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[2006] VCAT 246
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2006-02-23
Original judgment source is linked above.
Hobsons Bay Planning Scheme; Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit; Residential 1 Zone; Two dwellings; Two cross-overs; Front setbacks; Neighbourhood character; Spacing between proposed dwellings; Driveway design.
John Gillespie; David and Sandra Di Lisio; Kathy Krygsman
The order of the Tribunal is that the decision of the Responsible Authority is set aside. In permit application PA0510056 a permit is granted and directed to be issued for the land at 11 Seaholme Ave, Seaholme. The permit will allow the development of the land with two dwellings in accordance with the endorsed plans and subject to the following conditions:
1 Before the development begins, revised 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 plans advertised 23 August 2005, but modified to show:
(a)
All visible plant and equipment (including air conditioning units, heating units, hot water systems, etc), which are proposed to be located externally.
(b)
A schedule of all external materials and finishes. The schedule shall show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car parking surfacing).
(c)
The proposed landscape plan revised to include two suitable canopy trees at the front of the site with a pot size of 40L at the time planting.
(d)
The proposed landscape plan revised to include at least one canopy tree in the rear private open space areas of each dwelling with a pot size of 40L at the time of planting. An emphasis must be placed on maximizing the use of native drought tolerant species.
(e)
The location of all service meters generally located in the front of each dwelling.
(f)
The location and design of any structure to be sited within the front setback required to accommodate electricity meter boxes. Any structure should be designed to minimise possible visual impacts to the streetscape and be no greater than 1.5 metres in height.
(g)
Bin storage area shown for each dwelling.
(h)
Provision of a gate in the setback area at the south-east corner of Unit 1's garage.
(i)
Unit 1's rear northern fence adjacent to the driveway setback 600mm from the southern edge of the driveway pavement to allow for landscaping. Details of suitable plants and shrubs in this location are to be shown on the landscape plan.
(j)
Relocation of Unit 1's storage shed so as not to abut Unit 2's porch. Details of screening measures to the east side of Unit 2's porch are to be provided to prevent overlooking from this porch into Unit 1's secluded private open space.
2 The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3 Prior to the endorsed plans being made available a bank guarantee of $1000.00 is to be lodged by the owner with the Responsible Authority to ensure the satisfactory establishment of landscaping works. Once landscaping has been completed in accordance with the endorsed landscaping plan a 12 week establishment period will commence. The bank guarantee will be returned after landscaping has been initially maintained for that period to the satisfaction of the Responsible Authority. After the establishment period, the landscaping must be maintained in accordance with the endorsed landscaping plan to the satisfaction of the Responsible Authority.
4 Prior to the use allowed by this permit starting or the occupation of the building hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.
5 All landscaped areas must be provided with an appropriate irrigation system to the satisfaction of the Responsible Authority, and maintained to the satisfaction of the Responsible Authority.
6 Boundary fences must be replaced to the satisfaction of the Responsible Authority at a height of between 1.9 metres and 2.0 metres and at the full cost of the owner/ developer unless otherwise agreed to in writing.
7 The existing street tree must not be removed or damaged.
8 Prior to occupation of the dwelling the vehicle crossings must be constructed at the approved width of 2.8 metres and in the location shown on the endorsed plans with the kerb, channel and nature strip reinstated at the full cost of the owner/developer.
9 Vehicle crossing shall be constructed in the location shown on the endorsed plan to a standard satisfactory to the Responsible Authority. The relocation of any services including electricity poles, drainage pits, Telstra pits, fire hydrants and the like shall be at the expense of the developer and approved by the appropriate authority prior to undertaking such works. Consent for such crossings must be obtained through Council's Assets and Maintenance Department prior to construction.
10 Street numbers contrasting in colour to the background shall be fixed at the front boundary of the property as near as practicable to, or on the letterboxes. Separate unit numbers shall be placed adjacent to the front entrance of each dwelling, such numbers to be clearly legible from the access driveway.
11 The buildings and works hereby approved are to be drained to a legal point of discharge (single point), to the satisfaction of the Responsible Authority.
12 Vehicle crossing needs to be clear of all trees, pits, poles and other street furniture.
13 Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority.
14 Before the use begins, areas set aside for parked vehicles and access lanes 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 with the plans.
(c)
Surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority.
(d)
Drained and maintained to the satisfaction of the Responsible Authority.
