Victorian Civil and Administrative Tribunal|2002-04-15

Grech and Associates Pty Ltd v Monash CC [2002] VCAT 542 (15 April 2002)

Application under s. 77 of the Planning and Environment Act 1987; Monash Planning Scheme; Two Units; "Investigation Area"; Clause 21.03, Clause 21.04; Streetscape; Neighbourhood Character; Dual Crossovers; Clause 22.01; Character Area C; Local Variation to the Good Design Guide; Clause 22.06.

The order of this Tribunal is the Application for Review is not allowed.

Pursuant to section 85(1)(b) of the Planning and Environment Act 1987 a permit must not be granted and no permit is to issue.

Mr T C Radisich of Associated Town Planning Consultants appeared on behalf of the Applicant for Review.

Ms S Moser, Planning Consultant, appeared on behalf of the Responsible Authority.

The parties presented written and oral submissions. A number of plans, photographs and other documents were tendered to the Tribunal. All material has been considered by the Tribunal and is retained on file. The locality was inspected subsequent to the Hearing.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by E J Grech and Associates Pty Ltd to review a decision by the Monash City Council ("the Council") to refuse a permit in application no. 28331. A Notice of Refusal was issued on 22 August 2001 (amended 21 November 2001) on the following grounds:

1. The proposal does not satisfactorily address the purpose and intent and objectives of the Good Design Guide for Medium Density Housing.

2. The proposal is an overdevelopment of the site.

3. The proposed development is out of character with the existing development in the area in particular with regards to mass, bulk and scale.

4. The proposed development has an adverse impact on the amenity of adjoining properties.

5. The proposed development is not appropriate for the locality in regards to its adverse impact on the streetscape and general neighbourhood character.

2. The Application for Review was lodged on 16 October 2001 essentially refuting the grounds set out in the Notice.

3. The subject site is located on the west side of Kinnoull Grove. It has a frontage of approximately 17.08 metres, a depth of 38.07 metres and a total site area of approximately 650 square metres. The land slopes by around 1.5 metres from the south-east to the north-west. A 2.4 metre wide easement extends along the rear boundary.

4. The site is occupied by a single storey dwelling that is setback by around 7.8 metres from the street and a driveway extends along the southern boundary. There are a number of trees within the front setback area and a long and substantial row of mature pines abutting the rear site boundary. Those pine trees form the boundary of a large residential estate that has been recently developed with large and prominent houses with comparatively limited and immature planting present.

5. The adjoining properties to the north and south contain single storey detached dwellings. The dwelling to the north is setback by around 7 metres from the street and has a driveway along its northern boundary. The residence to the south is setback by around 7.8 metres (not 7 metres as shown on the site analysis) with a driveway near to the common boundary with the subject site. Single storey dwellings are also located opposite the site.

6. Kinnoull Grove is a local street which is comprised predominantly of modest single storey detached dwellings. There are few two storey forms or multi-unit developments near to the subject site. Vegetation is quite prominent within some front gardens and given the presence of street trees.

7. It is proposed to demolish the existing dwelling and develop two double storey units. Both units comprise two bedrooms and a double car garage. Unit 2, to the rear, also has a study.

8. Unit 1, fronting the street, is proposed to be setback by 6 metres at the ground level and 6.5 metres to the garage. The first floor level recessed by 1 metre. The porch is sited around 5.15 metres from the street frontage. The garage abuts the northern boundary and the first floor is recessed from that northern boundary by a minimum of 1.8 metres. At ground level, Unit 2 is setback by 1.559 metres from the northern boundary, 3 - 4.6 metres from the rear boundary and 1.2 metres from the southern boundary. The upper level is recessed in part, including setbacks from the northern and southern boundaries of 3 metres and 2.2 metres respectively. The garage to Unit 2 is sited to the east of that dwelling.

9. Each dwelling has separate access. Unit 1 is accessed via a 3.2 metre wide crossover at the northern corner of the site. Unit 2 is provided with a 3 metre driveway along the southern boundary with a narrow landscaped edge that varies in width.

10. Unit 1 is provided with north-facing secluded private open space and Unit 2 has a west-facing area abutting the rear of the subject site.

11. It is proposed to retain three trees within the front setback and remove several including a cypress and birch. A mature tree to the south-west corner (rear) is also to be retained.

