Leverett and Ors v Greater Geelong CC [2011] VCAT 1999

1. The decision of the Responsible Authority is affirmed. For Permit Application No. 1227/2011, a permit is granted and directed to be issued for the land at 26-28 Marsh Court, Drysdale, in accordance with the endorsed plans and on conditions set out in the Notice of Decision to Grant a Permit issued by Council on 18 February 2011, and as varied by Review P1059/2011.

1. The decision of the Responsible Authority is varied. The Tribunal directs that Permit No. 1227/2011 must contain the conditions set out in the Notice of Decision to Grant a Permit issued by Council on 18 February 2011, but varied by the deletion of Condition 14.

Nine single storey dwellings around a central driveway and a nine lot subdivision. Each dwelling provides three bedrooms and a double garage. Development is setback 4.5 metres from the street and constructed off the side and rear boundaries, except for Unit 9 that fronts the street. Two visitor car spaces are also provided.

Residential 1 Zone, and Design and Development Overlay 14.

The site is almost at the end of Marsh Court, Drysdale, and irregular in shape, with a frontage of 33.06 metres, a depth of 44.3 metres on one side, 48.87 metres on the other, and an area of 3088 sq m. It is vacant. Marsh Court is a dead end street and as a result of recent subdivision (2004). Council advised that this road will be opened to provide access to the land to the west when it is subdivided. Development in Marsh Court is single dwellings. There are some large lots in the street: such as Lot 22 at 2707 sq m, Lot 23 at 1136 sq m, and Lot A at 5029 sq m.

Land to the north and west is not developed or subdivided.

1. The permit applicant seeks to develop the land for nine single storey dwellings and a corresponding nine lot subdivision. Council has determined the application and issued a notice of decision to grant a permit subject to conditions.
2. There are two reviews against this decision: one by objectors pursuant to Sec. 82 of the Planning and Environment Act ("the Act") in Review P836/2011, and the second pursuant to Sec. 80 against Condition 14. Condition 14 requiring a 5% open space contribution (Review P1059/2011).
3. I will first dispose of the sec. 80 review (P1059/2011). The parties have reached an agreement that this condition should be deleted. Council concedes that a 5% open space contribution has been previously paid when the land was originally subdivided in 1997, and that no further contribution is required. The permit for that subdivision[1] requires a 5% open space contribution based on the land value. The certified plan of the subdivision issued by Council in 1999 shows that this requirement has been met. As such, no further open space contribution is payable. Both parties agreed that this condition should be deleted. I accept this agreement and direct that Condition 14 be deleted.
4. With regard to the Sec. 82 review, I indicated at the conclusion of the hearing that I am likely to uphold Council's decision to grant a permit.
5. I have since inspected the site and reviewed the submissions, provisions, and policies of the Greater Geelong Planning Scheme ("the Scheme"). This order confirms that advice.
6. The issue of this review is whether the design and layout of the dwellings is an acceptable response to the policy direction and neighbourhood character of the area.

1. The review site is in the Residential 1 Zone of the Scheme. The purpose of this zone is to provide for a range of residential densities and which respect the neighbourhood character of the area.
2. There are clear messages in the Scheme that urban development is to occur within town boundaries. Clause 21.06-3 identifies the direction of urban growth, under which Drysdale/Clifton Springs has been designated as a primary urban growth area.
3. Drilled down to the local level, Clause 21.14 is the policy for the Bellarine Peninsula. It is policy under this clause that development is to accord with the structure plan for a particular township.
4. Clause 21.14-10 contains the structure plan for the Drysdale Clifton Springs Township. The proposed development for residential development is consistent with the zoning of the land and the location of the land in the residential areas of the structure plan. In fact, a large tract of land currently in the Rural Living Zone adjacent to the site is designated in the structure plan to be rezoned to Residential 1, thus expanding the urban areas of the township.
5. I am satisfied that there is policy support for the development of the land for a medium density development.

Whether the design and layout of the development an acceptable response to the neighbourhood character of the area?

1. Review applicants of P836/2011 submitted that the proposed development is not respectful of the existing neighbourhood character because it is not in keeping with the current low density development of the area typified by one dwelling on a lot. To them, nine dwellings on a lot that is 3088 sq m is in complete contrast to the single dwelling on No. 22 which has a lot size of 2707 sq m.
2. Respecting neighbourhood character is not about repeating the current pattern of development. Otherwise, there will be no change and no increase in housing densities or diversity.
3. The proposed single storey building scale presenting two detached dwellings to the street on a frontage that is over 30 sq m is consistent with the detached house character of the area. The proposed two crossovers for the combined lot are similar to one single crossover for a single lot in the street. The dwellings behind the front dwellings are all detached buildings and single storey in height. That is low scale. It can only have a modest impact on the street and is an appropriate transition in built form from the backyards of adjoining lots. I am satisfied that the layout of dwellings and the scale of development are consistent with the existing neighbourhood character of the area.
4. Review applicants suggested that the site should accommodate no more than 4 dwellings. Four dwellings may not necessarily mean halving of the amenity impact. Four dwellings may be four double storey substantial buildings which may have a severe visual and amenity impact on the area.

1. Review applicants listed their other concerns in inadequate garage sizes, inadequate frontages for garbage bins, increase in traffic particularly for the lots nearest to the review site, and Council failing to follow due process in the processing of the application.
2. In terms of garage sizes, the dimensions of these structures meet the dimensions specified in Standard B16 of Clause 55.03.11.
3. In terms of rubbish bins, Council as the service provider for collecting garbage raised no objection.
4. In terms of increase in traffic, the amount of traffic will increase. This will be the case when land is developed. The test is whether it exceeds the design capacity of the street. The street would be at least an access street within the meaning of Clause 56 that has a capacity to accommodate between 1000 and 3000 vehicle movements per day. The development of the site for the proposed 9 dwellings would not exceed the design capacity of the street.
5. In terms of inadequate car parking, the proposal provides a double garage for each dwelling and 2 visitor parking spaces. This satisfies the requirement of two car spaces for a dwelling with more than two bedrooms, and one visitor space for every five dwellings, in accordance with Standard B16 of Clause 55. Unless there is evidence that this rate is not appropriate for the area or the standard is varied due to the particular circumstances unique to this area, there is no reason to require more.
6. With regard to Council not following due process in the processing of the application, the task of the Tribunal is to review the decision, and not how Council arrived at the decision. Besides, Council's processing of the application meets the statutory requirement of the Act. Inadequacies identified by review applicants, such as not enough time for debate and residents not satisfied with consultation, are additional procedures undertaken by Council above the statutory requirement. It does not affect the validity of the decision.

1. The proposed development of nine single storey dwellings presenting two detached houses on a double lot is respectful of the existing neighbourhood character. Council's decision to grant a permit is supported (P836/2011).
2. By consent, the contested condition (no. 14) is deleted.

[1] Permit No. 830/97 issued by the City of Greater Geelong for the subdivision of land then known as 74-80 Wyndham Street, Drysdale, was issued on 5 November 1997. That permit was subject to a condition requiring a cash-in-lieu public open space contribution for Lot 17 at 5% of the site value. The plan of subdivision dated 6 July 1997 shows that this contribution under Sec. 18 of the Subdivision Act 1988 has been made.