Campbell v Macedon Ranges SC [2010] VCAT 1345

1. Amended plans being 6 sheets marked TP-01 to TP-06 (all marked Rev C and dated 7.5.10) are substituted for the application plans in Permit Application No 2090341 (9 Francis Crescent).
2. The decisions of the Responsible Authority are affirmed. It is directed that no permits are to issue in permit applications 2090341 & 2090338.

Mr Chris Mackenzie, Solicitor and Planning Advocate of PlanningAppeals.com.au.

Ms May Luk, Town Planner and Mr Christo Crafford, Senior Town Planner.

Section 79 Planning and Environment Act 1987.

Cl. 32.01-4 (construct two or more dwellings on a lot in R1Z).

The two lots are located in Francis Crescent. No 9 is located on the southern side of the northern 'leg' of the crescent, has an area of 2,005m2 and is cleared grassland.

No 27 is located on the eastern side of the western 'leg' of the crescent, has an area of 1,736m2 and is also cleared grassland.

I undertook an inspection two days after the hearing.

1. The permit applicant in both applications has appealed against Council's failure to make a decision within the prescribed time. Council has subsequently made a decision to oppose both developments on four grounds generally concerning neighbourhood character, not complying with the approved development plan, remoteness from facilities and amenity impacts on neighbours.
2. The land is zoned Residential 1 and a Development Plan has been approved for the area. It provides a subdivision and lot layout and identifies reserves, pedestrian links, retarding basin, future commercial centre and three lots for diversity of housing options. Other sites (Lots 19E, 24E and 27E) which have not been identified for housing diversity have been recently re-subdivided and dwellings constructed on most of the new smaller lots.
3. Although one of Council's reasons for opposing the two applications is that they are not consistent with the approved Development Plan, a similar argument was rejected by the Tribunal for a medium density housing development on land opposite No 9 Francis Crescent.[1] A proposal only needs to be generally in accordance with an approved development plan, not precisely in accordance with it. The question of what is meant by 'generally in accordance with' has been discussed by the Tribunal on previous occasions and Mr Mackenzie made reference to three of these.[2] Other more recent cases include Java Sands v Frankston CC [2006] VCAT 2168 and Amber Vision Pty Ltd v Wyndham CC [2007] VCAT 1297 where the Tribunal commented in Amber Vision that:

[9] It is generally accepted that the following principles are applicable in deciding whether a use or development is generally in accordance with a permit or plan:

(a) General accordance is a question of fact to be judged on the facts and circumstances of the case, and

(b) The less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with"

1. Both Java Sands and Amber Vision involved proposals for a childcare centre even though the sites were not specifically earmarked for that purpose and in both cases the Tribunal found that they were generally in accordance with the development plan.
2. I agree with the Tribunal in Ruffles that there is nothing in the approved Development Plan that limits or restricts the number of dwellings or medium density housing on a lot in this particular location. It therefore follows that I am not prevented from considering applications for medium density development on these two lots. In contrast to the approved development plan, Mr Mackenzie advises that there are covenant restrictions on certain lots within this subdivision that do limit or restrict the number of dwellings and further subdivision of those particular lots, but that those restrictions do not apply to the lots involved in these two applications.
3. I therefore find, based on the specific facts involved in these two applications, that they are generally in accordance with the approved development plan. As I explained at the hearing, because the developments are generally in accordance with the approved development plan there are no third party rights of review and hence no opportunity for nearby neighbours to be parties to the proceedings.

Does planning policy and neighbourhood character provide support for this development?