12. The subject site is located in a Residential 1 Zone under the provisions of Clause 32.01 of the Monash Planning Scheme. A permit is required to construct more than one dwelling on a lot pursuant to Clause 32.01-4. The decision guidelines of Clause 32.01-4 require consideration of the State and Local Planning Policy Frameworks and the Good Design Guide for Medium Density Housing. The transitional provisions of Clause 52.04 apply as at 24 August 2001.

13. A local variation to the Guide is at Clause 22.06 and includes variations to private open space, front setback and fencing techniques.

14. In addition to Clauses 14, 15, 16, 19 and 65 of the State Planning Policy Framework, a number of provisions of Clause 21 (Municipal Strategic Statement) and several other local policies are relevant to the consideration of the proposal. The local policies include Clause 22.01 (Residential Development and Character) which shows the subject site within Character Area Type C (C3 as detailed in the Monash Urban Character Study that is a reference document). A Tree Conservation Policy is set out at Clause 22.05 and applies to all land.

15. I have reviewed submissions presented by the parties and assessed the proposal in terms of the policies and guidelines of the Planning Scheme.

16. It should be said first that the proposal meets many of the minimum numerical techniques of the Good Design Guide in terms of, for example, density, number of car spaces and setbacks from boundaries, although the Council did raise some concerns in relation to the internal layout which I refer to below. The principal matters in contention relate to neighbourhood character, potential off-site amenity impacts, internal amenity considerations, and landscaping. Before turning to those matters, I refer first to the policy framework set out in the Planning Scheme as this is important in establishing what may be regarded as the reasonable development expectations for the subject site.

17. The submissions made by the Council stressed the provisions of Clause 22.01 in relation to neighbourhood character and the desired future character statement for Area C set out at Clause 22.01-4. These provisions, together with the general provisions of the State Planning Policy Framework, Clause 22.05 and Clause 22.06, were said to guide the consideration of the Application.

18. Mr Radisich also referred to those provisions but noted the absence of any reference in the submission made by the Council and the officer's report to the location of the subject site within an Investigation Area as described in Clause 21.04.

19. When I questioned Ms Moser about this matter, she referred to my comments in an Application for Review relating to a site in Marshall Street, near to Monash University in Clayton. I recite what I said in that matter (Application for Review No. 2000/93112 Jackson and Ors v Monash City Council and A & S Valente and Associates Pty Ltd; unreported):

Clause 21.04 also includes the site within an "Investigation Area". As described at Clause 21.04-3, these are areas where "substantial change may be expected". The Clause continues:

These areas have the potential to be improved by promoting high quality, higher density development, distinctively different to the type of medium- density development to be found in other parts of the municipality. Demand is high for student accommodation around the Monash University precinct...The form of development should be site responsive design. It is likely to have a greater scale than traditional forms of multi-dwelling development and be on larger sites. It will also exhibit greater articulation while achieving high quality design standards, quality residential environments and enhanced local amenity. Specific design standards will apply to developments in these areas.

No "specific design standards" apply at this time in this locality, and further work to this effect is foreshadowed in the Scheme. This leaves the Tribunal in a somewhat difficult position. As the Tribunal must have regard to "desired future character" one view is that the policies seek only a modest level of redevelopment, referred to as single storey housing. Conversely, the Scheme recognises urban consolidation objectives. Moreover, it refers to the area within the site is located, close to Monash University, and recognises the potential for a more significant level of redevelopment. Yet no guidance is in place to assist a process of guiding the achievement of a higher intensity of development.

Mr Finanzio and Ms Moser resolved this matter to some extent by submitting, and agreeing, that it is necessary to assess the proposal against policies and guidelines that are currently applicable, being the Good Design Guide and the policies and provisions of the Planning Scheme (including a local variation to the Good Design Guide). This does not mean that the Tribunal should not have regard to the intent to encourage higher density housing in the specific locality, but it does go to the matter of weight to be given to the various polices that must be balanced in this review process. That is, while the Tribunal accepts that the site is close to Monash University and earmarked for further growth, those policies must be balanced with others that seek to maintain a reasonable level of amenity for neighbouring properties and respect the character of the area. The Good Design Guide therefore plays an important role as a basis for assessment.

