Victorian Civil and Administrative Tribunal|2004-05-28

Lusted v Bass Coast SC [2004] VCAT 1004 (28 May 2004)

S 77 Planning and Environment Act 1987 - Bass Coast Planning Scheme - Residential 1Zone - Design and Development Overlay Schedule 1 - clause 55 - policy - 3 dwellings - neighbourhood character - impact on coastal views - overlooking - noise - car parking - amenity.

With respect to permit application no. 03154, the Responsible Authority's decision is set aside. A permit is granted for extensions and redevelopment of the existing building to create 3 dwellings in accordance with the endorsed plans at 2/9 Cleeland Street Newhaven. The permit must contain the following conditions:

1 Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted and marked 1 of 4A (dated 8/9/03), 2 of 4B (dated 30/3/04), 3 of 4A (dated 8/9/03) and 4 of 4A (dated (8/0/03), but modified to show:

(a) A fence that is a minimum of 1.2 metres high that is visually permeable and clearly delineates between foreshore reserve and the north of the subject property.

(b) The provision of a 1.7 m high screen to the western end of the first floor deck of the westernmost dwelling.

(c) The provision of 2 visitor car parking spaces in a parallel layout and integrated with the boundary landscaping within the western driveway.

(d) Details of the existing structure to be retained.

(e) A schedule of external materials, finishes and colours for the proposed buildings.

(f) A drainage retardation system on the subject land.

(g) An outfall to the existing underground drainage system/legal point of discharge consistent and designed In accordance with the possible future subdivision of the subject land.

(h) Driveways designed to allow all vehicles to exit in a forward direction.

(i) A schedule of proposed species which are to be planted on the site.

(ii) An extensive incorporation of locally indigenous species.

(iv) Quantities of all species to be planted on site.

2 The dwellings must not be occupied until the landscaping as required by Condition 1(i) has been completed or at such other time that the Responsible Authority may give its consent in writing.

3 All external surfaces used in the development must be non-reflective and blend in with the coastal environment.

4 The layout of the development as shown on the endorsed plans shall not be amended, altered or modified (whether or not in order to comply with any statute, statutory rule or Local Law, or for any other reason) without the further written consent of the Responsible Authority.

5 Vehicle and pedestrian access to the site from Cleeland Street must be constructed and maintained to the satisfaction of the Responsible Authority including concrete driveways.

6 Drainage of the subject land shall be to the satisfaction of the Responsible Authority. Matters for approval include compliance with the Best Practice Environmental Management Guidelines for Urban Stormwater and an on-site drainage retention system with an outfall to the legal point of discharge consistent and designed in accordance with the proposed fencing l possible future subdivision of the subject land.

7 Before the dwellings are occupied, driveways, access links, areas set aside for parked vehicles and drainage as shown on approved construction plans must be:

(a) Constructed including egress in a forward direction;

(b) Properly formed to such levels that they can be used in accordance with the plans;

all to the satisfaction of the Responsible Authority.

8 Any redundant infrastructure shall be reinstated to the satisfaction of the Responsible Authority including the relocation of the driveway to Dwelling 1.

9 No buildings shall be constructed on any existing or proposed easement without the further approval in writing of the Responsible Authority.

10 Car parking spaces and access lanes thereto shall be designed in accordance with the Australian Standard for off-street car parking AS 2890.1 - 1993 to the satisfaction of the Responsible Authority.

11 Any plans submitted to the Council for the development hereby approved shall conform to the requirements of all servicing Authorities, and in particular water, sewerage, telephone and power supply Authorities.

12 The development must ensure that no water containing oil, grease, scum or litter shall be discharged to the stormwater drainage systems from the subject land.

13 The development must ensure that all stored wastes shall be kept in designated areas or covered containers that prevent escape into the stormwater drainage system.

14 The development must ensure that measures are taken to minimise the amount of mud, dirt, sand, soil, clay or stones deposited by vehicles on the abutting roads when vehicles are leaving the subject land.

15 The development must ensure that no mud, dirt, sand, soil, clay or stones shall be washed into or allowed to enter the stormwater drainage system, particularly during construction works.

16 The development must ensure that the site is developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, animal wastes or gross pollutants in accordance with currently accepted best practice.

17 Before the commencement of any works associated with the development, detailed construction plans must be submitted to and approved by the Responsible Authority. All works constructed or carried out must be in accordance with those plans.

