Victorian Civil and Administrative Tribunal|2002-06-06

Citywide Property Services v Monash CC & Anor [2002] VCAT 724 (6 June 2002)

PLANNING AND ENVIRONMENT LIST APPLICATION NO. 2002/P387

Three two storey dwellings on a lot, Building bulk and mass, Impact on adjoining property, Locally undergoing change

1. The Responsible Authority's decision is set aside.

2. The Responsible Authority must issue a permit for three two storey dwellings on a lot in accordance with the endorsed plans and conditions.

1. Before the development starts, three copies of an amended plan/plans drawn to scale and dimensioned, must be submitted to and approve by the Responsible Authority. When approved the plan will be endorsed and will hen form part of the permit. The plans must be generally in accordance with those considered by the Tribunal, but modified to show:

a) Setting the first floor level of Dwelling 3 back at least 5 metres from the rear boundary.

b) Provide alternative external wall materials (ie. render, weatherboard) to the first floor walls on Dwelling 3.

c) Provide screen planting which is capable of growing to 3-4 metres in height at maturity along the entire western property boundary. Such species are to be advanced (ie. minimum 200mm pots) at planting.

d) Provision of a trellis above the western boundary fence (up to 2.5 metres high for its entire length).

e) The sills of the windows to the study and entry (living room) of Dwelling 2 shall be raised to be 1.4 metres above the pavement level of the driveway outside those windows.

f) The brick nib protrusions between Dwelling 2 and 3 (on both walls) removed.

g) Delete reference to a visitors car space in front of garage 2.

h) Provide alternative facade treatment to the first floor walls of Dwelling 2 or step bedrooms 1 and 2 on Dwelling 2 back from the current building line by 1 metre.

i) Upper floor window styles to all three dwellings to match the architectural style and proportions of the remainder of their respective dwellings.

j) Provide electricity service meters in accordance with Council policy.

k) Clotheslines, mailboxes provided for all units.

To the satisfaction of the Responsible Authority.

2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties (including the road reserve).

4. A trench grate (125mm minimum width) or Council approved equivalent is required to prevent discharge from the driveways onto the footpath.

5. Direct the entire site's stormwater drainage to the south-east corner of the property where it must be collected and piped to the Council pit in the nature strip to Council standards.

6. Stormwater discharge to the satisfaction of the Responsible Authority.

7. Driveways are to be designed and constructed using appropriate engineering standards to the satisfaction of the Responsible Authority. Coloured concrete or pavers are to be used in the construction. Full reconstruction of the driveway is to occur.

8. Before the development hereby permitted starts three copies of a landscape plan drawn to scale, dimensioned and prepared by a landscape architect, or other suitably qualified person, must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Trees (not shrubs) are to be included in the plan for the front setback and private secluded open space areas of both units. Semi-mature trees/shrubs are to be used.

9. Any trees to be retained on-site are to be protected from damage during the construction process through the erection of appropriate barriers. Any construction near the base of the trees is to be undertaken in such a way as to prevent damage to the trees. Any trees lost as a result of construction are to be replaced with semi-mature specimens.

10. Before any dwelling is occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

11. Before occupation, all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

12. 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 two years of commencement.

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.

13. In the event that one of the four trees listed for retention on the front yard are moved, such trees shall be replaced by canopy trees capable of growing to a similar height as the existing tree to the satisfaction of the Responsible Authority.

Ms. S. Moser, Town Planner, represented the Responsible Authority.

Mr. H. Ng, Town Planner, represented the Applicant for Review.

1. This is an Application for Review pursuant to Section 77 of the Planning and Environment Act 1987 against the decision of Monash City Council to refuse Application for Permit No. 28527.

1. The proposal does not satisfactorily address the purpose and intent of the Good Design Guide for Medium Density Housing.

2. The proposal is an overdevelopment of the site.

3. The proposed development is out of character with the existing development in the area in particular with regard to mass, bulk and scale.

4. The proposed development is not appropriate for the locality in regards to its adverse impact on the streetscape and general neighbourhood character.

5. The proposal does not satisfy the provisions of the Local Planning Policy Framework.

6. The proposed development has an adverse impact on the amenity of the adjoining property to the west.

7. The proposal is inappropriate having regard to the proper and orderly planning of the area.

1. The proposal is well designed and appropriate for the area. It substantially complies with the Good Design Guide.

2. The Council took an elitist and academic approach in applying standards suitable for the Waverley area to the Oakleigh and Clayton area. It was blind to the facts on the ground.

