8 August 2006 (by endorsing alternative plans by Michael Dawson Building Designer Sheet TP2 Job No. 0610 and landscaping plan by Steve and Yvonne Wells Sheet A1 dated November 07).

Joel Fredman, Planning Consultant of Fredman Malina Pty Ltd

1. The permit holder reviews council's refusal to endorse an alternative floor plan and landscaping plan pursuant to conditions 1, 2 and 7 of the planning permit regulating the subject land. A floor plan has been endorsed to the permit on 29 August 2006. Council refuses to issue a statement of compliance to enable subdivision and sale of the units.
2. Condition 7 of the planning permit requires submission and endorsement of a landscaping plan. Conditions 1(e) and (f) require the provision of a specific number of deciduous canopy trees of expressed sizes in the front setbacks of the two new units and small deciduous canopy trees in each of the secluded private open space areas.
3. Condition 2 says the development as shown on the endorsed plans must not be altered without the consent of the responsible authority. The permit holder seeks such consent.
4. The permit holder has constructed a 31m2 verandah with a roof 5 metres wide and 6.3 metres long over its 45m2 secluded private open space area to the front unit 1. That roof comprises rafters over paving, the rafters interspersed with four tinted polycarbonate inserts, whereas the endorsed floor plan shows lawn open to the sky and one medium canopy deciduous tree. The latter remains, but there is a debate about the species chosen.
5. Another consequence of the verandah is that council's building surveyor requires a 3.0 metre high fire rating level wall under the BCA on the property boundary because the permit holder keeps his barbeque here. So the 31m2 is not just roofed, but also enclosed by three walls, two walls of the unit and a fire rated wall along the boundary.
6. The permit holder has performed some landscaping, consisting mainly of yuccas and cordylines in pebble beds, both inside and outside the fenced boundaries.
7. Council officers refused to accept these alterations to the endorsed plans, citing:
   • Excessive paving in the secluded open space of Dwelling 1 above which has also been constructed a verandah.
   • Rocks and pebbles used throughout the development in place of shrubs and other plantings. In other words an extremely low level of planting throughout the site and no canopy trees.
8. The permit holder alleges that the 31m2 verandah roof does not alter the nature of the open space, and does not interfere with day lighting to the new windows of unit 1's lounge room and master bedroom (which have no alternative windows).
9. The permit holder also alleges that the 3.0 metre high boundary fire rating level wall required by council's building surveyor under the BCA does not offend the neighbourhood character.
10. In giving these reasons for my decision, I do not propose to set out more extensive details of:
    • the subject land and locality;
    • the planning scheme provisions that apply, or
    • the background to the council's consideration of the permit application and decision.
11. Essentially, the relevant background facts in relation to these matters were comprehensively set out in the written submissions presented by Ms Moser on behalf of the council. There was a dispute about the quality of the landscaping in the neighbourhood and whether it complied with Monash's desired Garden City character. I have also had the benefit of an extensive array of photographs, maps, diagrams and other material which have given me a very good understanding of the land and its context and the proposal.

1. Private open space is defined in clause 72 of the planning scheme as:

An outdoor area of a dwelling or residential building or land for the exclusive use of the occupants. ... ... ...

1. Secluded private open space is defined in the planning scheme as:

That part of private open space primarily intended for outdoor living activities which enjoys a reasonable amount of privacy.

1. Monash's policies favouring landscaping and open space are clearly expressed in its planning scheme where it obtained this local variation to the private open space requirements of standard B28:

An area of 75 square metres, with one part of the private open space at the side or the rear of the dwelling or residential building with a minimum area of 35 square metres, a minimum width of 5 metres and convenient access from a living room;

• Open space areas be of sufficient size to enable the retention of existing significant trees and other vegetation and for the planting of new canopy trees.
• Useable recreational areas, including private and secluded open space areas, be provided for the needs of future residents.
• Local character be enhanced by designing open space areas to reflect the existing neighbourhood character.

• The Garden City Character be enhanced by preserving existing vegetation and providing new vegetation and landscape treatments sympathetic to the existing landscape character.
• Planting of semi-mature canopy trees with spreading crowns be incorporated in open space areas, along boundaries adjacent to neighbouring open space and in front setback areas to reinforce the Garden City Character of the area.
• Development be adequately set back from existing and proposed trees to ensure their longevity.