1. Clause 21.06 sets out the vision and strategic framework for the Shire. It notes that urban growth will be contained within major centres including Gisborne. Clause 21.07-1 seeks to protect the character of the Shire's towns which includes compact town centres, significant landscape views, heritage streetscapes, and rural landscape and bushland settings. Local policy for Gisborne is set out in Clause 22.02-2 (Gisborne Township) and includes objectives (amongst others):
   • To protect the urban and landscape elements that contribute to Gisborne's image as a village in a rural landscape.
   • To ensure that new urban development is of a low profile and compatible with the landscape qualities of the area.
2. Both Council and Mr Mackenzie made reference to proposed amendments to the Planning Scheme and the extent to which they are relevant to these two applications. Amendment C59 was exhibited in July 2008 and sought to implement the 2007 Gisborne/New Gisborne Outline Development Plan (ODP). Council then undertook a review of the 2007 ODP and in September 2009 adopted a revised Final Report (2009 ODP). The revised version is being implemented by way of Amendment C67 which supersedes the now abandoned Amendment C59. Exhibition has concluded and a panel hearing was conducted in July 2010. Of relevance to the review sites, the 2007 version of the ODP showed land along Francis Crescent (hatched area) as a preferred location for medium density housing and suggested single lots of not less than 500m2 and multi-unit sites of not less than 1000m2 (max 3 dwellings). The 2009 ODP has removed these preferred medium density housing areas and suggested a set of design principles to guide decision making.
3. Francis Crescent and land in this part of Gisborne is a newly developing residential area known as the 'Ellesmere Estate' with recently constructed dwellings and vacant lots awaiting development. Where houses have been constructed they are very new and largely single storey with one house per lot and generally generous sized yards for landscaping. The recently approved ten dwelling medium density development on the northern side of Francis Crescent, diagonally opposite No 9 Francis Crescent, is the exception although construction has not yet started. Land to the north of that site on the corner of Willowbank and Parkview Roads is earmarked for a future neighbourhood centre but is at present undeveloped vacant land. Land on the southeast corner of Willowbank and Parkview Roads is also undeveloped vacant land but earmarked for a community facility.
4. The neighbourhood character in this part of Gisborne is emerging, but is basically one formed by new brick veneer housing found in developing residential estates throughout Victoria but at a much lower density. Although I consider that these two proposals for 11 single storey dwellings is generally consistent with various state and local policies encouraging urban consolidation and more efficient use of fully serviced land, I am not convinced that they are consistent with the lower density character of the area.
5. I recognise that although both sites are distant from the Gisborne town centre and appear somewhat remote at present, forward planning indicates that they will be close to a future neighbourhood and community facility. The linear reserve along the drainage line to the west of Francis Crescent (opposite No 27) contains pathways that will in time provide links to the central parts of Gisborne. But even as additional development occurs, this area will remain largely characterised by single dwellings on larger lots. This also holds true for the three re-subdivided lots on the corner of Brady Road and Francis Crescent which have areas in excess of 900m2, the four re-subdivided lots in Francis Crescent adjoining No 9 which have areas varying from 817m2 to 1078m2, the six re-subdivided lots on the corner of Francis Crescent and Thomas Place which have areas in excess of 625m2, and the three re-subdivided lots on the corner of Francis Crescent and Parkview Street which each have areas of approximately 620m2. Because of the covenant operating on some 18 residential lots in the estate, there is no opportunity for further subdivision of those lots unless the covenant is removed. Even if re-subdivision of the remaining unencumbered lots does occur at the size previously allowed for the re-subdivided lots referred to above, the area will still retain a lower density character. Approval of these two developments with a density of 1 dwelling per 334m2 and 1 dwelling per 347m2 will result in lots that are almost half the size of the next smallest lots and an even greater disparity with the majority of larger lots in the locality. The only exception is the approved ten dwelling development that backs onto the future neighbourhood centre and which was in an area earmarked in the 2007 ODP as a preferred area for medium density housing.
6. In my view the approval of that development in no way justifies approval of further medium density developments of the scale proposed in those two applications. A simplistic density comparison with the ten dwelling development approved by the Tribunal (Member O'Leary) in 2009[3] would suggest an inconsistency in Tribunal decision making for almost identical proposals, on nearly identical sites in the same street.
7. In the previous case, the 10 dwelling development had a density of 1 dwelling per 348m2. The six dwellings now proposed at No 9 Francis Crescent have a density of 1 dwelling per 334m2 and at No 27 a density of 1 dwelling per 347m2.
8. But density does not provide a true reflection of the intensity of built form and the same density of dwellings can have very different built form outcomes depending on the number of bedrooms, total floor area of dwellings and whether they include two storey sections. For example, in the development approved by Member O'Leary, he describes part of the development (see paragraph 2 of his reasons) as comprising six dwellings each containing 2 bedrooms and four containing three bedrooms. All the three bedroom dwellings had double car garages, the two bedroom dwellings had one space and two visitor car spaces were provided.
9. By comparison, the six dwellings proposed at No 9 all have three bedrooms, and none have double car garages but instead single car garages with tandem parking behind the garages in the rear yards. At No 27 four dwellings have three bedrooms and one has two bedrooms. One three bedroom dwelling has a double car garage and the other three have single car garages with a tandem space in the rear yard. The two bedroom dwelling has a single car space and one visitor space is provided.
10. I recognise that the approved medium density development of ten dwellings provides variety in housing types in this area which is consistent with objectives requiring provision of dwellings at a range of densities (see for example the second purpose of the Residential 1 Zone). Another two similar medium density developments extends that supply further and provides alternatives (variety) in housing choice. But achievement of variety does not mean more of the same. A development of 3 or 4 dwellings on each of these lots would provide even more variety while still respecting the lower density character of the area.
11. In making these references to density I don't want to get too caught up in raw numbers, but there is no doubt that the size of lots, particularly of the relatively small size proposed in these two applications, does have a bearing on the intensity of development and hence on the character issues discussed in Clauses 21.07 (Strategic Directions) and 22.02-2 (Gisborne Township) of the Macedon Ranges Planning Scheme. It is self evident that more dwellings individually require additional areas to be set aside for car parking, access, clothes lines, storage, secluded open space and landscaping.
12. Although my main concerns relate to the intensity of built form, I suspect that what is required is a different approach to medium density developments in this part of Gisborne. I am not convinced that simply replicating medium density development that can be found anywhere in Melbourne (or in more established parts of Gisborne) really responds to or protects the image of Gisborne as a village in a rural landscape. Two proposals each with fewer dwellings would be more consistent with this character. Fewer dwellings would also allow for more generous spacing between buildings and along boundaries, and with more opportunities for landscaping including the provision of new canopy trees and the creation of a landscaped setting more in keeping with the character set out in Clause 22.02-2. Fewer dwellings may also mean each dwelling could be provided with double car garages for convenient parking given that this is an area where there is likely to remain a high dependence on car based travel.
13. I also note that in making these changes there would be no point in creating larger dwellings but instead it should be a genuine redesign and scaling back to better reflect the emerging character of single dwellings on larger lots.

1. I want to emphasise that I do not oppose medium density developments on these two lots but am not prepared to approve the current proposals. What is required is a scaling back of each proposal to better reflect the lower density character of this part of Gisborne and to provide a more spacious setting for the dwellings and a lower intensity of built form.
2. Having regard to all of the above I will affirm the Council's decisions to refuse each application and direct that no permits are to issue.

[1] Ruffles v Macedon Ranges SC [2009] VCAT 1734

[2] Lowther Hall v Moonee Valley CC [unreported], Canet v Brimbank CC [2003] VCAT 13 and Melbourne CC v Becton [2003] VCAT 1077.

[3] Ruffles v Macedon Ranges SC [2009] VCAT 1734