Creative Design Studio v Moreland CC [2009] VCAT 1582 (7 August 2009)

Creative Design Studio v Moreland CC [2009] VCAT 1582

The decision of the responsible authority is set aside. A permit is granted and directed to be issued by the responsible authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 2 Hatter Street, Pascoe Vale South which allows the construction of three, two storey dwellings generally in accordance with the endorsed plans. The Tribunal directs that the permit must contain the following conditions:

1. Before the development commences, 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 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 by Creative Design Studio Sheets 1 of 7 Rev A, 2 of 7 Rev A both hand dated 15/06/09 (and on the Tribunal file) and Sheets 3 of 7 to 7 of 7 inclusive but modified to show:
   • (a) Setback of the entire eastern wall of Dwelling 3 to 2.05 metres to align with the entry setback;
   • (b) a setback of the entire southern boundary of Dwelling 1 by 1.0 metre to provide a pedestrian pathway abutting the laneway;
   • (c) the setback of Dwellings 2 & 3 reduced to 1.74 metres with the increased area provided in the secluded private open space to Dwellings 2 & 3 and not within the units internally;
   • (d) Provision of a 1.0 metre wide pedestrian pathway abutting the laneway along the entire sideage up to the entry porch for Dwelling 3;
   • (e) the pedestrian pathway constructed to the same level as the existing laneway but in a different colour and materials to the laneway and the driveways;
   • (f) a minimum access way width of 5.4 metres from the southern edge of the laneway to the garage doors of Dwellings 2 & 3;
   • (g) the garage doors at least 3.2 m wide;
   • (h) the length of the garages increased to 6.0 metres internally;
   • (i) automatic remotely controlled roller shutter garage doors for Dwellings 2 & 3;
   • (j) all blank upper level north, east and south walls of the proposed buildings broken up by further architectural detailing either by inscribing them or stencilling to the satisfaction of the responsible authority;
   • (k) the provision of a light between Dwellings 2 & 3 to provide appropriate lighting for pedestrian access to these two dwellings;
   • (l) A landscape plan in accordance with Condition 3 of this permit.
   • (m) A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples (3 copies in a form that can be endorsed and filed).

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.

Mr Russell Hocking, Town Planning Consultant of Cityside Planning Pty Ltd.

Mr W Abrahams appeared in person. Mr Rodney Mounsey appeared for Audrey Mounsey.

1. The issue in this case is whether policy supports three double storey dwellings with large ground and first floor footprints accessed via a 3.66 metre wide right-of-way (ROW) which also serves shops fronting Bell Street. The site abuts a commercial context of car parking and businesses to the south and dwellings to the north, east and west. The developer contests council's refusal of its application and neighbours support council's refusal.
2. South of the subject site is a cluster of shops located within the Business 1 Zone which front Bell Street.
3. The site directly adjoins a commercial precinct which has all of the attributes of a Neighbourhood Activity Centre as defined within Clause 12 of the Planning Scheme and Melbourne 2030 Metropolitan Strategy. It has small businesses and shops, local convenience services and public transport. Melbourne 2030 encourages higher density housing in and around Neighbourhood Activity Centres.
4. Furthermore, the site immediately abuts a transport corridor along Melville Road serving the Bell/Melville shopping centre.

1. As there was no objection, plans by Creative Design Studio Sheets 1 of 7 Rev A and 2 of 7 Rev A, hand dated 15/06/09 were substituted by the Tribunal. Sheets 3 of 7 to 7 of 7 inclusive remain the same.

1. The subject site lies on the eastern side of Hatter Street, between O'Hea Street to the north and Bell Street to the south. It has a frontage of 12.8 metres, a depth of 37.51 metres, with an area of 480m². A 3.66 metre wide laneway is located along the southern boundary of the site. The site contains a single storey weatherboard dwelling, with a hip tiled roof. The existing dwelling is setback 8.1 metres from Hatter Street with side setbacks of 1 metre from the southern boundary and 2.4 metres from the northern boundary.
2. The character of Hatter Street is predominantly suburban with generous front setbacks, which provide views of established simple gardens. The surrounding area is characterised by residential development to the north, east and west comprising detached single and double storey dwellings and medium density infill.
3. But the character and appearance of this corner site[1] is heavily influenced by the abutting laneway which is heavily used by shopkeepers, delivery trucks and shoppers using the parking spaces, as well as the three double storey townhouses built to the south in the Business 1 zone behind the shop at 430 Bell Street.

1. Dwelling 1 is three bedrooms with a ground floor area of 79.66m² and a first floor area of 63.59m². Like dwelling 1, dwellings 2 and 3 have first floor footprints that are not much smaller than the ground floors. Both are two bedrooms. Dwelling 2's ground floor area totals 86.42m² and first floor area totals 56.45m². Dwelling 3's ground floor area totals 89.25m² with a first floor area total of 57.82m².
2. The two rear dwellings obtain their driveway access off the abutting right of way.
3. Dwelling 1 is to be setback 5.0 metres from Hatter Street and mediates between the 8.1 metre house setback to the north and the townhouse setbacks of 1.2 metres to the south.

