The deletion of the proposed on-street car parking space in the road reserve area in front of the land.

Ms Megan Lennen appeared in person, also representing the other Objectors.

The development of one double storey dwelling and two single storey dwellings and ancillary car parking.

Section 82 of the Planning and Environment Act 1987 (merits review).

Also see the Clause 55 ResCode provisions and the Clause 65 General decision making criteria.

Clause 32.01-4 - the construction of two or more dwellings on a lot.

The appeal site is located on the eastern side of La Rochelle Boulevard in Point Cook. Point Cook is a middle ring suburb on the south-western side of Melbourne. This is a relatively new residential estate, with the predominant housing type being detached single dwellings. The appeal is rectangular shaped, has an area of 702 sqm, and has good access to local services and facilities.

1. This is a merits review involving a proposal to build three dwellings on the subject land at 35 La Rochelle Boulevard in Point Cook. The front dwelling would be double storey, whereas the middle and rear dwelling would be single storey.
2. I have set out the main features of the site and locality in the "Information" section above, and I also refer to the useful background information set out in the Council written submission.
3. Objections have been received from numerous neighbours to the proposal, but Council has issued a Notice of Decision to Grant a Permit. Council's support for the proposal that has been appealed to the Tribunal, and the hearing of this matter came before me on 11 January 2011.
4. One point which was clarified early in the hearing is that whilst there was a restrictive covenant that previously affected the appeal site (ie a "one dwelling per lot" type covenant), this covenant expired at the end of 2006. Hence the site is no longer encumbered by the covenant. Whilst I understand from what was said at the hearing that there may have been an earlier breach of the covenant, as I explained at the hearing, any such breach is obviously unfortunate but not something which I can re-visit or rely on in making my planning finding.
5. We know that the site is zoned Residential 1 and there are no applicable overlay controls. This is an established residential area, but where it is a fairly new residential estate, with good access to local services and facilities, including a bus route running along La Rochelle Boulevard itself.
6. During the hearing I heard submissions from the persons listed above. I was then able, after briefly standing down the hearing, to give an oral decision in this proceeding which (with some editing) I have set out below.

Understanding the difference between planning controls compared to restrictive covenants

1. A good starting point in this proceeding seems to ensure all parties are aware of the quite different role played by restrictive covenants compared to planning controls.
2. Restrictive covenants are ultimately private controls imposed via the torrens title system whereby each piece of land in Victoria has a registered title through our Land Titles Office. Restrictive covenants are usually created on new titles as part of the subdivision process. The aim of covenants typically is to provide a greater level of certainty regarding the form of (and minimum standards for) new development on any one subdivided lot. Whilst this can have some broader built form benefits, the primary aim here is to protect the property values associated with the new titles in the subdivision. It is ultimately beside the point whether these type of covenants are a good overall planning outcome for the whole community.
3. By contrast, the ultimate aim of planning controls is to achieve a "net community benefit". The planning controls (which in this case are set out in the Wyndham Planning Scheme) take a quite broad approach in seeking good community planning outcomes over the longer term and by having both state-wide and local policy provisions.
4. In this particular case, I agree with Ms Gray that the relevant planning policies affecting the appeal site and the local area are promoting housing diversity - in particular see Clauses 21.05-1 and 21.05-2 in the local policy provisions.
5. I understand the policy thinking here to be that it is better for the community to avoid a situation where there is a single model of detached single storey dwellings overly dominating any one location such as this. If there is some variety to the housing types available, then this facilitates a number of important community benefits, such as:
   • older people who wish to stay in the local area being able to "age in place";
   • providing a smaller type of housing for smaller households, bearing in mind the long term demographic trend that we will have smaller average household sizes over time; and
   • a smaller type of dwelling is more suitable for people of any age who are either unable or unenthusiastic about maintaining a larger property.
6. In summary, the covenant previously applying to the site no longer plays a role in this proceeding, whereas there is clearly strong policy support under the Wyndham Planning Scheme for housing diversity in this location of the type proposed. This does not then become an "open slather" situation, but rather the proposal must still demonstrate that it is a reasonable design response and will have no unreasonable amenity impacts.
7. The approach that the planning decision maker then needs to take (be it Council or the Tribunal) is to in this case balance this policy support for greater housing diversity against any negative features of the proposal, and make a decision whether overall there will be a net community benefit that will arise.
8. Putting this another way, the practical issue in this balancing process is not whether there will be minor or peripheral amenity impacts. If proposals in our planning system were routinely rejected because of only minor amenity impacts experienced by neighbouring properties, then the whole planning system would be become unworkable and we would descend into a "NIMBY"[1] approach to dealing with new development.
9. Rather, one of the key issues in the situation here is whether there will be any substantial amenity problems/impacts that (notwithstanding the strong policy support for the proposal) point to it being appropriate that the proposal be refused.

