The applicant says the proposal retains the existing dwelling and development of a new dwelling at the rear. The applicant considers the proposal a modest increase in residential density. The site is a corner lot situated on an arterial road opposite a McDonald's car park and in a neighbourhood where the residential character and amenity is influenced by the presence of traffic and a mix of residential and non-residential uses which, in turn, are partly influenced by the presence of the Waverley Private Hospital at the end of Lemon Grove.
The applicant says the site benefits from proximity to services and public transport with walkability within a 20-minute neighbourhood.[5] It is within the Principal Public Transport Network ('PPTN') with bus services 623 along Waverley Road and bus services 703 and 737 along Blackburn Road. The applicant says these attributes support higher levels of residential development.
The applicant says the proposal is to provide a second dwelling on a site of almost 750 square metres where site coverage is 46%, site permeability is just over 44% and the garden area is over 40%, all in compliance with the relevant requirements of the planning scheme.
I note Council acknowledges that the direction given by planning policy is to provide medium density development close to employment and activity centres. The site, while on a main road (Waverley Road), is not next to an activity centre, although it is apparent the site is adjacent to numerous commercial developments and within the broader reach of the Pinewood Neighbourhood Activity Centre to the south. Council says the overall planning outcomes sought are those of limited and incremental change.
I note Council agrees that the site is suitable for redevelopment for an additional dwelling. However, the proposal presents issues relating to the form, scale and design of the development, the lack of setbacks and articulation, the potential for loss of a street tree on Lemon Grove due to the proposed crossover access to the new dwelling and failure to provide a satisfactory landscaping outcome.
The applicant says across the municipality there are examples of large double storey dwellings that have been erected on single residential lots which do not attract the level of scrutiny over built-form design compared to medium density residential development where permit requirements are triggered. Regarding analysis of neighbourhood character, the applicant says it needs to be realistic about what sort of outcome is sought by the community.
In this sense, I agree with Senior Member Baird in Ngo v Monash CC[2024] VCAT 349 which was drawn to my attention by Council that:
I agree with the applicant that an assessment of the proposal's character response must have regard to the site's physical context, which includes existing buildings. Replication of what exists is not required when assessing the acceptability of a development under clause 32.08 and clause 55.
The character of the environs of the subject land includes a mix of one and two storey houses. The 'basis' of a determination is not, however, somehow confined to two storey dwellings in the immediate area of the subject land, as the applicant's submission appears to suggest. I think both parties accept that existing built form is relevant more generally. Nor can this proceeding be determined on the basis of single dwelling development within the broad Monash municipality where examples of the style of dwellings proposed might be found. Assessing neighbourhood character involves the consideration of the public and private realms, and typically the focus is on properties closest and near to the site. I accept that trends might be seen more broadly, however.
Council says the design of Dwelling 2 is inconsistent with the strategic directions of the planning scheme for the creek environs area because of the mock historic design elements including mansard roof, large decorative parapets, quoin detailing of the first-floor balcony structure and building corners, ornate columns of the porch and decorative grill on the first-floor balcony structure. Council says such design features are discouraged by policy. Although there are examples of these design features in the neighbourhood, they are considered by Council to be a more toned-down version which, unlike the proposal, do not dominate the streetscape.
Due to the corner location of the site and the proposal to locate Dwelling 2 behind Dwelling 1, Dwelling 2 faces the side street (Lemon Grove). It is proposed to be setback from the street (Lemon Grove) 4.5 metres at ground floor level, 3 metres from the front porch and 4.6 metres at first floor level with a 4-metre setback to the first-floor balcony. I note that these setbacks are all compliant with the requirements under Standard B6 in Clause 55.03-1.
Most of the east elevation of Dwelling 2 will sit behind the existing dwelling which has a setback of 3.43 metres to Lemon Grove but will be forward of the dwelling to the north at 7 Lemon Grove which is setback 7.859 metres from Lemon Grove (its street frontage).
Council says it is the combination of Dwelling 2 sitting forward of the neighbouring dwelling to the north, together with its large building scale and 'French provincial' mock historic styling that is at odds with neighbourhood character. In addition to the building scale and style is the minimal 200mm recessed upper level facing the street and protruding balcony and porch treatment that contributes to overwhelming the streetscape.
Council says the extent of blank walls and two-storey form also overpowers the modest Dwelling 1, which is single storey with a low pitch roof.
Council says there are issues with the lack of separation between the two dwellings which impacts on the amenity of Dwelling 1 regarding daylight access to existing habitable room windows and the design forcing the secluded private open space for Dwelling 1 to be located within the Waverley Road setback area, which diminishes the responsiveness of the proposal.
