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[2003] VCAT 128
respondent. Application for review disallowed; no planning permit (MV/14555/2001) to develop the land for two attached double storey dwellings at 27 Greville Street, Essendon North be issued (Order, [24]).
VCAT dismissed an applicant's review of a council refusal for two side-by-side double storey townhouses. The Tribunal found the proposal did not respect the prevailing single-storey detached character of Greville Street, was inconsistent with local design policy and the Good Design Guide, and had inherent amenity shortcomings (notably lack of northern aspect for one unit). The review was disallowed and no permit issued.
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Mr T. Liantziris applied for a planning permit (MV/14555/2001) to develop 27 Greville Street, Essendon North, a 608 m2 lot, for two attached double storey dwellings in a side-by-side configuration [3], [5]. The City of Moonee Valley refused the permit on 22 July 2002, primarily on grounds that the proposal was out of character with the surrounding area and contrary to Clause 22.06 (North Essendon Residential Design Policy) and the Good Design Guide for Medium Density Housing, among other reasons [10]. The applicant sought a review under s 77 of the Planning and Environment Act 1987. The Tribunal (Member Christina Fong) heard submissions on 17 December 2002, inspected the site and environs, and delivered its decision on 30 January 2003, dismissing the review and ordering that no permit be issued [1], [13], [24].
1 cited instrument linked from this judgment.
The development proposed two symmetrical two-storey units side-by-side with garages built to boundaries, a site coverage of 47%, maximum height 6.7 m, wall height on boundaries of 2.7 m, and front setbacks of about 9–9.75 m on ground floor and 14.95 m on first floor [5], [6]. The application had been advertised and attracted 16 objections; Council had sought engineering advice (drainage and traffic had no objection subject to conditions) and had landscape concerns [9], [12].
The Tribunal's determination turned on neighbourhood character and compliance with local policy; it found the side-by-side double storey form failed to respect the established character of Greville Street and was inconsistent with the Moonee Valley Residential Design Policy and the Good Design Guide [20], [23].
Central Issue. The Tribunal framed the critical issue as whether the proposed development respected the neighbourhood character and thereby complied with the applicable residential design policy [14]. The relevant statutory and policy framework included the Residential 1 Zone (permit requirement for two or more dwellings), transitional application of the Good Design Guide (Clause 52.04, as the application was lodged before 24 August 2001), Clause 22.06 (Residential Design Policy and Essendon North policy at Clause 22.06.06) and Clause 22.06.17 (Residential Design Principles) among other decision guidelines [7], [8].
Factual Assessment. The Tribunal inspected the site and observed the streetscape characteristics: primarily detached single-storey weatherboard dwellings with consistent front and side setbacks, low-profile roofs, low or absent front fences, and a detached house rhythm with gaps between buildings. Although there were medium density developments in the street, these were generally single storey, and where there were dual occupancies they tended to be arranged one behind the other rather than side-by-side [4], [15], [20]. The Tribunal therefore concluded that the predominant character was the low single-storey detached rhythm, and that the proposal's side-by-side two-storey form departed from this character [20].
Policy Application. Applying the local design principles, the Tribunal accepted Council's submissions that the development failed in several respects: it would reduce landscaping and increase hard surfaces (private/public realm); the garage dominance, boundary-to-boundary construction, lack of first-floor articulation and unfamiliar upper-floor materials were inconsistent with the residential design policy; the side-by-side two-storey form was out of character and not appropriate; and the bulk and scale would have a dominant visual impact on neighbouring properties despite a deep street setback [16]. The Tribunal also noted amenity problems: overlooking and the poor northern orientation for the southern unit, it accepted that the overlooking and private open space access issues could be redesigned, but that the lack of northern aspect was inherent to the side-by-side layout [21], [22].
Decision Logic. The Tribunal tied its reasoning to policy consistency: because the proposal failed to respect neighbourhood character, it was inconsistent with Moonee Valley's residential policy and the Good Design Guide. That inconsistency was fatal to the permit application on merits review. The Tribunal further rejected the argument that the isolated existing side-by-side example (No. 37) could be used as a precedent, that development was an exception and single storey, and not a reliable comparator for a two-storey proposal [20], [23]. Accordingly the review was disallowed [24].
Before. The statutory framework invoked is standard for Victorian planning matters: zone-based permit triggers, relevant State and Local Planning Policy Framework provisions, and local design policy (Clause 22.06). The Good Design Guide for Medium Density Housing applied by transitional provisions as the application predated the cut-off in the scheme [7]. The case sits within the well-established planning practice that local policy and neighbourhood character assessments are determinative in merits-based reviews for residential development.
After. The Tribunal's decision reaffirms these key points:
This decision therefore reinforces that planning merits assessment under VCAT will closely scrutinise conformity with local character and design policies, and will not permit incremental departures justified only by a few non-conforming examples.
