S & M Stanford, M & L McLaughlin, R W & J B Armstrong and others

[2004] VCAT 2229

In permit application no. P03/650, the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to issue.

Mr D Bowden of Bowden Verhoeven, Planning Development Consultants.

Mrs S Stanford, Mr M & Mrs L McLaughlin, Mr R J B Armstrong, Mr I and Mrs N Wilbraham all in person and representing other Respondent Objectors by agreement.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by G Karabinas seeking review of a decision made by the Hobsons Bay City Council ("the Council") to refuse to grant a permit in permit application no. P03/650. A Notice of Refusal was issued on 26th May 2004. The Application for Review was lodged on 9th June 2004.

2. At the beginning of the Hearing, pursuant to Schedule 1 of the Victorian Civil Administrative Tribunal Act 1998 Mr Bowden requested the Tribunal to amend the permit application by substituting the application plans with plans submitted with letters dated 5th and 12th October 2004. The plans had been circulated to the responsible authority and all parties in accordance with the Tribunal's Practice Note - Amendment of Plans.

3. There were no objections from the parties present, however Mrs McLaughlin drew the Tribunal's attention to a mistake on the shadow diagram plan in which the position of the numbers of the rear townhouses had been transposed. Mr Bowden then drew attention to a mistake in the lines showing the effect of the shadows. He pointed out that the correct effect would be to reduce the extent to which the adjoining property at No 40 Mary Street would be affected at 9.00 am.

4. These points were noted and all parties consented to the substitution of plans. The Tribunal consequently granted leave for the plans submitted with the application to be replaced by plans submitted with the statement of service from Bowden Verhoeven Pty Ltd dated 5th October 2004 and 12th October 2004.

5. The subject site is located on the north side of Mary Street, between Cullen Street to the east and Hick Street to the west. It is rectangular in shape, with dimensions of15.72 metres in width by 45.72 metres in depth. The site area is 697 square metres.

6. The land is occupied by a single storey weatherboard house with a tiled roof which the permit applicant intends to demolish.

7. The surrounding area consists predominantly of single storey weatherboard dwellings with large relatively open rear yards and a few brick houses. Street trees are well established and provide a pleasant ambience to the residential area. A recent dual occupancy has been constructed on No. 33 Mary Street. The two dwellings which comprise this development are side by side with single storey development to the front and a two storey component to the rear.

8. The locality is well serviced in relation to transport and other community facilities as outlined in the Council's submission.

9. The parties provided maps, aerial photographs and a range of other photographs both of the subject site and of the surrounding area which assisted the Tribunal in its deliberations.

10. The proposal involves the demolition of the existing dwelling on the site and its replacement with three two storey townhouses.

11. Unit 1 is to be located at the front of the site and would contain a lounge room, meals area, kitchen, laundry and toilet at ground floor level. The first floor would contain three bedrooms and a shared bathroom. An open front yard is proposed in addition to an area of approximately 59 square metres of private open space to the rear. The unit has its own driveway and a single garage with a tandem car space in front of the garage. The front setback is proposed to be 6 metres with a recessed upper level, of around 1 metre as the dwelling would presented to the street.

12. Unit 2 would be located to the rear on the west side of the site. It has an open plan living/kitchen area, laundry and toilet with a single garage. Open space of 46 square metres is proposed as well as a small courtyard near the laundry. The first floor has two bedrooms and a shared bathroom. Unit 3, which is located to the rear of the site on the east side, has similar accommodation and parking provision to Unit 2. Units 2 and 3 extend from boundary to boundary across the rear of the site with recessed and attached upper levels.

13. The subject site is zoned Residential 1 under the Hobsons Bay Planning Scheme ("the Scheme"). A permit is required to develop two or more dwellings. The decision guidelines of Clause 32.01-4 are relevant and a proposal must meet the requirements of Clause 55. No Overlays apply to the land.

14. Clause 21.06 provides the overall policy approach by Council to residential development. This includes a requirement to have regard to the Hobsons Bay Neighbourhood Character Study which is a reference document under Clause 21.06-2 of the Scheme. The Council's Neighbourhood Character Study includes the subject site in Precinct 3. A later version of the Neighbourhood Character Study has been produced and adopted by Council but it is not incorporated into the Scheme. This study includes the subject land in Precinct 10. While Mr Mrkonjic did not place great emphasis on the latter study, Mr Bowden relied upon it to demonstrate that the proposed development was in sympathy with the preferred neighbourhood character. The Tribunal refers to these studies below.

