[2006] VCAT 53

1 The Permit Applicant is to advise the Registrar, the other parties and the Responsible Authority in writing within 14 days of the date of this interim decision (notification date) whether it intends to lodge amended plans in accordance with the opportunity and leave hereby given, and in accordance with the Tribunal's recommended plan modifications.

2 Within thirty days of the notification date the Permit Applicant must complete any modified plans (completion date).

3 Within seven days of the completion date, the Permit Applicant must file with the Tribunal and serve on the parties and the Responsible Authority as follows:

a) fully detailed plans drawn to a scale of 1:100 showing the proposal with any and all modifications (but not including multiple options);

b) an accompanying letter pointing out each modification made;

d) one such copy is to be served on the Responsible Authority for its own use; and

e) one such copy is to be served on each of the respondent objectors.

4 The date by which the Applicant must complete service in accordance with the foregoing direction is the circulation date.

5 The Applicant must file with the Tribunal within seven days of the circulation date, a statement of service evidencing its compliance with these directions, together with a copy of the form of letter and any other document sent with it.

6 Within 14 days from the circulation date the respondent parties, including the Responsible Authority, must give notice to the Tribunal, the Responsible Authority and the Permit Applicant of their comments on the modified plans. If any party considers that a further hearing is necessary or desirable, that party should say so in his or her written submission stating why it is said to be necessary or desirable and what matters, limited to the amendments made to the plans, should be considered in such a hearing.

7 The Tribunal will then consider the amended plans and the submissions received and any request for a further hearing. If no further hearing is determined to be necessary, the Tribunal will make its final determination.

8 If the Permit Applicant finds this course unacceptable, the Tribunal will disallow the review application and direct that no permit is to issue.

Mr Damien Loughnan, town planning consultant of Gattini & Partners

Mr Egils Stokans, solicitor of Russell Kennedy. He called Ms Bronwen Hamilton, urban designer of Hansen Partnership to give evidence.

Mr John Price; Mr Paul Dopper; Ms Vicki Gardiakos and Mr Philip Gardiakos;

9 This is an application brought by Keyco Developments Pty Ltd to review a decision by Hobsons Bay City Council ("the Council") to refuse a permit for the construction of 12 units at 9 Trembath Court Altona Meadows ("the Review site").

10 The review site, which has an area of more than 1acre, is located at the end of a court bowl. It adjoins parkland on two sides and single dwellings on its three other sides. Seven of the units are to be 2-storey and the balance single storey, containing either 2 or 3 bedrooms. Twenty three car spaces for resident use and a further 8 car spaces for visitors are proposed on the site. The key issues in this case revolve around the appropriateness of the proposed design having regard to the development's interface with parkland and other residential properties in a court setting, the adequacy of carparking and the driveway layout as well as traffic impacts. The adequacy of private open space, landscaping and servicing issues such as garbage collection arrangements are further considerations.

11 Council required notice of the application to be given to the owners and occupiers of adjoining and surrounding properties and 27 objections were received.

12 Although its officers recommended approval, Council subsequently refused the application on the following grounds:

a. The proposal is contrary to the covenant that applies to the land.

b. The proposed 12 dwellings represent an overdevelopment of the site, in the context of the existing and preferred neighbourhood character.

c. The increase in traffic and demand for on-street parking will negatively impact upon the residents in Trembath Court.

d. Vehicle movements within the development will be constrained due to inadequate accessway dimensions.

e. The proposal does not include adequate areas for landscaping and the planting of substantial trees.

f. The location of the proposed bin corral will result in negative visual impact on the streetscape, and adversely affect the amenity at the property at 8 Trembath Court and the future occupants of Unit 1 of the proposed development.

g. The private arrangement for the collection of garbage is not sustainable in the long term and is likely to result in residents demanding access to the Council provided collection facility. In that event, the collection of rubbish bins from the kerb in Trembath Court would have an adverse affect on the amenity of dwellings at the eastern end of Trembath Court.

13 The grounds relied upon by the Applicant essentially refute each of Council's grounds for refusal.

14 The review site is affected by an Agreement[1] entered into with the original owners of the land (the Urban Land Authority). The site is also affected by a covenant created by Instrument of Transfer N696401C.

15 The Agreement restricts development to a building envelope and was conceived at the time of the subject lot's creation[2] in 1988. At this time, sewerage services were limited. The Agreement was never registered on Title and its obligations do not run with the land. That is, the Agreement is not binding on subsequent owners of the land including its current owners. In any event, the report by Council's officers[3] observes that:

City West Water, via letter dated 23 December 2004, outlined that land outside the building envelope cannot be sewered by gravity, however a pumping station would enable the site to be adequately serviced.

