Buckham v Colac Otway SC & Anor [2010] VCAT 1596

1. Leave granted to amend the application by substituting the name of the applicant to Mr. S. Buckham, 9 Rita Court, Hoppers Crossing, Vic. 3029.
2. In permit application no. PP/265/2009-1, the decision of the Responsible Authority is set aside. A permit is granted for the subdivision of land at 42 Montrose Avenue, Apollo Bay, into three lots and subject to the conditions contained in the appendix to these reasons.

Chubb Fadgyas, Town Planner, Fadgyas Planning Associates.

Subdivide the land to create an additional lot from the current two lots. The new lot is created by subdividing the rear lot into two lots of 360 and 365 sq m.

Residential 1 Zone, Design and Development Overlay Schedule 7 Apollo Bay and Marengo - Lower Density Residential Areas.

Clauses 11, 15.01, 15.02, 16.01, 21.03-3, 21.04-8, 65 and 66.

On the north side of Montrose Avenue, 20.12 metres frontage to Montrose Avenue, a depth of 75.64 metres, and site area of 1245 sq m. It is currently in two lots each containing a dwelling. The new lot to be created is the 'backyard' of the current Lot 2, the lot with a two storey house. The dwelling at the front lot is single storey.

The site is in the urban area of the township of Apollo Bay. Development surround this site are single dwellings or single storey villa units. The site is of an unusual depth. It appears that part of the rear of No. 13 Pengilley Avenue at the rear of the land was excised and consolidated with the site.

1. The permit applicant has applied to subdivide the land currently in two lots into three lots. Council has refused the application on the grounds of inconsistency with the objectives and density of the Design and Development Overlay that applies to the site, inconsistency with the preferred neighbourhood character of the area because of the proposed density, and inconsistency with the neighbourhood character requirements of Clause 56.
2. As the permit applicant has lodged an application to review this refusal, the Tribunal must decide whether to affirm this refusal or set it aside, and decide permit conditions were a permit to issue.
3. Having considered the submissions and based on the provisions and policies of the Colac Otway Planning Scheme ("the Scheme"), there are merits in the proposal subject to conditions, one of which is to limit the height of a dwelling on the new lot.
4. The issues of this review are whether the proposed density excessive for the area identified to be of low density, and whether the eventual dwelling (which would not require a planning permit to construct) an appropriate response to the neighbourhood character of the area.

Whether the creation of the third lot on the land contrary to the low density provisions of the Design and Development Overlay and housing policies of the Scheme?

1. The relevant planning consideration for the proposed subdivision is the Design and Development Overlay that affects the site and the related planning policies for Apollo Bay.
2. The Design and Development Overlay that affects the site is Schedule 7 Apollo Bay Marengo - Lower Density Residential Areas. The physical built form of the future of Apollo Bay is to be achieved by a hierarchy of built form and scale of development. This hierarchy came from the Apollo Bay structure plan and is to be implemented by a series of Design and Development Overlays. The town centre is in the Design and Development Schedule 5 (Apollo Bay - Town Centre), a ring of residential area within walking distance of 400 metres of the town centre in the Design and Development Overlay Schedule 6 (Medium density Residential Area), and the balance of the Residential 1 Zone in the town in the Design and Development Overlay Schedule 7 (Lower Density Residential Area).
3. The design objectives of the DDO7 are:
   • T o limit building heights and ensure that upper levels are well articulated to respect the character of the area.
   • To identify a lower density area facilitating a more spacious form of residential development.
   • To ensure that development density is consistent with the coastal town character,
   • To ensure that permeable space is available between dwellings to sustain vegetation.
   • To ensure that new development maintains space between buildings so that views to the surrounding landscape are retained.
4. Under this schedule, a permit is not required for a single dwelling provided it is the only dwelling on the lot, less than 8 metres in height, and the lot exceeding 300 sq m.
5. With regard to subdivision, a new lot should have an area of 450 sq m[1]. The calculation of this area, according to Point 3 of the Schedule includes common property as follows:

Site area per dwelling inclusive of any common property.

