1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

1. In application for review P2975/2017 the decision of the responsible authority is affirmed.
2. In planning permit application TPA/47855 no permit is granted.

Mr Daniel Bowden, town planner of Song Bowden Planning

Construction of four double storey attached dwellings which present as two attached pairs. Units 1 and 3 would have four bedrooms while Units 2 and 4 would have 2 bedrooms. Single garages are proposed for each with a second tandem driveway space for Units 1 and 3. A minimum front setback of 4m and two driveways and crossovers are proposed.

The dwellings include relatively conventional design elements such as pitched tiled roofs, and external walls constructed in face brick at ground level. A different but unspecified materials and finishes are proposed to upper level walls.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

32.08-6 - Construction of two or more dwellings on a lot

Clauses 11, 13, 15, 16, 18, 21, 22.01, 22.05 52.06, 55, 65 and 71.02.

Located on the west side of Stockdale Avenue, this 745sqm rectangular site has a width of 17.98m and depth of 41.45m. The site is relatively flat, contains an easement along the rear boundary and is developed with a single storey brick dwelling.

In response to my interim order, both the Council and applicant provided responses, concurring that Amendment VC148 has no material bearing on this proceeding. I agree.

1. IPIA Pty Ltd (the applicant) is seeking a review of Monash Council's decision to refuse a planning permit for four double storey dwellings on a 745sqm lot in Clayton.
2. The site is just several streets away from Monash University and is in an area identified by State policy as nationally significant for its location in one of Melbourne's seven National Employment and Innovation Clusters (NEICs).
3. The Council submits that the design of the proposal does not respond to the current planning scheme controls and policies and would not achieve an acceptable fit with its neighbours. In particular, concerns are raised about the proposed 4m front setback, the size of courtyards, landscaping opportunities, the bulk of the buildings and car parking layout.
4. The applicant contends that the proposal is consistent with the strategic work that has been undertaken for this part of Monash in which more intense forms of residential development are envisaged.
5. The determinative issues in this case are:
   • the relative weight to be given to the existing and future planning context;
   • the acceptability of built form and siting elements of the design response;
   • acceptability of the design response from an internal amenity perspective.
6. While there is broader strategic support for the more intense residential development of this land, I have decided that this development would not produce an acceptable design outcome and no permit is to be granted.

1. Central to my consideration of the issues in this case is the weight that can be given to Amendment C125 (Part 2) - which is yet to receive ministerial approval - and the weight that should be given to the planning scheme as it presently stands.
2. I begin by outlining influential features of the existing planning context followed by proposed changes to the planning scheme under Amendment C125 (Part 2).

1. Statewide planning policies promote urban consolidation, housing choice and diversity in established urban areas including middle suburbs. Such policies also seek the more efficient use of existing resources and infrastructure and the provision of more housing closer to jobs and public transport to limit the need for additional housing in greenfield and dispersed development areas. These policy themes support the concept of creating '20 minute neighbourhoods' including the ability to better utilise sustainable forms of transport thus reducing private motor vehicle dependency.
2. Planning scheme policies for the Metropolitan Melbourne region[2] identify housing opportunity areas which are suited to medium and higher density housing close to jobs and transport. These include activity centres and NEICs.
3. The Monash NEIC is recognised in Plan Melbourne, 2017-2050: Metropolitan Planning Strategy.[3] Plan Melbourne is a reference document in the planning scheme.
4. In addition to hosting Australia's largest university, the Monash NEIC includes the Australian Synchrotron, the Melbourne Centre for Nanofabrication, Monash Medical Centre, a new Monash Children's Hospital, CSIRO's largest site in Victoria and the Monash Enterprise Centre.
5. Local policy identifies the NEIC as a suitable location for the attraction of investment and residential growth that supports the NEIC's role.[4]
6. Local policy also supports the need for more diverse housing types to meet the needs of its population including an ageing population and students. An issue for Monash is the demand for quality student accommodation which has outstripped the local supply in some areas. This has resulted in housing shortages and a significant number of students living in substandard, shared housing facilities.[5]
7. Planning policies also encourage the development of high quality urban design and architecture that contributes positively to local urban character and sense of place, enhances liveability, diversity and minimises detrimental impact on neighbouring properties.[6]
8. Local policies place a strong emphasis on the 'Garden City Character' concept, which aims to maintain and enhance the established canopy treed environment throughout the municipality. Key policies in support of this concept are Council's Tree Conservation Policy (clause 22.02-5) and Residential Development and Character Policy (clause 22.01).
9. Through the provision of appropriate landscaping responses, these variously seek to not just 'maintain' but to also to 'build upon', 'complement' and 'enhance and extend' the Garden City Character concept.
10. In terms of neighbourhood character, clause 22.01-3 relevantly includes, inter alia, various statements of policy that apply to all areas:
    • Development is to complement the current character statement and contributory elements and satisfy the intent of the desired future character statement for the applicable residential Character Type identified in clause 22.01-4.
    • The impact of bulk and scale of development, is to be minimised, where possible.
    • The height and scale of existing dwellings in the neighbourhood is to be respected.
    • Building spacings and setbacks off side boundaries should maintain the spacing and rhythm of existing dwellings to respect the built form character of the streetscape.
    • Roof heights and pitches of adjoining development should be respected.
    • Creative and quality design solutions should be provided, particularly in relation to bulk of buildings having regard to boundary setbacks.
    • The scale and bulk of double storey buildings at the rear of properties, adjacent to single storey dwellings should be low key.
    • Minimal pavement areas be provided within the front setback area to maximise landscaping to enhance the Garden City Character of the streetscape
    • Landscaping be provided down both sides of driveways to reduce the visual impact of development.
11. Decision guidelines include the need to consider statements of current character, contributory elements and desired future character for each residential Character Type which derive from the Monash Urban Character Study.
12. In this case, the site and surrounding area is within Residential Character Type "B". Although I do not recite each of these elements in full I have taken them into account.