16 On the basis of this information I am satisfied that the site is capable of being sewered, notwithstanding the fact that the agreement does not appear to create any on-going obligations for the present owners.

17 The covenant which was created on 8 September 1988 relevantly provides that the transferees and their successors covenanted with the Urban Land Authority pursuant to section 14 of the Urban Land Authority Act 1979 that:

... they will within a period of five years following the date hereof[4] erect on the land hatched on the map attached hereto a house for their own occupation.

18 Both the Council and permit applicant obtained separate legal advice[5] in relation to the applicability of the covenant. These advices reach similar conclusions that the covenant is not a restrictive covenant but rather a positive or affirmative covenant. It follows that the covenant falls outside the planning arena, having regard to the definition of "restriction" under s. 3 of the Subdivision Act 1988 and Sections 6(2)(g) and 6A of the Planning and Environment Act 1987.

19 I record that Mr Stokans did not seek to pursue the first ground of refusal other than by submitting that the covenant had given rise to a community expectation that only one dwelling would be constructed on the land.

20 The review site is located at the court bowl of Trembath Court. It is irregular in shape with a curved frontage of approximately 13m, fanning out at the rear with a dimension of 85.22m along its eastern boundary. The total site area is 4174sq.m.

21 The land is relatively flat and is presently vacant. Other than being grassed, it is void of any vegetation. There are 2 easements that affect the site. The first of these runs along part of the southern boundary (in common with No. 10 Trembath Court). The second eassement runs in a north-south direction traversing the full length of the site, with a partial abuttal to the western boundary in common with No. 10 Trembath Court.

22 In terms of the surrounding conditions, the following description from the Officer's report provides an apt summary which I adopt:

Parkland and residential development surrounds the subject site. Trembath Court is typical of the type of residential development found in this locality. The area is dominated by single storey detached brick dwellings with tiled hip roofs built between the 1980s to 1990s. However double storey development is not uncommon in the area.

The residential area is characterised by relatively large and open front setbacks (6 to 7 metres) with low or no front fencing. This contributes to the open feel of the area.

Trembath Court has a length of approximately 155m. It is a narrow court with a road pavement width of approximately 5.5m. 17 dwellings have a frontage leading onto Trembath Court.

The parkland to the rear of the site contains bike paths and is quite a well used recreational park.

A 20m wide rainage reserve abuts the northern side of the site which also serves as a pedestrian/bike path that runs the entire length of Trembath Court.

The site adjoins three residential properties as described below.

No. 8 Trembath Court to the north-west which contains a single storey brick dwelling with a front setback of 11.5m and a garage on the common boundary with the subject site.

No. 10 Trembath Court to the south-west which contains a single storey brick veneer dwelling with a front setback of 5.8m and a side setback to the subject boundary that varies between 1.9m to 8.4m.

No. 8 Cheasley Place to the south which contains a single storey dwelling on an allotment similar in size to the subject site. The dwelling is located over 40m from the subject site boundary.

23 This proposal involves the construction of 12 dwellings, comprising 5 single storey and 7 double storey. Three of the dwellings would contain 2 bedrooms and remaining 9 dwellings would each have 3 bedrooms.

24 Apart from Unit 1 (a 2-bedroom unit) which has a single garage, all other dwellings are provided with two car spaces in a garage, either in a tandem arrangement or in the conventional double garage arrangement. The total number of resident car spaces would be 23. A further 8 car spaces for visitors are also proposed, generally on the north and south sides of Unit 12.

25 In broad terms, the dwellings are arranged around the site's perimeter, with private open space areas abutting external boundaries, with the exception of Unit 12. There is a centralised driveway arrangements generally oriented north-east that connects with a single point of access to the court.

26 Private open space areas range from 42sq.m to 130sq.m, with most in the range of 42sq.m to 58sq.m.

27 The dwellings incorporate the use of brickwork, render and weatherboards. Roofs are to be either tiled or colorbond, some with dutch gables. Front porches incorporate decorative elements including fretwork and brick piers with timber posts.

28 The land is included in a Residential 1 zone. Pursuant to Clause 32.01-4 of the Scheme, a planning permit is required to construct two or more dwellings on a lot. Such applications must meet the requirements of Clause 55 of the Scheme (Rescode). These requirements are that a development must meet the objectives and should meet the standards of that clause.

29 The site is also affected by the Design and Development Overlay - Schedule 4 (Foreshore Height Limitation). Pursuant to Clause 43.02-2 a planning permit is required for buildings and works. Clause 2.0 effectively prohibits buildings greater than two storeys in height. The proposal complies with this requirement. Design objectives are as follows:

To protect and enhance the environment of the Hobsons Bay foreshore as an environmental, conservation and recreational asset of State, metropolitan and local significance.