1. Council's argument was that Lots 2 and 3 will have an area less than 450 sq m: being 360 sq m and 365 sq m respectively. The second lot currently containing a two storey house and a backyard from which the new Lot 3 is to be excised is 818 sq m.
2. As Mr. Fadgyas pointed out, site area calculation pursuant to the Design and Development Overlay includes common property. When the common property is factored in, all three lots will either exceed the 450 sq m or just under as follows:

Lot 2: 360 sq m + 89 sq m (common property) = 449 sq m; and

Lot 3: 365 sq m + 89 sq m (common property) = 454 sq m.

1. From the numerical point of view, the proposal meets the density recommendation of the overlay and a permit should not be refused on that basis.

Whether the proposed building envelope indicates a scale of development that would achieve the neighbourhood character of the area?

1. The proposed subdivision plan is supported by a building envelope for the new lot (Lot 3). It shows a rectangle of 10 x 15 metres as recommended in Standard C8 of Clause 56.04-2. This envelope does not include the 'primary car parking space' and the 'Secondary car parking space'. The primary car parking space (6 x 3.5 metres) is within an enclosed structure and the secondary car parking space is an open car space of 4.9 x 2.6 metres. This open car space is in a tandem arrangement with the primary parking space.
2. Despite the inclusion of a building envelope for the new lot, it is difficult to envisage the scale and bulk of the eventual development as there is no height specified in the envelope. As long as the height of the building does not exceed 8 metres, a planning permit is not required for a dwelling.
3. The consideration of neighbourhood character is important to achieve the objectives of the Design and Development Overlay and the associated neighbourhood character policies for the precinct.
4. There are two issues with the proposed subdivision layout and building envelope: car parking for Lots 2 and 3, and the potential development of Lot 3 with regard to the neighbourhood character of the area.
5. I would first deal with the car parking issue for Lots 2 and 3. Lot 2 is occupied by a two storey dwelling. The car parking arrangement for this dwelling will change as a result of the subdivision. There are currently two side by side parking spaces in the form of a garage and a carport. In order to provide access to Lot 3, the carport near the western boundary will be demolished in order to extend the driveway into the new lot. To compensate for the loss of the second car parking space, a 90o open car space is proposed off the common driveway. Were a permit to issue, it will be necessary to ensure that this car space will have proper access and that it has a 6.4 metre access clearance from the common driveway.
6. With regard to Lot 3, the primary parking area is located close to the western boundary with a tandem car space ('secondary car space') in front. When the tandem arrangement is approved through the proposed subdivision, this arrangement will be cemented for the land. This means vehicles will be exiting the site not in a forward direction for the length of the driveway, including car shuffling because of the tandem arrangement.
7. The driveway from Montrose Avenue to the car parking area of lot 3 is in the order of around 60 metres. Were it an application to develop the site for a dwelling on the new lot as a medium density development and pursuant to Clause 55, Standard B14 would require more critical consideration in terms of access than a subdivision.
8. Were a permit to issue, a condition will be imposed to delete the differentiation between the 'primary' and 'secondary' car spaces which sanctions the tandem arrangement which is not satisfactory due to the length of the driveway for reversing vehicles. The space occupied by the parking spaces may be incorporated into the building envelope. This means the car parking provision will be assessed properly at the building permit stage and not pre-determined by the subdivision for a tandem arrangement. The undercover car parking for this dwelling will be required to be accommodated within the building envelope for this lot.
9. I now turn to the neighbourhood character implication of the proposed subdivision. There will be no change to Lot 1 which is occupied by a single storey dwelling. Lot 2 will be changed to the extent of demolition of the enclosed carport to provide for access to the new Lot 3 and the second car space provided elsewhere in that lot. The concern is the scale and bulk of the new dwelling on Lot 3.
10. The proposed building envelope is sited close to the eastern boundary and western boundary (setback of 1 metre and less than 1 metre respectively). It has a footprint of 10 x 15 metres plus the 6 x 3.5 metres taken up by the garage. The building envelope did not specify the height of the building, although the Design and Development Overlay Schedule 7 would limit it to 8 metres as of right and 9 metres subject to approval. The as-of-right 8 metres height is ample for a two storey dwelling. Given that the building envelope does not provide generous side setbacks and the location of open backyards around the site, an eventual two storey building based on the footprint of the building envelope will not be site responsive and low scale and low density character of the area which is not within the nominated 400 metres of walking distance from the town centre. In am confident that the proposed envelope is of a size that can accommodate at least a three bedroom house.