Findings of Tribunal with "amenity" and "neighbourhood character" issues

1. The more straight forward merits review aspects of this proposal are whether it would cause any amenity impacts to the neighbours, whether there would be a reasonable level of internal amenity for the future occupants of the new dwellings, and whether there would be any unreasonable traffic and parking impacts on the neighbours.
2. During my oral decision I provided the reasons why I regard the situation with each of these issues to be quite acceptable and fairly straight forward.
3. The most relevant and central issue here is whether or not the proposal would be an overdevelopment, so as to be a poor neighbourhood character outcome. My finding in this regard is that the proposal would be an acceptable neighbourhood character outcome, can sit comfortably in its location, and would not constitute an overdevelopment.
4. Some factors which I rely upon in reaching this conclusion are as follows:
   • It is a sensible and appropriate design approach that only the front new dwelling will be double storey, with the middle and rear dwellings being single storey.
   • The "front to back" layout of the three new dwellings means that, particularly with the new front dwelling being double storey, the middle and rear dwellings would be largely screened from public view by the new front dwelling.
   • I consider the front setback distance to be quite reasonable, noting that it is ResCode compliant. This front setback area will allow appropriate space for future front landscaping to be done.
   • It is a positive feature of the proposal that most of the new built form has been kept off the boundaries, with the exception being one garage wall.
   • The overall level of site coverage is what I regard as being quite constrained in the circumstances, being 46%. This is well below the ResCode benchmark of 60%.
   • It is also a plus for the proposal that in all respects it has a very high level of ResCode compliance with the applicable ResCode Standards.
   • The maximum height of the new built form (ie the front dwelling) will be 6.8 metres, which again I regard as quite restrained, noting the ResCode benchmark here is 9 metres.
   • It is a good design approach that the floor area of the upper level of the new front dwelling has been kept considerably smaller than the lower level of that dwelling. As with the maximum height of 6.8 metres, this will reduce the visual bulk associated with this front dwelling upper level.
5. Some other positive features of the proposal in relation to this "neighbourhood character" issue which I have relied upon are:
   • the fact that Council has supported the proposal; and
   • Ms Gray tabled during the hearing a number of previous and fairly recent Tribunal decisions involving other sites in this local area, where the Tribunal has approved somewhat similar proposals usually involving three dwellings being built on a similar size site.[2]
6. Whilst in the usual way this proposal needs to be assessed on its own merits (which is what I had done), it is still fair that I give some weight to these other Tribunal decisions, given the real degree of overlap between these other proposals and what I am looking at here.

1. In summary, for the reasons set out above, I have approved the proposal, subject to the proposed permit conditions. Although the conditions are otherwise in order, following the relevant discussion at the hearing, I have required that the conditions set out in Council's Notice of Decision be modified to delete the on-street parking space shown in front of the site. This was the desire of Ms Lennen and where neither the Applicant nor Council had any particular view on this.

[1] NIMBY stands for "Not in my backyard".

[2] See the following cases - Johnson v Wyndham CC [2008] VCAT 1912, Sass v Wyndham CC [2009] VCAT 1989, Sass v Wyndham CC [2009] VCAT 1433, Harb v Wyndham CC [2010] VCAT 576 and Kelly v Wyndham CC [2009] VCAT 2289.