To ensure that the height, scale, bulk, setback and appearance of new development is compatible with the prevailing character of the area.

To achieve development that is a high quality architectural and urban design standard.

To preserve solar access to the foreshore, including associated roadways, bicycle and pedestrian paths.

To protect the foreshore reserve and significant public open spaces from inappropriate development.

30 State and local planning policies relevant to this application include Clauses 11, 12, 14, 15.12, 16.02, 18.02, 21.06 (Residential) and Clause 22.07 (Hobsons Bay West Neighbourhood Character Policy).

31 The Neighbourhood Character Policy implements the findings of the Hobsons Bay Neighbourhood Character Study December 2002 which identifies key existing characteristics and preferred neighbourhood character. There are 10 precincts in this area, with Trembath Court falling within Precinct 6 - Altona Meadows.

32 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area. Melbourne 2030 is a reference document in the Scheme.

33 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

34 The key issues for consideration are whether the:

a

design of the proposal is acceptable in the context of surrounding development in a court setting and the abutting parkland, in neighbourhood character terms;

b

internal streetscape, access arrangements and the number and location of carparking spaces is acceptable;

c

the proposal will cause unreasonable impacts in terms of increased traffic;

d

arrangements for waste management are acceptable.

35 Submissions advanced by the Council and objectors against the proposal in neighbourhood character terms can be summarised in the following way:

•

This proposal for medium density housing is too intense and inappropriate given the site's position in a court;

•

The development would adversely impact on the visual amenity and outlook to and from adjoining parkland;

•

The development does not provide adequate setbacks to boundaries and would compromise the spacious quality of the area.

36 I will deal with each of these matters in turn.

37 The site's location within a court generated submissions that reflected residents' enjoyment of Trembath's tranquil environment, free from through- traffic and with a relatively low number of properties. It was said that medium density development would adversely impact upon these attributes.

38 Mr Stokans referred to a number of past Tribunal decisions[6] in relation to medium density housing proposal in court settings. In support of the principles established in those cases, he submitted that while it could not be said that unit developments in courts would never be appropriate, the amenity bar is higher and particular care in the design and siting of proposals becomes a higher imperative.

39 I agree with Mr Stokans insofar as these principles are concerned. These principles were well annunciated by Member Cimino in Saxony Pty Ltd and Oceancare Pty v Manningham CC and Ors [2001] VCAT 2269 where he analysed a number of decisions[7] and made the following observations:

In considering these decisions, it seems to me that three main themes emerge. The first is that the Tribunal has acknowledged that the residents of properties located in courts can generally expect and usually enjoy a higher level of amenity than those who reside in conventional streets. The limited number of properties usually found within the court environment and the absence of through traffic seem to be the main factors that contribute to this higher level of amenity. The second is that properties in courts, particularly when located at the very end, can present constraints that militate against development at higher density. Examples of these constraints include irregular shaped lots, their abuttal with a higher number of properties than usual and the impact of extra traffic. The third is that whilst the court environment offers a high level of amenity and properties within them may present constraints, this does not mean that, as a matter of principle, there can be no medium density housing in a court.

On the last of the three points, it is significant to note that in each cases cited, the Tribunal did not express the view or come to a finding that there should be no increase in density simply because the property in question was located within a court. For example in an often recited passage from the J. A Thompson case the Tribunal [Senior Member Marsden] said:

These comments should not be construed as meaning that there should be no increased density in courts or cul-de-sacs. What the Tribunal suggests however, is that the amenity bar is set higher than, for example, in situations where streets are located in a normal grid pattern.

In Madja's case, the Tribunal [Member Sharkey] stated that there is "no reason why units per se should be prohibited in a court situation."

40 I too I find that there is nothing inherently unacceptable about a medium density development in a court environment, acknowledging as I have the need for careful consideration to be given to the design response in recognition of the particular sensitivities of this site's court setting. In terms of this development's intensity, my analysis of the design response concludes that one unit should be deleted for reasons I will return to shortly.

41 I now turn to the appropriateness of the design response, having regard to the site's location in a court.

42 Opponents of the proposal raised concern with the presentation of the 2-storey units and their visual impact upon Trembath Court, the parkland and neighbouring dwellings.

43 It was Ms Hamilton's evidence that the two-storey form of the buildings would inappropriately disrupt the pleasant outlook from Trembath Court to the treed backdrop of vegetation to the east of the site within the Reserve. Interruption of these views from No. 8 and No. 10 Trembath Court were also cited as concerns. Ms Hamilton and Mr Dopper also raised concerns with the visual impact of the two-storey buildings when viewed from the Reserve, that is, the east elevation.