4. It is proposed to erect three, two storey dwellings on the lot. Dwelling1 would comprise living, dining, master bedroom, family room, kitchen and laundry at ground level, and three bedrooms and retreat at first floor level. A double car garage within individual vehicular access is provided on the northern side of the dwelling. Dwelling 2 would comprise family, living, dining, entry, study, WC, kitchen and laundry at ground level, and three bedrooms, retreat and bathroom at first floor level. Dwelling 3 would comprise family, study, entry, living, dining, kitchen and laundry at ground level, and three bedrooms and a bathroom at first floor level. A double car garage would be provided for Dwelling 2 and single car garage would be provided for Dwelling 3. Private open courtyards are provided to the north of each family room. A second vehicular access point is provided for Dwellings 2 and 3 on the southern side of the property.

5. The subject site is located on the western side of Panorama Street about 30 metres south of Iona Street in Clayton. The site is currently the most southern property in Panorama Street, although as the Tribunal was later told, this will change with the redevelopment taking place to the site immediately to the south where 200 dwellings are currently under construction.

6. The subject site has a frontage of 20.879 metres and a depth of 39.62 metres. Land area is about 825 square metres. The land falls from north to south and is currently occupied by a single storey dwelling with various outbuildings and a number of mature canopy trees.

7. Land in the vicinity of the site is mixed with a combination of older single detached dwellings and various medium density housing including three two storey dwellings constructed about three years ago to the north at No.43 Panorama Street. Land to the rear in Luke Street comprises mostly single storey detached housing although the dwelling to the immediate rear (west) is a recently constructed (or substantially extended) dwelling with a second storey within the roof line. This dwelling is occupied by Mr. Colantuono.

8. A public footpath abuts the subject site to the south. This public footway, as the Tribunal observed, was frequently used by pedestrians.

9. A permit for the construction of about 200 dwellings on the site to the south of the footway was issued at the direction of the Tribunal on 23 July 2001. No information was provided of the plans of this development to this division of the Tribunal. The Tribunal noted during its inspection that construction of the site was well underway with substantial excavation works. The Tribunal has subsequently been provided with plans which show a substantial medium density housing proposal including four three storey blocks of housing units. This development will, in part, obtain vehicular access to the southern end of Panorama Street. It is noted that the area immediately abutting the subject site will predominantly be used for car parking and vehicle access to garages.

10. A drive down Panorama Street and observation of the site to the south, reveals the facility is undergoing substantial change with various forms of medium density residential development occurring.

11. The subject site is located in a Residential 1 Zone under the Monash Planning Scheme. The relevant purposes of the zone are:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

* To encourage residential development that respects the neighbourhood character.

12. The site immediately to the south is zoned Residential 2. This site has been rezoned from Industrial to Residential in the past few years.

13. A permit is required to develop more than one dwelling on a lot pursuant to Clause 32.01-4 of the Planning Scheme. This provision also requires assessment of the application pursuant to the provisions of the Good Design Guide for Medium Density Housing.

14. Other policies and guidelines of relevance in this application are contained in the following clauses:

* Clause 22.01 Residential Development and Character Policy

* Build upon the important contribution that landscaping makes to the garden city character of Monash

* To encourage new development to achieve architectural and urban design outcomes that positively contribute to the neighbourhood character having particular regard to the desired future character statement for the applicable residential character type

* To encourage the provision of a variety of housing types to accommodate future housing needs and preferences that are energy efficient and sustainable.

15. The Tribunal was also told the subject site is located within an area identified as an "Investigation Area" in the Monash Planning Scheme MSS. The Tribunal was advised that the planning scheme identifies these areas "may" accommodate a form of development which is different to that in other parts of the municipality where incremental change is expected. Policies are however to be prepared prior to that occurring. The MSS states:

"These areas have the potential to be improved by promoting high quality, higher density development, distinctly different to the type of medium-density development to be found in other parts of the municipality. Demand is high for student accommodation around the Monash University precinct. Apartment and serviced apartment living is sought after around the Monash Medical Centre and the Glen Waverley Regional Activity Centre. The form of development should be site responsive design. It is likely to have greater scale than traditional forms of multi-dwelling development and be on larger sites. It will also exhibit greater articulation while achieving high quality design standards, quality residential environments and enhanced local amenity. Specific design standards will apply to development in these areas."