1. The proposed subdivision will create an additional lot for the land. The sizes of the lots meet the recommended density of the Design and Development Overlay that affects the site. With permit conditions relating to the proposed building envelope for the new lot at the rear and minor adjustment to car parking layout for Lot 2, it is an appropriate response to the overlay and neighbourhood character of the Scheme. A permit is granted.
2. In reviewing the 'without prejudice' conditions prepared by Council, there was some discussion regarding the appropriate percentage for open space contribution. Council recommended the maximum 5% and Mr. Fadgyas recommended 2%.
3. In view that the number of new lot created is one, and that there is no documented plan to purchase land for public open space or improvement of existing public open space, I agree that the 2% is reasonable.

1. Prior to the certification of the plan of subdivision, 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 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 plans submitted with the application but modified to show:
   • Modifications to the location of the open car space for Lot 2 so that it has an access aisle of 6.4 metres including the common driveway;
   • Delete the reference of 'primary' and 'secondary parking space' from Lots 2 and 3;
   • The area occupied by the parking spaces for Lot 3 may be incorporated into the building envelope of the lot;
   • A specification in the building envelope for Lot 3 that all buildings including garage or carport must be constructed within this envelope;
   • A specification in the building envelope for Lot 3 that only a single storey building may be constructed within this envelope; and
   • Private open space for each lot.
2. Plans lodged for certification pursuant to the provisions of the Subdivision Act 1988, as amended, must include a separate sheet which delineates a building envelope within proposed Lot 3 to the satisfaction of the Responsible Authority.
3. Prior to Statement of Compliance being issued under the Subdivision Act 1988, the applicant or owner must pay to the Responsible Authority a sum equivalent of 2% of the site value of all the land in the subdivision.
4. The subdivision as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
5. Prior to the Statement of Compliance being issued, the subdivider must remove any existing buildings that traverse the lot boundaries to the satisfaction of the Responsible Authority.
6. Access onto and within the property must be constructed to the satisfaction of the Responsible Authority.
7. Prior to the Statement of Compliance being issued, the driveway within the common property must be constructed to an all weather sealed surface to the satisfaction of the Responsible Authority.
8. Prior to certification of the plan of subdivision, a stormwater management plan designed by a qualified engineer must be lodged with the Responsible Authority verifying that post development stormwater discharge volume from the land does not exceed 30 litres per second per hectare. When approved, such plan must be endorsed and form part of the permit issued.
9. All run off from stormwater, including overflow from water storage, must be taken to a legal point of discharge to the satisfaction of the Responsible Authority.
10. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authorities in accordance with Section 8 of that Act.
11. The applicant shall:

1. Provide an electricity supply to all lots in the subdivision in accordance with Powercor's requirements and standards, including the extension, augmentation or re-arrangement of any existing electricity supply system, as required by Powercor (A payment to cover the cost of such work will be required). In the event that a supply is not provided the applicant shall provide a written undertaking to Powercor Australia Ltd that prospective purchasers will be so informed. 2. Where buildings or other installations exit on the land to the subdivided and are connected to the electricity supply, they shall be brought into compliance with the Service Installation Rules issued by the Victorian Electricity Supply Industry. You shall arrange compliance through a Registered Electrical Contractor.

1. Set aside on the plan of subdivision for the use of Powercor Australia Ltd reserves and/or easements satisfactory to Powercor Australia Ltd where any electric substation (other than a pole mounted type) is required to service the subdivision.

Alternatively, at the discretion of Powercor Australia Ltd a lease(s) of the site(s) and for easements for associated powerlines, cables and accessways shall be provided. Such a lease shall be for a period of 30 years at a nominal rental with a right to extend the lease for a further 30 years. Powercor Australia Ltd will register such leases on the title by way of caveat prior to the registration of the plan of subdivision.

