Victorian Civil and Administrative Tribunal|2011-05-17

Lateral Building Design v Maroondah CC [2011] VCAT 904 (17 May 2011)

Section 77 of the Planning & Environment Act 1987; Maroondah Planning Scheme;

Residential 1 Zone; Significant Landscape Overlay 3; neighbourhood character; residential amenity.

The decision of the Responsible Authority in relation to permit application no. M/2009/1004 is set aside:
A permit is granted for the construction of a medium density development of four dwellings and associated tree removal at 11 Humber Road, Croydon North generally in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

Construction of four two-storey dwellings in a medium density development together with the removal of vegetation. Each dwellings has a lounge, kitchen plus open plan meals area, master bedroom plus ensuite and two additional bedrooms in varying configurations. A double garage is provided.

Application under Section 77 of the Planning and Environment Act 1987

The subject site is located on the western side of Humber Road approximately 150m north of the intersection with Exeter Road, has dimensions of 18.29 m x 79.05m with an overall area of some 1447 sq.m. It is currently occupied by a single weatherboard dwelling.

The surrounding area forms the steeply sloping east face of Hochkins Ridge, the top of which forms the Hochkins Ridge Flora Reserve. Humber Road runs north-south across the slope with the subject site sloping steeply upwards from the street to the rear of the property. Surrounding development consists mainly of single dwellings of single and double storey construction on large allotments with good opportunities for east facing views. A number of medium density developments have been constructed or approved in the general area including Humber Road. No. 13 has been developed for a dual occupancy.

I carried out an unaccompanied inspection on 29 April 2011.

(Given orally at the hearing with minor revision for clarification)

The permit applicant has sought review of Council's decision to refuse a permit for the construction of four dwellings on the subject site principally on grounds of lack of respect for neighbourhood character. Resident objectors support Council's determination.
Having considered all the material presented to me including a number of relevant Tribunal decisions in the surrounding area and having visited the site, I have determined that the key issues for determination in this matter are:
- Will the proposal result in acceptable outcome in relation to neighbourhood character?
- Will the development have any unacceptable outcomes in relation to the amenity of adjoining property?
On balance, I have determined that a permit should issue for the reasons below.

It was not disputed that the site is well located for community facilities, that all physical services are available and that there were no other constraints which would prevent its development for medium density housing.
Key policy objectives derive from the Schedule to the Residential 1 Zone and its associated Schedule which requires increased provision of private open space, and Clause 22.03 where the site lies within the Warrien Neighbourhood Precinct whose objectives focus on the need to ensure that development is not visually dominant and contributes to the maintenance of a vegetated backdrop when seen from a distance.
I find that the development more than meets the open space provisions of the schedule to the Residential 1 Zone. While a number of small to medium size trees are to be removed, I accept the findings of the arborist's report that these are generally in poor condition. Three major existing canopy trees will be retained within the private open spaces to be provided, and areas identified within the driveway. There is substantial opportunity for the provision of further canopy trees and conditions have been imposed to that effect.
Council sought to have the individual buildings separated by spaces of approximately 1.2 metres. I do not believe that this will make any useful contribution to reducing the overall visual impact. There is a reasonable degree of separation of the dwellings at the first floor level with spaces varying between 4.3 and 5.0 metres. When combined with the modest overall heights of 7.4 metres for the two-storey dwellings and the addition of the proposed canopy trees, I find that the development as a whole will provide an acceptable outcome in the context of the policy objectives of the planning scheme.
The removal of balconies in Dwellings 2, 3 and 4 together with the implementation of screening for upper level windows in accordance with Clause 55 will, in my view, ensure that there is no unreasonable impact on the amenity of adjoining properties.
The development provides two car spaces per dwelling with turning space for all cars to be able to exit the site in a forward direction and therefore meets all the requirements of the planning scheme. Mr Rusham's concerns about the potential addition to on-street parking stem largely from his own specific needs to be able to enter and leave his driveway with a substantial boat in tow. This is an issue which can only be solved at the local level.