Tribunal's central conclusion: "The proposed development suffers mainly from the lack of respect for the neighbourhood character, which in turn renders it inconsistent with the residential policy of the Moonee Valley Planning Scheme." [23]
Tribunal's factual finding about street character and precedent: "No. 37... is an exception rather than the rule, and in the Tribunal's view not in keeping with the neighbourhood character and not an example to draw reference from." [20]
On amenity defects: "Whilst the Tribunal considers that the overlooking issue and access to the private open space can be resolved by designs, the lack of northern aspects for the southern unit is an inherent problem with the side-by-side design." [22]
Operative order: "Accordingly, the application for review is disallowed and no permit be issued as directed in this order." [24]
This decision is most directly triggered when:
Practitioners should consider offering alternative layouts that retain the detached rhythm, reduce garage dominance, increase articulation, and provide acceptable solar access if seeking approval in similar contexts.
This decision is that of VCAT (a single-member Tribunal decision) and records standard application of local policy to neighbourhood character. The judgment itself refers to other Tribunal decisions as acknowledging the detached house rhythm of the area but does not cite specific higher-court authority within its reasons [16], [20]. As such, Liantziris v Moonee Valley CC functions as a persuasive Tribunal decision demonstrating how the Residential Design Policy and the Good Design Guide are to be applied in practice in Essendon North and similar precincts. Later VCAT panels and councils encountering similar factual configurations may cite Liantziris as an example where side-by-side two-storey configurations were rejected for character reasons. Because this is a single-member VCAT decision rather than a higher court judgment, its precedential weight is limited but practically significant in local planning contests where facts are comparable.
(Note: the judgment does not list later appellate engagement; users should search citation databases for subsequent references to this VCAT decision to see how often it has been relied upon.)
Weight to Isolated Examples. The Tribunal treated No. 37 as an exception not to be followed [20]. The boundary between an 'exception' and a 'changing trend' in streetscape is inherently fact-sensitive. How many and what kind of non-conforming examples are required before a Tribunal will accept that the character has changed remains an open factual threshold.
Design Remedies vs Fundamental Form. The Tribunal accepted that overlooking and private open space access could be remedied, but held the lack of northern aspect for one unit was inherent [21], [22]. The precise line between remediable design elements and inherent configurational defects will continue to be litigated when applicants present more nuanced design responses (e.g. altered orientation, stepped massing, increased articulation).
Interaction with Broader Policy Trends. The judgment noted proximity to an activity centre and the broader urban consolidation strategy (Melbourne 2030) but prioritised local character [7], [8], [17]. How tribunals reconcile competing policy directions favouring densification near activity centres with strict adherence to local character policies remains an evolving question of statutory interpretation and planning balancing.
Material and Articulation Standards. The Tribunal criticised garage dominance, boundary-to-boundary garages and unfamiliar upper-floor materials [16]. Future cases may test how much change in materials and articulation is permissible when balanced against clear adherence to setback patterns and roof forms.
Practitioners should analyse the immediate streetscape in detail, quantify any departure from the 'predominant' character, and prepare robust design alternatives that address both character and inherent amenity constraints before presenting proposals in similar contexts.
The Application for review is disallowed and it is ordered that no planning permit (MV/14555/2001) to develop the land for two attached double storey dwellings at 27 Greville Street, Essendon North be issued.
_______________________________
For the Applicant for Review Mr. Russell Hocking, Town Planner, Cityshire Planning Pty Ltd.
For the Responsible Authority: Mr. Stephen Lionakis, Town Planner, City of Moonee Valley
For the Respondent Objector: Mr. David Broughton appeared in person.
1. This is an application pursuant to Section 77 of the Planning and Environment Act 1987 to review the City of Moonee Valley's refusal to grant a permit (MV14555/2001) to develop two double storey attached dwellings at No. 27 Greville Street, Essendon North.
2. Mr. Hocking clarified that the plans circulated on 26 November 2002 were not proposed to replace the submitted plans considered by Council. These plans, although showing a revised elevation, are clearer and easier to read.
3. The subject site is located on the west side of Greville Street, Essendon North, and approximately 250 metres north of Keilor Road and 150 metres from the freeway reservation that forms the northern end of the street. The dimensions of the site are:
4. The land is currently occupied a single storey weatherboard dwelling with no significant vegetation. The subject building is setback approximately 9 metres from the street, similar to adjoining properties. The predominant development in the street is residential, comprising of single storey post war dwellings, multi-unit developments which are also single storey, and one example of a two storey extension. Other characteristics of the street are the low profile roofs, consistent front setbacks, low or absence of front fence and the detached house rhythm. Council's submission also indicated that dual occupancy development is not uncommon in the street, with eight of the 46 original lots now accommodating two dwellings. These developments are arranged one dwelling behind the other with a gun barrel driveway along a side boundary. However, there is one example of a side-by-side development with setback from one of the side boundaries.