20. There was no agreement between the parties in the current Application in relation to the weight to be given to the location of the subject site within an Investigation Area. Ms Moser maintained that these Areas are the subject of further work and that other Scheme policies should be applied as if the site was not within an Investigation Area. Conversely, Mr Radisich submitted that the nomination of the site within an Investigation Area should be given great weight as an area where significant change is specifically cited as being expected.

21. I can understand that some property owners in Kinnoull Grove may have an expectation in relation to a heightened development potential for their land. Nonetheless, I maintain the same view as I set out in the Jackson case. That is, as was then the case, there are no specific design standards that apply or have been drafted in relation to Kinnoull Grove. In these circumstances, I can give some weight to the location of the subject site within an Investigation Area, but not any over-riding weight in a process that requires a balancing of the range of policies set out in the Planning Scheme. This is because the status of those Areas remains as a matter for further review (as stated in Clause 21.04-4 under the heading "Implementation") and because there are no specific policies that provide guidance in relation to the form of new development in these nominated Areas. Having said that, I acknowledge and give weight to the relatively close proximity to railway stations and The Glen. In addition, I can give weight to the matters within Clause 21.04-3 that notes the form of development in an Investigation Area should be site responsive, is likely to have a greater scale than traditional medium density housing (also referenced as on larger sites), should exhibit greater articulation and achieve high quality design and enhanced local amenity.

22. Moreover, if change is to occur in Kinnoull Grove, and because this is the first two storey development in the immediate locale, I consider that close attention should be paid to the design quality and architectural merit of any redevelopment proposal.

23. Relying on the local policy set out at Clause 22.01 including the desired future character statement for Character Area C3, the submissions made by the Council can be summarised as follows:

s the area is characterised by significant vegetation and dwellings are secondary in visual significance. Policies encourage the retention of trees and the use of a single crossover.

s the proposal has an inadequate front setback when considering the local variation technique. A setback equivalent to that of the existing dwelling should be the minimum accepted.

s the narrow front setback, together with the expansive upper floor area, results in Unit 1 sitting forward of adjoining properties and would be out of character with the single storey houses that predominate. A second storey element should be low key.

s the use of dual crossovers is not acceptable as it results in the removal of mature trees, creates a break in the nature strip, and results in excessive hard paved areas.

s there are limited opportunities for landscaping along the driveway.

24. In response, Mr Radisich submitted that the area is one where change is expected and that there is no basis to preclude two storey housing. He contended that the policies of the Scheme seek a general consistency in front setbacks, with which the proposal complies. Mr Radisich referred to the high degree of articulation and retention of trees within the front setback that will screen Unit 1 and ensure a respectful response. He observed that the dwelling to the north is elevated compared with the subject site, as are residences opposite. He stated that if the front setback was a concern to the Tribunal, then it could be increased to around 7 - 7.5 metres. Mr Radisich submitted that there is no reason to preclude a second crossing in streetscape terms.

25. Despite the location of the subject site within an Investigation Area, I agree with many of the concerns expressed by Ms Moser.

26. I have no issue with the development of the subject site for two units and consider that two storey forms are possible in this location. While I do not necessarily agree that second storey elements should have to be low key, they should be reasonably respectful and should not be as dominant and intrusive as would occur if the proposed development proceeded. Unit 1 is proposed to be sited forward of the adjacent single storey dwellings at ground level and its upper level would be forward of the dwelling to the south. I do not find that Unit 1 is well articulated by only a one metre setback along the whole of the upper level. Neither topography nor retention of trees within the front setback area adequately mitigate this building mass. Moving the unit back by about 1 metre also does not resolve my concern.

27. I have some concern that the larger unit is to be rear of the subject site, contrary to what may be generally seen as desirable by the Good Design Guide, and I refer below to consequent issues in relation to visual bulk.

28. I do not consider the use of dual crossovers to be appropriate although the area occupied along the site frontage may be less than 40% being the maximum set out in the Guide. The dual driveways, coupled with the limited setback of the garage to Unit 1 behind the face of that unit (0.5 metres), result in too great an expanse of hard paved areas which is inconsistent with the pattern evident. While the Scheme may foreshadow change, the impacts associated with this aspect of the design are not desirable, nor do they result in a positive contribution to the locality.

