Derek Phang v City of Darebin & Ors [2001] VCAT 1350

By letter dated 31 May 2001 VicRoads advised that it did not object to the grant of a permit and did not wish to be represented at the hearing.

The written submissions of Mr Chow and Mr Zagami, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

1. This was an application by an Objector under Section 82 of the Planning and Environment Act 1987 to review a decision by the City of Darebin to grant a permit (in Application No D0312/00) for the land at 217 Spring Street, Reservoir to be developed with one double storey and three single storey dwellings.

2. The subject site is located on the south west corner of Spring Street and Croft Crescent, approximately 500m south of the Reservoir Shopping Centre. The site has an irregular shape. It has a frontage to Spring Street of 24.44m, a sideage to Croft Crescent of 50.91, a rear boundary of 11.58m and a southern boundary of 42.15m, yielding a site area of 982m2.

3. The site currently contains a single storey brick dwelling with two outbuildings. There is a low chain mesh fence along Spring Street and a paling fence along Croft Crescent. Vehicle access is gained from Croft Crescent. There is no notable vegetation on the site although there are trees and shrubs in the front garden. The site slopes gently from the north west corner to the south west corner.

4. The surrounding land is predominantly developed with single storey brick dwellings of a similar style. Immediately to the south (No 215 Spring Street) there is a brick dwelling with a carport adjacent to the common boundary. Land abutting to the west has a single storey brick dwelling. On the northern corner of Spring Street and Croft Crescent (No 217A Spring Street) there is a single storey dual occupancy development.

5. The proposal considered by the Council ("Rev. F") is for the development of four detached brick veneer dwellings - three single storey and one (Unit 1) double storey. Each dwelling would have an attached single garage with access gained (via two new crossings) from Croft Crescent. The Tribunal adopts the following summary of the proposal taken from the written submission of Mr Chow:

6. Under the Darebin Planning Scheme the subject site is zoned Residential 1 and not affected by any overlay controls. Spring Street is included in a Road Zone Category 1 and thus VicRoads is a prescribed referral authority.

7. Within a Residential 1 Zone no permit is required to use the land for the purpose of a dwelling. However, pursuant to Clause 32.01-4 a permit is required to construct two or more dwellings on a lot.

8. Clause 65.01 of the Planning Scheme directs the Responsible Authority, and this Tribunal, to consider certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

9. Clause 14.02 contains the State Policy on Settlement within the metropolitan area. It seeks to encourage the consolidation of residential activities. It also states that "development in existing residential areas should be respectful of neighbourhood character."

10. Clause 16.02 contains the State Policy on Medium Density Housing. The objective is the encouragement of well-designed housing which respects the character of the neighbourhood, improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing.

11. Clause 16.02-2 requires an application for medium density housing to be assessed in terms of the latest version of the Good Design Guide for Medium Density Housing ("the Good Design Guide").

12. Clause 19 contains the State Policy on Design and Built Form. Clause 19.03-2 states:

Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.

13. The purpose of the Residential 1 zone, stated at Clause 32.01, includes:

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

14. Council's Municipal Strategic Statement ("MSS") is at Clause 21. Mr Chow highlighted relevant provisions, including Clause 21.11 (Housing and Communities) and Clause 21.12 (Urban Character). Council's Urban Character Study (1998) is a reference document. The subject site is included within Precinct F9 which is typified by early to late post-war dwellings.

15. The Application for Permit was lodged on 3 May 2000. It involved four double storey dwellings with two gaining access from Spring Street.

16. The application was referred to VicRoads. The authority objected to the access arrangement but indicated that it would not object if all access was obtained from Croft Crescent. Revised plans showing such an arrangement were subsequently submitted.

17. The Council's Landscape Architect expressed reservations about the proximity of three crossovers to existing street trees. A revised plan showing two crossovers to Croft Crescent with approximately 1m separation between the works and the trees was later accepted.

18. Council's Traffic Engineers offered no objection but required all new crossovers to be no wider than 7m.

19. Following the giving of notice of the application two objections were received - from the owners of No 215 Spring Street (Mr Phang and Ms Kuo) and on behalf of the owner of No 217A Spring Street (Mr A Banks). Mr Chow's written submission summarised the respective grounds of objection.

