Victorian Civil and Administrative Tribunal|2004-05-07

Cuthbertson v Bass Coast SC [2004] VCAT 882 (7 May 2004)

Neighbourhood character - new subdivision will develop its own, two-storey dwellings, too many multi-unit developments in a row, visual bulk, lack of visitor and boat parking in holiday/tourist area.

1 This is an application to review a decision of the Bass Coast Shire Council to grant a permit for six (6) townhouses at 253-257 Church Street, Cowes.

2 This application succeeds a previous application, also for the development of six (6) dwellings on the subject site, refused by the Responsible Authority on 7 March 2003. The reasons for refusal were that it was out of character with the existing development in the area and did not comply with certain parts of ResCode. The Responsible Authority considered that the present application, having been designed to address the refusal grounds, is now satisfactory.

3 The site is vacant, relatively flat and is part of a new 122 lot subdivision. The land on which the subdivision is being developed was part of a much larger farm holding. On the opposite side of Church Street the land is generally developed with houses and a caravan park, although one lot is vacant. All other immediate abuttals to the subject site are vacant.

4 The site has an area of 1998 square metres, with a frontage of 54 metres and a sideage of 37 metres. It is approximately two (2) kilometres from the Cowes town centre, but is 250 metres from a boat ramp on Westernport. Following receipt of the application, the Responsible Authority caused it to be advertised and this attracted two (2) objections, one each from Mr and Mrs Cuthbertson. Following analysis of the new design and the objections, the Responsible Authority determined to issue a Notice of Decision to Grant a Permit, subject to conditions.

5 It is proposed to develop the site with six (6) double-storey dwellings, virtually as dual occupancies on each lot, although four (4) of the dwellings are to be constructed having a central driveway. The dwellings will be constructed of sandstone block on the ground floor and clad panels on the first floor with a colourbond roof. Garages and garden sheds are proposed for each dwelling.

6 The land and surrounding land is zoned Residential 1 and is covered by a Vegetation Protection Overlay, Schedule 3, under the Bass Coast Planning Scheme. A permit is required under Clause 32.01-4 of the Scheme for two (2) or more dwellings on a lot. No permit is required under the Vegetation Protection Overlay as no vegetation will be removed. The site is basically clear. The proposal is subject to the relevant Sections of the State and Local Planning Policy Frameworks, including the Municipal Strategic Statement and Local Policies. The Responsible Authority and the Tribunal must consider the provisions of Clauses 55 and 65 of the Scheme.

7 One of the aims of the Local Planning Policy Framework is the Council wishes to increase residential densities within proximity to commercial centres, community and service facilities. There is a strong commitment to urban consolidation and it is a Policy of the Responsible Authority to restrict all major residential developments within existing township boundaries within the Shire.

8 All parties tabled and read from written submissions at the hearing. Photographs and other documents were tabled during proceedings and these, together with the submissions, are retained on the Tribunal file. I do not intend to repeat all the matters put before me, but concentrate on what I believe are the major issues. Following the hearing, I have revisited the written submissions and given consideration to those matters put before me, together with the relevant Planning Scheme and Planning Act provisions.

9 While Mr and Mrs Cuthbertson's submission addressed a large number of issues, including non-compliance with facets of ResCode, it is really a principled objection to the development of two (2) storey multi-unit developments, resulting in increased densities, well removed from the town centre. Because of their concerns about the increased densities and two (2) storey form, they expressed these by way of neighbourhood character, visual bulk and overdevelopment issues. They had a particular concern about the establishment of biolinks, particularly along Anderson Road, a road that fronts their dwelling and is in close proximity to the proposed development. They are members of a group that had negotiated with the subdivision developer to provide extensive plantings along both sides of Anderson Road to assist in reinforcing the biolink and were concerned that increased densities in the area would endanger the effectiveness of that biolink.

10 Mr and Mrs Cuthbertson were particularly concerned about the lack of visitor parking for six (6) dwellings and also a lack of an area set aside for boat parking, because of the proximity of the site to the boat ramp.

