[2005] VCAT 55

The decision of the responsible authority is set aside. A permit is granted and must be issued for the development of five dwellings at 2 Gracie Avenue, Chelsea, subject to the following conditions:

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 Revision B plans prepared by Bruce Henderson Architects Pty Ltd, but modified to show:

a) the basement for Units 1 and 2 not extending more than 1.2 metres above natural ground level;

b) trellis on the north boundary fence extending to a point adjacent to the western end of the dwelling being 1A Gracie Avenue;

c) screening on the north side of the terrace to Unit 5 by translucent glazing to a height of 1.7 metres;

d) screening on the north sides of the terraces to Units 3 and 4 by translucent glazing to a height of 1.4 metres.

The development, as shown on the endorsed plans, must not be altered without the prior written consent of the responsible authority.

Fencing on the Gracie Avenue frontage must be to the satisfaction of the responsible authority.

Before occupation of the dwellings hereby permitted, all buildings and works must be completed and the conditions of this permit must be complied with, unless the further prior written consent of the responsible authority has been obtained.

Gracie Avenue between access to the land and Craigie Avenue must be constructed at the expense of the applicant with an unsealed permeable pavement in accordance with plans approved by the responsible authority. The construction must incorporate the use of water sensitive urban design principles to minimise stormwater runoff and allow infiltration into the ground.

Prior to the commencement of the development hereby permitted, a Construction Management Plan must be submitted to and approved by the responsible authority. This plan when endorsed must not be varied without the prior approval of the responsible authority. It must also be implemented to the satisfaction of the responsible authority.

Domestic garbage collection must be to the satisfaction of the responsible authority.

Before the development hereby permitted commences, a drainage plan showing the stormwater discharge from the development to the nominated point must be submitted to the responsible authority for approval.

Stormwater drainage of the site must be provided so as to prevent any overflows onto adjacent properties and must be in accordance with the approved drainage plan.

Prior to the occupation of the dwellings hereby permitted, the increase in stormwater runoff from the development must be provided for by the use of on-site infiltration tanks with an overflow pipe to cater for a major storm event. The soil suitability for infiltration tanks must be confirmed by a soil report indicating percolation rates and the infiltration tank system is to be designed to act as a detention system. Approved rainwater tanks may be included as part of the storage. The system must be constructed in accordance with the approved drainage plan and maintained to the satisfaction of the responsible authority.

The boundary between the freehold land and the coastal Crown land must be clearly defined with a fence.

Before the development commences a landscape plan and planting schedule must be submitted to and approved by the responsible authority and when approved shall be endorsed and then form part of the permit. The plan must be generally in accord with the Landscape Concept Plan prepared by Mr S Lang and dated December 2004 and show the proposed locations and number of trees and shrubs, their species, mature heights and widths, and pot sizes and the ground cover plants proposed to be used.

Before the dwellings are occupied the landscaping shown on the endorsed landscaping plan must be completed and thereafter be maintained to the satisfaction of the responsible authority.

All landscaping and construction works must be contained within the freehold title boundary.

No drainage from the site may discharge onto the foreshore during or after construction. Any drainage infrastructure must incorporate water sensitive urban design principles that (i) maximize the potential for retention and reuse of stormwater on site and (ii) are consistent with Best Practice Environmental Management Guidelines for Urban Stormwater 1999.

All external surfaces used in the development must blend with the coastal environment to the satisfaction of the responsible authority.

A fire hydrant must be supplied to the satisfaction of the CFA. The fire hydrant must be located at the eastern corner of the intersection of Gracie Avenue and Craigie Avenue.

Three copies of water reticulation drawings must be provided to CFA for approval.

The fire hydrant must be clearly identified in accordance with the Fire Services Guideline - Identification of Street Hydrants for Firefighting Purposes.

Construction on the site must be restricted to the following times:

unless otherwise stated as approved by the responsible authority in writing.