44 In forming my view about the development's response to the neighbourhood character, I note that six of the 2-storey dwellings are arranged along the eastern boundary overlooking parkland. These are setback 4.2m to 6.4m. The seventh unit (Unit 4) is sited in the north-east portion of the site, with a minimum ground level setback of 6.7m from the boundary in common with No. 8 Trembath Court and 1.2m from the bike/walk track on the north side.

45 In terms of the siting of dwellings, I find that the positioning of the 2-storey dwellings away from the more sensitive backyard environs of No.'s 8 and No. 10 is a sensible approach. In respect of Unit 4, I note that its upper level setbacks are generous - approximately 10.8m from No. 8 Trembath Court. The generous setbacks of Unit 4 and positioning of units along the eastern boundary minimises the potential impacts of building bulk upon residential neighbours and is a logical response having regard to the irregular configuration of the land.

46 I am also not persuaded that this design approach will result in unreasonable visual impacts the parkland from the various vantage points around the review site.

47 In relation to views of the parkland from private land and Trembath Court, I must say at the outset that there is no legal right to a view. While I acknowledge that one of the design objectives under the DDO4 is to "protect and enhance key views and vistas" I do not consider that views of the parkland can be regarded as a "key" view or vista such as those views, for example, that are to be found along foreshore areas in parts of Williamstown. In any event, I am of the opinion that the canopy of existing trees will remain present above and in the spaces between the proposed dwellings and will continue to offer a treed backdrop from these vantage points.

48 In relation to views of the dwellings from the parkland, I am satisfied that the presentation of the east elevation is acceptable in visual amenity terms. I consider that the varied setbacks, light weight appearance of the weatherboard cladding proposed to the upper levels and the use of varied roof materials will provide appropriate levels of articulation and visual interest. For these reasons I consider that the presentation of this elevation will not be unreasonably intrusive nor will it represent a development that is at odds with other development in the area. During my inspection I observed a number of 2-storey dwellings (to the north) facing the reserve with associated outbuildings located close to the park boundary. Residential development is clearly visible from within the parkland and is part and parcel of the observer's visual experience given the park's abuttal with residential properties in this suburban setting.

49 On a related point, Ms Hamilton was of the opinion that the eastern bank of 2-storey dwellings would not offer meaningful surveillance of the parkland. Mr Dopper expressed a contrary view raising concerns with the outlook from upper level windows and balconies that overlook parkland. He submitted that overlooking would cause a loss of privacy for persons recreating in the park.

50 In forming my view about this issue, I note that on their upper level, the east sides of Units 5 to 10 contain a retreat opening out to a balcony. I find that this arrangement would promote some surveillance of the parkland, an outcome which I consider to be desirable. On the same token, I am not persuaded that residents overlooking the parkland will diminish the enjoyment of park users. The park is a public place which must by its very nature temper expectations of privacy.

51 In respect of building setbacks from external boundaries, Mr Stokans submitted that the 2m setback of Unit 12 from No. 10 Trembath Court would not be adequate. Ms Hamilton also raised concerns with the 1m setback of Unit 11 from the south boundary in common with the adjoining property at No. 8 Cheasley Place. It was said that this area, being on the south side would not be sufficient in width for meaningful landscaping.

52 Turning firstly to Unit 12's 2m setback, I am satisfied that the single storey form of this unit with a wall height of 2.75m would not have unreasonable visual impacts upon No. 10 Trembath Court. Further, there is some scope for landscaping along this boundary which can be required as a condition of permit.

53 In relation to Unit 11, I note that this unit adjoins the substantial garden environs of the Cheasley Place dwelling. I do not anticipate any unreasonable visual impacts upon this neighbour. While I accept that landscaping within this setback will be limited, I note that two large areas of private open space would be available for landscaping. Having said that, I recognise the need for this unit's redesign so that the double garage is located clear of the easement. In directing the redesign of this unit, I will require changes to the internal layout to achieve an improved outlook in respect of Bedroom 2's window. At present, this bedroom window has an outlook to the side fence, which given the 1m setback proposed and southerly orientation, is poor from an internal amenity perspective and requires improvement.

54 I am otherwise satisfied with the setbacks of units from side and rear boundaries. I also consider that areas of private open space have adequate dimensions and are of a size and orientation that would be capable of meeting the likely servicing and recreation needs of residents.