16. At the review hearing the Applicant for Review and Responsible Authority tabled and read from detailed written submissions, and provided extensive background on prior decisions of VCAT, substantial amounts of photographs of the site, development in the locality and details of Council policies. Mr Colantuono provided an oral presentation. Following the review hearing the Tribunal undertook an inspection of the subject site, the locality and Mr Colantuono's rear yard.

17. The primary matters at issue in this application were:

* Whether the proposed development responded to the character of the area.

* The visual bulk and appearance of the proposed development.

* Whether two vehicle crossings are appropriate for the proposed development.

* Impact on the rear dwelling (Mr Colantuono's property).

* Adequacy of information provided detailed design issues.

18. Ms Moser was highly critical of the proposed development. She advised the Responsible Authority had written to the permit applicant during the processing of the application to alert the applicant of a number of shortcomings of the development. She advised the Council was informed that the applicant was not prepared to alter the plan and would take the matter to VCAT. The matter was subsequently refused by the Responsible Authority without notification being given to adjoining owners and occupiers. The Tribunal subsequently required notification to be given, and as a result, objections were received.

19. Ms Moser was critical of the lack of articulation of the proposed development although she conceded that a two storey development was appropriate. She clarified the Responsible Authority's statement by saying the proposal is not well designed nor site responsive particularly in terms of its impact on the streetscape and neighbouring properties. Ms Moser went to great lengths to explain how some of the detail of the building such as window proportions, placement of windows, and various nib walls could all be improved in the plans. She also claimed it was Council policy to have the upper floor level of each dwelling smaller (ie. in the order of 65% of the footprint) than the ground floor level of each dwelling. Ms Moser argued that if the upper levels of these dwellings were smaller, it would address many of the concerns raised by Council.

20. Ms Moser was also highly critical of the placement of two crossings across the front of the site. She claimed it was Council policy to have only one crossover. Ms Moser argued this on the basis that the "Desired Future Character Statement for the "B" neighbourhoods specifically discourage the provision of two crossovers to allotments. She claimed the Monash Planning Scheme contains a policy in Clause 22.01 that the number of vehicle crossings should be minimised so as to maintain the existing kerbside parking and that car parking and accessways having a significant impact on or causing fragmentation of the streetscape, are to be discouraged. She claimed this proposal with two crossovers was out of keeping with the neighbourhood character.

21. Ms Moser was also highly critical of the placement of the front dwelling 5.93 metres back from the street frontage. She claimed Council policy encouraged a 7.6 metre setback for dwellings of this kind. Ms Moser acknowledged the placement of the two storey dwelling to the immediate north which was 5.975 metres setback but claimed that this had been approved at a time prior to the Council policy. She was also concerned that this setback would set an undesirable precedent for other development in the neighbourhood.

22. Ms Moser also was critical of the placement of a visitors car space in front of garage 2 and considered this should be removed.

23. Ms Moser was critical of the placement of the rear two storey dwelling. During the hearing the Tribunal pressed Ms Moser about the visual impact of the rear dwelling and sought direction what Council would accept. Ms Moser advised the Council required that at least the rear 3 metres of the first floor level be removed, or preferably, the entire first floor level. She claimed this would be in response to the visual bulk when viewing the site from properties in Luke Street.

24. Mr Colantuono principally raised concern about the visual appearance of the rear two storey dwelling. He sought substantial landscaping and fencing so as to improve privacy to his rear open space areas and preferred that Unit 3 be set back well away from his property. He was concerned that the visual bulk of the rear dwelling would overwhelm his private open space which had a north/westerly orientation.

25. Mr Ng for the applicant, argued the area comprises a mixture of detached dwellings mostly of weatherboard construction and multi-dwelling developments. He argued that sites such as the subject one are typically developed for three two storey dwellings. He claimed where land is developed for single dwellings, the dwelling would be generally very large in size and bulk. Mr Ng tabled photographs of both old and more recent single dwellings to reinforce his argument.

26. Mr Ng referred to the large redevelopment site to the south of the subject site to further his argument that the area is undergoing change.

