Hipfel v Yarra Ranges SC [2010] VCAT 1802

Judgment (4 paragraphs)

[1]

The Application for Review was lodged on 7 April 2010. This was followed on 1 October 2010 by an application to amend plans. Changes from the original plans include change to the driveway to protect the row of Cypress screen trees between the subject lot and 67 Queen Road, provision for a vehicle turnaround on Lot 2, and changed lot sizes to 438m2 and 552m2 respectively to accommodate the other changes. The arborist's expert witness report was also circulated providing an assessment of vegetation along the NW and SE boundaries of the review site. As there was no objection, the revised plans were accepted at the Tribunal hearing as the plans being considered.

I note that under the Yarra Ranges Housing Strategy that was adopted by Council on 26 May 2009 the review land lies within the Lilydale 'Restricted Change Precinct'. A minimum lot size of 500m2 is proposed for this precinct, with similar density for multi unit developments, and additional housing opportunities are restricted in this area to large lots that are suitable for further subdivision. Application of the Housing Strategy into the Yarra Ranges Planning Scheme is incorporated Amendment C97 to the Yarra Ranges Planning Scheme, discussed below.
Amendment C97 was placed on public exhibition on 9 September 2010. The proposed amendment which has not yet been reviewed by a Planning Panel, affects all land zoned Residential 1 and Low Density Residential in the Shire. It seeks to implement recommendations of the Yarra Ranges Housing Strategy 2009 and the Shire of Yarra Ranges Neighbourhood Character Study 2002. It also seeks to translate existing controls in Clause 353.01 (Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan) into standard controls in the Victoria Planning Provisions.
The changes applicable to the subject site would include the introduction of a Design and Development Overlay (DDO8), a Significant Landscape Overlay (SLO25), and rezoning of the land to Residential Zone 3 (R3Z). A purpose of the R3Z would be for residential development to respect neighbourhood character. The DDO8 and SLO25 in part cover matters including fence and building heights and percentage lot cover by new developments.
However while the proposed Amendment provides useful guidance on what Council is seeking to achieve in the subject area, it does not apply to this application, and I am unable to give it the weight it would have if introduced.

Put simply, I agree with Council's stated reasons for rejecting the proposal against existing policy, and I regard the proposal as optimistic at best. My primary reasons are identified below.
I agree with Council that at the broadest level there is some state level policy support for medium density housing in this area given that it is currently in the R1Z and has 'relatively good' access to public transport and public open space. However, such factors are outweighed in this situation by State and local level policy requirements for developments to complement neighbourhood character.
I have noted earlier that no other original lot fronting onto Queen Road between Summit Road and Old Gippsland Road has been subdivided into three lots. All lots in this area are around 1000m2 or 2000m2 depending on whether or not they are original or subdivided lots. The proposed lot sizes here of 438 m2 and 552m2 would represent a clear departure from this. It follows that internal amenity on the lots created will differ substantially from amenities on other lots in the locality. I accept that Council policy does not envisage that such a shift should occur in this area at this time.
Mr Kaylock for the applicant chose to focus on the setbacks of dwellings along the north side of Queen Road, for the 850 metre length between Maroondah Highway and Old Gippsland Road, and the width of existing developments with narrow side setbacks, as the main bases for his presentation to the Tribunal. He did not focus on lot size and development densities that I consider to be central to this proposal.
Given the slope of the review site and the visibility of the existing two dwellings on the original large lot from Queen Road, I consider that a further dwelling on proposed Lot 1 fronting Queen Road may result in all three dwellings being visible from the road. This together with the small lots , the short setback of the building envelope on Lot 1 from Queen Road, and the short separations between existing dwelling on proposed Lot 2 and the building enveloped on proposed Lot 1, will present as an intensive development of the site in this immediate locality. Further, I do not agree that the proposal provides sufficient space for an 'enhanced landscape outcome' as claimed but not elaborated on by the Applicant. This again is in context of this relatively low density residential area with substantial garden trees.
I also consider that the setback of the building envelope on Lot 1 is inconsistent with all but one property in the local vicinity along of Queen Road - the adjoining property at 67 Queen Rd. Local setbacks are identified by Council as approximately (to the NW) 30, 15, 20 metres, and (to the SE) 15, 7.5, 36 and 13 metres. The average of these is approximately 19.5 metres compared with the 8.1metre setback proposed in the in the revised application. This is at odds with policies in Cl. 21.06 which state in part that building setbacks from road frontages should:
- Generally reflect the development setbacks on adjoining properties;
- Be consistent with the overall character of development within the locality.
While I accept that similar setbacks may occur further west along Queen Road (that is, west of Summit Road), I consider that the neighbourhood character of Queen Road including dwelling style, setbacks and gardens, changes from one end of the street to the other. I consider that the intersection of Summit Road with Queen Road around 360m to the NW of the review site forms a 'natural' transition point between the different character areas. In this context I consider that the proposal does not match the neighbourhood character at the eastern end of Queen Road within which it is located. The short 7.5m setback to the dwelling at the adjoining 67 Queen Road is an anomaly rather than the standard against which other proposal should be assessed.
With regard to the building envelope on proposed Lot 1 and the size of Lot 2 on which the existing dwelling is sited, and setbacks from boundaries for both, I am unable to reconcile the proposals with space around dwellings in the local area generally, apart from some side setbacks. I do not regard Mr Kaylock's partial reliance on similar side setbacks at other local dwellings as a substantive argument for the proposal.
My decision is not based on the future of any of the few trees currently on the review site. The lot is basically cleared of trees and none of those present are of ecological or other significance. Further, the Cypress trees which Council considers should be retained for screening reasons between lots are still young and small for Cypress, with much growth yet to occur. It can well be argued that Cypress is an inappropriate choice for use in this context, and that replacement by other species of more suitable mature size for screening would provide a preferable outcome.
I also consider that approval of the proposal would create a precedent for further subdivision in this area of Lilydale that, like this proposal, would not be strategically justified. This would cause unwarranted pressure on Council.

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Hipfel v Yarra Ranges SC [2010] VCAT 1802 (9 November 2010)

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