11 In relation to the design itself, they are particularly critical about the lack of diversity in the dwelling types, with the front units being designed in triplicate and, similarly, the rear unit. It is their submission that the proposal is at odds with the existing neighbourhood character. It was noted that there is already a dual occupancy being developed to the west of this site and I was advised that a large site on the corner of Anderson Road and Church Street is the subject of another application to the Council, also for a six (6) unit development. Effectively this means that seven (7) of eight (8) allotments fronting Church Street would be developed for multi-dwelling units, therefore, in their words, "producing a fortress of frontage to the streetscape."

12 Mr and Mrs Cuthbertson quoted from a number of Tribunal decisions, including Mattan Homes v Bass Coast Shire Council, 2001/27184.

13 In another Tribunal decisions Dykes & Ors v Bass Coast Shire Council, VCAT 1585, the Tribunal, among other things, said:

"I consider that the site is not well served by commercial or community infrastructure, nor does it benefit from public transport."

"I consider that Council has focussed upon its commendable urban consolidation objectives, without due regard being given to the appropriateness of the subdivision."

14 In Barton v Frankston City Council, VCAT 136, the Tribunal, in dealing with neighbourhood character, talked about physical as well as intangible factors and that, while new development might be at higher densities, it also had to be designed in context and character of the area in which it is to be located. Barton also dealt with two (2) storeys on small lots, with small open-space minimal setbacks versus the large lot area, and concluded that the proposal was unacceptable in the neighbourhood context. They also quoted from La Porta v Moreland City Council, VCAT 227, where the Tribunal stated:

"Any medium density proposal must be designed having regard to neihbourhood character and site context ..."

15 They also referred to Henry Ritterman v Bass Coast Shire Council, where, in Cowes, the Tribunal said:

"By and large the proposal meets the minimum standards of ResCode, but the design response has not adequately taken into account the character of the neighbourhood ..."

16 A number of other cases, relating to visitor parking and boat parking were also referred to by Mr and Mrs Cuthbertson.

17 The land is zoned Residential 1. It has recently been subdivided. It is an estate of two hundred and twenty (220) lots, that is large enough to develop its own distinct neighbourhood character. Opposite and nearby development, that is on the east side of Anderson Road and the north side of Church Street, would appear to have occurred over a long period. There is a mixture of single and double-storey dwellings in the area and even one three (3) storey dwelling.

18 I do not consider arguments about double-storey to be at all justified, as they are a normal form of housing, not only in suburbia, but particularly in holiday areas. One only has to look at Torquay, Ocean Grove and Barwon Heads, as well as Inverloch and Cape Patterson, to observe that it is normal to attempt to gain views of the water by developing upper storeys on houses that may be set back somewhat from the beach front. With regard to this proposal, the three (3) dwellings facing Church Street all have their living areas upstairs. Six (6) dwellings are proposed on 1998 square metres, that is a ratio of almost 1 to 350 square metres. While this is certainly denser than the existing subdivision patterns, it must also be realised that within close proximity there is a motel with double-storey units and a large caravan park, where the density of persons in the summertime would be quite high.

19 Neighbourhood character is the summation of all the physical things within it; street trees, street geometry and furniture, gardens, buildings, setbacks, fencing, lighting, overhead or underground wiring, whatever, they all make neighbourhood character. I therefore do not consider the proposal generally to be out of character, as it is part of the development of a neighbourhood character.

20 Because this is a holiday/tourist area, a distance of two (2) kilometres from the town centre is not in my view sufficient justification to refuse the Application.

21 I take it from the submissions of both Mr Green and Mr Murphy that the proposal meets most of the quantitative standards of ResCode. I take it from the Council's submission that, from its perspective, the proposal meets its Municipal Strategic Statement and Local Planning Policies.

22 At the hearing, I advised Mr Murphy that I had looked at the plans prior to the hearing and was concerned that there are a number of design elements that needed to be altered, because I didn't believe that the proposal meets the provision of secluded, private open space for the front three (3) units of the ResCode Standards.

23 These are large units, which have been articulated, both by architectural styles and materials, and each has been provided with parking for two (2) cars, and there has been some, although insufficient, attempts to reduce gun-barrel driveways. It is interesting to note that the proposal has been designed essentially as a dual occupancy for one lot and four (4) units on the other two lots. The Responsible Authority and Mr Murphy used this design element to argue that a visitor's parking space is not necessary.

24 In relation to precedent, it is normal practice for the Tribunal to deal with each application on its merits and it does not follow that, if this development is approved, it will necessarily lead to an easy road for any other developments within this immediate area.