Parking areas and access lanes must be kept available for these purposes at all times.
15 All service meters must be located in the front of the units in a location easily accessible to the various authorities.
16 No more than one television aerial may be erected per building on the land without the written consent of the Responsible Authority.
17 The alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall shall be the sole responsibility of the developer.
18 All basic services, including water, electricity, gas, sewerage and telephone, shall be installed underground and located to the satisfaction of the Responsible Authority.
19 All visible brickwork on or facing the boundaries of the site must be raked and cleaned or rendered or bagged and painted to the satisfaction of the Responsible Authority.
20 The Applicant/Owner shall be responsible to meet the costs of all alterations to and reinstatement of the Responsible Authority and other Public Authority Assets deemed necessary and required by such Authorities for the development. The Applicant/Owner shall be responsible to obtain the prior specific written consent of the Council or other relevant Authority for such alterations and reinstatement and shall comply with conditions required by the said Authority in relation to the execution of such works.
21 Before any construction or demolition works commence on the site, to the extent that the site perimeter is unfenced and/or is not fenced to the satisfaction of the Responsible Authority, a secure fence is to be erected around the perimeter of the site to prevent access to the site from unauthorized persons. This fence is to be maintained for the duration of the construction and demolition, be a minimum height of 1.8m, or such alternative height as is approved in writing by the Responsible Authority, and be constructed and sited to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work has ceased on the site.
22 This permit will expire if one of the following circumstances applies:
(a)
The development is not started within two years of the date of this permit.
(b)
The development is not completed within four years of the date of this permit.
The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.
•
Written approval from the Responsible Authority is required for any alterations to vehicle crossings and should be obtained from Council's Assets and Maintenance Department prior to commencing building.
Mr John Gillespie. He also appeared on behalf of D & S Di Lisio.
1 This is an application brought by Kevin and Sandra Bugden to review a decision by Hobsons Bay City Council ("the Council") to refuse a permit for the construction of two single storey dwellings at 11 Seaholme Avenue, Seaholme ("the review site"). The review site is presently developed with a single weatherboard dwelling that would be demolished as part of this proposal. The site is also located in close proximity to shops, services a train station and a primary school abuts the rear boundary. This case raises issues in relation to the streetscape presentation of two cross-overs, the adequacy of setbacks to the front boundary, south boundary and between the two units. The length of the driveway for Unit 2 and its relationship with Unit 1 are further considerations.
2 Having considered all submissions made in writing and in person, the material provided with the application and presented at the hearing together with the relevant planning scheme provisions I conclude that a permit should be granted for this proposal.
3 Before Council decided upon this application, it required notice of the proposal to be given to the owners and occupiers of adjoining and surrounding properties. Eight objections were received.
4 Although its officers recommended approval subject to various conditions, Council subsequently refused the application on the following grounds:
1. The proposal is not responsive to the prevailing character of the neighbourhood.
2. The proposal is an overdevelopment of the subject site.
3. The proposed front setback does not comply with Clause 55.03-1 (ResCode - Street Setback) of the Hobsons Bay Planning Scheme.
4. The proposal is inconsistent with the existing and preferred future character of the area based on the Neighbourhood Character Study.
5. The spacing between the proposed dwellings is considered unsatisfactory.
6. The proposed additional crossover is inconsistent with the neighbourhood character.
5 The grounds relied upon by the Applicant essentially refute each of Council's grounds for refusal.
6 Mr Singleton sought leave to amend the permit applicant's name from "Garden City Consultants Pty Ltd" to "Kevin and Sandra Bugden".
7 There being no objections from the parties I amended the permit applicant's name as requested pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.
8 There is a restrictive covenant registered on the title to the land contained in transfer 2559923. The covenant which dates from 1953 states that no building is to be constructed on the land without the approval of the British Migrants Welfare Building Association Pty Ltd.
9 Morris J in Thornton v Hobsons Bay CC [2004] VCAT 383 considered the operation of an identical covenant for a nearby parcel of land at 10 Parkside Crescent, Seaholme. His Honour found that the covenant was not binding on the Applicants for Review in Thornton. Nor did the covenant bar the Council from granting a permit for more than one dwelling.
10 Adopting the findings made by His Honour in the Thornton case, it is clear in the present case that the covenant is not binding on the Bugdens. Nor does it prevent the Council from granting a permit for more than one dwelling in relation to the review site.
