Brentwood Homes v Mornington Peninsula SC & Ors [2012] VCAT 39

1. The decision of the Responsible Authority is affirmed. In permit application P10/1878 no permit is granted.

Construction of 12 single storey dwellings. More particularly, the proposal includes the following features:

• Nine dwellings are 3-bedrooms and three are 2-bedrooms;
• Each dwelling would have a double garage;
• Eleven units rely on a shared access point while Unit 2 has separate access to Driftwood Crt;
• Primary areas of secluded private open space are on the north side of dwellings and range in area from 40sq.m to 81sq.m.

The dwellings are to have pitched concrete tiled roofs and other external finishes include face brickwork with feature rendered elements. Aside from the relocation of three Washington Palm trees and retention of a Pin Oak at the front, existing vegetation on the land is to be removed.

Section 77 of the Planning and Environment Act 1987.

• Residential 1 Zone (R1Z).
• No overlay controls apply.

• Clause 32.01-4 - Construction of two or more dwellings on a lot (R1Z).

• Clauses 10, 11; 15.01-5, 15.03-1, 16, 21.07-2; 22.11 and 22.13.
• Clauses 55 and 65.

Located at the eastern end of Driftwood Court in the court-bowl, this irregular shaped parcel comprises two lots with a combined curved frontage of 35.73m and total area of 4653sq.m.

The land is elevated above surrounding land, with the highest point in the north-east corner, falling by about 3.7m towards the front. The land is developed with a single storey brick dwelling, swimming pool and outbuildings. There are extensive garden areas, planted with mostly exotics comprising ornamental flowering plants, shrubs, some small trees and three palm trees.

Surrounding land is residential, comprising single and some double storey dwellings.

I inspected the site and surrounds on the morning of 24 November 2011 including a view from No.'s 20, 22 and 27 Driftwood Court.

1. Brentwood Homes[1] has sought planning permission from Mornington Peninsula Shire Council for the construction of 12 dwellings[2] in Driftwood Court Mount Martha.
2. Following public notice of the proposal, 25 objections were received from surrounding residents.
3. The key issue for consideration in this case are:
   • the suitability of this site for a multi-dwelling development given planning scheme policies and controls, the single dwelling covenant which affects other lots in Driftwood Court and the site's court location;
   • whether the design and siting of the new dwellings and opportunities for landscaping are acceptable in neighbourhood character terms;
   • traffic impacts and the acceptability of the proposed carparking and access arrangements.
4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Mornington Peninsula Planning Scheme, the evidence given orally and in writing and the statement of grounds lodged by Carol Andrew, I have decided that a permit should not be granted. My reasons follow.

1. My interim order issued on 7 November 2011 confirmed oral directions given at the hearing. It sought comments from the CFA in relation to fire protection considerations including the design of accessways for fire fighting appliances to and within the site, the location of fire hydrants and any other relevant matter described under Clause 22.11 of the Mornington Peninsula Planning Scheme. Timeframes for a response from the CFA[3] and an opportunity for submissions in response were also given, with such process to conclude by 5 December 2011.
2. Regrettably, due to some administrative difficulties, an email sent to the Tribunal on 19 December 2011 informed the Tribunal that the proposal had not been assessed by the CFA.[4]
3. In light of my findings to refuse the grant of a permit which do not rely on the issue of fire protection, I have decided not to pursue this matter or prolong this proceeding any further. However, were I minded to grant a permit or in any future development proposal for this site, the comments of the CFA should be obtained.

Suitability of the site for multi-dwellings - planning scheme policies and controls, single dwelling covenant and the site's court location.