Council is concerned that the garden city aspirations are not satisfied in terms of planting canopy trees using indigenous native species and an inadequate rear boundary setback along the northern boundary that fails to satisfy the varied 5 metre rear setback for Standard B17 contained in the schedule to the NRZ3. It says these failings do not create a spacious area for landscaping consistent with the creek environs and garden city aspirations of the NRZ3 and the planning scheme.
Council was also concerned about the protection of a street tree from impacts of the proposed crossover to Lemon Grove. Council's horticultural department commented that no excavation associated with the crossover should occur any closer than 2.8 metres from the trunk of the street tree to ensure its protection.
The applicant refutes that the street tree will be impacted based on advice from an arborist report which states that the street tree will have an 8% encroachment into its Tree Protection Zone ('TPZ') which is considered minor and will not be adversely impacted by the proposed crossover.
Having considered these issues, I find the site is in an area that has a robust character. It is a corner site with frontage to Waverley Road, an arterial and busy road with a mix of residential and commercial neighbours. I note the dwelling to the west is single storey which is separated from the site by a driveway. To the north are two double storey dwellings of a similar architectural styling, albeit toned-down according to Council and separated from the site by a driveway. To the east, opposite the site, is a McDonalds restaurant and associated car park. Across Waverly Road to the south is a residential development comprising both single and double storey built form, and a commercial development on the intersection of Waverley Road and Blackburn Road. The site is in an area where larger style residential development can be absorbed.
Given the presence to the north of similar architectural styled built form, I am not concerned with the 'French provincial' styling of Dwelling 2. I find the architectural style acceptable. However, I consider changes to setbacks will assist in toning back the design of Dwelling 2 to better respond to neighbourhood and streetscape character. Similarly, I consider increasing the side and rear setbacks will also assist in responding to Dwelling 1 and allowing more space for additional canopy tree planting and connectivity with backyard character to improve the response to garden city character.
Regarding the rear setback, the schedule to the NRZ3 requires a setback of 5 metres. Council says this relates to the northern boundary of the site. The applicant says application of this setback is not appropriate for corner lots and is really meant for mid-block scenarios to support backyard character.
I disagree with the applicant's view concerning rear setbacks on corner lots. However, I note the northern boundary of the site relates to what is in effect a side boundary for Dwelling 2 given its orientation facing east towards Lemon Grove. I note there is an easement along this boundary that restricts the potential for canopy tree planting.
I find the true rear of Dwelling 2 is along the western boundary. Regarding a rear setback, I find that, in accordance with the decision guidelines of the schedule to the NRZ3, I will include a condition requiring a setback for the dining room and study of Dwelling 2 of 5 metres from the western boundary. This will provide for enhancement of backyard character whilst allowing unencumbered space for additional canopy tree planting that, together with the proposal to retain five of the trees within the front setback of Dwelling 1, will better enhance and respond to the garden city character sought under the planning scheme.
I also consider that it responds appropriately to Clause 12.06-1S relating to 'Urban forests' which is a new policy introduced under Amendment VC283 to protect and enhance tree canopy in urban areas through planting of new canopy trees on private land.
An increase in the upper-level western setback will also be required for bedroom 3 and ensuite 4. I am comfortable in allowing the proposed setback for the deck and pergola to remain unchanged given this is an open and relatively lightweight structure.
I will include conditions relating to:
Increasing the street setback of the first-floor family room and bedroom 2 of Dwelling 2 to 5.1 metres from the eastern boundary. This assists in breaking up the streetscape appearance of the built form.
A ground floor rear (western) setback of 5 metres for the dining room and study of Dwelling 2.
A first floor (western) setback of 5.5 metres for bedroom 3 and ensuite 4 of Dwelling 2 to maintain consistency with upper level built form recession.
Additional canopy tree planting in the western setback.
Regarding the front fence proposed for Dwelling 2, I am comfortable with the proposal for a rendered brick column and picket fence to 0.9 metres in height. Although it does not comply with the fence height variation of 0.6 metres under the schedule to the NRZ3, I consider it sufficiently transparent to not portray an overwhelming element in the streetscape. It will transition appropriately between the high side fence associated with Dwelling 1 and the adjacent land to the north.
Overall, subject to these changes to setbacks, I consider the proposal achieves an acceptable outcome.