11 The review site is located on the west side of Seaholme Avenue, one property south of Sussex Street. The land is a regular shaped parcel with a frontage of 17.8m, depth of 39.58m and a site area of approximately 706.2sq.m. It is developed with a weatherboard dwelling. There are outbuildings including a garage in the backyard and a single driveway along the north boundary.
12 There is a 2.4m wide easement along the rear boundary and the land is relatively flat.
13 The following extract from Mr Waldon's submission provides an apt summary of the surrounding conditions:
Residential development surrounds the subject site being mainly single storey, but with a second storey addition opposite. Front setbacks vary from around 5.6m to over 8m. Dwellings in the area are constructed mainly of weatherboard or cladding, though a new unit towards the northeast is constructed of brick. Roofing is usually a combination of hipped and gable, and of tiled construction.
Adjoining the site at number 9 Seaholme Avenue is a single storey weatherboard clad dwelling with a tiled roof. This site has access to one crossover and contains no front fence.
Adjoining the site to the north is the rear of two properties that face Sussex Street. The dwelling at 34 Sussex Street is single storey with a tiled roof. This site has a street garage facing Seaholme Avenue, which abuts the subject site.
To the rear of the site is Seaholme Primary School.
14 This proposal involves the construction of two single storey dwellings that will replace the existing dwelling.
15 The dwellings would be sited one behind the other and are to have single garages accessed by separate driveways. Unit 1 is to contain 2 bedrooms and a study accessed via a meals area while Unit 2 is to have 3 bedrooms. As well as each containing usual living and ancillary rooms, Unit 2 also contains an alfresco dining area which is roofed but open on two sides. Both units have main areas of secluded private open space on the north side with areas of 41.49sq.m for Unit 1 and 121.9sq.m for Unit 2.
16 The dwellings are detached, separated by a 1m gap. Unit 1 has a front setback ranging from 5m to 6.5m from the frontage, 1m from the south boundary and 3m from the rear west boundary except for the alfresco dining area whose wall abuts this boundary. Unit 2's garage abuts the northern boundary and the units are otherwise setback between 3.5m and 3.7m from this boundary.
17 The dwellings are to be constructed of brick with pitched tiled roofs.
18 The land is included in a Residential 1 zone. Pursuant to Clause 32.01-4 of the Scheme, a planning permit is required to construct two or more dwellings on a lot. Such applications must meet the requirements of Clause 55 of the Scheme (Rescode). These requirements are that a development must meet the objectives and should meet the standards of that clause.
19 The site is not affected by any overlay controls.
20 State and Local planning policies relevant to this application include Clauses 11, 12, 14, 15.12, 16.02, 18.02, 21.06 (Residential) and Clause 22.09 (Neighbourhood Character Policy).
21 The Neighbourhood Character Policy implements the findings of the Hobsons Bay Neighbourhood Character Study December 2002 which identifies key existing characteristics and preferred neighbourhood character. There are 10 precincts in this area, with Seaholme Avenue falling within Precinct 3 - Seaholme and Altona.
22 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.
Residential Design Policy for Multi Unit Development
23 This policy seeks to build on and complement the ResCode standards when dealing with applications for multi-units. It is an adopted policy of the Council but does not form part of the Planning Scheme.
24 Having regard to its status as a document that is not incorporated or referenced in the Planning Scheme, I have considered the draft policy[1] but find that I can give it very limited weight.
25 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme. I have also taken into account the statement of grounds lodged by Kathy Krygsman and David and Sandra Di Lisio who were unable to appear in person.
26 The key issues in this case requiring determination are as follows:
a
Is the proposal satisfactory in neighbourhood character terms, having regard to the design and siting of the proposed units?
b
Are the arrangements for carparking and access satisfactory?
c
Will the proposed site layout offer appropriate areas of private open space and landscaping?
27 Before turning to these issues I find that there is considerable strategic policy support for the redevelopment of this site with medium density housing. A full range of established services and facilities are located nearby with the Seaholme train station situated within easy walking distance to the south. In this context, the proposal would be consistent with policies of urban consolidation and housing diversity. However, as is often the case with such applications the key issues relate to a consideration of neighbourhood character which I will now discuss.