1. Mr Newman submitted that although the now substituted plans have addressed many of the concerns previously held by the Council in relation to ResCode compliance, the proposal still suffers from a number of deficiencies, primarily in terms of neighbourhood character considerations. Notwithstanding, he submitted that the influence of the single dwelling covenant upon the area's character, the lack of policy encouragement for this intensity of development given the distance from the Mt Martha activity centre and the site's location at the end of a court suggest that no more than a dwelling density of one dwelling per lot might be appropriate.
2. On the other hand, Mr Hooper submitted that there is policy support for multi-dwelling developments on this site in locations like this one, given its Residential 1 zoning, lack of overlay controls or other environmental or physical constraints and its good proximity to existing services and facilities. He drew support from the broader pattern and density of nearby development which has and is emerging beyond Driftwood Court. He also re-iterated the fact that the single dwelling covenant is a private planning instrument (rather than forming part of the planning scheme) and does not burden the review site. Only one other lot is not burdened by such a covenant in Driftwood Court. Consequently, Mr Hooper submitted that this development cannot be viewed as "the thin end of the wedge" in setting an undesirable precedent or by transforming the existing character of Driftwood Court.

1. Statewide policies call for increased housing diversity, diversity, urban consolidation, and more affordable housing. There is a particular emphasis on the provision of more intensive housing close to public transport and Principal and Major Activity Centres[5].
2. Local policies in Mornington Peninsula are generally consistent with these housing objectives, recognising that there is continuing demand for new housing and that to respond to changing demographic trends, there may be increased demand for medium density housing.[6] The locational advantage of sites within walking distance (about 400m) of commercial activity centres for medium density housing is also recognised.[7]
3. The site's Residential 1 zone, whose purposes include "to provide for residential development at a range of densities with a variety of dwellings"; its location within an established residential area; the absence of overlay controls and the site's lack of identified environmental constraints as highlighted by Mr Hooper are favourable attributes that weigh in favour of more intense housing on this site. In directing development to areas like this one that on a Shire wide basis are considered more benign than other areas of identified landscape, heritage or environmental significance, this proposal could be said to be responding favourably to the direction provided by the Planning Scheme.
4. Notwithstanding, I am also required by the Planning Scheme[8]:

... to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. Balanced against these housing policies is the need to also consider neighbourhood character objectives that seek to recognise, protect and respect the existing character[9] (the latter is another zone purpose) while also achieving site responsive outcomes[10] - matters to which I will return in more detail shortly.
2. I find that while the site is suited to some form of medium density housing, there are a number of locational factors that temper to some degree, the development intensity that might be reasonably expected for this site. These are:
   • the site's distance from the nearest activity centre - Bentons Square at about 1.4km;
   • the designation of this activity centre as a neighbourhood activity centre[11]; and
   • the site's distance from and limited public transport options.
3. There are a number of other considerations which also take me to this conclusion.

1. The review site and No. 20 Driftwood Court are the only properties not burdened by the single dwelling covenant. Despite these lots being in the overwhelming minority, it would be wrong to conclude that only one dwelling on each of these unburdened lots should be allowed. The covenant simply does not apply to the review site.
2. However, I think it can be reasonably held that the single dwelling covenant has, in limiting the number of dwellings per lot, influenced the resultant pattern of development and the character of this neighbourhood. It is within this context that the covenant can be said to exert some influence over the development expectations for the review site. Ultimately, the appropriateness of this proposal is best measured against the degree to which it achieves an acceptable fit in neighbourhood character terms.

1. The Tribunal has on many occasions accepted a number of principles in relation to multi-dwelling developments in court locations.[12] In summary these principles are that:
   • residents of properties located in courts can generally expect and usually enjoy a higher level of amenity than those who reside in conventional streets;
   • properties in courts, particularly when located at the very end, can present constraints that limit a higher density of development;
   • despite both of these factors, this does not mean that, as a matter of principle, there can be no medium density housing in a court. Rather, the amenity bar is higher and particular care in the design and siting of proposals becomes a higher imperative.

1. In summary, the site can sustain some form of medium density housing but there is a stronger imperative in the circumstances to achieve a respectful character response than the achievement of an increased level of housing intensity. It is against this backdrop that I have assessed this proposal. I now turn to an analysis of this proposal in detailed design terms and its response to neighbourhood character.

Is the design and siting of the new dwellings and opportunities for landscaping acceptable in neighbourhood character terms?