1. The site is included in the GRZ2. Zone purposes encourage development that respects the neighbourhood character of the area and a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
2. A minimum garden area of 35% applies to a site of this size and a maximum building height of 11m and maximum number of allowable storeys is three. The proposal would meet the height and storeys requirements but minor plan modifications would be required to increase the garden area by 0.1%.[7]
3. Schedule 2 applies to 'Monash Residential Areas'. No neighbourhood character objectives, application requirements or decision guidelines are specified in this schedule. A number of Clause 55 standards are however varied. As relevant to this proceeding, these are:
   • Standard B6 - front setback of 7.6m;
   • Standard B28 - Private open space - total of 75 square metres, with a secluded part with a minimum area of 35 square metres, a minimum width of 5 metres and convenient access from a living room.

1. The suitability of the NEIC for additional housing is also recognised in the Monash Housing Strategy (2014). This document is now a reference document in the planning scheme.[8]
2. The site is included in Category 3 whose dual objectives are:
   • housing change and diversification; and
   • development that responds to the broader context, taking into account both commercial design and residential character as relevant.

1. Residential outcomes for this Category 3 area envisage different dwelling densities including units, town houses and apartments with the highest density at the interface with the technology precinct.[9]

1. The Monash Housing Strategy underpins the strategic basis for Amendment C125 to the Monash Planning Scheme.
2. Relevant to this site, Amendment C125 sought to:
   • Replace Schedule 2 to the GRZ with a new Schedule 6. A front setback of 4m and private open space of 50sqm are two clause 55 standards that would be varied by GRZ6.
   • Introduce a Design and Development Overlay- Schedule 13 (DDO13) to areas proposed for increased residential development in the residential areas of the NEIC.
   • Replace Clause 21.04 (Residential Development) with a new policy of the same name.
   • Replace Clause 22.01 (Residential Development and Character) with a new policy of the same name. Ten new character types are identified and each are provided with a statement describing the current and desired future character. The site would be included in the Monash National Employment Cluster and Clayton Activity Centre - Housing Diversity Area.
3. Amendment C125 was exhibited and submissions were heard by an independent panel (Panel) whose report was published on 6 December 2016.
4. The Panel supported some aspects of Amendment C125 but not others. In particular the Panel relevantly recommended the following:[10]
   • Abandon the proposed GRZ6 and maintain the current RGZ2 pending the completion of further strategic work for the NEIC;
   • Rewrite the Desired Future Character Statement for the NEIC in Clause 22.01 to:
     1. adopt a more positive expression of the intended change envisaged by policy for the NEIC;
     2. acknowledge that strategic planning will develop and articulate future character aspirations.
5. In its consideration of the Panel's findings, the Council, in February 2017, adopted some parts of the amendment not supported by the Panel and sought ministerial approval for them, including its pursuit of the GRZ6 and DDO13.
6. The Minister decided to split the amendment into two parts.
7. Amendment C125 (Part 1) was gazetted in March 2018. It involved some changes to local policies and applied the Residential Growth Zone and Neighbourhood Residential Zone as adopted by Council.
8. The aspects of Amendment C125 not supported by the Minister are known as Amendment C125 (Part 2). This remaining part sought changes to the planning scheme that would affect this part of the NEIC including the review site.
9. The Minister's letter[11] approving Amendment C125 (Part 1), had this to say about Amendment C125 (Part 2):