20. The planning officer's recommendation that the application be allowed was adopted by the Council's delegate. A Notice of Decision to Grant a Permit was issued on 6 February 2001. The proposed conditions included a requirement for amended plans to show, inter alia:

* Unit 3 being a two bedroom single storey dwelling with specified setback distances.

* The provision of at least 49m2 of private open space for Unit 1 with the north east boundary of such space no less than 2m from Spring Street and delineated by a brush fence.

* Realignment of vehicle crossovers so that they are at least 1m from the base of the trunks of street trees.

* The provision of a 300mm high trellis on a section of the southern boundary fence.

21. I note that many of these modifications had already been incorporated on the plan ("Rev. F") considered by the Council.

22. The application for review by one of the Objectors, lodged on 26 February 2001, included a two page submission which included the following list of reasons why the proposed development would have a detrimental impact on the Phang family:

* Two storied building of Unit 1 will cast a shadow on my property and deprive me of direct sunshine during the winter months when days are short and cold.

* Noise pollution due to increased human activities with having to share Northern fenceline with 3 other property owners on one side.

* Increased traffic movements and congestion due to off street parking of Unit's tenants or visitors. Provision are made for only one car garage per dwelling. With current life styles where the trend is towards 2 to 3 car families, the extra cars will definitely spill over to street parking.

* Loss of property value due to the out of character development.

* Development out of character with neighbourhood surrounds.

23. On 9 March 2001 Mr Zagami, on behalf on the Permit Applicant, lodged the following Statement of Grounds to be relied on at the hearing:

1. The plans have undergone major changes largely to accommodate the objectors concerns.

3. The proposal will not cause shadows to be caste [sic] that will impact on the enjoyment of the objectors' property.

4. Noise pollution is not a serious consideration given the nature of the proposed use.

5. The proposal achieves a satisfactory level of car parking in accordance with the Good Design Guide.

6. Property values are not a valid planning consideration.

7. The proposal is consistent with the character of the area.

8. The two-storey component of the proposal will not cause any detrimental impact on the objectors' property.

9. The objector has been unreasonable in the consideration of proper planning issues and has been ill advised in respect of the perceived impacts on his property which has resulted in unreasonable and costly delays in this project.

24. The Council's Statement of Grounds was received on 1 June 2001. It stated:

* The proposal substantially complies with the key provisions of The Good Design Guide and with relevant State and Local Planning Policies.

* The proposed design is respectful of neighbourhood character and is consistent with Council's Urban Character Strategy.

* The proposal will not cause undue loss of amenity or privacy to adjoining residential properties.

* Adequate provision has been made for on-site parking.

* Council's decision to support the application is proper and correct.

25. Although the grounds of review cover a broad range of matters in his brief oral submission on behalf of the Applicant for Review Mr Ching focussed upon only a few of them - principally the overshadowing and visual bulk as a result of the proposed double storey dwelling (Unit 1) in the south east corner of the site. Nevertheless, the issues in this application are not restricted to those focussed upon my Mr Ching. An application for review represents a hearing de novo or a fresh assessment of the application for permit.

26. After the hearing I conducted an unaccompanied inspection of the subject site, the Applicant for Review's property and the general area. Particularly in the light of that inspection I consider that a wide range of considerations are called for. Despite Mr Ching's limited oral submission a broad range of matters were canvassed at the hearing. The submissions made on behalf of the Council and the Applicant for Permit responded to the wide ranging matters foreshadowed in the grounds of review lodged by Mr Phang.

27. In addition to the matters focussed upon by Mr Ching - relating to the impact on the neighbouring property to the south - this application for review calls for a consideration of the proposed development in terms of neighbourhood character and consideration of the on-site amenity or liveability of the proposed dwellings.

28. Before addressing those matters I note that concerns regarding the impact of the development on the operation of Spring Street (a declared main road) have largely been resolved. No vehicular access is currently gained to the site from Spring Street. An earlier version of the proposal included two new crossovers to Spring Street. However, upon the advice of VicRoads these have been deleted and the authority has no objection if all access is gained from Croft Crescent.

29. I also note at the outset that no weight can be given to the general and unsupported claim by the Applicant for Review that the proposal would lead to the loss of value of his property.

30. State and Local Planning Policies and Element 3 of the Good Design Guide all reinforce the need for new medium density development to be respectful of neighbourhood character.

