Evmez v Frankston CC [2015] VCAT 1862

1. The decision of the responsible authority in relation to permit application no. 422/2014/P is set aside.
2. The responsible authority is directed to issue a permit for the land at 45 East Road, Seaford subject to the conditions contained in Appendix A to these reasons.

Mr A Crack, Town Planner, Andrew Crack & Associates Pty Ltd

Construct one double storey dwelling and two single storey dwellings to the rear of the existing double storey dwelling. Two of the dwellings comprise three bedrooms with two (2) car parking spaces and two of the dwellings comprise two bedrooms with one (1) car parking space. No visitor car parking is provided.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.08-4 - construct two or more dwellings on a lot

Clauses 11, 15, 16.01 - 4, 21.04, 21.07, 22.08, 55 and 65.

The subject site is regular in shape and is located on the northern side of East Road in Seaford.

The site has a front and rear boundary width of 15.24m, side boundaries of 71.95m and an overall area of 1096.5m². A 2.4m wide drainage and sewerage easement extends along the rear boundary of the property. The subject site currently contains a double storey brick and tile dwelling that is set back 7.6 m from the road frontage, with a detached galvanised shed/carport that is located to the rear of the dwelling adjacent to the western property boundary. The site has one crossover and driveway adjacent to the western property boundary that provides access to the carport and an additional crossover and driveway adjacent to the eastern property boundary that provides access to the existing dwelling's detached garage. This site contains one significant tree that is located within the front setback area. This tree will remain unaffected by the development due to its location on the site. There are no other trees on or within 3m of any property boundary.

The surrounding neighbourhood is characterised by a mix of single and double storey dwellings that are predominantly constructed of brick. There are several multi-dwelling developments within the immediate area. Most allotments within the street contain mature gardens with no or low front fencing.[1]

1. This is an application seeking review of the decision of Frankston City Council (the Council) to refuse to grant a permit for the construction of one double storey dwelling and two single storey dwellings to the rear of an existing double storey dwelling at 45 East Road, Seaford.
2. The Council's grounds of refusal relate to neighbourhood character, the level of landscaping provided, the level of permeability provided, and a failure to provide for onsite visitor car parking spaces.
3. Two objections have been received by the Tribunal to the proposal, one from Ms Anthony, owner of 41 East Road Seaford and one from Ms Morris the owner of unit 1/43 East Road Seaford. This property abuts the subject land to the west. The objections by Ms Anthony and Ms Morris relate to the extent of two-storey development of the additional dwelling to the rear, including the potential for overlooking and the extent of overshadowing. They also raise a number of other issues, not necessarily related to planning, but do consider the development may result in an increase in traffic within the area.
4. The Tribunal will address the following issues:
   • Neighbourhood character
   • Traffic and car parking
   • Overlooking and overshadowing
5. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Frankston Planning Scheme, I have decided to set aside the decision of the Council and direct a permit issue. My reasons follow.

1. The subject site is located in the General Residential Zone Schedule 1 (GRZ1) under the Frankston Planning Scheme. The purposes of GRZ1 includes:
   • To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local planning policies.
   • To encourage development that respects the neighbourhood character of the area.
   • To implement neighbourhood character policy and adopted neighbourhood character guidelines.
   • To provide a diversity of housing types and moderate Housing growth in locations offering good access to services and transport.
2. The subject site is located in the Seaford Precinct 2 Neighbourhood Character Precinct under clause 22.08 of the planning scheme. The area is described as:

An area with an open streetscape character, arising from the low scale dwelling forms, the front setbacks, the absence of front fences (or presence of only low front fences), and the wide nature strips. There is also a sense of connection with the original non-urban landscape of the area, due to occasional large trees visible behind dwellings, the unusually large grounds of some dwellings, and the east end of East Road leads into a landscape beyond the edge of the built up area.

'The openness of the streetscape will be maintained, and the sense of connection to the original landscape of the area will be strengthened'.