25 In relation to how this proposal may directly affect Mr and Mrs Cuthbertson, Mr Murphy submitted that there will, in fact, be a separation between the Cuthbertson's property and this proposal and this separation will contain dwellings, be they of a single or double-storey nature, that will impede any direct views. Also, there is a proposition that there will be tall canopy trees within the road reserve and also within the individual properties that will also break up any view-lines.

26 In relation to the development itself, I agree that these are large units and, while there has been an amendment to the original design, more thought could have been put into the actual layout on the site, so that, in particular, the front units have better secluded, private open space. Things such as bin storage areas at the front of the sites are useless and rubbish gatherers and the bins are likely to be stored within the confines of the unit site, rather than at the front.

27 Each dwelling has been provided with an individual storage shed of 6 cubic metres in volume in its rear yard. There is no reason why 6 cubic metres' storage cannot be found in the individual garages, or, in the case of carports, a storage cupboard within the carport area, rather than having unsightly storage sheds in very small backyards. I think this is, unfortunately, a misreading of the ResCode standards, that many Councils have fallen into and it just leads to an untidy look to a development.

28 In relation to visitor parking and boat trailer parking, I am inclined to agree with Mr and Mrs Cuthbertson that, because Phillip Island is a highly sought after tourist location for fisherman and holiday makers, there is a good chance that people who occupy these buildings may own power or sail boats and will look to store them on or near the site. I agree with Mr Murphy that there are specific businesses set up to store boats and caravans, however, this is a new development and consequently there must be room on an almost 2000 square metres site for some boat storage. This need can also be applied to visitor parking. Just complying with the standards of ResCode and the Planning Scheme doesn't necessarily mean that enough parking is provided on the site. Again, on a greenfield site there is no reason why visitor parking can't be included, even on grasscrete or other softer landscaping medium.

29 This is not a very efficient or effective design. The three (3) front dwellings need to be provided with a proper amount of private open space. It seems that the rear dwellings have more than ample private open space, but the front ones certainly lack it.

30 I am conscious that this applicant has been trying for well over twelve (12) months to achieve a suitable multi-unit development on this site. However, I believe that the proposal, as designed, has a number of flaws and could be said to be a bulky development. Because it is one of the first building developments on this Estate, it may set the scene for other developments throughout the Estate and, therefore, it is important that this is a well-designed and well-built development. It is not well designed and, therefore, I intend upholding the Application for Review.

31 It is unfortunate that after all the work done by the Commonwealth Amcord Green Streets Joint Venture Taskforce and the Victorian State VicCode 1 Taskforce, that dealt with the issue of small lots versus body corporates and multi-development on individual lots, the excellent research that led to the production of the Commonwealth and State Codes has not resulted in better designed developments on the ground. Both Codes encourage zero lot line type developments on separate small lots in greenfield sites. That could have easily been achieved along Church Street in this location by, instead of having dual occupancies, one behind the other, each of these lots could have been subdivided down the middle and a well-designed townhouse development proposed. Such a development could have resulted in better use of backyards, with larger private open space areas, good solar access and the opportunity to provide single-garage, drive-through parking where boats could be stored inside yards, behind the garages. It would have allowed for a tandem parking space in front of each garage and provided a better sense of identity for each individual dwelling.

32 If the Applicant wishes to pursue an application similar to this current one, I believe, in the circumstances, such a proposal should be provided with a minimum of one (1) visitor car parking space as Church Street, I'm told, is a very busy road and most people tend to park on the verges. I believe it is appropriate, in this location, to provide for a minimum of two (2) boat trailer parking spaces within the confines of the site. The eastern driveway should provide for a better landscaping regime and be less of a gun-barrel shape.

33 The upper floors of the rear units could be reduced in size somewhat. As Mr Murphy suggested, there could be some articulation to the front setbacks. It is not necessary for the buildings proper to be set back over 7 metres, when the general setback in the area is 6 metres. The setback should not be designated as from the front of the upper floor balconies. Side setbacks could also be staggered, as well as rear setbacks. There is no necessity for the rear setbacks to be 3 metres from the rear boundaries.

Cuthbertson v Bass Coast SC [2004] VCAT 882

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Cuthbertson v Bass Coast SC [2004] VCAT 882 (7 May 2004)

Parties