[2004] VCAT 1589

The decision of the Responsible Authority in relation to permit application No P659/03 is set aside. Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.

Mr David Goodwin, Town Planner of David Goodwin & Co, Mr Paul and Mrs Jenny Hamilton, Mrs Eileen Kershaw, Mrs Louise Trimble, Mr Cliff Fothergill, Mr John and Mrs Brenda Miller, Ms Jeanette Salvador

Mr Greg Garde QC instructed by Mr Darren Kerr of Lobb & Kerr Solicitors. He called evidence from Mr Nick Hooper, Town Planner of Taylors Development Strategists Pty Ltd; Mr Jason Walsh, Traffic Engineer of Grogan Richards Pty Ltd; Mr Rob Galbraith, Arborist of Galbraith & Associates; and Ms Carol Frank-Mas, Landscape Architect.

Mr Matt Gorman, Town Planner of Big Picture Urban Rural

1 This is an application under Section 82 of the Planning and Environment Act 1987 to review a decision by Casey City Council to Issue a Notice of Decision to Grant a Permit for construction of multi dwellings and removal of native vegetation on land at Lots 1 and 2 TP 566359F, 50 Inglis Road, Berwick.

2 The Tribunal has inspected the site and neighbourhood on two occasions and submissions, plans, photos and other documents submitted at the hearing have been retained on Tribunal files. The Tribunal has also viewed two other similar developments referred to by Mr Garde - one in Brisbane Street and one in Marlesford Crescent. Mr Gorman, Mr Goodwin, Mrs Trimble, Mrs Miller, Mr Fothergill, Mrs Kershaw, Mr Miller, Mrs Diana Waugh, Mr Mario Nicholetto, Mr Hamilton and Mr Garde made written and/or verbal submissions. Evidence was called on behalf of the permit applicant from Mr Hooper, Mr Walsh, Mr Galbraith and Ms Carol Frank-Mas.

3 The applicants for review opposed the proposal on the basis of it being out of character with the area, having inadequate setbacks, being an overdevelopment, causing overlooking and loss of privacy, leading to a loss of vegetation, providing inadequate space for landscaping, creating excessive traffic within the road network and blocking off and not continuing the existing linear pedestrian walkway system.

4 The site is located on the southern side of Inglis Road and is the last remaining large parcel of undeveloped land between areas to the east and west that have been subdivided and developed as residential estates. The site has an area of 1.627 hectares. Land to the south forms part of the extensive Edwin Flack Reserve. Land opposite on the north side of Inglis Road is used for rural activities.

5 The site and surrounding land to the east and west is zoned Residential 1. Land at the rear in the Edwin Flack Reserve is zoned Public Park and Recreation and land opposite on the north side of Inglis Road is zoned Rural (Schedule 4). Other relevant Planning Scheme provisions include Clauses 11, 14, 15.12, 16.01, 16.02, 18.02, 19.03, 21.02, 21.03, 21.05, 21.09, 21.13, 21.14, 22.05, 22.17, 55 (ResCode), 57.17 and 65. Melbourne 2030 is also relevant.

6 The proposal involves the construction of forty single and double storey dwellings each containing three bedrooms (or two bedrooms and a study), a private gym and swimming pool. Access is via a central driveway off Inglis Road and the forty dwellings are in effect a self-contained residential estate without any direct links to adjoining residential land. A security gate at the Inglis Road entrance creates a development inaccessible to anyone without permission to enter the site.

7 The main issue involves the question of whether this is a site responsive design - a design that has taken into account the specific site characteristics of the site. Residents consider that the site should be used for a residential subdivision of a style and intensity similar to those adjoining to the east and west and with provision for a continuation and linking up of the pedestrian walkways and 'pocket' parks that abut the east, south and west boundaries of the site. They are also concerned about the loss of mature trees on the site.