1. This character is said to be achieved by strengthening the garden setting, with buildings setback from a side or rear boundary a sufficient distance to accommodate at least one large tree, and more trees on larger sites. Ensuring that buildings do not dominate the streetscape.
2. The subject site is similar to the abutting lots. It is relatively narrow in width (15.24m) but long in depth (71.95m) with an overall area of 1096.5m². As such the site allows for the opportunity for some form of medium density development.
3. The existing double storey dwelling is setback 7.6m from the front of the lot and is provided with a separate driveway access on the eastern boundary. There is an existing crossover on the western boundary which will provide for access to the proposed dwellings to the rear.
4. From the perspective of the existing and preferred neighbourhood character for the area the existing double storey dwelling at the front of the lot maintains its address to the street. The proposed buildings to the rear of the existing building will therefore not dominate the streetscape.
5. The existing dwellings' garage abuts the eastern boundary for a length of 6m. It is proposed that the garage for dwelling 2 and bedroom 2 for dwelling 3 will abut the eastern boundary for a length of 9.1m. The garages for dwellings 3 and 4 will abut the eastern boundary for a length of 9.4m with dwelling 4's master bedroom abutting the western boundary for a length of 7.03m.
6. The height of the walls on the boundaries does not exceed 3m. This is considered to be reasonable and unlikely to have an impact on the abutting properties. The property to the east also has a garage and gazebo/shed located on the common boundary and a carport on the property to the west is located in close proximity to the common boundary. It appears therefore to be common within the area for garages and a small amount of built form to be located on a boundary. The proposed walls on the eastern boundary are located either opposite the driveway or the existing shed and gazebo with only a small extent of wall opposite the private open space of the property to the west. I am unable to conclude given the height and location of these walls that there will be any impact on the neighbouring property to the east.
7. The private open space for the two single storey dwellings at 43 East Road, abutting the subject site to the west is located to the rear of each dwelling and faces to the north. The proposed dwellings on the subject site are setback from the common western boundary between 3m and 5m, except for the section of the 7.03m wall of the master bedroom of dwelling 4 on the boundary towards the rear of the site. The height of the wall is 3m and will sit on the eastern side of the rear private open space of 2.43 East Road. This wall will have no impact on the amenity of the private open space of this dwelling.
8. Dwellings 3 and 4 are proposed to be single storey, it is therefore not expected that there will be any issue relating to overlooking or overshadowing from either of these two dwellings to the secluded private open space of the two dwellings at 43 East Road.
9. Proposed dwelling 2 is to be double storey. The upper level of this dwelling is to be setback 6.2m from the common western boundary with the common driveway intervening. The upper level of this dwelling is located opposite the rear secluded private open space of unit 1/43 East Road, Ms Thomas' dwelling. Concern was expressed that the upper level of dwelling 2 would be a dominant feature and impact on the amenity of Ms Thomas' property.
10. The overall height to the ridge line of dwelling 2 is approximately 8.5m. The west elevation of the upper level of dwelling 2 which will be visible from Ms Thomas' rear private open space is well articulated and stepped back in three sections from 6.2m at the common western boundary to 7.8m. It is not uncommon to be able to see upper level built form within an urban environment such as the area in which the subject site is located. It is therefore not considered that whilst visible from the rear private open space of unit 1/43 East Road the upper level of dwelling 2 which is well set back from the common western boundary will result in a visually dominating element. This upper level element will also be visible from Ms Anthony's rear private open space at 41 East Road but due to the separation distance will not result in a visually dominating element.
11. The location of dwelling 2 behind the existing dwelling at the front of the site does not result in any impact on the streetscape or character of the neighbourhood. The driveway along the western boundary which provides access to the proposed dwellings is to have a strip of landscaping on either side at the front. Part of dwelling 4 will be visible from the street at the end of the driveway however this is not considered due to the length of the driveway to result in any impact on the streetscape.
12. Whilst there was some criticism regarding the strip of landscaping that could occur along the driveway and western boundary there are sections that would allow for some medium sized shrubs to be accommodated and the area of 500mm is considered a sufficient width to accommodate some form of planting that could climb the fence providing a landscaped element in this location.
13. A large ornamental tree is located within the front setback of dwelling 1 and makes a contribution to the streetscape. There is no front fence. I consider that the proposed dwellings are sufficiently setback from the north and east boundaries to allow for the replanting of canopy trees. Whilst there is a drainage easement that runs across the rear of the site there is still sufficient area within the rear of dwelling 4 to accommodate at least one canopy tree. Likewise there is also space within the private open space areas of dwellings 2 and 3 to accommodate at least one canopy tree. Given there is currently no vegetation to the rear of the site, this will allow for a significant contribution.
14. The proposal will not result in a detrimental impact on the streetscape and is consistent with the character of the neighbourhood.

