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[2007] VCAT 12
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2007-01-18
Original judgment source is linked above.
The applicant must cover all costs relating to the preparation and registration of the Agreement (including costs incurred by the Responsible Authority).
The Section 173 Agreement shall be registered in accordance with the provisions of Section 181 of the Planning and Environment Act 1987.
6 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the Authority's requirements and relevant legislation at the time.
7 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the Plan of Subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
8 The Plan of Subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
9 Before the dwellings are occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and thereafter maintained to the satisfaction of the Responsible Authority.
10 Prior to the commencement of works, a tree protection fence must be erected around the drip line of all vegetation to be retained to define a 'Tree Protection Zone'. The fence must be constructed to the satisfaction of the Responsible Authority and must remain in place until construction is completed.
11 No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone without the prior written consent of the Responsible Authority. Such request must be submitted with an arborist report to demonstrate that the health of the tree(s) will not be affected. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.
12 All plumbing work, except for spouting and stormwater downpipes, associated with Dwelling 2 must be concealed from general view.
13 Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.
14 Power and telephone lines to Dwelling 2 hereby permitted must be placed underground from the main point of service outside the boundaries of the site.
15 Mailboxes must be provided to both dwellings to the satisfaction of the Responsible Authority and Australia Post.
16 The amenity of the area must not be detrimentally affected by the development and/or use through the:-
(a)
Transport of materials, goods or commodities to or from the land;
(b)
Appearance of any building works or materials;
(c)
Emission of noise artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
(d)
Presence of vermin;
(e)
Others as appropriate; or
(f)
In any other way.
17 Before the occupation of the dwellings hereby permitted, areas set aside for parking vehicles, loading bays, access lanes and paths as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:
(a)
Constructed;
(b)
Properly formed to such levels that they can be used in accordance with the plans;
(c)
Surfaced;
(d)
Drained and maintained.
Car spaces, access lanes and driveways must be kept available for these purposes at all times.
18 Prior to the commencement of development construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure must be submitted and approved by the Responsible Authority (Infrastructure Manager).
19 Where the development involves work on or access to Council controlled land including roads, reserves and right of way, the owner, operator and their agents under this permit must at all times take adequate precautions to maintain works to the highest public safety standards, to the satisfaction of the Responsible Authority.
Precautions must include, appropriate signage to AS 1743 Road Works Signing Code of Practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings, sufficient to ensure public safety.
All relevant permits must be obtained from Council for works within the existing road reserves, in addition to the planning permit.
20 Vehicle crossings must be constructed to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority (Infrastructure Manager).
21 All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented too neighbouring properties in a manner to the satisfaction of the Responsible Authority.
22 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
23 This permit will expire if one of the following circumstances applies:-
(a)
The development is not commenced within two years of the date of the permit;
(b)
The development is not completed within four years of the date of the permit;
(c)
The subdivision is not certified with two years of the date of the permit;
(d)
The subdivision is not registered within five years of the date of starting.
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.
The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.
Mr P Stoops, Town Planner (for Mr M Lumley), Ms H Stuchbery.
1 This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Frankston City Council ("the Responsible Authority") to refuse to grant a permit.
2 The proposal is for a double storey dwelling at the rear of the existing dwelling and subdivision into two lots. The proposed dwelling would front onto Piper Crescent with a front setback of 4 metres. It would have three bedrooms and a rumpus room at ground floor level and at the upper level a kitchen/living room/dining room and a master bedroom. A deck is proposed at the upper level with access from the living rooms and this deck would be above the garage.
3 The subject land is on the south-east corner of Seaview Road and Piper Crescent. It slightly irregular with a 15.41 metre frontage to Seaview Road, a 44.54 metre abuttal to Piper Crescent and an area of 908 square metres.
4 It presently contains a single storey brick dwelling in the northern half of the block with a floor area of 118 square metres. This dwelling is to be retained.
5 No.1 Piper Crescent adjoins the subject land to the south and contains a flat roofed dwelling with a small upper storey. No.30 Seaview Road is located opposite the subject land to the west and contains a single storey brick dwelling. No.34 Seaview Road adjoins the subject land on its east boundary and contains a single storey brick dwelling. Nos.37, 39, 41 and 43 Seaview Road are opposite the subject land on the north side of Seaview Road. Each contains a single dwelling.
6 The subject land is covered by the Frankston Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to construct a dwelling if there is at least one dwelling existing on the lot, pursuant to Clause 32.01-4. Clause 55, Two or more dwellings on a lot and residential buildings, applies to the proposal.
7 A permit is required for subdivision.
8 The subject land is covered by a Significant Landscape Overlay Schedule 3. A permit is required to remove, destroy or lop native vegetation and exotic trees and shrubs, except where the vegetation is an environmental weed as set out in Table 1 to the Schedule, it is located within 10 metres of a dwelling, or it is an exotic tree or shrub less than 10 metres in height.