1. Mr Hooper submitted that appropriate recognition has been given to the site's court setting and that the design response has already 'raised the bar'. He contended that the neighbourhood character is broader than that which is found in Driftwood Court said to comprise a diverse range of dwelling forms and lot sizes including medium density housing. Mr Hooper also highlighted the single storey scale of the dwellings and described their architectural detailing as compatible with surrounding development - a view also shared by the Council. Landscaping opportunities were said to be acceptable, with reliance made upon the evidence of Mr Patrick.
2. In neighbourhood character terms, Mr Halls submitted that the proposal does not respect either the streetscape or interface with abutting properties in Driftwood Court. While not opposed to development per se, he contended that the dwellings are too uniform in design, are sited too close to side and rear boundaries, do not respond appropriately to topographical conditions and there are insufficient landscaping opportunities.

1. In the absence of any expressed preferred neighbourhood character it is necessary for the design to respect the existing neighbourhood character. This is the first ResCode objective (Clause 55.02).
2. I begin by making some observations about the existing neighbourhood character. In doing so, I adopt the view that neighbourhood character considerations are not just limited to the streetscape but include what is often described as the "backyard realm".
3. There was general agreement that the character of Driftwood Court is different to that found to the north and east.
4. In Driftwood Court, lots typically range in area from about 830sq.m to 1010sq.m. The streetscape has an open park-like quality, given reasonably large front setbacks of 7-10m or more, the broad lot widths (or their irregular configuration in the case of No.'s 20 and 22 Driftwood Court - the latter which is a 'battle-axe' shape), predominance of no or low front fences and absence of footpaths. Vegetation and lawn areas in the public and private realms generally flow in a continuous way towards the road pavement. There is a higher concentration of trees which contribute to the landscape quality of the streetscape at the eastern end of the court while lower lying shrubs and lawn are key landscape elements at its western end.
5. Dwellings are mostly single storey while a few are two-storey in scale, built within the past 20 years or so. They are mostly brick (although some are timber clad) with pitched roofs that are tiled or colorbond.
6. Backyards are quite spacious and have an open feel with varying degrees of tree cover. Outbuildings are evident in some backyards, but relative to neighbouring properties do not have a strong visual presence - the exception perhaps being the large shed in the north-east corner of the review site.
7. To the north and east, development is more recent on compact lots, resulting in a finer grain pattern of development with smaller backyards and limited landscaping. This is particularly so to the east.

1. While I agree with Mr Halls' submission that there is repetitive use of some dwelling types within the development I do not necessarily regard that as fatal from a neighbourhood character perspective.
2. I also support development with single storey dwellings on this site. While this approach may seem relatively benign I find that the design response is not respectful of the prevailing neighbourhood character enjoyed by properties in Driftwood Court.
3. In essence, it is the siting or arrangement of the proposed dwellings relative to each other and to their neighbours at No.'s 22 and 27 Driftwood Court and that I find to be most problematic.
4. There are a number of physical contextual considerations that when combined, lead me to this conclusion.

1. Under cross-examination, it was Mr Patrick's evidence that the proposed landscaping response is more akin to that of the northern and eastern interfaces while representing a substantial departure from the landscape character of Driftwood Court. In doing so, it was suggested that this site (and the response proposed) acts as intermediary between its various interfaces.
2. I consider that retention of the three palm trees through their relocation to the front of the site is acceptable. The extent of vegetation removal is however unfortunate given the lack of suitable space for replacement planting capable of integrating this development with its surrounds.
3. While I think there is greater latitude for a landscape response of the kind proposed at the northern and eastern interfaces which I find to be acceptable, I am not persuaded that this should be carried through the whole site. If anything, I consider that there is a higher imperative to maintain and enhance the existing character at the interface with the Driftwood Court environs given the court location and topographical conditions.
4. I am left with the impression that Mr Patrick has been presented with the task of providing landscaping within the leftover spaces throughout the site - an outcome that I regard as unfortunate and which I find does not allow the achievement of an acceptable landscape response. I conclude that the landscaping objectives under Clause 55.03-8 would not be met.