1. Provide easements satisfactory to Powercor Australia Ltd, where easements have not been otherwise provided, for all existing Powercor Ltd electric lines on the land and for any new powerlines required to service the lots and adjoining land, save for lines located, or to be located, on public roads set out on the plan. These easements shall show on the plan an easement(s) in favour of "Powercor Australia Ltd" for "Powerline Purpose" pursuant to Section 88 of the Electricity Industry Act 2000.
2. Obtain for the use of Powercor Australia Ltd any other easement external to the subdivision required to service the lots.
3. Adjust the position of any existing easement(s) for powerlines to accord with the position of the line(s) as determined by survey.
4. Obtain Powercor Australia Ltd's approval for lot boundaries within any area affected by an easement for a powerline and for the construction of any works in such an area.
5. Provide Powercor Australia Ltd, a copy of the version of the plan of subdivision submitted for certification, which shows any amendments which have been required.

1. The owner shall crate easements for Pipelines or Ancillary Purposes in Favour of Barwon Region Water Corporation over all existing and proposed sewers located within the subdivision. The width of these easements shall be 2.0 metres centrally located over any sewer main.
2. The plan of subdivision must be referred to Barwon Water in accordance with the Subdivision Act 1988 and any subsequent amendments to the plan provided to Barwon Water.
3. The certified plan must create implied easements under Section 12(2) of the Subdivision Act, over all proposed existing water and sewerage works within the subdivision.
4. The creation of an owner Corporation to encumber all lots within the subdivision.
5. The proposed development does not conform to Barwon Water's Asset Protection policy. Structures are generally to be no closer than 1.0 metre to a sewer main or 3.0 metres to a water main. There appears to be an existing timber deck over the existing sewer main on proposed Lot 2. Barwon Water has no record of approval to build over the sewer. The owner will be required to apply to Barwon Water for permission to maintain this structure over the sewer main.
6. The payment of New Customer Contributions for each additional lot created and/or each additional metered connection for water supply within the subdivision.
7. The provision and installation of individual water services including meters to all lots in the subdivision in accordance with Barwon Water's requirements and Victorian Plumbing Regulations. A dimensioned plan showing location of all meters relative to the allotment boundaries, and its number9s), is to be submitted. Note that tappings and services are not to be located under existing or proposed driveways.
8. An additional tappng(s) is to be supplied to service the proposed development. A dimensioned plan showing location of all new tappings relative to the allotment boundaries, and its number(s) is to be submitted, where a meter is not being fitted. Note that tappings and services are not to be located under existing or proposed driveways.
9. Barwon Water's records indicate that an existing water service and meter is located on the property. A dimensioned plan showing the location of existing meters, and the location of the meter relative to the existing boundaries, and its number, is to be submitted. Private water service pipes are not permitted to cross allotment boundaries and must be plugged and abandoned at the boundaries of such allotments.
10. The payment of New Customer Contributions for sewer for each additional lot created and/or each additional metered connection within the subdivision.
11. The provision of sewerage services to all lots in the subdivision in accordance with Barwon Water's requirements and Victorian Plumbing Regulations. Individual allotment house connection drains are to be provided for an extended into each allotment.
12. Any existing house connection branch that is to be utilised for additional connections or altered to serve the development is to be CCTV inspected with the report and/or video submitted to Barwon Water for condition assessment,. If it is deemed by Barwon Water that the branch is unsatisfactory for use, it is to be removed and replaced at the developer's expense. Also, any existing house connection drain that traverses through the proposed allotments shall be relocated so not to inhibit future development.
13. This permit will expire if one of the following circumstances applies:
    • The Plan of Subdivision is not certified within two (2) years of the date of this permit.
    • Statement of Compliance is not issued within five (5) years of the Plan of Subdivision being certified.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, within three months afterwards.

[1] The site is in precinct 4 of the Precinct Map to this schedule for which the lot size of 450 sq m is nominated.