31. My inspection of the area confirmed Mr Chow's submission that despite some recent redevelopment in this part of Reservoir "the pattern of early post-war housing still dominates local streetscape and urban character." I noted that there is a remarkable consistency of building style and siting in the area - particularly along the western side of Spring Street and along much of Croft Crescent. Although sites adjacent to Spring Street are affected by traffic noise the neighbourhood as a whole reflects the following statement of the "valued character" of Precinct F9 in the Council's Urban Character Study:

The regular site sizes, consistent, low scale housing styles and form, create a pleasant residential environment. In some areas the housing is very consistent to identical, creating repeated patterns of set back and spacing. These areas can be particularly vulnerable to inappropriate development. The spacious appearance of the area is enhanced by the use of low and transparent front fencing.

32. The character statement lists eleven development guidelines for Precinct F9. Mr Chow provided a detailed analysis of the proposal in terms of the guidelines and concluded that the proposal "meets most of" the guidelines. I do not accept all of Mr Chow's analysis or his conclusion.

33. I acknowledge that the proposal would accord with the guidelines relating to roof form and the location of garages. As the proposal involved detached dwellings and no building to the boundary I also accept Mr Chow's submission that the proposal meets the overall intent of the guideline which relates to side setbacks. A landscaping scheme (yet to be fully developed) could satisfy the guideline relating to the treatment of front gardens. Lastly, I acknowledge that with respect to Croft Crescent the proposal goes some way to complying with the guideline relating to fencing. The paling fence which now runs the length of the sideage is proposed to be removed and a significant section of the site would be opened up.

34. However, contrary to Mr Chow's analysis, I do not consider that the proposal meets the guidelines relating to front set back, building height and front fences.

35. Guideline 5 calls for the front setback to "match the predominant set back of nearby dwellings". Mr Chow acknowledged that the proposed building setback of 5m-6m from Spring Street is considerably less than that of the Phang's residence to the south (around 11 or 12m). He argued, however, that "it is still acceptable if it is considered in the context of the irregular corner site'. Mr Chow submitted that:

Council does believe that strict compliance with existing set backs [sic] in Spring Street will produce good and balanced planning outcomes in terms of effective site utilisation. A 12m set back from Spring Street would effectively preclude development on the widest portion of the site, and cram the proposed dwellings onto the narrower, less spacious part of the site.

Respecting neighbourhood character is more than just matching a statistical norm. It is also about building massing, roof treatment, external finishes and landscaping. Provided these additional matters are properly addressed, and provided the reduction is set back remains within acceptable limits, it out would be unreasonable to reject a proposal simply because it is closer to the street than its more established neighbours.

36. I accept that a strict enforcement of this guideline would be overly harsh. New development can respect existing character without exactly matching "the predominant setback of nearby dwellings". That is reflected in the setback requirements in E6.T1 of the Good Design Guide. Indeed, the application of that technique in this instance would allow the front walls of buildings to be set back 6m from the street frontage.

37. A part of criterion 1 of Element 6 of the Good Design Guide is for street frontage setbacks to "suit the efficient use of the site". That supports Mr Chow's submission that development should not be precluded the widest portion of the site. However that factor should not outweigh the other matters referred to in E6.C1 - "the amenity of residents, and the character of the neighbourhood".

38. The subject site is a highly prominent corner location. The subject site and properties to its south on Spring Street all have substantial building setbacks. Given the two storey form of Unit 1 - close to the common boundary with the Phang's property and highly exposed to Spring Street - I consider that its setback (5m to the porch and a minimum of 6.2m to the façade) is unacceptable. I consider that the setback of Unit 2 is also unacceptable. The porch of that dwelling would extend to within 4m of the frontage and a corner of the building would commence 5m from the frontage (less than the minimum in E6.T1 of the Good Design Guide). I do not consider that these are "within acceptable limits".

39. I accept Mr Chow's submission that the design of Unit 1 (the only two storey building) complies with the relevant guideline to the extent that it does not have a "box shape" and the upper storey is well articulated. However, I do not accept Mr Chow's conclusion that the upper floor is well setback from adjacent boundaries. While the upper floor would be further setback from the frontage and southern boundary than the ground floor its location would still result in considerable visual bulk from both Spring Street and the neighbouring property. The proposed location of the only double storey component so close to the neighbour maximises the possible detriment.