18 This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the date of this permit.

(b) The development is not completed within four (4) 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 (3) months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order.

G and G Van Cuylenburg, T Patkin, P Manning, P Sholl and D Egan.

1 This was an application under s 77 of the Planning and Environment Act 1987 against the Bass Coast Shire Council's decision to refuse the grant of a permit with respect to permit application no. 03154 which sought permission for the construction of 3 dwellings at 2/9 Cleeland Street, Newhaven.

2 The permit application was refused on the following grounds:

1. The proposed development does not comply with the neighbourhood character of the area.

2. The proposed development will create unacceptable impacts on the amenity of surrounding landowners.

3. The proposed development is an over development of the site.

4. The proposed development will create unacceptable impacts on the adjacent public open space.

5. The proposed development does not represent orderly planning.

6. The proposed development will result in unacceptable parking and traffic management issues given the standard of the existing infrastructure and the likely holiday usage of the units.

1. The proposed development complies with the neighbourhood character.

2. The proposed development will not create unacceptable impacts on the amenity of surrounding landowners.

3. The proposed development is not an overdevelopment.

4. The proposed development will not create unacceptable impacts on the adjacent public open space.

5. The proposed development represents orderly and proper planning.

6. The proposed development will not result in unacceptable parking traffic management issues.

7. The proposal complies with and is consistent with the planning scheme.

8. The decision of the Responsible Authority to refuse the grant of a permit was inappropriate, was contrary to the Officer's recommendation and was not in accordance with sound and proper town planning.

9. The Applicant for Permit joins issue with the matters alleged as grounds of refusal.

10. It is appropriate that a permit issue for this proposal.

4 At the hearing Mr Testro, Mr Green and most of the respondent objectors tabled and spoke to written submissions to which they added further oral argument. Mr Sholl made oral submissions. I was also presented with an array of other material including various maps, plans and diagrams; photographs of the land and surrounding area and extracts from relevant documents. The documents have been retained on the Tribunal's file.

5 Mr Testro called Mr John Glossop, a town planner, to give expert evidence. Mr Glossop was questioned by Mr Green, the respondent objectors and the Tribunal.

6 At the commencement of the hearing Mr Testro sought leave to amend the permit application by substituting Ian and Wendy Lusted, the owners and occupiers of the subject land, as the applicants in both the permit application and application for review. The other partes offered no objection to these amendments. I allowed the amendments under clause 64 in schedule 1 and s 127 of the Victorian Civil and Administrative Tribunal Act 1998

7 I inspected the land and locality on 2 occasions, before and after the hearing.

8 The subject land is located on the north side of Cleeland Street, between Forrest Avenue and Seaview Street and extends through to have its rear boundary abutting onto public parkland. This abuttal provides the opportunity for extensive views over a nearby marina and bay area.

9 The subject land was originally part of a larger residential lot containing 2 dwellings, with 1 dwelling having direct frontage to the Cleeland Street and the other constructed to the rear. In 1986, the land was subdivided into 2 lots, with Lot 1 containing the dwelling fronting Cleeland Street and Lot 2 containing the dwelling to the rear. Lot 1 was regular in shape with Lot 2 taking on the irregular "L" or "battle-axe" configuration. Further, a 5.6 metre wide strip of common property was created extending along the east side boundary from Cleeland Street to the Lot 2. This arrangement is shown on the approved plan of subdivision.

10 The subject land is Lot 2. It has an irregular "L" shape with a 7.13 metre wide driveway section extending from Cleeland Street and then widening to about 30.18 metres. The land has an overall area of about 1145 square metres. The land is occupied by a 2 storey building that has been used in recent years as a guesthouse providing accommodation for up to 10 guests. The existing building has an overall height of about 8.3 metres at its highest point. The guesthouse use operates under a planning permit [no.981505] issued by the Council on 18 September 1998.

11 Lot 1 has an overall area of about 419 square metres and is occupied by a double storey dwelling. Mr and Mrs Van Cuylenburg and their family occupy this dwelling. The dwelling is designed to have front and backyard areas immediately adjacent to the dwelling, but not to the side. The strip of common property to the east side of the Van Cuylenburg's dwelling however provides vehicle access to the garage.