I consider Part 2 requires further strategic work on the council's application of the GRZ. The adopted GRZ features a 9-metre-high discretionary building height control. This approach is no longer possible due to changes to the Victoria Planning provisions introduced by VC110. Consequently the council should review application of the zone.

In locations where the council is trying to maintain lower-scale residential development and character, the NRZ may be more appropriate. In other locations, such as in and around activity and neighbourhood centres, accessible areas and along boulevards where the council's housing strategy is identifying the need for further growth, a GRZ or even a RGZ may be more appropriate.

1. The Minister's position was subsequently considered by Council at its meeting on 27 March 2018. Council resolved to resubmit Part 2 to the Minister for approval as adopted by the Council at its meeting in February 2017. In doing so I understand that it has sought to retain the GRZ6 in its exhibited form and as originally adopted and referred to the Minister.

Weight to be given to current and future planning framework

1. It is a generally well understood principle that I must give the greatest weight to the planning scheme as I find it at the time of making my decision.
2. In the exercise of my discretion including whether to depart from existing planning scheme provisions and policies, it is also appropriate that I consider Amendment C125 (Part 2) which is in its final stages. It is a seriously entertained planning proposal given the degree to which it has progressed through the planning scheme amendment process.
3. However, it remains that core elements of Amendment C125 (Part 2) as relevant to this proceeding, did not receive either Panel support, or ministerial support following the approval of Part 1. I was also advised by the parties that the additional strategic work recommended by both the Panel and Minister has not been carried out.
4. This leaves considerable uncertainty about the likelihood of Amendment C125 (Part 2) being gazetted in the form adopted by the Council.
5. In turn, this reduces the weight I can give to the GRZ6, particularly the varied Clause 55 numeric standards in GRZ6 and the statement of preferred character at Clause 22.01.
6. I add that on my reading of the latter, I agree with the Panel's findings that greater clarity of the Council's aspirations for this part of the NEIC is necessary. The issue has a sharper focus in the context of the proposed DDO13 whose demise leaves an even larger gap in the preferred residential development outcomes sought for this part of the NEIC.
7. To summarise, my assessment of this proposal's acceptability commences with the provisions of the GRZ2 and the existing policy framework. The latter includes the site's designation as an NEIC which makes it suited to more intensive forms of residential development. In the circumstances, I find that it is appropriate to apply the varied Clause 55 numeric provisions under the GRZ2 with a greater degree of flexibility than I might otherwise, being mindful that these provisions rather than those under the proposed GRZ6 are the starting point for my assessment. I similarly adopt a more flexible application of the Residential Development and Character Policy at clause 22.01 including the preferred character outcomes sought for this area.