In overall terms, I find that this site is appropriate for a development of this type and that with additional conditions about vegetation and privacy will result in an acceptable outcome in relation to the planning scheme provisions and policies.
I will set aside the decision of the Responsible Authority and order that a permit issue with additional conditions about landscaping and privacy.

The permit will allow the construction of four two-storey dwellings together with the removal of vegetation generally in accordance with the endorsed plans and subject to the conditions set out below.

Before the development commences, three copies of amended plans must be submitted to the satisfaction of the Responsible Authority. The plans must be drawn to scale with dimensions and three copies must be provided. When approved, the plans will be endorsed and will then form part of this permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:
1. the setback of Dwelling 4 to comply with the provisions of Clause 55
2. plans to be annotated to demonstrate the screening of windows and balconies in accordance with Condition 11
3. the deletion of balconies to Dwellings 2, 3 and 4 and the replacement of balcony doors with windows located or screened as necessary to comply with Clause 55
4. the deletion of bedroom 3 of Dwelling 4
5. landscaping as required by condition 3
6. the definition of Tree Protection Zones as required by condition 4.
The development as shown on the endorsed plans must not be altered unless with the prior written consent of the Responsible Authority.

Before the development commences, or at such later date as the Responsible Authority may approve in writing, a Landscaping Plan and Schedule must be submitted to the satisfaction of the Responsible Authority. The plan must be prepared by a suitably qualified person in accordance with Council's Landscape Plan Guidelines. When approved, the plan and schedule will be endorsed and will then form part of this permit. The plan must show:
1. all trees to be removed
2. all trees to be retained which must include Trees 1, 2 and 4 as shown on the ground floor layout plan submitted with the application
3. details of all plants to be used including species, size at planting and estimated size at maturity
4. the location of a minimum of six (6) large canopy trees with a size at planting of no less than 2.0 metres and an estimated size at maturity of no less than 12.0metres. The trees to be located as follows:

two within the private open space of Dwelling 1 2. two within the private open space of Dwelling 4

one each within the private open space of Dwellings 2 and 3

one within the widened landscape area in the driveway. 5. a further six medium canopy trees of an estimated height at maturity of not less than 8.0 metres.
Prior to the occupation of the new dwellings, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
Prior to development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the trees marked on the endorsed plans as being retained must have a Tree Protection Zone (TPZ) defined on a plan to the satisfaction of the Responsible Authority.
Prior to development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), the tree protection fencing must be erected to the satisfaction of the Responsible Authority in accordance with the approved tree protection zone(s).
Once erected and approved by the Responsible Authority, the tree protection fencing shall be maintained in good condition and may only be removed upon completion of all development works, to the satisfaction of the Responsible Authority.

Except with the further consent of the Responsible Authority, construction and drainage plans shall be submitted to and approved by the Responsible Authority prior to the commencement of any buildings and works authorised or required by this permit.
Prior to the commencement of buildings and works, a Water Sensitive Urban Design (WSUD) Plan must be submitted to and approved by the Responsible Authority. The plan must include WSUD treatment as part of the stormwater works which improves stormwater run-off quality and retains any increase in stormwater run-off.
The WSUD treatment system shall be maintained at all times to ensure that the level of water quality discharged from the site is to the nominated point of discharge and to the satisfaction of the Responsible Authority.
Before the use and/or development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be surfaced with an all-weather seal coat, to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

Prior to the occupation of any dwelling, all screening work of windows and/or balconies must be carried out to prevent any direct overlooking of neighbouring habitable room windows or secluded private open space in accordance with Clause 55 to the satisfaction of the Responsible Authority.

This permit will expire if one of the following circumstances applies:
1. the development is not commenced within three years of the date of this permit
2. the development is not completed within four years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

Lateral Building Design v Maroondah CC [2011] VCAT 904

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Lateral Building Design v Maroondah CC [2011] VCAT 904 (17 May 2011)

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