5. The proposal is to develop the land for two double storey side-by-side dwellings. The accommodation of the development can be summarised as follows:
6. The development would result in a density of 1:304 square metres, and site coverage of 47%. The maximum height to the apex of the development is 6.7 metres and wall height on boundaries at 2.7 metres. The external materials would be face brickwork for ground floor and cement fibre sheet for the upper floor. The roof would have a 23o pitch and constructed of concrete tiled roof.
7. The subject site is located in the Residential 1 Zone of the Moonee Valley Planning Scheme. Pursuant to Clause 32.01-4, a planning permit is required for the construction of two or dwellings on a lot. As the application was lodged prior to 24 August 2001, the transitional provisions of Clause 52.04 apply, that is The Good Design Guide for Medium Density Housing.
Clause 19.03 Urban Design, urban Character and Street Landscape
A far as medium density housing development is concerned and apart from increased density around activity centres, the protection of neighbourhood character and use of ResCode continues under this Metropolitan Strategy. The subject site is close to the Essendon North activity centre.
"The City of Moonee Valley will continue to be the leading residential location in Melbourne's northwest by providing a diverse range of quality housing throughout the City, and by providing ensuring that new development enhances the character of each neighbourhood."
To achieve this objective, new development which enhances the streetscape and character of areas will be facilitated through the application of the Residential 1 Zone, the Residential Design Policy (Clause 22.06), Residential Style notes and the Local Character Study.
Clause 22.06 Residential Design Policy applies to residential development where a permit is required. To achieve the objectives of this policy, it is policy to ensure that all residential development have regard to the local design policy relevant to the suburb.
Clause 22.06.06 Essendon North Residential Design Policy is the relevant local design policy for the subject site. The objective for the area is:
"The preferred future character for Essendon North is that of a suburb characterised by residential development that demonstrates consistent front setbacks with established front gardens providing canopy trees, low fences and off street parking or garages that are located behind the building line."
* "Recognise that there are moderate additional infill development opportunities.
* Facilitate sensitive development of infill sites.
* Maintain and enhance the residential streetscape quality and character.
* Ensure that residential development complements the existing streetscape character.
* Support the development of urban villages around existing commercial and transport nodes."
* "Ensure all residential development is consistent with the Residential Design Policy."
Clause 22.06.17 are the Residential Design Principles, which cover the areas of roof form and pitch, private and public realm, predominant setback, building articulation, building form, building bulk or scale, fencing, landscaping and spaces between buildings.
9. The application MV/14555/2001 was received by Council on 25 July 2001. Council requested further information on 14 August 2001 and such information was submitted on 23 January 2002. The application was advertised on 6 March 2002. 16 objections were received.
10. A council deputation meeting was held on 29 April 2002 attended by objectors, the applicant and council representatives with no resolution. The application was recommended by Council's Town Planning Committee on 9 July 2002 to be refused and this recommendation was adopted by Council's meeting on 16 July 2002. The application was refused on the following grounds:
* "The proposal is out of character with the surrounding area and is contrary to the objectives and criteria of element 3 of The Good Design Guide for Medium Density Housing.
* The proposal fails to meet the requirements of the North Essendon Residential Design Policy.
* The proposal is inconsistent with the spirit and intent of the Criteria and Objectives of the Good Design Guide for Medium Density housing.
* The proposal will result in poor amenity for future occupiers of this development."
11. The refusal was issued on 22 July 2002. The permit applicant lodged an application to review the refusal on 27 August 2002.
12. During the consideration of the application, Council sought advice from its Drainage and Traffic Engineers. These two engineers had no objection subject to conditions. Its Landscape Architect was concerned with the design of the landscaping plan and suggested some changes before approval.
13. At the review hearing, all parties made written and oral submissions. Additional documents in photographs and planning scheme extracts were tabled. The Tribunal also inspected the subject site and surrounding area.
14. The critical issue of this review is the development's lack of respect for the neighbourhood character which in turn renders it contrary to the Moonee Valley Residential Design Policy.
15. Mr. Lionakis on behalf of Council submitted that the surrounding area of Greville Street is characterised by a mix of detached, single storey dwellings, infill dwellings, multi unit developments and upper storey extensions to single storey dwellings. The most consistent characteristics of Greville Street are:
* Detached dwellings predominantly of weatherboard construction and tiled roofs
* On site parking facilities situated behind the building line of the dwellings and built to one boundary.
