Le v Bayside CC [2013] VCAT 452

1. Leave granted to amend the application by substituting the plans prepared by Sketch Building Design, Drawing Nos, PC-11144 Sheets 02 to 07, Revision B.
2. Council's decision to refuse the application is affirmed.
3. In permit application 2011/445/1, a permit is not granted.

Dominic Scally, Solicitor, Best Hooper Solicitors. He called Mark Waldron, Town Planner, and Peter Thompson, Landscape Architect, to give evidence.

Two side-by-side dwellings, part of the building is three storeys.

Each dwelling provides three bedrooms plus a study, a single garage or carport and a tandem car space in the driveway. A 'basement' with internal dimensions of 5.4 x 7.2 metres (scaled) accommodating a store and laundry is at the rear of the development. This is not a basement pursuant to the definition for a basement in the Bayside Planning Scheme as it is more than 1.2 metres above the natural ground level. At the northern end, it scales at 2 metres above the ground level.

Residential 1 Zone and Design and Development Overlay Schedule 2. The Schedule to the Residential 1 Zone varies the site coverage and side and rear setback standards of Clause 55.

Clauses 11, 15, 16, 21.03, 21.05, 21.06, 22.06, 22.08, 52.06, 55 and 65.

The site is on the north side of Besant Street between Spring Road and Leith Crescent, Hampton East. It is regular in shape, with a frontage of 15.85 metres, a depth of 39.62 Metres, and a sit area of 627 sq m. It is developed with a single storey weatherboard house.

Adjoining the site to the east and west are single storey single dwellings. Development in the street is dominated by single dwellings, mostly single storeys in height. No. 5 Besant Street is a vacant lot. At the end of the street is Leith crescent are two storey walk-up flats, which are understood to be public housing.

1. The permit applicant seeks to develop the land for two side-by-side part three storey dwellings. Council has determined the application and issued a notice of refusal. Grounds of refusal relate to neighbourhood character, overdevelopment because of site coverage and inadequate opportunity for effective landscaping; and the proposal not meeting Standard B17, thus presenting a visually dominant built form to adjoining properties and the streetscape.
2. As the permit applicant has lodged an application to review this refusal, the Tribunal must decide whether to affirm or set aside Council's decision. In doing so, it must give effect to the Bayside Planning Scheme ("the Scheme").
3. I have reviewed the submissions of the parties and the evidence of Messrs. Waldon and Thompson, had regard to the provisions and policies of the Scheme and inspected the site and surrounding area. I form the view that the design falls short of the expectation of the Scheme. Without substantial revision of the design, it is not supported.
4. The issues of this review are the proposed design response to the neighbourhood character and visual bulk.

1. The concept of urban consolidation is generally well understood. An assessment of whether a proposal is acceptable depends on the attributes of the site and the design of the development. The site is not located in an area earmarked for intensive development. It does not front a major road where the built form is usually robust and subject to amenity impact by heavy traffic or commercial development. The site can be described as in a residential hinterland.
2. In terms of neighbourhood Character and pursuant to Clause 22.06, the site is the Neighbourhood Charactered Precinct G1. The preferred future character of this precinct cites:

The well articulated dwellings sit within landscaped gardens, some with established trees. New dwellings are frequent and are designed to respond to the site, and include a pitched roof form to reflect the dominant forms in the area. Buildings are occasionally built to the side boundary, however, the overall impression of the streetscape is of buildings within garden settings due to the regular front setbacks well vegetated front yards and additional street tree planting.