1. One of the striking features of this site on approach from Driftwood Court is its elevated position above the street level as well as terminating easterly views. The site therefore is a prominent one and development on it will have a high degree of exposure. Any design needs to respond appropriately to these particular characteristics in a sensitive way so as not to have an unduly dominating presence.
2. I find that the proposed front boundary setbacks of Units 1, 7 and 12 which are at least 8.5m but less than the ResCode standard of 9m are acceptable, given the courtbowl configuration. Stylistically, nor am I concerned about the appearance of the dwellings given the degree to which there exists varying housing styles. There are however several concerns that I have with this proposal in streetscape terms.
3. As well as being visually intrusive from the private realm - a matter to which I will return, I consider that the placement of Unit 12's garage on the boundary which runs on an oblique angle to Driftwood Court, together with its elevated position above the street and limited landscaping opportunities along the boundary adjacent to the driveway, would produce a poor streetscape outcome.
4. I also consider that the proposed provision of two driveways and cross-overs, one of which is to be 5.5m wide and their close proximity to each other (separated by about 4.5m) results in an excessive amount of hard paving that would be visually jarring. The arrangement also reduces landscaping opportunities within the front setback area.

1. In terms of built form elements, I find that the arrangement of Units 1 and 2 whose double garages are side-by-side together with their limited address to the western arm of the driveway, positioned opposite the garage wall of Unit 3 would result in a poor visual outcome. The amount of hard paving within this area when combined with limited landscaping opportunities adds to my concerns with the presentation of this part of the internal streetscape.
2. I also consider that the siting and layout of dwellings limits opportunities for an appropriate level of landscaping within internal streetscape areas. To illustrate:
   • Units 3, 4, 5 and 6 are separated by a uniform 1.2m service pathway, preventing any meaningful soft landscaping opportunities between the buildings themselves;
   • High fencing and a visitor car space on the north side of Units 7, 8 and 9 limits the width of space for landscaping within the driveway area.
   • A similar situation to the latter exists on the north side of Units 10, 11 and 12. When combined with narrow space for planting in driveway areas and the extent of driveways to the double garages sited side-by-side for Units 7 and 8, and Unit 11 opposite, this part of the streetscape would have a harsh presentation dominated by hard paving, buildings and fences.
3. I acknowledge that some tree planting with is proposed within common areas and in the secluded areas of private open space such as Chanticleer Pears and Crepe Myrtles. I find however that the amount of space for planting within common areas is insufficient to soften and appropriately offset the extent of paving, buildings, retaining walls and fences in this particular character setting.

1. Having considered the site's varying interfaces and the character of each, I find that this proposal has responded in an acceptable way to its northern and eastern neighbours. To the north, proposed boundary setbacks are mostly in the order of 3m to 5m+. To the east, the closer proximity of dwellings to the common boundary, together with their lower level and large spacing between Units 6, 9 and 10 will similarly achieve an acceptable outcome.

1. No. 22 Driftwood Court is a battle-axe shaped lot whose dwelling with a large front setback and vegetated setting is almost concealed from the street. It is sited with its long axis running east-west, with a substantial number of north facing windows that enjoy a pleasant outlook towards an expansive garden including perimeter planting on both sides of the common boundary. The northern garden, which is the primary area of secluded private open space is of a very high amenity.
2. At this interface three dwellings are proposed extending to within 1.2m of the rear boundary. They have setbacks in part of 1.2m to 1.47m and Unit 12's double garage is positioned on the common boundary. While I acknowledge that Units 10 and 11 also have a portion setback 2.93m and the dwellings are not attached, it is the combined effect of several elements that I find would not be respectful of the backyard character.
3. Firstly, the number of dwellings and resultant expanse of built form extending deep into the back yard realm is uncharacteristic of the prevailing development pattern and spacious backyard feel. The combined extent of the dwellings would be unreasonably intrusive when viewed from the south.
4. Secondly, I find that the development is not one that responds in an acceptable way to the topography of the site and its elevated position above neighbouring land. The floor level of the proposed dwellings is elevated by up to 1m above the existing ground level of No. 22 Driftwood Court, accentuating their visual presence from this neighbouring site. In the case of Unit 12's garage, the wall on the southern boundary would reach a height of about 3.7m, as filling to a depth of about 1m appears to be proposed. The resultant wall height would not comply with Standard B18 of ResCode (Clause 55.04-2) and in doing so would be visually dominating. I consider that the height and siting of this garage is poorly conceived and would not meet the corresponding ResCode objective for walls on boundaries.
5. Contributing to my concerns with this element of the design is the position of this wall adjacent to the neighbouring cypress hedge.[13] No arboricultural assessment of this vegetation has occurred. While Mr Patrick suggested that a pier and beam form of construction might be required to support any retaining wall on the boundary, it seems to me that a sensitive design response that considers both the topographical features and existing vegetation is far preferable given the particular physical context and Planning Scheme considerations which promote site responsive outcomes.[14]