29. There is nothing within the design itself to cause me to make any allowance for what could be said to be an innovative or high quality contemporary architectural response or solution.

30. Ms Moser raised some concerns in relation to visual bulk that would be presented to adjacent dwellings. In response, Mr Radisich noted the absence of any objectors to the proposal and submitted that there are no issues that should cause the Application to be rejected in terms of visual bulk, loss of sunlight or overlooking.

31. In relation to these matters I find as follows:

s I accept that overlooking opportunities have been precluded by a lack of east and west facing habitable room windows along the upper levels of each proposed dwelling. The outcome is one where overlooking is not an issue but it is the blank expanses of wall which I find to be poor.

s I have concerns about visual bulk given the narrow setbacks to the north and south boundaries adjacent to Unit 2. The lack of landscaping opportunities ensures that the expansive upper level of Unit 2 (a unit which is larger than Unit 1) is exposed to the open rear yards of the adjacent properties. I am not persuaded that this is an acceptable outcome.

s I was not presented with any shadow diagrams although I note that this was not an issue raised by the Council.

Internal Amenity and Other Elements of Site Layout

32. Ms Moser referred to a number of aspects of the development that fail to comply with the Good Design Guide including:

s the height of garage walls exceed the Good Design Guide techniques.

s some rooms face into the driveway without adequate setbacks.

s failure of private open spaces to satisfy the local variation at Clause 22.06.

s several rooms have a poor outlook, eg. a study that faces an internal driveway and Unit 2's north-facing family room that is setback only 1.559 metres.

33. Mr Radisich submitted that the proposal has a high degree of compliance with the Good Design Guide and more specifically is energy efficient, with adequate daylight and sunlight access to habitable rooms and private open spaces.

34. Mr Radisich submitted that Unit 1 is provided with 47 square metres of secluded open space of the dimensions required by Clause 22.06 with an additional area available within the front setback. Mr Radisich submitted that Unit 2 has total open space of 82 square metres with a secluded area of 63 square metres and remarked that if additional area was found to be required by the Tribunal, that the setback of the family room from the rear boundary could be increased by 0.4 metres to provide a 5 metre wide dimension. In any event, Mr Radisich submitted that the provisions at Clause 22.06 are policy, and not mandatory, and that the private open space areas are adequate having regard to the significant change and higher intensity of development that is anticipated in the locality.

35. I agree with a number of matters raised as concerns by the Council.

36. For example, the location of kitchen and sitting room windows in Unit 1 do not comply with E8.T14 in relation to the proximity of the internal driveway. In addition, the only north facing window in Unit 2, being the ground level family room, faces a fence at a setback of only 1.559 metres. These flaws do not indicate a high quality design, although I accept that some of the concerns could probably be addressed by modifications to the plans.

37. I accept that the areas of private open space are adequate in principle although I do note that the area available to Unit 2 does not comply with the local variation. That could be rectified by adopting a smaller building envelope to the rear unit, which would be an appropriate means by which visual bulk to adjacent properties can be reduced and on-site landscaping opportunities increased. I add that I do not accept Mr Radisich's calculation of 82 square metres of open space as available to Unit 2, given that this includes side setbacks with a width of 1.2 and 1.559 metres and are not readily useable spaces.

38. The subject site is entirely suitable for a two unit development including dwellings that incorporate well articulated second storey forms. The proposed development would not be suitable for the site if it was not within an Investigation Area and I am not persuaded that the nomination of such an Area over Kinnoull Grove or the quality of the design justify approval of the proposal in its current form or with essentially minor modifications suggested by Mr Radisich. My principal concerns are the use of dual crossovers and driveways and the bulk of the upper levels of the dwellings.

39. I do not consider that the building mass or architectural merit is such that a site responsive or high quality design is achieved that will establish a good precedent for further change that may occur in the locality in time.

For the above reasons, the Application for Review is not allowed, and I will order that no permit issue.

Environment Act 1987

Grech and Associates Pty Ltd v Monash CC [2002] VCAT 542

At a glance

Court

Decision date

Source

Judgment (70 paragraphs)

Grech and Associates Pty Ltd v Monash CC [2002] VCAT 542 (15 April 2002)

Parties

Legislation Cited (1)