1. Council submitted the proposal does not accord with the Council's Multi-Dwelling Visitor Car Parking Guidelines. Under the guidelines one visitor car parking space is required and no visitor space is provided on site. The guidelines were adopted by the Council in 2009 but are not referred to in the Frankston Planning Scheme.
2. No visitor parking spaces are required for the proposal under clause 52.06 of the planning scheme. The Council's Traffic Engineer indicated visitor parking could be accommodated on East Road within the vicinity of the site. Although the Council's Engineer did not consider East Road to have a high on street parking demand, Ms Anthony indicated, there was often a considerable number of cars and trucks parked within the street causing considerable congestion.
3. The proposal provides for one car space within a single garage for dwellings 2 and 3 which have 2 bedrooms each and two car spaces for dwelling 4 which has 3 bedrooms within a double garage. The existing dwelling 1 which contains 3 bedrooms is provided with one car space within a single garage and a tandem car space. The number of car spaces provided on site accords with the required number of car spaces under clause 52.06 of the planning scheme.
4. It is acknowledged that three additional dwellings within East Road will result in more vehicles using the street, however the required number of car spaces are provided on site in accordance with the planning scheme. There is therefore no reason to require additional car spaces or to refuse an application based on the possibility that additional cars may park in or use the street. The proposal does not justify a requirement for the provision of a visitor car space on site.

1. I am unable to conclude there will be any overlooking as a result of the proposal. The upper level windows of dwelling 2 are to be either at a sill height of 1.7m or to have obscure glazing up to 1.7m. Similarly the upper level windows on the east elevation are either at a height of 1.7m or contain obscure glazing. This accords with the requirements under clause 55.04-6 of the planning scheme 'to limit views into existing secluded private open space and habitable room windows'.
2. Given the separation distance between dwelling 2 and the rear secluded open space of unit 1/43 East Road and the intervening 2m high fence on the common boundary any potential downward views into the area private open space will be blocked by the fence.
3. There will be some overshadowing to the neighbouring properties due to the proposal. It is however not considered that the extent of overshadowing will be unreasonable. A small amount of shadow will fall on a section of the rear private open space on unit 2/43 East Road at 9.00am but will have moved away by mid-morning. Some overshadowing will occur to the abutting property to the east at 3pm, a small section of shadow will fall on a section of the swimming pool which is located close to the common boundary and rear private open space with shadow being cast generally at this time over the garage and driveway of this property. This accords with clause 55.04-5 which seeks 'to ensure buildings do not significantly overshadow existing secluded private open space'.

Do any other matters warrant rejection of the proposal?

1. Several other matters were raised in submissions and the objections originally lodged with the Council including pressure on the drainage system, disturbance of wildlife, devaluation of properties, increasing crime rates, builders rubbish and cats killing wildlife.
2. The Council in its grounds of refusal raised the issue of permeability. Standard B9 clause 55.03-4 provides that 'at least 20 per cent of the site should not be covered by impervious surfaces'. The proposal provides a permeability of 28% which exceeds this requirement. It is understood the Council exhibited Amendment C95 which was heard by a Panel in March 2014. The amendment proposed to include the land in the GRZ Schedule 2 which would require at least 30% permeability compared to the Rescode requirement of 20%. To date there has been no gazettal of the amendment and the land remains within GRZ1 and the provisions of clause 55 apply regarding permeability. It is noted the Council's Drainage Engineer did not raise any issues with regard to the proposal and I accept that the proposal will not result in any undue impacts.
3. None of the remaining issues, a number of which are not planning issues, provide the basis for rejecting the permit application or requiring additional conditions.

1. Draft conditions were provided for discussion at the hearing. I have considered the submissions in relation to the proposed conditions and where appropriate, I have either added to, amended, or deleted conditions. Given dwelling 1 exists and has a particular sized area of rear secluded open space I do not consider it necessary to require this area to be increased. Condition 1(a) will therefore be deleted.