55 In relation to the front setback, I note that Unit 1 has setbacks ranging from 8.2m to 9m, while Unit 12 has a minimum front setback of 10.8m. These setbacks compare with 11.5m to No. 8 Trembath Court and 5.8m to No. 10 Trembath Court. Under the provisions of ResCode, (Standard B6), a minimum front setback of 8.7m would be required. In forming my view about whether the proposed setbacks are appropriate I note that the relevant objective is:

To ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site.

56 While the setbacks could be said to make efficient use of the site, it is also relevant to consider the preferred neighbourhood character which at Clause 22.07 is:

The openness of the streetscape and the garden settings of the dwellings will be retained and strengthened.

57 Amongst other things, relevant decision guidelines under ResCode also require a consideration of:

•

The design response.

•

Whether a different setback would be more appropriate taking into account the prevailing setbacks of existing buildings on nearby lots.

58 In its present form, I am not satisfied that Unit 1's front setback is appropriate. I say this for a number of reasons, including the need to widen the driveway pavement to 5m, the various incursions in the front setback area including the presence of the bin store and paths, the irregular configuration of the site which narrows at the frontage, the 11.5m setback of the nearest dwelling at No. 8 Trembath Court and the preferred future character statement which encourages the open streetscape aspect and garden settings to be strengthened. For reasons I have already discussed, I also give some weight to the site's location in a court setting.

59 I will therefore require Unit 1's setback from the frontage to be increased to a minimum of 9.5m by shifting this dwelling further to the north-east while maintaining the position of this unit's fence at 8.2m to the area of private open space. I recognise that this will potentially impact on the layout of units to the north-east.

60 In relation to Units 2 and 3, I propose that these units be consolidated into 1 dwelling. In their present form, I am not satisfied with the internal amenity they offer in relation to Bedroom 2 due to the proposed window placement. I have considered options for redesign of these units but their narrow design provides a significant constraint when considering alternatives. My specific concerns with the design of Bedroom 2 in each of these units are as follows:

•

Unit 2 - the windows are located adjacent to the garage and driveway of neighbouring Unit 1. I consider that this arrangement is poor from an acoustic amenity perspective. I say this whether the existing garage location for Unit 1 remains or is altered as recommended in Council's draft conditions.

•

Unit 3 - highlight windows on the north-east side appear to be located on the boundary in common with Unit 4. While I have considered deleting these windows, the remaining window on the north-west side is narrow and would not in my opinion be sufficient to offer reasonable levels of amenity in terms of outlook.

61 In requiring the consolidation of Units 2 and 3 into one unit (effectively deleting one unit), I will direct that the following design parameters be followed:

•

The setback of 4.59m from No. 8 Trembath Court is to be maintained as a minimum;

•

The new unit may contain 2 or 3 bedrooms but is to remain single storey;

•

A garage accommodating 2 cars is to be provided on the south side, generally commencing no further than 2m south of the location presently occupied by Unit 2's garage;

•

Provision of a landscaped buffer area between the front of the redesigned unit and driveway area opposite Unit 7;

•

The area between Unit 2's relocated garage and the driveway access to Unit 1 is to be set aside as common property and is to contain landscaping.

62 I conclude that with these suggested modifications, the setbacks and overall internal layout of the units will be satisfactory.

63 I am also satisfied with the presentation of the units to Trembath Court. The nearest dwellings to the street address the court and will make a positive built form contribution to the Trembath Court streetscape.

Internal streetscape, access arrangements and the number and location of carparking spaces

64 In terms of the appearance of the internal streetscape, Ms Hamilton expressed concerns with the presentation of the double garages located side by side. She was also critical of the amount of hard paved areas associated with car spaces and driveways and thus landscaping opportunities within the internal streetscape.

65 In terms of the presentation of the garages (Units 5 to 10), I consider that the proposed design will produce an acceptable internal streetscape outcome. I say this given the varied use of materials to the front facades and the fact that the front rooms of the dwelling have a horizontal width such that garage doors do not occupy a disproportionate part of the front façade. The use of a vertical party wall between the abutting garages also provides further relief and visual interest. In the case of Units 5, 6, 9 and 10, front setbacks of the abutting garages are slightly staggered to avoid a continuous building plane. I consider this to be an appropriate response and will require a similar treatment to garages 7 and 8. That is, Unit 8 is to be brought forward by 0.5m.

66 In respect of the amount of hard paving as a proportion of soft landscaping, I consider that the front setback area will be acceptable with the increased setback to Unit 1 as I have described. In the area around Unit 12, which was a particular criticism of Ms Hamilton's, I consider that the amount of paving is excessive. This is largely because of the 8 visitor car spaces in this location. I appreciate that the site's location at the courtbowl prevents any realistic prospect of kerbside parking in front of the site. Residents also submitted that the distance from shops and public transport may give rise to a greater reliance on car usage. These factors might be said to weigh in favour of a more generous parking provision. An appropriate balance does however need to be struck between car accommodation on the one hand and opportunities for landscaping on the other.