40. Guideline 9 states that "front fences, if provided, should be up to 0.9m in height and permeable". The proposal clearly does not meet this guideline. The private open space for Unit 1 is proposed to have a 1.95m brush fence extending to within 2m of the Spring Street frontage. A similar fence would enclose the private open space for Unit 2 (towards the corner of the site and extending along the Croft Crescent boundary.

41. Mr Chow supported the proposal by stating that:

The exclusive use of low front fences would be inappropriate on a corner site located along a busy road. It would create privacy problems and allow traffic noise to intrude into Units 1 and 2. The use of both brush and paling fences up to 2m high to selectively enclosed areas of private open space is acceptable in this instance.

42. Again I consider that the Council's assessment represents a rationalisation of the proposal rather than an assessment from first principles. The site currently has a low wire fence along Spring Street, the dwelling is well set back and established trees and shrubs provide an attractive garden setting. A similar theme is established along the street. The proposal treatment of the Spring Street frontage is completely at odds with this established character. It would be more akin to the treatment of the corner section of the dual occupancy development on the other corner of Croft Crescent which adds nothing to the public realm. While I agree with Mr Chow that areas of secluded open space require fencing for privacy Mr Chow's rationalisation begs the question of whether it is appropriate for any areas of principal private open space to be located so close to Spring Street. I will consider that matter later.

43. I consider that the proposed development would be generally acceptable from a streetscape perspective with respect to Croft Crescent. As noted by Mr Chow the removal of the paling fence would allow the site to be "opened up to facilitate visual interaction with the street to a greater degree". I also note that plan revisions have been made to ensure that the street trees are maintained. However, my principal finding with respect to neighbourhood character is that the proposal fails to adequately respect or enhance the streetscape of Spring Street.

44. As noted by Mr Chow the only potential for overlooking of the Phang's property derives from the south facing windows of Unit 3. That unit is proposed to be single storey but as the subject site is slightly higher than land to the south there could be views from the windows of the kitchen and living/meals area. A requirement for a 300mm high trellis extension to the existing paling fence - as proposed in Council's Notice of Decision - would effectively address this concern of the neighbours.

45. I accept Mr Chow's submission that the normal use of the proposed dwellings would be unlikely to lead to unreasonable noise being experienced by the neighbours. On this matter Mr Chow highlighted that all but one of the living rooms face away from the Phang's property and the dwellings have enclosed garages, rather than carports.

46. The possible overshadowing of the Phang's property - as a result of the two storey Unit 1 - is more controversial.

47. The Council did not receive shadow diagrams for the plan revision which it considered. However, in analysing the impact Mr Chow relied on the diagrams prepared for an earlier version (involving four double storey dwellings). He submitted that:

The shadow diagrams show that the development will cast some shadows over the Phang property in the morning, but these shadows recede as the day progresses and there is minimal shadow cast off-site by the afternoon. The extent of these shadows can be expected to contract substantially with the proposed deletion of the second storey from 3 of the 4 dwellings. The shadow cast by Unit 1 will fall mainly over and around the Phang carport in the morning. It will not contravene E6.T10 of the Good Design Guide...

48. Mr Chow concluded that the amount of shadow that would be cast off-site is "acceptable within an urban context".

49. The need to interpret from earlier drawings was overcome by Mr Zagami tendering at the hearing a shadow diagram for the revised proposal. Drawn at a scale of 1:200 the diagram showed Equinox shadows cast by the first floor level of Unit 1 at 9am, 11am and 3pm. The shadow cast by the existing boundary fence was also indicated.

50. Although the upper storey of Unit 1 has not been significantly altered the drawing tendered by Mr Zagami showed significantly less shadow than the diagram relied on by Mr Chow. For instance, the earlier diagram showed shadow at 9am reaching the Phang's kitchen window, or at least the wall under it. The diagram tendered by Mr Zagami showed shadow at this time only marginally greater than the fence shadow, largely over the carport and nowhere near the window.

51. Mr Zagami attested to the accuracy of the new diagram and suggested that the reduced effect could be due to changes to the ridge line and upper floor layout. However, I thought it appropriate that the other parties be given an opportunity to examine the diagram. The Applicant for Permit was required to forward a 1:100 version of the diagram to the other parties who were invited to respond within 7 days.

52. A copy of a 1:000 version of the shadow diagram and explanatory information by Mr Zagami was received on 15 June 2001. On 21 June 2001 advice was received from Mr Chow that the accuracy of the diagram had been verified. It was submitted that the Council does not consider the extent of the additional shadow (limited to a small area behind the carport) to be unreasonable.