[2]
Regarding amenity impacts, they are fundamentally associated with the proximity between the two dwellings. A setback between Dwellings 1 and 2 of 1.053 metres is proposed which is encroached upon by an existing eave on Dwelling 1 of 50mm.
Council says this is not compliant with Standard B19 under Clause 55.04-3 relating to 'Daylight to existing windows objective'.
The limits on daylight access from the lack of separation between the two dwellings impacts the kitchen and bedroom 3 windows of Dwelling 1. The applicant says the eave on Dwelling 1 could be removed to improve daylight access to its north-facing windows and a new window placed on the west elevation of bedroom 3. Whilst these measures may be helpful, I am of the view that an increase in the provision of daylight access to the north facing habitable room windows of Dwelling 1 is required.
Accordingly, I will include a condition requiring Dwelling 2 to be designed to enable a light court of a minimum area of 3 square metres with a minimum dimension of 1 metre to provide for improved daylight access to the existing habitable room windows of Dwelling 1 in accordance with Standard B19 (Daylight to existing windows). I will also include conditions requiring the removal of the roof eaves on the whole of the northern side of Dwelling 1 to assist in meeting Standard B19 and for the inclusion of a west-facing window to bedroom 3 of Dwelling 1. An adjustment to the relevant sections of the upper-level setbacks commensurate with the ground floor changes to setbacks will also be required on the southern elevation of Dwelling 2.
Similarly, I will include a condition requiring highlight windows to be provided on the upper-level south elevation of the family room and bedroom 3 of Dwelling 2 to assist with articulation and breaking-up of the walls facing over Dwelling 1 towards Waverley Road whilst ensuring overlooking is minimised.
Council was concerned with the location of the secluded private open space for Dwelling 1 within the Waverley Road front setback. I accept that it is difficult to achieve perfect outcomes, particularly when an existing dwelling is proposed to be retained and forcing open space areas to be in sub-optimal locations due to new development. However, in this case, I am satisfied the location of the private open space is an acceptable outcome because it remains private and secluded due to the existing high boundary fencing along Lemon Grove and good access from the dwelling to the area.
[3]
There was discussion around vehicular access for Dwelling 1 by removing the carport within its front setback and re-designing the driveway to include a small turning area that would allow for a motor vehicle to manoeuvre in a forward direction to exit the site. I consider this is an appropriate design response and will include a condition to provide for a turning area.
[4]
I have had the benefit of a 'without prejudice' discussion of a set of draft permit conditions circulated by Council.
There was some discussion between parties as to what conditions should be imposed. I have considered those comments and included conditions as I consider appropriate for the proposal and the issues regarding the proposed development.
[5]
For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.
[6]
Construct a dwelling if there is at least one dwelling existing on the lot.
[7]
Before the development starts, amended plans drawn to scale and correctly dimensioned must be submitted to the satisfaction of and approved by the responsible authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be generally in accordance with the plans submitted to Council prepared by Kinto Architects, dated 16 October 2024 (Revision B) but modified to show:
[8]
(a) The location and design of any proposed electricity supply meter boxes. The electricity supply meter boxes must be located at or behind the setback alignment of buildings on the site, or in compliance with Council's "Guide to Electricity Supply Meter Boxes in Monash". Confirmation (from an installer) that the supply boxes can be accommodated in the locations shown on the plans.
(b) A ground floor setback of 5 metres from the western boundary for the dining room and study of Dwelling 2. The deck and pergola may remain in place. Other setbacks are not to be altered, if not specifically required by another condition of this permit.
(c) A first-floor setback of 5.5 metres from the western boundary for bedroom 3 and ensuite 4 of Dwelling 2. Other setbacks are not to be altered, if not specifically required by another condition of this permit.
(d) A first-floor setback of 5.1 metres from the eastern boundary for the family room and bedroom 2 of Dwelling 2.
(e) Dwelling 2 designed to enable for a light court of a minimum area of 3 square metres with a minimum dimension of 1 metre to the existing habitable room windows of Dwelling 1 in accordance with Standard B19 of pre-VC267 Clause 55.04-3 (Daylight to existing windows) with any commensurate increase in the upper floor south elevation setbacks.
(f) A door from the garage to the adjacent private open space area for Dwelling 2 for the purposes of making the storage externally accessible.
(g) Separate pedestrian pathway adjacent to the accessway for Dwelling 2 to be deleted and the area landscaped
(h) A notation on the ground floor plan which reads 'any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of Clause 53.03 of the Monash Planning Scheme'.
