham. The proposal is consistent with the zoning of the land and the concept plan for the Point Cook Growth Area. The design is acceptable in the existing neighbourhood character and meets the tests of Clause 55.04.
2. I support the proposal subject to the conditions contained in Council's 'without prejudice' conditions, except the recommended condition (1a) to provide a dividing landscape strip or a 150mm kerb between the accessway of units 2 and 3, to label the car spaces for Units 1 and 2 (1c), and the condition requirement a waste management plan (Condition 21). These are in addition to the new requirements for condition 1 with regard to the garage or carport of Unit 3 due to the easement that it is to be built over, replacement of the street tree in the way of the crossover of Units 2 and 3, and limiting the access width to meet Standard B14.

1. The development permitted by this permit must not be commenced until amended plans to the satisfaction of the responsible authority are submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of this 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 plans substituted for the application plans by VCAT (dated July 2011) but modified to show:
   • (a) Widen garage door opening of Unit 2 to have a total clear width of 2.80m;
   • (b) Replace the garage of Unit 3 over the easement by a carport if required by Condition 29;
   • (c) Width of frontage taken up by crossovers and driveway not to exceed Standard B14;
   • (d) A nominated area at the front of the property for bin collection;
   • (e) Location of storage areas;
   • (f) Metre box location for all dwellings.

1. The development and/or use(s) permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the Responsible Authority.

1. Prior to the commencement of the development hereby permitted, three copies of a landscaping plan prepared by a suitably qualified person must be submitted and approved to the satisfaction of the Responsible Authority. Consideration should be given to the use of indigenous plants. All landscape plantings and treatments need to be suitable for the specific climatic and soil conditions of Wyndham. The landscape plan will show the following:
   • (a) Clearly drafted at a scale of 1:100 with a north point and legend;
   • (b) Clear graphics to indicate trees (deciduous or evergreen), shrubs, ground covers, grass, etc.;
   • (c) Botanical and common name, pot size, quantity, planting density and size at maturity of all plantings;
   • (d) Noted planting specification drawings;
   • (e) Location of all surface treatments with materials and colours notated;
   • (f) Location and construction details of all built features including building, fences, structures etc.;
   • (g) Mark all crossovers.

1. The landscape area(s) shown on the endorsed plan(s) must be planted and maintained to the satisfaction of the Responsible Authority and once landscaped must not be used for any other purpose except with the prior written consent of the Responsible Authority.

1. The development and the appearance of the subject land permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality. No emissions from site (noise, light, odour, dust etc.) can be permitted to cause a nuisance to surrounding properties under the Public Health and Wellbeing Act 2008, Environment Protection Act 1970 or any other legislation.

1. Garbage containers must be stored out of view to the satisfaction of the Responsible Authority.

1. All clotheslines must be positioned so as not to be visible from any nearby street to the satisfaction of the Responsible Authority.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the buildings without the prior written consent of the Responsible Authority.

1. Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.

1. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

1. Vehicular access to the subject land from any roadway or service lane (and vice versa) must be by way of a vehicle crossing(s) constructed at right angles to the road, to suit the proposed driveway(s) and vehicles that will use the crossing. The locating, design and construction of the vehicle crossing(s) must be approved by the Council. Any existing unused crossing(s) must be removed and replaced with concrete kerb and channel and any services or infrastructure, including street trees, that require relocation or modification as a result of proposed crossovers must be relocated or modified at the permit holders cost and to the satisfaction of the Council.

1. The whole of the subject land, including landscaped and paved areas, must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.

1. The development is to make provision to store or detain stormwater to a minimum total volume of 3000 litres before discharging to Council's stormwater drainage system.

1. The development must incorporate underground drainage to cater for 1 in 5 year storm return period, and connect to Council's existing stormwater drainage system. If a separate connection into Council's stormwater drain is required, the applicant must submit drainage plans and computations to the drainage engineer for approval.

1. The development permitted by this permit must not be occupied until:
   • (a) the parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority; and
   • (b) the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible authority.

1. Mechanical ventilation systems and air conditioning units are to be suitably located so they do not cause a nuisance under the provisions of the Public Health and Wellbeing Act 2008.

1. All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the Responsible Authority and all care must be taken to minimise the effect of such activities on the amenity of the locality. Measures must be taken to suppress dust, noise or other emissions during construction to prevent nuisance to surrounding neighbours as defined by the Public Health and Wellbeing Act 2008.

Construction and/or demolition works must comply with the requirements specified in the Environment Protection Authorities, Noise Control Guidelines Publication 1254, October 2008.

1. Provision must be made for an acceptable pick up point for waste collection services that is satisfactory to the Responsible Authority.

1. Waste collection times should be restricted to 7.00 am - 8.00 pm Monday to Saturday and 9.00 am - 8.00 pm Sunday and Public Holidays, in accordance with the Environmental Protection Authorities Noise Control Guidelines Publication 1254, October 2008.

Conditions 22 to 28 at the Request of Engineering Services

1. The whole of the subject land, including landscaped and paved areas, must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.
2. The development must incorporate underground drainage to cater for 1 in 5 year return, and connect into the stormwater drainage system.
3. Provisions are to be made within the development (eg, underground detention system or rainwater tanks) to adequately manage any additional flow created between allowable stormwater discharge and post-development stormwater discharge.
4. The design and use of underground detention system must be submitted and approved by Council's Engineering Department.
5. Must provide town planning stamped approved plans when applying for Road Opening Permit.
6. Construction of new crossover/relocation of existing crossover:-
   • (a) Subject to the relocation of the existing street tree at cost to the permit holder and to be approved and/or carried out by the Responsible Authority;
   • (b) Must be constructed in accordance with Council standard drawings;
   • (c) Must be no closer than 10m from nearest intersection;
   • (d) Must obtain approval from relevant authority if there are services within 1.0m from proposed crossover;
   • (e) Distance of 2.5m from street trees, if unable to maintain 2.5m distance from street trees, this will then be assessed when an application for a road opening permit has been requested.
7. If a 1m distance from the light pole cannot be maintained, the light pole is to be relocated at no cost to Council to achieve a double residential crossover in accordance with Council standard drawings.

1. The development permitted by this permit cannot commence until such time as approval is obtained from the Relevant Authorities for the garage of the proposed dwelling (Unit 3) to be constructed over the rear 3.0m wide easement of the property.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development permitted by this permit is not commenced within two (2) years from the date of the issue of this permit;
   • (b) the development is not completed within four (4) years from the date of the issue of this permit.

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

[1] 35 La Rochelle Boulevard VCAT P2726/2010, 19 Messina Crescent P3091/2009, 4 Cardiz Waters, P1607/2009, 5 Mccubbin Court P1450/2008, 10 Santander Crescent P160/2009, 32 La coruna Gardens P158/2009, and 7 Bilboa way P1489/2008.