16. He submitted that the design of the development is unable to respond to these characteristics and Council's North Essendon Residential Design Policy (Clauses 22.06.06 and Design Principles (Clause 22.06.17) in the following areas:
Private and Public Realm: The amount of hard surface and the area taken up by parking means reduced area for landscaping
Building Articulation: the boundary-to-boundary construction of the garages, the dominance of the garage, the lack of articulation of the first floors and the choice of unfamiliar external materials for the first floor are inconsistent with the streetscape.
Building form: The construction of two double storey dwellings in a side-by-side configuration is out of character with the street and surrounding area. There are no other buildings or residential dwellings in the immediate context are which comprises of two double storey attached dwellings. The area is typified by a minimum 1 metre setback from the side boundaries and the detached form of the surrounding dwellings. This character has been acknowledged by other Tribunals to be the building form to be respected. Hence, the side-by-side double storey attached dwelling form is not an appropriate design response and therefore not consistent with E3.C1 of The Good Design Guide.
Building Bulk or Scale: The proposed two storey configuration would have a dominant visual impact on adjoining properties, although its deep setback from the street would limit the visual bulk impact when viewed from the street.
Spaces between buildings: The context area of the proposal is clearly one with gaps or voids between buildings. Despite some examples of side-by-side developments in the streets, they are not in the immediate vicinity and they are not the predominant form.
17. Overall, he stressed Council's view that the proposal fails to satisfy the Residential Design Policy, especially its concern regarding new infill development which has no relation to the established character of an area despite its support for the broad strategy of urban consolidation.
18. Mr. Broughton shared Council's view that the proposal will appear significantly different to almost all the other dwellings in Greville Street. The boundary-to-boundary construction on a relatively narrow block presents a very crowded and "busy" aspect to the street. The garage doors of the development would be the most significant features visible from the street. All other dwellings except one appears to be free standing and do not occupy the full width of the block, including the newer single houses and all the dual occupancies expect one. The two-storey construction appears bulky and heavy in a street full of single storey houses. It stands out in the street.
19. On the other hand, Mr. Hocking on behalf of the permit applicant submitted that the proposal provides an attractive, well-design townhouse development which is site-responsive in its layout and would have minimal off-site impact. He argued that the proposal utilises and interprets elements of the housing character found in the neighbourhood and the two storey houses improve housing choice. Of the 9 design principles of clause 22.06-17, he submitted that the side-by-side design is acceptable because `_spaces and gaps between buildings are not `_an integral component of the streetscape' of Greville Street and the streetscape is typified more by the wide road reserve, by the spacious nature strips and by the large and substantial front setbacks." He further submitted that the allotments either side both have driveways running down the common boundary. There is no consistent pattern or theme in the street of small 1 metre setbacks or large 3 and 4 metre setbacks where driveways occur. Due to the driveways on both sides of the lot, there will still be a significant `space' between the proposal and the adjoining dwellings, not-withstanding the boundary to boundary construction. The boundary-to-boundary construction enables cumulative open space areas to run along the backyard spaces. An example of boundary-to-boundary development can be found in the area opposite the review site. That development did not break up any perceived rhythm or pattern of spaces between buildings.
20. The Tribunal's inspection of the site confirms the Council's observation of the area: the detached house, and single storey nature of Greville Street. Although there are a number of medium density housing developments in the street, (dual occupancies at Nos. 6, 10, 26, 31, 37, 39 and 42), all are single storey, and except No. 37 retained the detached house rhythm character of the street by placing one unit behind the other. No. 37, with its side-by-side construction is an exception rather than the rule, and in the Tribunal's view not in keeping with the neighbourhood character and not an example to draw reference from. Furthermore, that development is single storey and would be less intrusive than the proposal which is two storey, albeit the first floor well setback. On the matter of neighbourhood character, the Tribunal agrees with Council's grounds of refusal on neighbourhood and policy (Clauses 22.06.06 and 22.06.17) grounds.
21. Council was also concerned with other aspects of The Good Design Guide. The proposed side-by-side development means the development would have an east-west orientation, and the southern unit without any northern orientation. Overlooking is an amenity issue for properties to the west (rear). There is also the overlooking issue from the first floor windows to adjoining properties and within the development, and the issue of poor access from the main living rooms to the principal private open space (redesigned in the 26 November 2002 plans).
22. Whilst the Tribunal considers that the overlooking issue and access to the private open space can be resolved by designs, the lack of northern aspects for the southern unit is an inherent problem with the side-by-side design.
23. The proposed development suffers mainly from the lack of respect for the neighbourhood character, which in turn renders it inconsistent with the residential policy of the Moonee Valley Planning Scheme.
24. Accordingly, the application for review is disallowed and no permit be issued as directed in this order.
____________________________________
Liantziris
Moonee Valley CC [2003] VCAT 128
Application for review disallowed; no planning permit (MV/14555/2001) to develop the land for two attached double storey dwellings at 27 Greville Street, Essendon North be issued (Order, [24]).