67 In deciding upon what is an appropriate level of parking, I consider that the number of visitor spaces is excessive, given the reduction in the number of units from 12 to 11, the fact that each dwelling is provided with 2 car spaces (including Unit 1 with appropriate modifications). Importantly, the visitor parking requirements under ResCode are that 1 visitor space per 5 dwellings be provided. This would equate to 2 visitor spaces for 11 dwellings.

68 Given these circumstances, I find that 6 visitor car spaces would be more than sufficient to cater for likely visitor parking demand. I will require the deletion of visitor car space No. 1 and 5 in favour of additional landscaping. I will also require car spaces 2, 3 and 4 to be oriented at 90 degrees instead of being angled, so as to facilitate more convenient entry and egress.

69 I am otherwise satisfied with the number and location of car parking spaces, subject to the modifications recommended by Council in relation to Unit 1's garage. That is, Unit 1's garage is to abut the boundary in common with No. 8 Trembath Court to allow a tandem space in front of this garage;

70 In terms of vehicle access to the site, widening of the driveway and cross-over including the pavement between Unit 1 and the visitor bays on the north side of Unit 12 will facilitate safe and convenient movement. I do not consider it necessary to widen the pavement between Units 9 and 12 for emergency vehicle access given the Council's proposed condition requiring a fire hydrant on the site. I prefer instead to see this area remain available for landscaping.

71 Nor do I consider it necessary to require pedestrian paths within the site as suggested by Ms Hamilton given the low speed nature of this environment.

72 In terms of visitor access to the site, some concern was raised by the parties about the provision of a front fence and gate. I find that with an appropriate intercom system, the front gate and fence arrangement would be acceptable, although I note that gates should swing into the site to avoid the need for cars to reverse back into the court bowl when entering. I agree that the fence at a height of 1.8m would be uncharacteristic in this neighbourhood. I will therefore require its lowering to a height of 1.5m and the use of metal pickets allowing a degree of transparency and visibility into the site.

73 Objectors raised particular concerns about the adequacy of Trembath Court to cater for additional traffic generated by the proposal and the potential amenity impacts (such as noise, exhaust, general activity) arising from increased traffic volumes. Submitters highlighted the extent of change which this proposal would bring in relation to traffic volumes. Whereas at present there are 17 dwellings, the proposal would take the total number of dwellings to 29 (now 28 with my recommended modifications), which objectors submitted represents a substantial and excessive increase.

74 In forming my view about this issue, it is useful to set out the findings of the two traffic consultants who variously provided advice to the permit applicant (GTA consultants) and the Council (the Traffix Group).

75 These consultants estimate that existing traffic volumes in Trembath Court are said to be in the order of 140 to 220 vehicle movements per day (vmpd). For the purposes of this analysis, I will adopt the higher, more conservative rate.

76 The assessment by GTA consultants concludes that the proposal would generate up to 72 additional vmpd in Trembath Court whereas a slightly higher figure of 84vmpd was suggested by the Traffix Group (based on 12 units).

77 Again adopting the higher of the two estimates, traffic volumes in Trembath Court would be approximately 300vmpd if the development proceeds.

78 Despite this slight variation in opinion, Council's traffic consultants nonetheless concluded:

... all streets on which additional traffic from the development would travel are expected to be able to easily accommodate the additional traffic (maximum of 84 additional vehicles per day).

Overall I am of the view that additional traffic generated by the proposed development should not have a significant impact on the safety or operation of Trembath Court or surrounding road network.

79 I note that GTA consultants and Council's own traffic engineering officers also concluded that the additional traffic generated by the proposal would not have a significant impact on the safety or operation of Trembath Court or the surrounding road network.

80 I similarly agree that the existing road network, including Trembath Court is capable of accommodating the additional traffic from this proposal. I accept submissions that the increase in traffic will be noticeable given the relatively low existing volumes. This however, is not of itself sufficient reason to justify refusal of the application. In saying this, I am mindful that Trembath Court has the design characteristics of an 'Access Street'[8] which has the potential to accommodate up to 100 dwellings and 1000vmpd. Approval of this proposal would still allow Trembath Court to sit comfortably within these parameters.

81 Additionally, from my inspection I observed that this street is a low speed environment and there are no apparent features of the street that would otherwise persuade me that increased traffic of the magnitude represented by this proposal would cause unsafe conditions or an unreasonable loss of residential amenity. In short, I have not been provided with any evidence to persuade me that Trembath Court could not cope with the traffic generated by this proposal and I conclude that refusal of the proposal on traffic grounds has not been made out.