Convenient taps must be provided to the satisfaction of the responsible authority capable of watering all communal and private land and landscaped areas.

A street number of 100 mm minimum height and contrasting in colour to its background, must be fixed at the front boundary of the property and as near as practicable to, or on, the letterboxes with such numbering to be in accordance with Council's Street Numbering Policy. Separate unit numbers of 75mm minimum height must be placed adjacent to the front entrance of each dwelling. Such numbers must be clearly legible from the access driveway.

All boundary fences must be repaired and/or replaced as necessary to the satisfaction of the responsible authority, at the cost of the applicant/owner.

Exterior lights must be installed in such positions as to effectively illuminate all pathway and porch areas. Such lighting must be controlled by a time clock or sensor unit, and must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on neighbouring land.

Before occupation of the dwellings hereby permitted, areas set aside for parking vehicles, access lanes, crossovers and paths as shown on the endorsed plans must be:

(a)

constructed to the satisfaction of the responsible authority;

(b)

properly formed to such levels that they can be used in accordance

(c)

surfaced in the materials and colours shown on the endorsed plans; and

(d)

drained,

Parking areas and access lanes must be kept available for these purposes at all times and maintained to the satisfaction of the responsible authority.

Any existing vehicular crossing not in accordance with the endorsed plan must be removed and the kerb reinstated in a manner satisfactory to the responsible authority and any proposed vehicular crossing must be fully constructed to the responsible authority's standard specification.

All external materials, finishes and colours are to be to the satisfaction of the responsible authority.

All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the responsible authority.

All piping and ducting above the ground floor storey of the development (other than rainwater guttering and downpipes) must be concealed to the satisfaction of the responsible authority.

Finished floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.

Once the development has started, it must be continued and completed to the satisfaction of the responsible authority.

This permit will expire if one of the following circumstances applies:

(a)

The development is not started within 2 years of the date of this permit.

(b)

The development is not completed within 2 years of the commencement of works.

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

Mr I Pitt SC, who called evidence from Ms K Partenio, Consultant Traffic Engineer, Mr A Cook, Consultant Town Planner, and Mr S Lang, Consultant Landscape Architect.

Ms J Larkins and Mr P Rayson appeared in person and on behalf of other objectors who had lodged Statements of Grounds. Mr T Evans appeared in person and on behalf of Ms J Evans.

1

These reasons follow a decision and outline of reasons given orally at the conclusion of the hearing.

2

The subject land is located on the west side of Gracie Avenue about 14 metres north of Craigie Avenue. Gracie Avenue runs north-south and is unconstructed along its entire length. Its northern end is a cul de sac to the immediate north of the subject land, and it extends to the south to Roseberry Avenue. Between Craigie Avenue and its northern end, Gracie Avenue is approximately 3.9 metres wide and provides access to the subject land, the abutting properties to the north and south, and to a property to the northeast of the subject land.

3

The subject land has a frontage to Gracie Avenue of 14.4 metres, a depth of 87 metres and an area of 1260 square metres. To the west it abuts the foreshore reserve. It is currently occupied by a double storey brick dwelling facing the foreshore reserve, a single storey fibro cement bungalow located centrally on the land, and a single storey fibro cement dwelling set back 7.65 metres from Gracie Avenue. A fibro cement garage facing Gracie Avenue adjoins the northern boundary.

4

The land is located in an established residential area containing a mix of building styles and types dating from the 1930s to very recent times. Nearly all are two storeys. The land to the north has dimensions similar to the subject land and contains two double storey dwellings. Number 1 Gracie Avenue (Mr T Evans' house) is set back 12.2 metres from Gracie Avenue. Number 1A (Ms J Evans' house) is located at the foreshore end of the lot and is set back 8 metres from the reserve. The abutting land to the south at 3 Gracie Avenue also has similar dimensions to the subject land and is occupied by a single storey fibro cement dwelling set back 6 metres from the foreshore reserve, 2.13 metres from the grassed road reserve of Craigie Avenue, which extends along the south side of this lot to the foreshore reserve, and approximately 60 metres from Gracie Avenue. A fibro cement garage is located on this land approximately 37 metres from Gracie Avenue.