27. Mr Ng was also highly critical of the Council's policies and argued that the Council still persists in the pursuit of the unstatutory residential policy to assess and determine multi-dwelling applications. He argued that the Good Design Guide is the only yardstick for measuring medium density housing and claimed that it prevails over all other documents itemised under Section 7(4)(b)(ii) of the Planning and Environment Act 1987. He referred to a number of decisions including Upton v City of Camberwell 12 AATR 18, and Property Power Pty Ltd v Bayside City Council in Appeal No. P50532/2001.

28. Mr Ng in response to criticism of the open space provision for this development referred to the Brico's case referring to the site for 200 dwellings to the immediate south of the subject site and remarked on the Council's persistence in its requirement for 75 square metres of open space. He also referred to the empirical assessment as being almost meaningless in terms of establishing whether or not the proposal makes adequate provision for open space and that empirical assessment makes no allowance for the provision of communal open space around which the apartment buildings are sited.

29. I am satisfied the proposed development responds reasonably to the character, or should I say the emerging character of this area. In my assessment of this matter I have taken into consideration existing built form including older style detached housing, more recent medium density redevelopment, the development to the immediate north of the subject site which comprises three double storey attached dwellings, and the development site to the south of the subject site where 200 dwellings are under construction.

30. It would be an understatement to say that this area is undergoing substantial change, and whilst historically it may have comprised predominantly single storey relatively modest detached housing, there is now substantial detached houses on lots and various medium density developments, many of which have substantial two storey components.

31. It is also quite understandable why the Responsible Authority has identified this area as a "Special Investigation" area given the age and condition of existing housing stock, the proximity of the site to Monash University, Monash Medical Centre, Clayton Railway Station, Clayton Activity Centre, and various primary and secondary schools nearby. Whilst the double storey component of the development may not have responded well to some of the more modest houses in the neighbourhood, it seems to respond reasonably to the emerging character of the area.

32. I consider changes are required to parts of the development to address its impact and built form on the adjoining property to the west of the subject site. The first floor of Dwelling 3 must to be set back at least 5 metres from the western property boundary. Also a large proportion of the first floor wall treatment should be of a different material in an effort to reduce the visual bulk and mass when viewed from the rear yard of No.8 Luke Street. I have also required screen planting and a trellis to increase privacy between the subject dwellings. I consider this treatment would address the concerns of the objector and the relevant concerns about building bulk and massing.

33. I acknowledge concerns raised by Ms Moser about some of the detailed architectural elements of the proposed development, particularly that relating to the protruding nib/walls between Dwellings 2 and 3, the lack of privacy for living and study room windows in Unit 2, although I consider other criticisms about architectural detail such as the appearance of a single storey garage wall on the northern boundary and the detailing of windows to be overstated and tended to border on matters of personal preference rather than having any substance.

34. I note the criticism about providing a 6.5 metre length garage wall on the northern property boundary, but also note there is at present a 10.5 metre long outbuilding along the boundary. I find it difficult to see how a smaller wall located on the property boundary will add in any substantial way to building bulk when viewed from that property. I also note that no person of that property objected to the proposal.

35. Criticism about window detail and the height of the garage wall facing development of a three two storey dwelling are not substantiated when viewed in the context of other development in Panorama Street because some of the features which Ms Moser criticised were similar in other developments in the neighbourhood.

36. I am satisfied the setback of 5.9 metres from the street frontage is a reasonable design response in this location having regard to:

* The setback of the development to the north of the subject site.

* The form of recent development undertaken in Panorama Street.

* The form of development on the site to the south of the subject site which is currently under construction. This development will have four three storey development blocks.

* The intent of the applicant to retain four mature trees at the front of the site which will substantially obscure the front of the building.

* The articulation of the front of the building, because only part of the front will be set back that 5.9 metres, other sections will be set back 6.5 and 7.53 metres respectively.

37. Whist I consider that the Responsible Authority's policy concerning front setbacks has merit, I am satisfied that the circumstances in this part of Panorama Street warrant a departure from the policy.

38. I also acknowledge the Responsible Authority's concerns about a possible precedent being set particularly for other development sites in Panorama Street. I suggest there are sound reasons to depart from the Council policy including the retention of four large trees which will camouflage the front of the site and the presence of the development immediately north of the site which has a similar setback (but has canopy trees).