82 Waste management arrangements generated considerable concern by residents opposed to the development. In particular, concerns were raised about the location of a bin enclosure adjacent to the boundary in common with No. 8 Trembath Court, approximately 3m from the frontage and the lack of space on the nature strip in front of the site for bin storage on collection days.

83 It is useful to set out the details of the proposed waste management arrangements which would occur using a private contractor (i.e. not using Council's waste collection service). A letter (dated 6 May 2005) to the Council provided by Mr Loughnan makes the following comments in relation to the proposed waste management arrangements:

Waste management is to be undertaken by the body corporate. JJ Richards & Sons P/L will provide a waste management service for the development. This company has advised that there is a total bin requirement of 12 240 litre bins. 6 bins comprise general waste and 6 bins comprise co-mingle recycling (paper, plastics etc.). There will be no bins stored on the nature strip.

The general waste and co-mingle bins are collected on separate days. The bins will be stored in the corral near the site frontage. On days of pick up the contractor will wheel the bins onto the nature strip fronting the site and deposit the contents into his truck. The bins will be immediately wheeled back to the corral. The total of 6 bins will only be on the nature strip for approximately 5 minutes.

84 I observe from Mr Loughnan's description that a sharing of bins seems to be proposed. This would appear to involve the permanent keeping of bins within the corral near the frontage. The officer's report, however states that "a condition will also require smaller 120L bins for general waste be part of the waste collection program, rather than 240L bins". Council's draft conditions do not however make reference to 120L bins. In addition, it is not clear from this report whether the use of smaller bins amounts to the provision of one bin per unit rather than the sharing of bins in one central location. I do note however that Condition 5(b) suggested by the Council states that:

[5] The following must form part of the Body Corporate Rules for the site:

a. Waste Management Plan which must include a provision that bins must not be left on the nature strip on Trembath Court.

b. Bins must be collected from the bin corral by residents on the day of collection (bins must not be left in the bin corral). [Emphasis added]

85 It seems from this proposed condition that residents will each be provided with their own bin which they will temporarily store within the corral on collection days, rather than placing bins on the nature strip.

86 I consider that the temporary storage of bins in the corral would provide a practical outcome to the question of bin storage on waste collection days. I consider this arrangement preferable to the permanent storage (and sharing) of bins in the corral on amenity grounds. I do not think that a Section 173 Agreement is necessary given conditions requiring the preparation and implementation of a Waste Management Plan (proposed Condition 1(p)) and Condition 5 which requires the implementation of the Waste Management Plan by the body corporate. Council has the means to enforce conditions on a planning permit under the Planning and Environment Act 1987. Any permit issued will include relevant conditions in relation to these matters.

87 I will nonetheless require details of the corral's design, materials and dimensions as well as fencing around the corral noting that an increase in the height of the side boundary fence[9] would be necessary to screen the proposed structure. Any permit issued would also include a requirement for landscaping around this structure. With these measures, I am not persuaded that the corral (or the proposed waste management arrangements generally) would cause unreasonable amenity impacts in streetscape terms or for neighbours.

88 In reviewing the Council's proposed permit conditions I note that Condition 1(q) requires the provision of communal bicycle parking facilities. The bicycle parking provisions of 52.34-3 only apply to dwellings where buildings are 4 storeys or more. That is clearly not the case here. I would envisage the storage of bicycles within garages or back yards and will therefore require deletion of Condition 1(q) proposed by Council.

89 I have found that, subject to the recommended plan amendments set out above, the development of this site with 11 dwellings has the potential to be worthy of a permit. However, a number of the amendments I have described (such as deletion of a unit, redesign of visitor parking and redesign of Unit 11) may give rise to consequential amendments and may require further scrutiny.

90 Accordingly, my directions require that any amended plans are to be circulated to all parties to provide an opportunity for comment on the plans and the changes that I have required. Any comments on those plans are to be limited to the amendments I have requested only. It is not an opportunity for broader issues already discussed at the hearing to be raised again.

91 I also make it very clear that this opportunity to redesign should be seen as an opportunity to rectify the shortcomings in the design as a response to the planning scheme controls. This will enable the Tribunal to further review the proposal. It does not mean that a permit would be granted as a matter of course.

92 If the plan amendments were not to my satisfaction, as not complying with the spirit and specifics of this decision, I would refuse a permit.

93 I now summarise my recommended modifications expressed above which may lead to the grant of a permit for the development.