15. A number of other Clauses are relevant to the consideration of this Application, including Clauses 11, 14, 15, 16, 19.03 and Clause 65 (general decision guidelines). Melbourne 2030 has also been taken into account by the Tribunal.

16. It was generally agreed by all parties that this part of Spotswood is an area in transition or likely to undergo further development. The area is well served by community facilities and transport services and Council's policies seek to create opportunities for accommodation that will match changing demographic profiles by facilitating well designed housing.

17. However, the Council and Respondent Objectors emphasised that the Scheme requires these locational and demographic objectives to be balanced with others that seek to ensure that new development is of a high quality, makes a positive contribution to the character of established residential areas, and protects the amenity of existing residents. The basis of this argument is that while the proposal complies with many of the numerical standards of Clause 55 including site coverage, energy efficiency, permeability, open space, parking and access, daylighting and overshadowing it does not adequately address the objectives of the Scheme in relation to neighbourhood character as set out in Clause 55 and Clauses 16.02-1, 19.03 and 21.06-1.

18. Mr Bowden agreed that neighbourhood character is the key issue but he submitted that the compliance with the numerical standards of Clause 55 should be a major influence on the Tribunal's deliberations in addition to the merits of the design that can be distinguished from other proposal rejected by the Tribunal in the area.

19. As noted, the key issue as seen by all parties is the relationship of the proposal to the character of the area. We find that the proposal does not meet the neighbourhood character objectives of the Scheme for reasons we set out in some detail below.

20. Clause 55 applies to two or more dwellings on a lot and has, as a key purpose "To achieve residential development that respects neighbourhood character or which contributes to a preferred neighbourhood character". Its effective implementation requires that:

Must meet all of the objectives of this clause (Tribunal emphasis added).

Encourage the development of well-designed medium density housing which:

Respects neighbourhood character (Tribunal emphasis added).

22. Clause 19.03 of the State Planning Policy Framework seeks to encourage good built form design and Clause 19.03-1 suggests that to meet that objective

Development should achieve architectural and urban design outcomes that contribute positively to local areas character and enhance the public realm while minimising detrimental impact on neighbouring properties.

23. In setting out Council's vision for residential development at Clause 21.06-1, and while emphasising the need for diversity and urban consolidation as well as encouraging new forms of architecture, it is stated that "Change will occur in a manner which integrates with the existing built form".

24. The 2002 Neighbourhood Character Study aims to outline both the existing character and the preferred character to assist prospective developers in their plan preparation. The Study describes the precinct as follows:

There is a sense of spaciousness in many streets in this precinct due to the large housing lots and generous setbacks. In other streets this spaciousness is countered by large spreading street trees which form a canopy over the street space. There is a cohesiveness to the built form due to the low scale nature of the housing sand the consistent use of weatherboard. The established garden settings of the dwellings give this area a leafy feel.

25. The Study suggests a preferred neighbourhood character in which the cohesive built form and garden settings of the dwellings will be maintained and strengthened by:

Ensuring that new development is setback in accordance with the prevailing setbacks in the street.

Ensuring new development is contemporary but sympathetically designed without dominating the existing housing stock.

Ensuring that car parking structures do not dominate the street scape.

Ensuring existing significant trees, including street trees, are retained.

Encouraging low and transparent front fencing. (Tribunal emphasis added).

26. We have emphasised those which have a particular bearing on the design approach.

27. Mr Mkronjic submitted that the scale, intensity, built form and siting of the current proposal is completely unsympathetic to the prevailing and preferred neighbourhood character and particularly detrimental to the amenity of adjoining properties. He and the Respondent Objectors emphasised the siting of two units to the rear of the property with the consequent dominating appearance over adjoining back yards was the major cause of their objections.