9 The Frankston Neighbourhood Character Study formed part of Amendment C24 to the Frankston Planning Scheme which implemented recommendations to the Housing Strategy. It has been considered by a Panel and the Council adopted the recommendations of the Panel and has submitted the amendment with those changes to the Minister for Planning. The amendment can be considered as a seriously entertained planning proposal. The subject land is within Precinct Frankston South 8 of the Neighbourhood Character Study. This identifies the rural bush setting as being the unifying character of the area.
1. The proposal is not in keeping with the current or preferred neighbourhood character of the area, with lot sizes of approximately 900 square metres and with each lot: only containing one residence, having a site coverage minimum of 25%, having a front setback of 15 metres and large side setbacks.
2. The proposal is an overdevelopment of the site taking into account the topography of the site and the large hard surface cover and visual bulk of the proposal.
3. The impact of the proposal on the amenity of surrounding residents is unacceptable including the obscuring of the view from 1 Piper Crescent.
4. The proposal would set an undesirable precedent for the future development of the area and would not be consistent with the orderly and proper planning of the area.
1. The proposal is consistent with the goal of urban consolidation expressed in the Melbourne 2030 Strategy and Clause 16.02 - Medium density housing of the Frankston Planning Scheme.
2. The proposal is consistent with the objectives of the Local Planning Policy Framework of the Frankston Planning Scheme, in particular Clause 21.04 - Housing and Clause 22.16 -Streetscape Policy.
3. The proposed second dwelling meets the objectives of Clause 55 - Two or More Dwellings on a Lot and Residential Buildings and will not adversely impact streetscape and neighbourhood character for the following reasons:
a. There are other lot sizes in the locality with an area less than 900 square metres and the subject site is not affected by Design and Development Overlay (Schedule 1).
b. The front setback of the second dwelling does not project beyond the building line of the existing dwelling and the proposed development will be mostly screened by the retention of existing vegetation and proposed landscaping.
c. Proposed side setbacks are consistent with the existing development pattern in the locality.
d. Proposed site coverage is considerably less than the 60% ResCode standard and does not vary greatly from the 25% Frankston South 8 design guideline.
e. The proposed second dwelling will not result in visual bulk due to a balance of cut and fill, minimum floor to ceiling heights, low pitched skillion roof design, modest floor area, and vegetation screening.
4. Only a small section of view lines from 1 Piper Crescent are likely to be affected by the proposed development, and this view is mostly obscured by vegetation. There are no specific planning provisions applicable to this application which requires consideration of impact on view lines and the owners of 1 Piper Crescent have not objected to the proposal.
5. Setting a precedent for future development is not a legitimate ground of refusal for a planning application. Planning applications must be assessed under the relevant provisions of the planning scheme and considered on their merits.
12 Whilst lot sizes in the area are approximately 900 square metres in area there is discretion in the Residential 1 Zone to allow subdivision of such lots. The proposed second dwelling would be consistent with the height, scale and design of other dwellings in the locality and removal of existing high front fencing and landscaping would enhance the existing open space and landscape character of the municipality. The spacing of dwellings facing Piper Street, following the erection of the proposed dwelling, would be consistent with spacing of dwellings in Piper Street.
13 The proposed setbacks would be consistent with setbacks in the area and also satisfy the relevant Standard in Clause 55.
14 The proposed building site coverage would be 28%. This is slightly in excess of the 25% suggested in the Design Guidelines under the Neighbourhood Character Study, and it would satisfy the relevant Standard in Clause 55.
15 The maximum height of the proposed dwelling would be 6.8 metres which would satisfy the 7 metres suggested in the Design Guidelines and would also satisfy the relevant Standard in Clause 55.
16 Any concerns with respect to overlooking can be dealt with by condition.
17 I consider that the proposal would not be an overdevelopment and would respect the character of the neighbourhood.
18 It was suggested that the proposal would be unacceptable because it would obstruct the view from 1 Piper Crescent. It must be accepted in a suburban environment that dwellings on adjacent lots will obstruct views.
19 As far as precedent is concerned each application must be considered on its own merits.
20 The building site coverage on the proposed Lot 2 with the proposed dwelling would be 37.38. This is greater than the 25% suggested in the Design Guidelines but well satisfies the relevant Standard in Clause 55.
21 The permeability of the subject land, after allowing for building coverage and paved/surfaced areas, would be 55.21%. This is quite generous.
22 I have carried out an inspection since the hearing to help me come to a decision in this matter.
23 For the above reasons this application is allowed subject conditions. It is appropriate for a permit to be granted, and I will so order.
Coastal Surveys
Frankston CC [2007] VCAT 12