94 The plans must be drawn to scale with dimensions and must be generally in accordance with the plans described as Drg No. TP3, TP4, TP5, TP6, TP7, TP8, TP9 Issue D Job No. 040314 prepared by Bill Jacobs Pty Ltd but modified to show:

i

The height of the front fence no greater than 1.5m incorporating the use of open style metal pickets with gates that swing into the site;

ii

Unit 1 setback a minimum of 9.5m from the frontage by relocating this unit further to the north-east;

iii

Unit 1's garage relocated so as to be positioned on the boundary in common with No. 8 Trembath Court. The garage is to have a length of 7m and is to internalise 6 cubic metres of storage space;

iv

Plan notations indicating the provision of a tandem car space in front of this unit's garage;

v

Relocation of Unit 1's clothesline and deletion of the external store as a consequence of item (iii) above;

vi

Units 2 and 3 replaced with one unit. The replacement unit is to be redesigned having regard to the following design parameters:

a. The setback of 4.59m from No. 8 Trembath Court is to be maintained as a minimum;

b. The replacement unit may contain 2 or 3 bedrooms but is to remain single storey;

c. A garage accommodating 2 cars is to be provided on the south side, generally commencing no further than 2m south of the location presently occupied by Unit 2's garage;

d. Provision of a landscaped buffer area between the front of the redesigned unit and driveway area opposite Unit 7;

e. The area between Unit 2's relocated garage and the driveway to Unit 1's garage is to be set aside as common property and is to contain landscaping;

vii

Full dimensions and design details including materials of the bin corral near the frontage. This structure is to be setback a minimum of 3m from the frontage. Details of fencing along the boundary in common with No. 8 Trembath Court are to be provided, capable of ensuring the structure is screened from this adjoining residential property;

viii

The vehicle cross-over widened to 5m;

ix

Widening of the driveway to 5m in the area between the crossover and between Unit 1 and the visitor bays on the north side of Unit 12. Widening is to occur on the east side of the driveway;

x

Redesign of Unit 11 so that no part of this unit, including its garage, is located on the easement. In redesigning this unit, an improved outlook in respect of Bedroom 2's window must be achieved;

xi

Unit 8 shifted 0.5m to the west;

xii

Deletion of visitor car space No.'s 1 and 5 in favour of landscaping. Three visitor car spaces are to be provided on the north side of Unit 12, oriented at 90 degrees to Unit 12's fence. These spaces are to have dimensions of 2.6m x 4.9m. A landscape strip not less than 0.8m in width is to be provided between these car spaces and Unit 12's fence. Wheel stops are to be provided at the front of all visitor bays.

xiii

A minor reduction in landscaping in front of Unit 6 to facilitate improved entry and egress to garages 4 and 6.

xiv

A sealed path from the pedestrian/ bicycle gate on the northern boundary to the bike/walk track within the Reserve. The path shall be narrower than the main path to signal that this is a branch into a domestic area.

xv

Design details of fencing abutting the parkland and Reserve.

xvi

Plan notations indicating the provision of signage to visitor spaces around Unit 12 for visitor use only (resident parking prohibited).

xvii

The location of an intercom at the font gate entry to enable authorised access by visitors;

xviii

The location of a fire hydrant on the site;

xix

The provision of an appropriately designed mailbox structure at the site frontage;

xx

All plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which are proposed to be located externally must be identified on the plans in a satisfactory location.

[1] Agreement under s.173 of the Planning and Environment Act 1987.

[2] The then City of Altona issued a permit for subdivision (Permit No. 008728) on 24 March 1987.

[3] Report to Council's Special Planning Committee - Agenda 11 August 2005

[4] Vic Urban advised by letter dated 24 January 2005 to Gattini Partners that it "agrees to extend the time for the proprieter to comply with the covenant until January 24, 2007".

[5] Facsimile from Gary Testro to Council dated 31 August 2005 and letter from Best Hooper solicitors to Mr Loughnan dated 27 January 2005.

[6] Hedjes v City of Keilor (P84/0014) 2 PABR 99; Lizio Duty Homes v City of Keilor P86/2208 (unreported) and Superior Building Projects Pty Ltd v City of Moorabbin 3AATR 135.

[7] J A Thompson Surveyors v Knox CC (1998/37377 1 VPR see editorial comment at 32), JWJ Investments Pty Ltd v Manningham CC (1999/77653), Parella v Knox CC and Ors (1999/92183 5 VPR see editorial comment at 4) and Madja v City of Monash and Ors (2000/13240).

[8] See in particular Clauses 56.03-1 and 56.07-4 of the Hobsons Bay Planning Scheme

[9] The side fence tapers down towards the frontage.