8 There is a need to balance the various policies contained in the State and local planning policy frameworks. The proposal is consistent with policy relating to consolidating development in well-serviced urban areas. The site is relatively close to the secondary college, although because of the layout convenient pedestrian access utilising the existing linear walkways is not available. However the site is not adjacent to or in close proximity to community and other facilities including shops and is located within 200 metres of the Urban Growth Boundary in this area of Melbourne. The other two similar styled developments in Brisbane Street and Marlesford Crescent referred to by Mr Garde are excellently located very close to a range of facilities (the Brisbane Street site is within sight of and practically adjoins the Berwick town centre while the Marlesford Crescent site backs onto a small shopping centre and is within easy walking distance of public transport, parkland and primary and secondary schools). The review site has some of these advantages in relation to recreation facilities and a secondary school, but is not within convenient walking distance of shops and public transport. It does provide a type of accommodation not found elsewhere in this neighbourhood and therefore assists in providing a diversity of housing styles. I consider that the site can certainly sustain a medium density development - provided as always that matters such as the requirements of ResCode are satisfied including very importantly the design response having regard to the site context. I note that the proposal meets all the mandatory ResCode standards (or in the case of screening can be modified to meet them) and that the main issues in dispute concerned the inappropriate design response, intensity of development, loss of vegetation, traffic generation and failure to include pedestrian links to the existing walkway system.

9 Any medium density proposal must be designed having regard to neighbourhood character and site context and must (as a minimum) meet all the objectives of Clause 55 (ResCode). The starting point for all development is an assessment of the neighbourhood and site features. All development, whether being considered under clauses 54, 55, 56 or 19.03 must respond to the features of the site and the surrounding area. I deal with this matter in the next section.

10 In relation to neighbourhood character, I am of the opinion that the proposal does not fully respond to the character of the neighbourhood. Establishing the character of the neighbourhood involves more than assessing existing building heights, setbacks and lot sizes but also includes side setbacks, landscape character and styles, size and style of rear yards and the public realm including road and footpath design. This locality is right on the fringe of the urban area with Inglis Road forming the boundary with non-urban land to the north. This situation will change in time as the Urban Growth Boundary follows the transmission line just north of Inglis Road and it is reasonable to assume that there will be some form of infill urban development on the northern side of Inglis Road opposite the review site. Housing is relatively new, with the area to the east more recently developed than that to the west and south west. Housing is a mix of one and two storeys and the area does have a relatively low intensity suburban character. To that extent the proposal to construct one and two storey dwellings on the review site is consistent with this built form, although the density is higher than that generally found in the area. That in itself is not a fatal flaw with the proposal and given urban consolidation policies, it is inevitable that future densities in fully serviced areas will be higher than in times past. Provided such densities are not too out of character then such higher densities can be supported and in that respect I do not reject the mix of one and two storey dwellings and the number of dwellings on a site of this size.

11 However another very notable feature of this neighbourhood is the linear park system that provides an alternative means of movement for pedestrians and cyclists. With the exception of the review site, the residential areas on either side and to the south west of the review site are provided with small parks that provide links between the various streets and eventually link through to the Edwin Flack Reserve and the secondary school. The review site in its undeveloped state has resulted in this reserve network being truncated at three points at the boundaries of the review site. (In reality people have been using the review site as an informal link between these reserves, but such movements have in effect been trespass on private land). Although no Outline Development Plan exists to require this network it has, over many years, been developed as a very effective and obviously much appreciated characteristic of this area. The proposal does not build on this important element of the neighbourhood character and in fact ignores it completely, and this is one aspect of the proposal that I find unacceptable in terms of it being a site responsive design.

12 I now turn to the specific site context and the way in which the proposal responds to the specific site context and policy in relation to medium density development, traffic, parking, visual impact and quite specific design matters such as overlooking, screening and amenity.

13 Mr Garde called four expert witnesses and each prepared a written statement, attended the hearing to give oral evidence and was available for cross-examination. None of the other parties called expert witnesses to refute the evidence put forward by these witnesses and I have largely accepted the evidence of the witnesses in relation to traffic, parking and landscaping. However I have reservations about the evidence in relation to planning policy and in relation to trees.