1. The land is zoned Residential 1 with no other overlay controls. A permit is required to develop more than one dwelling per lot. Planning policy for housing at clause 21.05-1, objective 3 seeks to ensure increased density development is appropriately located and designed to contribute to achieving environmental sustainability. To that end it supports increased housing intensity within designated activity centres, urban villages and transport corridors, in accordance with Neighbourhood Character Local Planning Policy.
2. The site immediately abuts a transport corridor along Melville Road serving the Bell/Melville shopping centre, although council says the right of way is the boundary between that precinct No. 34 (Bell/Melville) and the subject precinct No. 27.
3. Clause 55 encourages medium density housing across the municipality that achieves good amenity for occupants and neighbours and contributes to preferred urban character statement for the area, as described in the neighbourhood character policy and guidelines.
4. The site lies within neighbourhood character precinct No. 27, although I note that for residential areas within precinct 34, the objectives do not differ. The objectives of clause 22.10, which deals with neighbourhood character, are:
   1. to ensure that new development respects the existing scale and siting of the predominant built form of the precinct;
   2. to improve the landscaped and "green" character;
   3. double storey development will be considered only where reduced building site coverage is consistent with existing surrounding character of rear yards and garden outlooks;
   4. prevailing setbacks (front and side) should be retained. Rear setbacks should have regard to the importance of rear yards and garden outlooks in accordance with the characteristics of the precinct.
5. Urban design policy at clause 21.05-5 objective 2 seeks to ensure that development contributes to and reinforces local identity, sense of place and a sense of safety. To that end it encourages development that incorporates elements which promote safety such as clear sightlines, safe movement, good connections and access, mixed use activities promoting public use, and clear signage.
6. The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs and other documents were tendered to me and remain on the Tribunal's file.

1. This site lies in between the cusp of two precincts, No. 34 covering the Bell/Melville shopping centre and transport corridor and No. 27 covering the Hatter Street hinterland. Nevertheless it cannot be denied that it is affected by its abuttal to a heavily trafficked laneway. The proposed townhouses will face a harsh and unattractive environment.
2. Council criticises the sheer double storey scale of all dwellings when Hatter Street is more single storey. Council seeks greater articulation and a more diminutive first floor to integrate better with the existing single storey character of the area.
3. The adjoining properties at 4 Hatter Street and 1 and 3 Turner Street to the rear have open rear yards with some outbuildings located adjacent to the subject site. Council criticises that dwellings 2 and 3 provide minimal ground floor setbacks from the rear and side setbacks of between 1 metre and 4.1 metres.
4. Council also criticises that Dwelling 1's wall on boundary results in obscured sightlines to the entrances of the dwellings 2 and 3 and forces pedestrians to use the laneway adjacent to reversing cards that park at 2a, 2b and 2c Hatter Street. In other words, pedestrians would be required to stand in the laneway to see the entrances to the rear dwellings. Moreover, street lighting would be insufficient to provide appropriate lighting for pedestrian access to the dwellings 2 and 3.

1. There is no doubt that this cusp location abutting a rear shopping centre car park and delivery access way, around the corner from a transport corridor, is just the location envisaged by metropolitan strategy for increased densities.
2. In respect of neighbourhood character policies in clause 22.10 and the Character Precincts, I follow the sentiments of Member Read in McGann, Carr Architects v Bayside CC[2] where he says:

... in assessing whether a proposal is 'respectful' consideration needs to be given to the context, the thrust of the planning schemes, other policies such as those that call for higher densities in some locations and any special provisions that apply. In a location like this, the notion of what constitutes 'respectful' development needs to embrace the "change" that is encouraged by metropolitan local policy ......

Front setback mediating between townhouses and Hatter House

1. Firstly, council is happy with the 5.0 metre setback of Dwelling 1, mediating as it does between the 8.1 metre house setback to the north and the 1.2 metres townhouse setback to the south.
2. To improve the landscaped and "green" character in accordance with clause 22.10, the front setback needs two canopy trees on each side, permeable surfaces for all open spaces excluding pathways and driveways and irrigation to ensure the landscaping survives and matures. The same applies to the rear yards, all three of which have enough room for canopy trees of a species to the satisfaction of council.

1. I have given thought to Council's criticism of the Dwelling 1 south boundary wall obscuring sightlines to the entrances of the dwellings 2 and 3, but I agree with Mr Hocking that the combination of the 3.66 metre wide laneway together with the open car spaces serving 2a, 2b and 2c Hatter Street allows for clear views to the rear townhouses.
2. However, I will require Dwelling 1's southern boundary to be set off its title boundary by 1.0 metre to provide a pedestrian pathway abutting the laneway in a different colour and materials to the laneway, for safer access to the rear units by separating pedestrians from vehicles in accordance with cl. clause 21.05-5 objective 2.
3. I will also require a light between Dwellings 2 & 3 to provide appropriate lighting for pedestrian access to these two dwellings.

1. Other than increased setbacks to provide a spine of landscaping between residential properties, as suggested by Mr Mounsey for his mother, I do not think that this corner location justifies a diminutive upper level for all three dwellings. They face a robust environment and can be robust themselves, thereby supplying better living accommodation for occupants.
2. Mr Hocking has suggested a way to move the bulk away from Mrs Mounsey, at the same time increasing the secluded private open space which can include canopy trees. Mrs Mounsey's criticism was that the wide eaves limited the ground floor rear setback from 1.0 metre to effectively 500mm which is inadequate.
3. Council is undoubtedly right to criticise the bland and blank nature of the double storey walls to all three buildings. This can be improved greatly by the use of stencilling or inscribing them to the satisfaction of the responsible authority.

1. With permit conditions designed to improve the interface between neighbours, I am able to direct the issue of a permit for double storey townhouse at this commercial cusp with the rear of the Bell/Melville shopping centre.

[1] At the corner of Hatter Street with the 3.66 metre wide right of way

[2] [2006] VCAT 2259