5

On the east side of Gracie Avenue there is a medium density development comprising seven double storey dwellings at 332-333 Nepean Highway. The rear two dwellings are set back 5.2 metres from Gracie Avenue, with the decks to these dwellings extending to 1.6 and 2.5 metres, respectively, from Gracie Avenue.

6

The proposal is to develop five double storey dwellings on the land. Dwellings 1 and 2 are to be attached and face the foreshore reserve with parking below at basement level. Dwellings 3 and 4 are to be attached by double garages and Dwelling 5 is to be detached and face Gracie Avenue. All dwellings are to have three bedrooms and double garages. A visitor carparking space is to be provided parallel to the access driveway adjacent to Dwelling 1. Open space is to be provided at ground level and in the form of terraces for each dwelling. The total amount of open space is to range between 45.5 square metres for Dwelling 1 to 104.3 square metres for Dwelling 3. The design is to be contemporary with a variety of materials and finishes. The site density is to be 1:252 and the site coverage is to be 50.3%.

7

The subject land, and land to the north, south and east, is in the Residential 1 Zone. Design and Development Overlays - Schedules 1 and 7 also apply to the land. Pursuant to the zoning, a permit is required to develop two or more dwellings on the land and in assessing the proposal the ResCode provisions at Clause 55 of the Kingston Planning Scheme must be considered. The Design and Development Overlays do not trigger the requirement for a permit.

8

The Officer's report on the permit application recommended that a permit be granted subject to conditions, including modifications to the plans. (Those modifications are shown on the Revision B plans prepared by the applicant). However, the responsible authority refused to grant a permit on the following grounds:

The proposal constitutes an overdevelopment of the site.

The proposal is contrary to the orderly and proper planning of the area

The proposal does not satisfy the objectives and some of the standards of Clause 55 of the Kingston Planning Scheme in relation to overlooking, vehicle access, neighbourhood character, private open space, amenity and building setbacks.

9

Clause 21.05 of the Kingston Planning Scheme identifies the area within which the site is located as being an "Increased Housing Density Area", which is described thus:

The intention in these areas is that new medium density housing comprising a variety of housing types and layouts will be promoted responding to the established but evolving urban character. Because these are already established as residential areas, the design of new medium density proposals will need to display sensitivity to the existing residential context and amenity standards in these areas.

Objectives and strategies are then set out. The strategies include for Objectives 1and 4 the promotion of medium density development in close proximity to public transport, particularly train stations.

10

I note that the effect of Clause 21.05 is that medium density housing will be promoted and that the subject land is within walking distance of a train station. Chelsea Station is approximately 800 metres away. Clause 22.11 sets out the municipality's Residential Development Policy and reinforces the ResCode provisions that development should respect the neighbourhood character and not result in unreasonable amenity impacts.

11

For this proposal instances where there is potential for unreasonable overlooking can be readily addressed by permit conditions. There is no unreasonable overshadowing of any other property. The property at 3 Gracie Avenue was recently purchased by Mr D Prior. Mr Prior did not attend the hearing He was not an objector to the permit application and he did not submit a Statement of Grounds. He sent to the Registrar a fax dated 12 January stating that he is constructing a 35 square home on the land and requesting that his attached submission be considered by the Tribunal. The attached submission stated his objections to the proposal, including that it would be out of neighbourhood character, is poorly designed, would present unreasonably intrusively to his property and would result in unreasonable overshadowing.

12

Mr Pitt informed me that Mr Prior had been given copies of the plans for the proposal some time ago and therefore had opportunity to locate and design his new house in the context of those plans. I cannot make any evaluation of the impact of the proposal on Mr Prior's new house plans because I have not seen them. But in any event I am satisfied that the proposed development would not unreasonably constrain the development of a house, even a very large house, on 3 Gracie Avenue. I also observe that if Mr Prior has serious concerns about the development he should have attended. He obviously knew about the hearing and when it was to be conducted, but he chose not to attend.