28. This precinct is an area of predominantly single storey dwellings with open backyards. It is also an area in transition and some degree of change must be accommodated. The Tribunal has noted that a number of redevelopment proposals have been completed or approved, but these have, in the Tribunal's view, been designed in a way as to respect the single storey frontage while accommodating two storey components set back from the street. The current proposal departs markedly from that approach and would effectively result in two double storey dwellings built in the backyard of the front unit - a built form completely at variance with the prevailing urban character recognised in the older Character Study and that articulated as preferred character in the more recent Hobsons Bay Neighbourhood Character Study.

29. The Tribunal has made it clear on a number of occasions, including cases cited by both Council and the Applicant in the current proceeding, that compliance with the objectives is essential and it does not automatically flow from compliance with the numerical standards of Clause 55. The Tribunal does not accept that the amendments proposed by Mr Bowden could overcome those major concerns or the concerns expressed by the McLaughlins in relation to the visual impact of the development. As a matter of principle, if urban consolidation objectives set out in the Scheme are to be achieved then there will be some loss of spacious backyards and a sense of openness that is experienced in areas where there are few or only low scale intrusions into that setting. However, locating two storey forms in the rear yard can be sensitive and the key issue is the form and scale of any development, which brings into issue amenity impacts to adjoining properties, a matter which the Tribunal refers to below. Having carefully reviewed the material, the Tribunal finds that the overall impact of the development by virtue of its bulk and scale represents a major departure from the neighbourhood character and that it should not be approved in that proposed form. While the development meets many of the numerical standards of Clause 55, however, the Tribunal considers that it does not meet all the objectives particularly the neighbourhood character objective in Clause 55.02-1 and the side and rear setbacks objective in Clause 55.04-1. The Tribunal is satisfied that there are other alternative forms of development which would meet urban consolidation objectives while still respecting neighbourhood character.

30. The Council and Respondent Objectors contended that the development would be visually dominating and that despite the upper storey setback the overall impression to be gained from adjacent properties would be of a two storey wall which would also prejudice privacy.

31. Mr Bowden submitted that by placing the two units at the rear side-by-side this had minimised the impact of bulk and overlooking which would be associated with three units "running down the block". He suggested the side setback of the upper storeys in all the units of some 1.7 m was a further attempt to minimise the "big box" appearance and reduce the visual impact of the units. Mr Bowden pointed out that all living areas were at ground floor level and that careful design had ensured that these were given views to the front and rear only. He offered to remove two windows from the upper levels to help minimise overlooking.

32. For similar reasons as above, the Tribunal does not accept Mr Bowden's submissions. The siting of the two units in the back yard setting would dominate the rear yards of adjoining properties. The Tribunal is of the view that other approaches can be pursued which can more equitably balance the relevant planning objectives, most probably adopting a single level.

33. Mr & Mrs McLaughlin submitted that the proposed overall bulk of the buildings would create a major problem by overshadowing their pool and outdoor living area at the rear of their property. In response, Mr Bowden submitted that the error in the circulated plan exaggerated the overshadowing effect and that the corrected plan demonstrated that while some 6 metres of the McLaughlins' property would be affected by the 9.00am shadow, the major part of the backyard would be in sunshine for most of the day. He suggested that because the rear garden of the units and that of No. 40 faced north, they would obtain more than adequate daylight and sunlight.

34. The Tribunal accepts Mr Bowden's argument on this point that the proposal complies with both the objectives and standards of Clause 55 but we note that any revised design would be likely to improve the outcome for the adjacent property.

35. Respondent Objectors expressed concern that the addition of two extra dwellings in the street would cause additional unacceptable traffic and parking problems and the provision of two crossovers to the street would create an additional safety hazard for elderly citizens and children.

36. The Tribunal does not accept these submissions. This is a residential precinct. Given generally accepted levels of traffic generation from residential areas and bearing in mind that No. 24 Mary Street is to be developed with a dual occupancy, the addition of a several dwellings will not result in any significant increase in traffic in Mary Street. Careful attention to design and landscaping of the frontage can ensure adequate sightlines for crossovers. Each unit is provided with a garage and an additional, tandem car space. The Tribunal considers this to be an adequate provision and it complies with the objectives and standards of Clause 55.

37. For the above reasons, the Tribunal finds that the proposal is not acceptable and a permit should not issue. We will make the necessary orders.