Acceptability of built form and siting elements of the design

1. The Council submits that the proposed 4m front setback together with dual driveways and 2-storey built form presentation are unacceptable elements that do not respect the preferred character and the surrounding context.
2. The applicant asserts that while this proposal will bring about a noticeable degree of change in the streetscape, the design response is one that aligns with the future character and development aspirations for this location.
3. Given the site's strategic and physical context I have no difficulty with the concept of providing four double storey dwellings on the site. I would also not refuse the proposal on the basis of the 35sqm secluded areas of private open space proposed for Units 1 and 2 or the functionality of the car park layout. I also find that the proposal would not give rise to unreasonable amenity impacts for neighbouring properties, having considered the design response and neighbouring conditions including location of outbuildings in backyards sited on or close to common boundaries.
4. In terms of its physical context, the site in its more immediate surrounds adjoins detached dwellings that are single storey. This area is however undergoing redevelopment and change, including development with double storey multi-dwellings (such as No. 52, 57, 58 and 59 Stockdale Avenue). I also regard the dual cross-over system in the semi-circular driveway design that serves the neighbouring single storey house to the south at No. 49 Stockdale Avenue as a factor that weighs in favour of two crossovers and driveways on the site. I note that other recent multi-dwelling development nearby includes two driveways and crossovers, such as No. 56 and 57 Stockdale Avenue.
5. I would also accept a lesser setback than 7.6m referred to in the GRZ2 on the basis that it would allow greater site efficiencies and optimisation of the site's development potential. However, in deciding whether the front setback objective at clause 55.03-1 are met, decision guidelines require me to consider, amongst other things:
   • Whether a different setback would be more appropriate taking into account the prevailing setbacks of existing buildings on nearby lots.
   • The visual impact of the building when viewed from the street and from adjoining properties.
6. There are a number of features of this particular design response that when combined, lead me to conclude that the proposal would not be an acceptable one, primarily because of its resultant streetscape impacts. These features are:
   • The proposed 4m front setback at ground level;
   • The amount of paving associated with the two driveways and front entry path to Unit 1 which would confine the available space for landscaping in the front setback to an area with dimensions of 4m x 8.5m, segmented by a fence between Units 1 and 2;
   • The limited degree of recession of the upper level from the ground level footprint in relation to Units 1 and 2 at the front;
   • The limited degree of recession of Unit 2's upper level from the ground level footprint on its south side;
   • The narrow width of landscaping on the north side of both driveways;
   • The prevailing development pattern where very consistent front setbacks of about 7.6m exist, including recent multi-dwelling development.
7. I find that the sum of these elements would lead to a development that would be visually bulky and whose form and siting so far forward of its neighbours would be visually discordant in the streetscape. Too little space for landscaping in the front setback space to soften the appearance of proposed buildings would also be available. I regard this outcome as one that represents too great a departure from the policy objectives under clause 22.01-3 and preferred character outcomes - even applying them as I have with a greater degree of flexibility for this strategic setting. I conclude that the front setback objective at clause 55.03-1 and neighbourhood character objective at clause 55.02-1 would not be met.

1. I also consider that there are a number of other design elements of this proposal that are not well resolved and would lead to poor levels of on-site amenity. These are:
   • The siting of Unit 2's front entry directly adjacent to the driveway, which would provide poor levels of address and transitional space;
   • The proposed provision of Unit 3's tandem car space in front of this dwelling's front entry, which would obscure the entry and result in poor levels of address;
   • The internal layout of the dwellings, particularly Units 1 and 3 which contain four bedrooms but very small or poorly laid out living spaces. To illustrate, Unit 1's dining area is to have dimensions of just 2.2m x 2.3m. Its toilet at ground level is directly adjacent to and accessed via the compact kitchen. For Unit 3, bedroom 1 is to be accessed directly via the combined dining and kitchen area. Unit 2's combined laundry and powder room is directly adjacent to the front door and the means of accessing bedroom 2's ensuite is unclear.
2. I do not know whether these dwellings will be occupied by students in a shared household arrangement or by other household types. I do know that sub-standard shared housing for students in Monash is an issue identified by local policy. Either way, I consider that the design and layout of the dwellings, primarily in relation to Units 1 and 3, would not offer acceptable levels of amenity for future occupants.
3. I am left with the impression that the design response has been driven by the achievement of dwelling yield and maximisation of bedroom numbers in the case of Units 1 and 3. In doing so, there is too high degree of reliance on compliance with the clause 55 numeric varied standards of proposed GRZ6 as justification for this proposal's acceptability rather than the achievement of a contextually responsive design. This is despite the high level of uncertainty surrounding the GRZ6 for inclusion in the Monash planning scheme under Amendment C125 (Part 2). This design response also comes at the expense of the acceptability of built form, landscaping and on-site amenity - all of which remain relevant planning considerations that I must also balance in the context of meeting housing diversity and intensification objectives.

1. There is clear strategic support for a multi-dwelling development on this site.
2. However, there are too many shortcomings with the particular design response proposed here. Put simply, the proposal represents too much of a tight squeeze and would not produce an acceptable planning outcome.
3. For the reasons set out above, the decision of the responsible authority is affirmed.
4. No permit is to be granted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Department of Environment, Land, Water and Planning, 2017

[4] See for example Clauses 21.01-3 and 21.05.

[6] See for example Clauses 15 and 21.04.

[7] And assuming the pergolas for each four dwellings are unroofed.

[8] Several references including at Clause 21.13-4.