13

I am satisfied that the proposed development would not present unreasonably intrusively to the abutting properties to the north and south. It will not present as continuous built form down the lot. Dwellings 1 and 2 are to be separated at ground floor level and upper floor level from Unit 3 by 6.6 metres and 7.8 metres, respectively. Units 3 and 4 are separated by 11 metres at upper floor level by their garages, which are 3 metres high and so would extend above the boundary fencing by just over a metre. Dwellings 4 and 5 are to be separated at ground level by 1.6 metres at ground level and by 11 metres at upper floor level by a garage, which again, would extend above the boundary fence by approximately a metre, Screening on the south side of the terraces above the garages between Dwellings 3 and 4 and between Dwellings 4 and 5 are to be of translucent glass and set back 1.4 metres from the garage walls. Building setbacks are to be between 1.2 and 1.4 metres from the southern boundary and between 1.4 and 6 metres from the northern boundary.

14

By any reasonable yardstick the proposal is not an overdevelopment of the site and will not have any unreasonable amenity impacts on abutting property. The setback of Dwelling 5 from Gracie Avenue is to be 4 metres, compared with the 9 metre "default" standard recommended by ResCode. However, in the context of this part of Gracie Avenue, and given the policy support in the Kingston Planning Scheme for medium density development in this area, the proposed setback is justified.

15

The car parking to be provided meets the ResCode standard. Parking in this section of Gracie Avenue is not permitted. Notwithstanding that, I accept the evidence of Ms Partenio that the ResCode standard of one visitor space is sufficient. Her survey data shows that street some parking is available within walking distance of the subject land, but is likely to be in short supply when the nearby beach is heavily used. A car exiting the visitor space would need to reverse into Gracie Avenue. To the north, at the cul de sac, there are two other access points to Gracie Avenue. While reversing of cars from medium density site is generally not acceptable, in this case we are not dealing with a normal street. The chances of conflict between a car exiting the subject land and a car exiting one of the two properties to the north would be extremely low. On balance I am satisfied that the parking proposed for visitors is acceptable.

16

I also accept Ms Partenio's evidence that Gracie Avenue is wide enough to accommodate emergency vehicles and that the volume of traffic it carries and will carry in this section of it once this development is built and occupied is not sufficiently high to justify full construction and sealing. I note in relation to emergency vehicles the conditions proposed by the CFA, which I have included in my Order.

17

As to the construction and sealing of this section of Gracie Avenue, the responsible authority proposed conditions that the applicant construct and seal Gracie Avenue between its northern end and its intersection with Craigie Avenue and thereafter maintain this section of the street. To require the applicant to construct and seal this entire section would be inequitable and therefore invalid because there are other property owners who would receive the benefit of that work yet not be required to contribute to its cost. A condition requiring the applicant to maintain a section of public highway would also be invalid. The applicant has offered and agreed to construct, but not seal the section of Gracie Avenue between the access point to the subject land and its intersection with Craigie Street. I have included that as a condition in my Order.

18

I have imposed a condition that the fencing on the Gracie Street frontage be to the satisfaction of the responsible authority. Obviously it should not be a standard paling fence, but one designed to complement and improve the streetscape. The applicant wishes to construct a relatively high fence to protect the front courtyard of Dwelling 5 from overlooking from the terraces of the development to the east. The height of the fence should be determined after sightlines from these terraces have been established and consideration given to the detailed landscaping proposed along the Gracie Street frontage of the subject land.

19

The Department of Sustainability and Environment, to which the permit application was referred for advice, suggested that access to the foreshore be via existing accessways from the subject land. There is one existing accessway. Two are proposed, but I can't see how that would cause any harm.

20

For these reasons I have set aside the decision of the responsible authority and ordered that a permit be issued subject to conditions.