39. I am satisfied that the site can be served by two crossings without substantially undermining the intent behind Council policy of having one crossing per site. Whilst there are sound policy reasons to preserve the character of the area, I note this area is undergoing substantial change. The site to the immediate north has two crossovers. This site and the site to the north are also substantially wider than many other lots in Panorama Street. Furthermore the road configuration of Panorama Street will change in the near future with the development of 200 dwellings to the south of the site. New vehicle access to the large development site will occur at the southern end of Panorama Street. It will provide substantial car parking along the boundary of the subject site and therefore the two crossings issue is unlikely to be replicated on a large scale in this area. I may have come to a much different conclusion if the site had been located in the midst of a conventional residential street with 15 - 18 metre width housing blocks and where there was limited opportunity to park in the street.

40. I do not consider the Responsible Authority's requirement of having a notional 65% upper storey to lower storey ratio as appropriate in defining the appropriate level of articulation of building mass in this development. I have required a substantial reduction in the upper floor level of Dwelling 3 principally to address building bulk and mass issues as it affects No.8 Luke Street. This upper level has been required to be stepped back by almost 3 metres from the ground floor level. Whether this represents 65% of the principal building footprint seems unimportant, if not irrelevant, rather the reduction in built form is directly related to its impact when viewed from No.8 Luke Street.

41. I have required a change to the upper level facade treatment on upper level walls on Dwellings 2 and 3 to address concerns about building bulk and mass. Alternatively the upper level of Dwelling 2 shall be set back 1 metre from the northern boundary. The intention of this condition is to seek some form of articulation or treatment to reduce the visual massing of a large expanse of brick work on two of the dwellings.

42. I do not consider criticisms about the open space provisions to be well founded. The amount of open space generally meets the 75 square metre per dwelling requirement although one of the three dwellings does not have that much space exclusively allocated to it. I also note that each dwelling provides more than 35 square metres of secluded private open space adjacent to the family room. I consider that this north-facing secluded open space provision for each dwelling is far superior to most medium density housing proposals in the locality and the superior location and provision outweighs the need to meet some nominal numerical threshold derived by the Responsible Authority. There was no evidence tabled to demonstrate a larger nominal figure would result in a substantial improvement in amenity for future occupiers of the proposed dwellings.

43. I consider the attempt by the Responsible Authority to alert the applicant during the application process to a number of its concerns about the proposal to be well intentioned, although some of the requirements seemed excessive. I also found the response from the applicant to be disappointing in that there did not seem to be much room for discussion or negotiation about this application. Rather it seemed that both parties took on a fairly firm adversarial position which did not assist the Tribunal or the objector in this case.

44. It is noted that following the Council's criticism, and the applicant's reluctance to discuss the matter, the Responsible Authority then refused the application on what could be said to be numerous, yet non-specific grounds of refusal, and the applicant subsequently lodged an Application for Review. This in effect took place without neighbouring property owners' knowledge and it wasn't until VCAT directed notification of the application that the adjoining owners became involved in the application process.

45. At the VCAT hearing Mr. Colantuono provided some useful and constructive criticisms, which in any many respects, became the central issue of dispute. These matters were capable of being addressed by conditions on permit. The Tribunal ponders whether the Responsible Authority may have been better served by giving notification of the application in the first place and analysing the merits of the application including concerns raised by objectors. This may have assisted the Council officer to address some of the more relevant issues in this case. Similarly if the applicant for permit was aware of the adjoining owners' concerns earlier, there may have been a more conciliatory approach on the central issue, and both the applicant and Responsible Authority may not have taken on such dogmatic stances. This is not to say that matter would not have come before VCAT for review, but the critical issues in this application may have been aired a lot sooner and officers of the Responsible Authority may have been better informed about the concerns of objectors and better able to respond to them.

46. For the abovementioned reasons the Application for Review is allowed. The Tribunal directs the issuance of a permit with a reduced development size to address some of the Responsible Authority's concerns and the Objector's concerns.

Environment Act 1987

Citywide Property Services v Monash CC & Anor [2002] VCAT 724

At a glance

Court

Decision date

Source

Judgment (107 paragraphs)

Citywide Property Services v Monash CC & Anor [2002] VCAT 724 (6 June 2002)

Parties

Legislation Cited (1)