53. In the light of this further information my finding is that the shadow impact on the Phang property would be marginal. Some additional shadow would be cast in the morning at the relevant time for assessment (the Equinox). However, it would affect only a small area behind the Phang's carport which is not a principal area of private open space. The extent of shadow would be greater in the winter months and at that time sunlight reaching the kitchen would be fleeting and not of a magnitude which would be unreasonable. The overshadowing impact would not alone constitute a reason for refusing the proposed development.

54. A further impact raised by the Applicant for Review is that of the visual bulk of Unit 1. Mr Ching submitted that Mr Phang would not object to that dwelling being single storey but that he was concerned about the outlook of a two storey building from the front yard and from the living room. Mr Ching suggested that the building would interrupt existing views to the north up Spring Street.

55. It became apparent that Mr Ching had misread the plan. He was under the assumption that Unit 1 would have a height of 9m or 10m. In fact the maximum height (to the ridge line) is 7m.

56. In the light of my inspection I am not convinced that the outlook from the Phang's living room would be compromised. The carport now dominates that view. While the outlook from the front garden would be changed I do not consider that it represents a significant or unreasonable amenity impact. However, as noted earlier Unit 1 is proposed to be sited close to the common boundary with the Phangs. There would be a setback of only 1m at ground level and the upper floor would be setback 1.8m. While the visual bulk presented to the Phangs is not alone a reason for refusing the proposal it is unfortunate that the only double storey component is proposed to be sited so close to the neighbouring dwelling.

57. A large proportion of the private open space for both Units 1 and 2 is proposed to be located close to Spring Street. Despite the proposed fence treatment I consider that this is a fundamental flaw in the proposed site layout. While double glazing could be used to minimise noise inside the dwellings the open spaces would be subject to considerable traffic noise. The location of the open spaces is contrary to the acoustic privacy objectives, criteria and design suggestions of Element 7 of the Good Design Guide.

58. A further revised plan ("Rev G") tendered by Mr Zagami towards the end of the hearing showed, amongst other things, a reduction in the fenced open space area for Unit 1 near Spring Street. The preparation of the plan indicates that the Applicant has at least considered the issue of acoustic privacy for the open space areas. While the revision would marginally improve the layout in this respect it would not fully address the problem.

59. There are also problems with the location of open space areas for the other dwellings. The open space for Unit 3 is proposed to be to the south of that dwelling and its garage. It would have restricted solar access. Unit 4 would have a pocket of open space which would be slightly less than the minimum required by the Good Design Guide and adjacent to the front yard of the neighbouring property in Croft Crescent.

60. Most of the proposed units are very small. Units 2-4 have floor areas in the range 71m2 - 79m2. There is place for this level of accommodation in the market place. It would also add to housing diversity. However, small floor areas should be complemented by areas for outdoor living that offer a high level of amenity. The proposal fails in this regard.

61. Given its access to a range of services and facilities the subject site is appropriately located for some form of medium density housing development. The development of more than one dwelling would further metropolitan urban consolidation objectives. However, I consider that the proposed development has fundamental flaws.

62. In summary, I consider that the design has not responded to the irregular shaped site and the established neighbourhood character. The siting of the dwellings is at odds with the shape of the site. Dwellings have been crammed into the available space. Dwellings facing Spring Street have an unacceptable setback and the two storey component, while minimal, has been located so that there will be a high exposure to the street and the maximum impact on the neighbour. The size of the dwellings and the location of their private open space would result in relatively poor amenity for future residents.

63. I acknowledge that there has been a series of revisions to the proposal. There have been some fundamental changes to address the concerns of Council, VicRoads and the neighbours. However, these revisions have not gone far enough. The latest are just tinkering with internal layout matters and do not address fundamental problems with the siting of the dwellings.

64. It is doubtful whether the fundamental problems can be overcome if four dwellings are proposed. The site might be more suitably developed with three dwellings. It may, for instance, be appropriate to have a larger, two storey dwelling facing Spring Street, provided it had appropriate frontage and side boundary setbacks. The secluded open spaces for each dwelling should be located so that they offer a high degree of amenity.

65. A requirement for further revisions to the plans could not address the critical flaws I have identified. Accordingly I will allow the Application for Review and make the appropriate order. No permit should issue.