(i) A landscape plan in accordance with Condition 3 of this permit showing:
Additional planting with native species of canopy trees including along the increased setback area from the western boundary to Dwelling 2; and
Additional shrub planting between Dwellings 1 and 2 appropriate to the extent of separation between the two dwellings.
(j) Removal of the roof eaves on the northern side of Dwelling 1 to assist in meeting Standard B19 of pre-VC267 Clause 55.04-3 (Daylight to Existing Windows).
(k) Inclusion of a west-facing window to bedroom 3 of Dwelling 1.
(l) Removal of the carport in the front setback area of Dwelling 1 and provision of a turning area to allow vehicles to exit from Dwelling 1 in a forward direction.
(m) Provision of highlight windows a minimum of 1.7 metres above floor level on the upper-level south elevation of the family room and bedroom 3 of Dwelling 2 to improve articulation.
[9]
All to the satisfaction of the responsible authority.
[10]
The development as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
[11]
Concurrent with the endorsement of any plans requested pursuant to Condition 1, 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. When endorsed, the plan will form part of the permit. The Landscape Plan must be generally in accordance with the submitted landscape plan, except that the plan must be modified to show:
[12]
(a) Any changes required by Condition 1 of this Permit.
(b) A planting schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), pot / planting size, location, botanical names and quantities. Grassed areas are to be detailed in terms of species.
(c) A survey and location of all existing trees, using botanical names to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consist with that depicted on the development layout plan.
(d) All proposed canopy trees to be of a native species.
(e) Planting to soften the appearance of hard surface areas such as driveways and other paved areas.
(f) The location of any retaining walls associated with the landscape treatment of the site.
(g) Details of all proposed surface finishes including pathways, accessways, patio or decked areas.
(h) Landscaping and planting within all open areas of the site.
[13]
Before the occupation of any 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 thereafter be maintained to the satisfaction of the responsible authority.
[14]
Before any development (including demolition) starts on the land, a tree protection fence must be erected around all trees that are to be retained, or are located within or adjacent to any works area (including trees on adjacent land). The tree protection fence must remain in place until all construction is completed on the land, except with the prior written consent of the responsible authority.
No building material, demolition material, excavation or earthworks shall be stored or stockpiled within the Tree Protection Zone ('TPZ') of any tree to be retained during the demolition, excavation and construction period of the development hereby permitted without the prior written consent of the responsible authority.
[15]
The site must be drained to the satisfaction of the responsible authority. Stormwater must be directed to the Point of Connection as detailed in the Legal Point of Discharge report. Stormwater must not be allowed to flow into adjoining properties including the road reserve.
[16]
Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the responsible authority.
Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose, to the satisfaction of the responsible authority. All disused or redundant vehicle crossovers must be removed and the area reinstated with footpath, naturestrip, kerb and channel to the satisfaction of the responsible authority.
[17]
Prior to the occupancy of the development, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the responsible authority. Once installed the screening and other measures must be maintained ongoing to the satisfaction of the responsible authority. The use of obscure film fixed to transparent glass or windows is not considered to be 'obscure glazing' or an appropriate response to screen overlooking.
[18]
Any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of Clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.
[19]
Once the development has started it must be continued and completed to the satisfaction of the responsible authority.
[20]
This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
[21]
(a) The development is not started within two (2) years of the issued date of this permit.
(b) The development is not completed within four (4) years of the issued date of this permit.
[22]
In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition
[23]
[1] The submissions 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.
[24]
[4] Refer to Clauses 15.01-2S, 15.01-5S and 16.01-1S.
[25]
[5] Refer to Clause 15.01-4S - 'Healthy neighbourhoods'.
Parties
Applicant/Plaintiff:
Bai
Respondent/Defendant:
Monash CC [2025] VCAT 847
Legislation Cited (1)
Environment Act 1987
Cases Cited (2)
Bai v Monash CC [2025] VCAT 847 (29 September 2025)
The schedule to the NRZ3 was amended via Amendment VC276 on 2 April 2025, which, in addition to correcting errors following the introduction of VC267, effectively removed the variations that were previously in the schedule.
The transitional provisions established under VC267 meant that Clause 55, as in force immediately prior to gazettal date of VC267, continues to apply to this application, as the application for planning permit was lodged on 6 June 2024.
As the Tribunal found in Oakley Six Pty Ltd v Monash CC[2025] VCAT 648, this also includes the schedule to the zone which was in place immediately prior to the gazettal of VC267.
My assessment has proceeded on the basis of considering the pre-VC267 and pre-VC276 version of Clause 55 and the Clause 55 variations contained in the schedule to the NRZ3.