14 There are no overlays applying to the review site in relation to retention of trees and other vegetation, and the requirement in Clause 52.17 for permission to remove native vegetation (defined in the Planning Scheme as plants that are indigenous to Victoria, including trees, shrubs, herbs and grasses) is triggered because the site has an area greater than 0.4 hectares. I note that none of the trees are indigenous or remnant to this part of Victoria and I accept Mr Galbraith's evidence that the majority are in poor condition and of little significance. The plans show retention of four trees - Nos 11, 16, 32 and 44. Tree 11 (Euc. maculata) is indigenous to East Gippsland and NSW, has been given a '5' WOR (Worthiness of Retention) rating and is described as a large healthy tree, a prolific limb shedder and requiring a very large amount of space free of construction. Tree 16 (Frax. angustifolia) is not native and has been given a '5' WOR rating and is described as being in fair condition. Tree 32 (Euc. botryoides) is indigenous, has been given a '5' WOR rating and is described as large tree, with some decay in the trunk, needing a lot of work to make safe and a lot of space if it is to confidently remain. At the hearing Mr Galbraith gave evidence that Tree No 32 could no longer be retained because of excavation required within the root zone. Tree 44 (Euc. elata) is indigenous to East Gippsland and NSW, has been given a '3' WOR rating and is described as an open crowned, rangy tree with spreading habit. Mr Galbraith did not originally recommend this be retained although it was shown as being retained on the development plans.

15 In relation to the four trees originally shown on plans as being retained, it became clear during cross-examination that much more open space must be provided around them if their future health is to be assured. As noted, three are rated '5' and one is rated '3'. Tree 44 that is only rated '3' is a tree that Mr Galbraith did not originally recommend for retention. The provision of an appropriate tree protection zone will require a substantial area of land to be set aside around it if it is survive. Given its low life expectancy then I am not convinced that it should be retained. However, if it is decided to retain it then the design must incorporate clear space as recommended by Mr Galbraith.

16 Of the remaining trees proposed for retention (excluding Tree 32 which Mr Galbraith has said should now be removed), Tree 11 is the healthiest and should be retained at all costs. An area of communal open space has been provided around this tree but it is clear that a much larger area must be provided in accordance with the evidence of Mr Galbraith if this tree is to remain in a healthy condition. The design does not reflect the need for this open space - any new design must include a larger area around this tree as recommended by Mr Galbraith.

17 Trees 16 is not indigenous to Victoria and a permit is not required for its removal. However it is shown as being retained on plans and it can form part of the landscape proposal for the site.

18 Surprisingly the 'best' tree on the site (No 7) has not been earmarked for retention. I consider it a great pity that this tree is not being retained but note that permit approval is only required for the removal of native vegetation - therefore Tree 7 could be removed at any time without a planning permit. I acknowledge that Clause 55 does include reference to trees that have been removed for a development advantage but it is simply a matter to be considered in the decision guidelines. However I strongly recommend that this tree be retained in a new design and that the area around trees 7 and 11 be designed as an area of communal open space.

19 The major disappointment in relation to native vegetation removal concerns Tree No 32. This is a very large and significant tree and has rating of '5'. Mr Galbraith originally recommended that it be retained but at the hearing changed his mind and said it should be removed because it could not be saved with the amount of excavation required around it. This is not site responsive design. Put bluntly, if the tree is to be saved then the design must incorporate sufficient free space around the roots and canopy to ensure its long term survival - and to minimise calls for it to be later removed because of perceived safety issues in relation to limb drop on roofs or damage to roads and walls.

20 The other major issue in relation to site context concerns the network of pedestrian walkways within the neighbourhood and the fact that three of these abut the west, south and east boundaries of the review site. The design response has ignored these and I find this an unacceptable outcome given the themes in policy frameworks:

Development of a municipal-wide open space network, incorporating bicycle and pedestrian paths and equestrian trails.

To reduce car dependency amongst the Casey community

21 Policy is clear that existing links need to be improved and in relation to accessibility (Clause 21.13-1) notes that:

What is lacking is a municipal wide network of open space linkages to connect regional open space to lower order open space and to built up areas. This is essential for the full and effective use of all open space assets.

22 I consider that the Council officers were on the right track in requiring the linking of pedestrian spaces through the development and I am puzzled why the Council removed this requirement given the existing and well-established network that comes right up to the boundary of the review site. Although there is no outline development plan applying in this area, effective strategic planning would support the linking of the existing well-established pedestrian network. A concrete path actually runs to the western boundary of the review site and is then truncated by a fence along the property boundary. The main desire line for residents to the west is clearly in a south east direction towards the school and major recreation facilities. I find it inconceivable that even if the proponent does not want to provide public access through the land that these links were not provided for the convenience of residents of the new development, with one way lockable gates to prevent access if desired. At the hearing Mr Garde suggested that a resident only link could be provided to the park to the south so that residents of the development could easily access the recreation area and school to the south.