1. I consider that the siting of Unit 1 adjacent to the eastern side boundary with No. 27 Driftwood Court would be acceptable, having regard to the lower set position of this dwelling whose west facing windows have a limited outlook, noting that they do not serve main living rooms.
2. Like the southern interface, I am however concerned about the siting of Unit 2 whose continuous setback of 1.2m from the common boundary extends uncharacteristically deep into the backyard realm. This dwelling will also be elevated above the height of the neighbouring backyard given the topographical variations between the two sites, accentuating its presence in a manner which is at odds with the prevailing spacious backyard character.
3. I find that landscaping opportunities within this 1.2m setback area are too limited and would not make a meaningful contribution to the existing landscaping character. Insufficient space exists for trees or shrubs, with proposed planting to comprise climbers and ground covers or grasses.

Would the proposal result in unreasonable traffic, access and parking impacts?

1. Mr Brown and Mr Halls raised concerns about the additional traffic that would be generated in Driftwood Court by this development, potential traffic safety issues given the 'dog-leg' bend in the road at the western end and increased risk to pedestrians given the absence of made footpaths. It was also submitted that the proposed arrangements for waste collection are constrained.
2. It was Mr Mensforth's evidence that Driftwood Court has sufficient capacity to absorb the additional traffic generated by this development without any unacceptable traffic or safety related impacts.
3. In forming my view about this issue, I note that the Council does not oppose the development on any traffic or parking related grounds.
4. Having considered Mr Mensforth's evidence and in the absence of any evidence to the contrary, together with my observations during my inspection I am unable to find that the proposal should be rejected on traffic or parking grounds.

1. An additional 11 dwellings will bring the total number of dwellings in the court to 37. This equates to about 80 additional vehicle movements per day which will be a noticeable increase. However, I accept Mr Mensforth's evidence that the design standard of Driftwood Court is capable of accommodating an increase of this magnitude. Given the length of the court, its irregular configuration which promotes a slow speed environment and the generous front setbacks of most dwellings, I also find that such an increase, while noticeable, would not result in an unacceptable diminution of amenity.
2. I also accept Mr Mensforth's evidence, supported by my inspection that sight distances on approach to the dog-leg bend in both directions are acceptable. I consider that this bend and the varied road alignment further east would tend to discourage the vast majority of motorists from speeding.
3. In relation to pedestrian safety, I accept submissions that it is necessary in some parts of Driftwood Court for pedestrians to use the road pavement, given the absence of footpaths and because vegetation in road verges impedes access in some places. I expect however, that future residents of the development would, like existing residents, have an interest in regulating their driving behaviour to suit the particular road conditions, noting that they too are likely to be pedestrians within the court.

1. Waste collection is proposed to occur within the site. Turning movements for an 8.8m truck demonstrate that this can occur within the driveway. During collection times, vehicle access within the driveway will be impeded. This may result in some delays and inconvenience but I would not refuse the development on this basis. While not ideal, I think an on-site collection arrangement is preferable to a kerbside collection in the circumstances. Were I minded to grant a permit, I would have required a waste management plan detailing such matters as collection frequency, times and methods.