1. Design guidelines provided for this precinct recommended a landscape plan to accompany an application to demonstrate that a development can maintain and enhance the garden settings, for siting of buildings to create the appearance of space between buildings and accommodate substantial vegetation; and incorporation of design elements to ensure that the buildings are well articulated, front façade recessive, and having a pitched roof with eaves.
2. Council did not support the design because of its boundary-to-boundary design where the existing pattern of development is setback on at least one side. The urban design advice it received was that it is a discordant design for the area, as well as not meeting a number of objectives of Clause 55, and excessive bulk. The amended plans substituted at the hearing were also considered by this urban designer, who commented that despite the various modifications, there has not been sufficient improvement to justify support.
3. Council submitted that the proposed building, at 10.1 metres high, presents as a significant three level dwelling to the streetscape which is dominated by single and modest double storey dwellings. To Council, the proposed zero side setback and general lack of side setbacks elsewhere accentuated the visual dominance of the bulk to adjoining properties. It contended that the proposal also fails to achieve the objectives of the DDO2, which is to achieve a design outcome that contributes positively to the area; to maintain the prevailing streetscape rhythm, building scale and height of the neighbourhood; and to maintain a strong landscape character with buildings set within vegetated grounds.
4. Mr. Waldon's evidence, however, gave a different view and as follows:
   • The carport on one side boundary helps to reinforce the rhythm of spacing in the streetscape;
   • The second level is recessed from the front, side and rear setbacks of the ground level below;
   • The use of parapet and splayed roof is a modern interpretation of the mainly hipped roof form found in the area;
   • The mixture of use of brick and render is consistent with the Besant Street context; and
   • The front fence is open.
5. His reading of the neighbourhood character policy and the design objectives of the character precinct was that the proposal is able to satisfy these objectives, mainly because of what he considered as the "generous front, side and rear setbacks" to maintain the garden settings of the dwellings. To him, the height of the building, partly 3 storeys, is acceptable, as new buildings in the area are likely to be two storeys, and higher at two storeys because of the effect of the Special Building Overlay that affects sites in Kendall Court at the rear. He tabled photographs of a new two storey dwelling at Kendall Court which is well elevated above the natural ground level because of this overlay. He commented that if the Tribunal does not support the carport as proposed, it can be redesigned.
6. My inspection of the site and area confirmed the predominant single storey single dwelling nature of the street until one gets to the public housing estate at the end of the road. As referred to in the precinct preferred character, there is a building rhythm where setback from at least one side boundary is prevalent.
7. The proposal is for in effect a boundary-to-boundary construction. One of the on-boundary constructions is now proposed to be a carport. This carport does not have an open design. It is of masonry construction at both ends with a parapet wall across the top and with a garage door. From the street, this carport comes across as a single storey garage on the boundary.
8. To soften the carport, Mr. Thompson's proposed landscaping is to plant 4 pencil pines and a row of dwarf box beneath along the boundary fence. I am of the view that these plants would soften the on-the-boundary appearance of the building, but would not achieve the building rhythm sought in the precinct objectives or the current building rhythm character of the area.
9. As for Mr. Waldron's suggestion that the carport can be replaced by another design or not roofed, it is difficult to design this aspect of the proposal on the run without appreciating the impact on the overall appearance of the building or the integrity of the design.
10. In terms of streetscape presentation, I agree with Council that the proposed configuration is not consistent with the existing neighbourhood character and the preferred character of the area.

1. Another main issue is the three storey nature of the development mid-block opposite the private open space of adjoining single dwellings. The height of the three storey section fails to meet Standard B17 as varied by Bayside. Based on the Bayside varied standard, the proposed building is not able to meet the side setbacks on the ground floor and first floor (second level and third level) on the east and west sides. The degree of discrepancies are:

1. From the above table, it is evident that the proposal is well short of the side setbacks intended for Bayside. However, Mr. Waldron's opinion on the matter was:

The schedule to the R1 zone states certain departures from the normal side and rear setback standards. These are generally met, with some minor exceptions. The objective is met.

1. His assessment has been against the Standard B17 as not varied in Bayside. From that angle, the proposal would meet the standard. Bayside has a different standard from most other municipalities. It is obvious that the bar is set higher for Bayside. Notwithstanding not meeting the varied standard, Mr. Waldron made no analysis as to how the objectives for side and rear setback have been met.
2. Apart from the proposal not meeting Standard B17, I also find the scale and building mass of the two storey building section setback 1.75 metres from the common boundaries and backyards of adjoining dwellings not sympathetic and not respectful of these backyards. This building mass increases another level recessed around 1.6 metres further in from the ground (second level) floor.
3. With regard to Mr. Waldon's opinion that the height of building in the vicinity will be elevated, such as those in Kendall Court because of the Special Building Overlay that applies to some of the lots in that court, that may be the case. However, single dwellings for which a planning permit is required if it meets the provisions of the DDO, is also subject to the same side and rear setback standard (A10) in Clause 54, which is exactly the same as in Standard B17.
4. I have reviewed Mr. Thompson's proposed landscaping for the development. It shows perimeter planting and canopy trees along the side boundaries. Given the capacity of these trees, mainly the pears and pittosporums, they would be able to soften the building form, but not of a height to screen the building.
5. I am not satisfied that the proposal has met the objectives for side and rear setback. It would cause an unreasonable level of visual bulk to adjoining dwellings.

1. Notwithstanding the merits of a side-by-side configuration of dwellings, the design of this proposal is not successful to demonstrate an ability to respect the neighbourhood of the area or cause a level of amenity impact that meets the visual bulk standard of Clause 55.
2. Council's decision to refuse the application is affirmed.