23 Fundamentally this proposal fails because it has not responded appropriately to the site context. The whole point of preparing a site context plan and design response plan is not to identify features such as linear parks or significant vegetation and then disregard them. The point is to identify them and then design a proposal having regard to such features. While it does not automatically mean such features must be retained at any cost or no matter how impractical, it does mean that any adverse impacts (including removal or potential damage) has to be very well justified if it is to be approved. On another site and with different site context (such as the sites in Brisbane Street and Marlesford Crescent), the current proposal would almost certainly gain approval without any of the opposition that has been generated on this site.

24 It seems that in many cases permit applicants have a fixed vision or dream of what they want to build and that they have not modified their ideas to take account of, and respond to, the specific site context of the land on which they wish to build. So it appears in this case. In essence, the current proposal involves a replication of a style of medium density development that has been successfully provided by the applicant elsewhere in Berwick. There is nothing wrong with such developments and I do not support residents concerns about a 'gated' community'. Individual houses such as those owned by the respondents have fences and gates and it is common for medium density developments to limit public access. Indeed the provision of this housing style within the Berwick community adds diversity and choice for local residents. What is lacking in this case is a design that responds to the specific site context.

25 As previously noted, Mr Hooper was called to give evidence in relation to planning policy and compliance with planning provisions including issues concerning Clause 55(ResCode). I have already discussed matters concerning broader planning policy and neighbourhood character. He also dealt with more detailed impacts of the proposal including visual bulk, intensity, setbacks, site coverage, height, overlooking and overshadowing and I accept his evidence in relation to these matters.

26 Ms Frank-Mas presented her landscape plan and gave evidence about the landscape theme, selection of plants and other aspects of the design. I have some concerns about detailed design including the relative levels of decks, patios and retaining walls. These can be addressed in any new design for the site.

27 Mr Walsh was called to give evidence about the adequacy of on-site parking, visitor parking, traffic generation and the capacity of the street system to cope with increased traffic generated by forty dwellings on the site. In particular he made comments and responded to questions in relation to the capacity of Inglis Road and the effect of turning traffic into and out of the site. I accept the evidence of Mr Walsh on these matters and am satisfied that traffic generated to and from a development such as now proposed can be adequately catered for within the road network. I also accept his evidence that garbage trucks (although not the largest vehicles operating in the area) can readily access the internal road network. In this regard I note that there is a bin collection point at the front of the site and that this area is readily accessible to the largest garbage trucks in service.

28 In relation to on-site parking, each dwelling is provided with two on site spaces and that there is room for visitor parking in the driveway of most dwellings and also in dedicated areas near the communal pool and gym. This easily complies with the relevant ResCode standards and I am satisfied that if the proposal were to be approved then car parking would not have created any problems for residents or their visitors.

29 There was some criticism in relation to the lack of north facing windows for some units. In relation energy efficiency, I consider that the proposal could have achieved a much better outcome on such a large site. The majority of dwellings are orientated with their main areas of open space to the east, west or south of living areas. On such a large site, there should be no difficulty in orientating many more dwellings so that the living areas gain direct access to generous north facing open space areas and hence very high levels of energy efficiency. There is no evidence that the proposal meets energy efficiency objectives in 55.03-5 or that there has been an attempt to incorporate ESD principles (such as water sensitive design - Clause 22.17-3).

30 In rejecting the current proposal, I did consider the option of granting a permit but with conditions requiring open space links to the existing linear reserves (as recommended by Council officers), retention of more trees and deletion of dwellings to create more space around the trees being retained. However the practical effect of fixing these shortcomings will inevitably result in a substantially different development. That does not mean that a medium density development, of mixed one and two storey built form, is not appropriate for this site. Residents should not expect that a redesigned proposal would necessarily result in a residential subdivision similar to that existing to the east and west. The key issue is that any new proposal is a design that actually responds to the specific site context.

31 Accordingly, I will order that the decision of the Responsible Authority be set aside and that no permit issue.