28 Key concerns raised by the Council and respondent objectors to the proposal in relation to neighbourhood character concern the:
•
form and design of the units, including the siting of Unit 1's garage which it was submitted would not be in keeping with the scale and appearance of existing development nearby;
•
front setback of Unit 1which was said to be insufficient and would not comply with the relevant ResCode standard;
•
provision of two driveways which was said to be excessive in the context of the lot's 17.8m width.
29 In forming my view about these issues, I begin by making some observations about the existing neighbourhood character. From my inspection of the area, I observed that Seaholme Avenue contains a mix of dwelling styles with examples of both the original housing stock generally comprising unpretentious weatherboard dwellings interspersed with more recent development which is mainly single storey in scale. Low or an absence of front fences together with mainly low or medium size planting creates a certain sense of spaciousness in the streetscape.
30 The statement of preferred neighbourhood character under Council's Policy provides that:
The spaciousness of the streetscapes and the garden settings of the dwellings will be retained and enhanced.
31 In determining whether this proposal responds to the existing and preferred character I consider that the single storey form of the dwellings is acceptable in neighbourhood character terms. More particularly, the overall proportions and siting of the dwellings, roof form and design detailing such as the dimensions of window and door openings respond appropriately to existing development and will retain the existing rhythm and spacing between buildings in the streetscape. I also note that Council's Neighbourhood Character Policy in seeking to maintain a sense of openness in backyards and provision for canopy planting as a backdrop to the streetscape suggests the provision of single storey development in backyards. The proposal would comply with this suggested response.
32 It is clear that this area is undergoing a degree of redevelopment inevitably bringing with it some change. I am not however persuaded that the change which this proposal represents would be detrimental to the preferred character. Rather, I consider that the proposal will make a positive contribution to the streetscape while also being respectful of the existing character.
33 In relation to Unit 1's garage, I am satisfied that its placement behind the main façade of this dwelling by 800mm, together with its single car design will ensure that it will not have a dominating streetscape presence. This design will in my opinion appropriately respond to Council's Neighbourhood Character Policy which suggests locating "garages and carports behind the line of the dwelling". For these reasons, I find no reason to require its setback to 1m as proposed under Condition 1(a) of the Council's draft conditions.
34 Similarly, the substantial setback of Unit 2's garage and its single car design will not unreasonably impinge upon the streetscape.
35 In relation to the adequacy of the front setback to Unit 1, this varies from 5m at its northern end, 5.7m at its central portion and 6.5m at the southern end. Standard B6 under Clause 55.03-1 suggests the provision of a 6m setback, being the same distance as the setback of the front wall of the abutting dwelling at No. 9 Seaholme Avenue.
36 In forming my view about the adequacy of the staggered setback, I note that the abutting lot to the north is on a corner and has a double garage with a front setback of 1.8m set close to the common boundary. It is at this northern end of the site that the proposed setback is at its lesser dimension. Decision guidelines under ResCode when considering the appropriateness of setbacks under Standard B6 include:
•
Whether a different setback would be more appropriate taking into account the prevailing setbacks of existing buildings on nearby lots.
•
The visual impact of the building when viewed from the street and adjoining properties.
37 I consider that this is a situation where the staggered setback provides an appropriate transition to the corner lot to the north and the neighbouring dwelling to the south. I agree with Mr Singleton that when viewed from the north, the adjoining garage to the north would partially obscure the front portion of the dwelling setback 5m. In this context I find that the northern part of the front elevation would read as a recessive element and would achieve an acceptable visual outcome when viewed from the street and adjoining properties.
38 There was some criticism of the dual driveway/cross-over design by the Council and objectors on neighbourhood character grounds. Concerns were also raised about the potential loss of on-street parking arising from the additional crossover.
39 In terms of the ResCode objectives for access, Standard B14 requires that the width of accessways should not exceed 40 per cent of the street frontage where the width of the street frontage is less than 20 metres.
40 The width of frontage occupied by the accessways would be 31.4%, comfortably meeting the ResCode Standard. While there is a predominance of single cross-overs to similar sized lots, I am not persuaded that the proposal should be refused on this basis. Reasonable space will remain available within the front setback for landscaping and no fencing along the driveways within the frontage that might otherwise fragment the spacious nature of this area is proposed. I also note that the officer's report on this application states that kerbside parking in front of the site for 2 cars would remain available with the additional cross-over, an observation with which I agree.
