For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.
[2]
[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]
[2] While a planning permit may be required under SLO3, this would only occur if more than 40% of the site area of lot 1 is proposed to be developed, or other permit triggers are met. In any case, a permit application under SLO3 would not be subject to a ResCode type analysis, or a similar analysis that addresses broad neighbourhood character considerations outside of the relevant considerations under SLO3 and the related parent control.
[4]
[3] As referenced at Clause 56.04-2 of the Maroondah Planning Scheme.
[5]
[4] Noting that lot 1 will not be a corner allotment if the proposed subdivision proceeds.
Parties
Applicant/Plaintiff:
Land Development Consulting Pty Ltd
Respondent/Defendant:
Maroondah CC [2022] VCAT 936
Legislation Cited (1)
Environment Act 1987
Cases Cited (5)
Land Development Consulting Pty Ltd v Maroondah CC [2022] VCAT 936 (15 August 2022)
In addition, Clause 65.02 of the Maroondah Planning Scheme requires me to consider the following.
The suitability of the land for subdivision.
The existing use and possible future development of the land and nearby land.
The subdivision pattern having regard to the physical characteristics of the land including existing vegetation.
The density of the proposed development.
The area and dimensions of each lot in the subdivision.
Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas.
The relevance of the possible future development of land to the consideration of a subdivision application, as referenced above from Clause 65.02, has previously been addressed by the Tribunal in a number of decisions. In the decision of Butler v Maroondah CC[2016] VCAT 1212, which considered a proposed 6 lot subdivision on land elsewhere in this municipality, the Tribunal remarked as follows.
In addressing these matters, Ms Hill on behalf of the Applicant submits that appropriate character outcomes can be achieved, having regard to a building envelope plan and a development plan for two dwellings, which are both referenced in her written submissions. I will address each of these documents in turn.
The building envelope plan referenced in Ms Hill's submission does not form a part of the planning permit application. Instead, a representative of the Applicant circulated the building envelope plan via email on 20 July 2022 (some 12 business days prior to the hearing) with advice that the building envelope plans are not considered amended plans. As they are not amended plans, they do not amend or form a part of the planning permit application, and they are not before me for my consideration. I note also that as many components of the Tribunal's Practice Note PNPE9 Amendments of Plans and Applications (1 July 2022) have not been complied with, even if the Applicant considered these building envelope plans to be amended plans, I would likely have not allowed them to be substituted in this proceeding. To support this contention, not only were the building envelope plans filed late, as compared to the 30 business days prior to the hearing as required by the Practice Note, but also they have not been filed on people who lodged objections to the planning permit application, nor on people who received notice of the planning permit application. As an indication of the significance of this last failure, the owner of land immediately to the south of the review site is not a party to this proceeding, and so is not aware of these building envelope plans. That would not be the case if the procedure under the Practice Note had been followed.
For these reasons, I find it would be inappropriate, as well as procedurally unfair, to place any determinative weight on the building envelope plans. This includes the application of a condition on a planning permit which references these plans, as is encouraged by Ms Hill.
The intent by the Applicant to rely on the proposed development plan for two dwellings on the review site is even more troubling. This Applicant previously lodged a planning permit application for the construction of two dwellings on the review site. The Application was refused by Council, and an Application for review lodged with the Tribunal, which was then subsequently withdrawn. The Applicant then proceeded to construct one of the two previously proposed dwellings (or at least a dwelling with a very similar layout, design and siting), and then apply for a subdivision which seems to align with the previous proposal for two dwellings. It is that subdivision application that was refused by Council, and is now before me on review.
In addition, in respect of the context to the property surrounding 34 Wonga Road, in the decision of Lateral Building Design Pty Ltd v Maroondah CC[2015] VCAT 912 the Tribunal provided the following description of the context.
My own observations from my site inspection confirm that this is a neighbourhood, particularly in respect of the character along Wonga Road, where large setbacks prevail, and where vegetation dominates the appearance of lots over built form, as I have described at paragraph 13 of these reasons. It is evident therefore that this is a neighbourhood where a conventional suburban form of development might appear out of character.