1. Based on clause 21.04-1 of the planning scheme Frankston's population is predicted to reach almost 145,000 by 2021. The proposed development which includes single and double storey dwellings with 2 and 3 bedrooms will contribute to housing diversity and future population needs. This area located within a GRZ1 is ideally located with access to community, commercial and recreational facilities, as well as public transport. The proposal therefore accords with and is consistent with State and Local Planning Policy objectives and strategies of urban consolidation.
2. The decision of the responsible authority will be set aside. A permit is directed to be granted subject to conditions.

• Construction of one (1) double storey dwelling and two (2) single storey dwellings to the rear of an existing double storey dwelling (four (4) dwellings)

1. Before the use and/or development starts, 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 substantially in accordance with the plans submitted with the application but modified to show:

(a) A Construction Environmental Management Plan in accordance with Condition 11.

(b) Pedestrian corner splays to be incorporated into the accessways in accordance with Clause 52.06-8 of the Frankston Planning Scheme.

(c) A landscape plan in accordance with Condition 3.

(d) Outdoor lighting in accordance with Condition 15.

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

1. Before the commencement of buildings and works, a landscape plan prepared by a 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. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a) Survey (including botanical names) of all existing vegetation to be retained and/or removed.

(b) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.

(c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at maturity and quantities of each plant.

(e) A planting theme of a minimum 40% indigenous and 20% native species within each planting group.

(f) A range of plant types from ground covers to large shrubs and trees.

(g) Adequate planting densities (e.g. plants with a mature width of 1 metre, planted at 1 metre intervals).

(h) The delineation of garden beds, paving, grassed areas, retaining walls, fences and other landscape works including areas of cut and fill throughout the development.

(i) Canopy trees (minimum two metres tall when planted) in the following areas:

(i) One (1) within the private open space of (all) dwellings (minimum mature height 6m);

(ii) Two (2) small trees within the internal driveway access.

1. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority.

1. Provision of a Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI pre­ development value to the satisfaction of the Responsible Authority.
2. 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 system including the method of connection to the existing Council drainage infrastructure area to be submitted and approved to the satisfaction of the Responsible Authority.
3. Water Sensitive Urban Design principles (WSUD) are to be incorporated into the drainage design, which may include but not be limited to the following components or a combination thereof:
   • On-site stormwater detention and rainwater tanks.
   • Soil percolation.
   • Stormwater harvesting and Re-use of stormwater for garden watering, toilet flushing, etc.
   • On-site 'bio-treatment' to reduce dissolved contaminants and suspended solids.
4. Vehicle crossing shall be constructed to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority.
   1. Prior to occupation of the dwellings hereby permitted by this permit, areas set aside for parking vehicle, access lanes and paths as shown on the endorsed plans must be:

(a) Constructed to the satisfaction of the Responsible Authority;

(b) Properly formed to such levels that they can be used in accordance with the plans;

(d) Drained and maintained to the satisfaction of the Responsible Authority.

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. 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.

1. Prior to the commencement of works (including vegetation removal) a Construction and Environment Management Plan must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed to form part of the permit. Any plans submitted must be consistent with all other documents approved as part of this permit. The information must be drawn to scale with dimensions and three copies must be provided. The Plan is to include details of the following:

(a) Contact Numbers of responsible owner/contractor including emergency/24 hour mobile contact details.

(b) Identification of possible environmental risks associated with development works.

(c) Response measures and monitoring systems to minimise identified environmental risks, including but not limited to vegetation protection, fauna protection, runoff, erosion, dust, litter, noise and light.

(d) Location of all stockpiles and storage of building materials.

(e) Location of parking for site workers and any temporary buildings or facilities.

(f) Details to demonstrate compliance with relevant EPA guidelines.

(g) Hours during which construction activity will take place.

1. All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
2. Mailboxes shall be provided to the proposed dwelling/s to the satisfaction of the Responsible Authority and Australia Post.
3. All plumbing work, sewer pipes etc. (except for spouting and stormwater pipes) associated with the new dwelling shall be concealed from general view.
4. Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.

1. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

(a) The development has not commenced within two (2) years of the date of this permit.

(b) The development is not completed within four (4) years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] Extract from Council Officers Report 9 February 2015

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.