41 For these reasons I find the provision of two cross-overs acceptable.
42 Turning firstly to carparking issues, objectors questioned the adequacy of the on-site parking provision to cater for likely demand generated by each dwelling. The potential use of Unit 1's study as a bedroom was highlighted as a concern on the basis that it would give rise to a need for 2 on-site spaces rather than 1 space (the latter for a 2 bedroom dwelling) under the relevant ResCode standard.
43 In forming my view about the adequacy of parking, it is apparent that while both units are provided with single car garages, tandem parking is also available within the driveway areas. In the case of Unit 1, one tandem space could be provided while several spaces could be accommodated in Unit 2's driveway. Counting Unit 1's study as a third bedroom, I note that Standard B16 of ResCode requires the provision of 2 car spaces "with one space undercover". Both units have car accommodation that would comply with this standard.
44 Concerns were also raised about the need for vehicles to reverse from Unit 2's garage onto the street over a distance of more than 30m.
45 While I agree with the desirability of vehicles being able to exit sites in a forward movement, I am satisfied that the proposed driveway design is acceptable. Although the existing garage has a lesser setback than that proposed for Unit 2, I note that the arrangement is not greatly dissimilar to the present situation. Importantly, Unit 2's driveway serves only one dwelling and does not connect with a road in a Road Zone. These circumstances weigh in favour of this response and would meet the objectives under Clause 55.03-9 for safe, manageable and convenient access.
46 In terms of traffic impacts, I have not been provided with any evidence that the existing road network would not be capable of accommodating additional traffic generated by the addition of one dwelling. Nor have Council's traffic engineers raised concerns with the proposal on this basis.
47 Council's grounds of refusal state that the proposal would constitute an overdevelopment of the site and that insufficient space between the units has been provided.
48 In considering these matters, one of the symptoms of overdevelopment is typically the extent of site coverage. In this instance, the proposed dwellings would cover 51% of the site, falling well within the 60% site coverage referred to under Standard B8 of ResCode. The extent of permeability at 29% would also comply with the 20% specified under Standard B9.
49 I am otherwise satisfied with the amenity and dimensions of private open space. The secluded areas of private open space are generous, enjoy a northerly orientation offering good levels of amenity for future occupants and comfortably comply with the numerical standards under ResCode. I will however require the provision of a gate adjacent to the south side of Unit 1's garage to allow service access along the side setback area. I will also require relocation of Unit 1's storage shed which presently abuts the porch at Unit 2's entry. Consequently, the provision of fencing or some other visual barrier between Unit 2's porch and Unit 1's private open space area would be necessary for privacy reasons.
50 I also consider that the space provided for landscaping around the dwellings would be acceptable. I do however think there I some benefit in slightly modifying Unit 1's rear northern fence adjacent to the driveway to provide some additional scope for landscaping in this location. This could be achieved by shifting the fence alignment further south by 600mm.
51 In terms of the space between buildings, there was some criticism of the 1m gap proposed between Units 1 and 2. I agree that this space is of little benefit in terms of landscaping or open space other than to provide maintenance access and ventilation to the bathroom and laundry areas of Unit 2. Nonetheless, I am not persuaded that the proposal ought to be refused on this basis.
52 From the oral and written submissions made by objectors, concerns were raised with the ability of existing drainage and sewerage infrastructure to cope with the additional load imposed by this development. I note that these matters did not form the basis of Council's refusal. In relation to drainage, it is understood that that this area does not have access to underground drainage. However, Council's drainage engineers offered no objection to the proposal with the officer's report acknowledging that "Council's Drainage Engineers noted that the additional one dwelling to the street would not cause a problem to the existing drainage" and that appropriate conditions on any permit issued would be necessary.
53 Similarly, in relation to sewerage capacity, the development would need to be connected to the reticulated service to the satisfaction of the relevant authority's requirements.
54 In the absence of any evidence to the contrary, I am unable to find that the proposal would impose an unacceptable load on local infrastructure.
55 I have reviewed and modified Council's draft conditions having heard submissions on them, notably the expiry condition which I have drafted to allow 4 years for the completion of the development.
56 For the reasons I have set out, the decision of the Responsible Authority is set aside.
57 I will direct the grant of a permit with conditions.
[1] See Section 60(1A)(g) of the Planning and Environment Act 1987.
Bugden
Hobsons Bay CC [2006] VCAT 246