1. In coming to my decision I have considered the matters raised in the submissions and evidence, the relevant matters under the planning scheme and legislation together with the details of the proposal for which a permit is being sought.
2. After having considered these, the key issues in this matter are:
   • Is the proposed amendment to the previously endorsed drawings, including the proposed landscaping, consistent with the relevant requirements contained in Council's Residential Development and Character Policy at clause 22.01 of the scheme?
   • Is the proposed amendment consistent with the relevant requirements contained within clause 55 of the scheme (ResCode)?
   • Is the proposed amendment, including landscaping, consistent with the conditions contained within the planning permit?

1. If the applicant were right, and the mostly enclosed verandah did not alter characterisation of the open space, it would logically mean that almost all private open space and secluded private open space could be covered over and still comply with Rescode, with significant built form ramifications to neighbourhoods and suburbs. It is my opinion that the applicant is not correct, and that his verandah alters his open space such that he does not comply with the obligations, pursuant to which he obtained multi dwelling permission.
2. In my opinion, the mostly enclosed verandah does not comply with that part of the definition of private or secluded private open space which requires an outdoor area or an area for outdoor living activities. Enclosure by means of three walls (two of the dwelling and a three metre fire rating level boundary wall) and a roof comprised of four tinted polycarbonates between rafters creates a de facto indoor area rather than an outdoor area or an area for outdoor living activities.
3. Aside from not complying with the Rescode requirements, the enclosed verandah will have the following adverse impacts on the dwelling and neighbour:
   1. each of the lounge room and master bedroom with only one window which will now be enclosed by this verandah, will receive diminished and poor day lighting;
   2. the 3.0 metre high on-boundary fire rating level wall will add one metre of bulk to the neighbour who would otherwise face a two-metre paling fence above which landscaping should be blooming.

1. The enclosed verandah will also present a continuous ribbon of roofs and built form to the neighbourhood which will create a poor precedent. It is no excuse to say that the enclosed verandah might look no different to a carport, because dwellings with carports also have to boast open-to-air private open space.
2. Leaving one side open does not provide an impression of open space. Private open space should create a gap which, open to air, should boast mid level landscaping as well as medium canopy trees.

1. I would not interfere with the provision of pebbles and cordyline plants outside the fence line along the perimeter of the development, because of the fact that it is outside the fence line and harder to maintain and weed. If it is not maintained properly, this narrow landscaped strip abutting the footpath would present poorly to the street with adverse neighbourhood consequences.
2. The provision of yucca plants inside the development is a different matter entirely. Medium density housing can easily erode any suburban garden character by excessive paving, inadequate medium level shrub planting and inadequate medium to tall canopy tree planting. It is the landscaping surrounding development that enhances and softens it and makes it blend, eventually, into the neighbourhood.
3. Other than the rear decks for Units 1 & 2, the endorsed building envelope plans show lawn and minimal provision of canopy trees throughout the development. The Responsible Authority is correct in not approving any lesser degree of grassed areas and canopy trees than exists on the endorsed plans.
4. As for the proposed perimeter border pittosporums in Unit 2, they should be in addition to a medium deciduous canopy tree, not instead of the latter.
5. As for the provision of pebbles in place of mulch, shrubs and other plantings, it is my opinion that the Responsible Authority cannot apply double standards to this development if it has endorsed landscape plans for other developments allowing a similar extent of pebbles and yuccas instead of shrubs and mulching. This might be a matter of enforcement instead of double standards. In other words, perhaps council endorsed landscape plans which have not been carried out by the other developers. In case of the latter, it is not a matter of double standards but of enforcement instead.
6. As I have decided to disallow the developer's review, provision of pebbles instead of mulch inside the development will be a matter for the Responsible Authority when it comes to endorsing the landscape plan under conditions 1(e) & (f) and condition 7.

1. I disallow the permit holder's review against council's refusal to endorse an alternative floor plan and landscaping plan pursuant to conditions 1, 2 and 7 of the planning permit regulating the subject land. Development is a privilege with which comes responsibility to ensure it settles into and enhances a neighbourhood, rather than diminishing, and thereby eroding, neighbourhood values.