1. I am satisfied that the number of car spaces on the site for residents and visitors is sufficient, exceeds the minimum ResCode standard[15] and is likely to limit any on-street parking demand. There is scope for tandem visitor parking in the case of six dwellings, all dwellings have double garages including the two bedroom units and four visitor spaces for shared use are also proposed.
2. I find however that the need for an additional correcting manoeuvre for vehicles entering Unit 6's garage (east side) is poor while egress from this space is constrained. This arrangement would not promote convenient parking, contrary to the ResCode parking location objective at Clause 55.03-10 and is a matter that should be addressed in any redesign.

Do any other matters warrant rejection of the proposal?

1. There were several other matters raised by parties opposed to this development at the hearing that I regard as secondary considerations. I therefore provide only brief comments about them.
2. Internal amenity - The outlook from bedroom 2 of Units 3, 4 and 5 would offer limited amenity being on the low side of the dwellings they face.
3. Overshadowing - Any overshadowing impacts within the site and on neighbouring land is within acceptable limits.
4. Overlooking - Any overlooking from habitable room windows is or can be addressed through suitable screening measures.

1. This is a case where there are a number of factors that when combined, lead me to conclude that a permit should not be granted. The site is in a visually sensitive location relative to its Driftwood Court setting. The proposed design response has adopted many of the characteristics of development to the north and east without sufficient respect for the streetscape and backyard character of its Driftwood Court context.
2. While the introduction of single storey multi-dwellings is capable of support on this site, further and substantial refinement of the proposal is required before an acceptable response is achieved. The provision of cross-sections showing the development relative to its southern and western neighbours would also be beneficial in any future proposal.
3. In any redesign, consideration should be given to the provision of just one shared cross-over, a reduction in the number of dwellings at the southern and western interfaces with greater setbacks from these boundaries capable of allowing a more suitable landscape response.
4. While some suggestions were made at the hearing as to how this may be achieved, these measures do not go far enough in addressing all of the shortcomings with this proposal including the appearance of the internal streetscape.
5. For the reasons I have set out, the decision of the Responsible Authority is affirmed. I will direct that no permit is to be granted.

[1] Amended from Thomas Anderson Design Pty Ltd

[2] Permission was originally sought for fourteen dwellings before the application was amended by reducing the number of dwellings to twelve.

[3] Response from CFA sought by 21 November 2011.

[5] See Clause 11 of all Victorian Planning Schemes.

[6] Clause 21.07-2 of Mornington Peninsula Planning Scheme.

[8] Clause 10.04 of all Victorian Planning Schemes.

[9] See for example Clause 15.01-5 of all Victorian Planning Schemes.

[10] See Clause 21.07-2 - Objective 1 of the Mornington Peninsula Planning Scheme.

[11] I acknowledge that in the hierarchy of activity centres described at Clause 21.07-3, this centre is sub-categorised as a "Large Township centre reflecting its role and surrounding settlement patterns. For the purposes of Melbourne 2030 and statewide planning scheme policies the centre is however a neighbourhood activity centre.

[12] See for example Saxony Pty Ltd and Oceancare Pty v Manningham CC and Ors [2001] VCAT 2269 cited with approval in Keyco Developments Pty Ltd v Hobsons Bay CC [2006] VCAT 53; J A Thompson Surveyors v Knox CC (1998/37377 1 VPR see editorial comment at 32); JWJ Investments Pty Ltd v Manningham CC (1999/77653); Parella v Knox CC and Ors (1999/92183 5 VPR see editorial comment at 4) and Madja v City of Monash and Ors (2000/13240).

[13] The hedge is pruned to the same height as the boundary fence - approximately 1.6m.

[14] See for example Clauses 21.07-2 and 55.02-1 of the Mornington Peninsula Planning Scheme.

[15] Standard B16 at Clause 55.03-11 suggests parking for residents at the rate of one space for each 1 or 2-bedroom dwelling, 2 spaces for each 3 or more bedroom dwelling and visitor parking at the rate of one space for every five dwellings.