Ultimately, I have not been persuaded that the proposed plan of subdivision is capable of ensuring appropriate outcomes on the review site, consistent with the guidance provided by the Maroondah Planning Scheme. In particular, and drawing on the words quoted above from the preferred future character statement for the Mullum Mullum Creek area, as well as the objectives found at SLO3, I have not been persuaded that the subdivision will result in:
A well articulated and site responsive building on lot 1, that minimises the effect of future development along this ridgeline. While Ms Hill orally submits that this application does not propose buildings, with respect it is the likely form of future buildings that is a relevant consideration under Clause 65.02 of the Maroondah Planning Scheme, and that is important to understand in order to assess the neighbourhood character impacts of this proposal. The failure of the application material to provide any detail of the likely future siting and form of a future dwelling on lot 1 is therefore a significant failing;
Space between dwellings for vegetation, that conserves the existing landscape character. While Ms Hill orally submits that a 10 by 15 metre rectangle[3] would provide spacing between dwellings, that is simply a theoretical argument, as there is nothing in the application material that demonstrates where a future dwelling will be located, or that it will be limited to a 10 by 15 metre footprint so as to achieve space for vegetation between dwellings;
Sufficient room across both sites to replace established canopy trees. I am not persuaded by Ms Hill's oral submission that there will be sufficient room outside a 10 by 15 metre rectangle, as there is no built form control as part of the application material to limit the extent of built form and hard paved surfaces that will eventually occur across the review site;
A driveway and a car parking structure that do not dominate the frontage of lot 1; and,
Appropriate front and rear setbacks on lot 1, noting that generous front setbacks are a character of this part of Wonga Road, and there are a potential range of off-site impacts that could result to the adjoining property to the south -east of the review site by way of rear boundary setbacks, predominantly as a result of the falling topography to the south.
Having determined not to proceed with an application for two dwellings on the review site, it is unreasonable that the Applicant now seeks to rely on the plans for the two dwelling development in response to some of the concerns raised by the other parties. Significantly, by pursuing an application for a two lot subdivision, the Applicant has avoided planning scrutiny of many components of the original proposal to construct two dwellings on the lot. For example, the parties in this proceeding are precluded from making submissions in respect of the built form and materials of the proposed dwelling on the review site, the potential for off-site amenity impacts such as visual bulk, overlooking and overshadowing, and the level of internal amenity to be achieved. In this circumstance, it would then be unreasonable for the Applicant to attempt to use these plans, as Ms Hill has done in her written submissions in this proceeding, to justify future neighbourhood character and landscape outcomes. Indeed, the Applicant in seeking to use these plans for this purpose, is a case of seeking to have your cake, and eat it too. That is, they wish to avoid the level of scrutiny that would occur in respect of a proposal to construct two dwellings on a lot, but then rely on that proposal to respond to certain concerns. This approach is completely unfair to the other parties, having regard to the manner that the Applicant has approached its submissions in this proceeding.
For these reasons I am left with the plan of subdivision set out above, as a basis for determining whether the proposed subdivision of the land will achieve the outcomes encouraged by the Maroondah Planning Scheme. As set out above, those outcomes encouraged by the Maroondah Planning Scheme include respect for the existing and preferred neighbourhood character, as well as the achievement of certain landscape outcomes described in SLO3. The combined neighbourhood and landscape character in this area has previously been described in the following manner by the Tribunal, in respect of the context surrounding 25 Wonga Road, in the decision of Zarella Pty Ltd v Maroondah CC[2015] VCAT 131.
As I have not been persuaded that the proposed subdivision would achieve these key outcomes sought by the Maroondah Planning Scheme, I find myself in a position where I cannot support a grant of a planning permit for the proposed subdivision.
The position I find myself in reminds me of a similar proceeding of mine which was quoted in the Council's submissions in this proceeding, from the decision of Stefanutti v Whitehorse CC[2020] VCAT 229, as set out below.