12 The property immediately to the east of the subject land is occupied by Mr Sholl and his family. This property extends from Cleeland Street through to the public parkland and is occupied by a relatively new double storey dwelling located towards the parkland end thus resulting in a relatively substantial front setback to Cleeland Street.

13 Ms Manning and Mr Egan occupy 2 properties which have an abuttal with the rear part of the subject land's western boundary. Ms Manning's property is occupied by a single storey dwelling. Ms Manning's dwelling has a number of windows facing out toward the relatively narrow setback to the common boundary with the subject land. Mr Egan's property fronts Forrest Street and has its rear boundary in common with the subject land. Mr Egan's property is occupied by a 2 storey dwelling.

14 Contextually the subject land is located within an established residential area in Newhaven, one of Phillip Island's townships. Surrounding properties are generally occupied by a mix of single and double storey dwellings. As is the case with most residential areas, there is also a sprinkling of medium density housing found within the wider neighbourhood.

15 Cleeland Street is constructed and relatively wide providing for kerbside parking on both sides as well as the opportunity for a single lane of traffic in both directions.

16 The application seeks permission to carry out alterations and extensions to the existing buildings to create 3 double storey attached dwellings. I understand that whilst much of the exterior and interior of the building are to be remodelled and extended, the main structural elements are to be retained. This is not particularly clear on the plans, however, these details could quite easily be clarified on amended plans required under permit condition.

17 Essentially the site layout provides that the dwellings will have their main outlook towards the adjacent parkland and bay area with the entry and access to double car garages obtained from a driveway located to the south.

18 Each dwelling provides for a different layout and footprint.

19 Dwelling 1 has the largest footprint at ground level (180.65 square metres) with a relatively modest first floor level component measuring about 40 square metres. This dwellings provides for 2 bedrooms, a small office, kitchen and main living areas at ground level with a third bedroom and retreat area at first floor level.

20 Dwelling 2, which is located in the middle, provides for a floor area of about 146.5 metres at ground level with 101 square metres at first floor level. This dwelling provides for 2 bedrooms and an informal living area at ground level with a third bedroom, kitchen and main living areas at first floor level.

21 Dwelling 3 provides for a floor area of 153.9 square metres at ground level with a further 52 square metres at first floor level. This dwelling provides for 2 bedrooms, kitchen and main living areas at ground floor level with a third bedroom and retreat at first floor level.

22 Each dwelling is provided with a double car garage.

23 Open space is provided in the form of ground level courtyards plus first floor deck areas.

24 Under the Bass Coast Planning Scheme, the subject land is located in the Residential 1 zone, the provisions for which are found at clause 32.01. The purpose of the zone is:

To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

25 "Dwelling" is an as of right or no permit required use within the zone, however, under clause 32.01-4, a permit is required to construct more than 1 dwelling on a lot. The relevant decision guidelines require consideration be given to, amongst other things, the provisions of the State Planning Policy Framework [SPPF], the Local Planning Policy Framework [LPPF], the purpose of the zone, orderly planning and the impact on amenity. Applications must also be considered against the provisions of clause 55 and compliance must be achieved with respect to all the objectives set out in that clause.

26 The land is also affected by 2 overlay controls, the Vegetation Protection Overlay - Schedule 2 (VPO2) and the Design and Development Overlay - Schedule 1 (DDO1).

27 Although the land is affected by the VPO2, a permit is not required under this overlay given that the proposal does not involve nor is permission being sought for vegetation removal. Accordingly I do not intend to refer to VPO2 any further.

28 With respect to the DDO1, the provisions at clause 43.02-3 state that a permit is required under the overlay unless the relevant schedule specifically states that a permit is not required. In this case the provisions of schedule 1 apply. Under the schedule, a permit is not required for proposed buildings and works that have a height less than 7 metres above ground level. .

29 The relevant design objectives under DDO1 are set out as follows in the schedule:

* To protect views from the coast to adjacent residential areas.

* To protect views to the coast from adjacent residential areas.

* To minimise the impact of development along the coastline.

* To protect and enhance the visual amenity and landscape of the coastal area.

30 The relevant decision guidelines under the schedule are set out at clause 3.0 and include the following:

The siting and design of proposed development in response to Council's adopted Design and Siting Guidelines for Coastal Areas and Rural Hinterland 1999, and Siting and Design guidelines for Structures on the Victorian Coast, Victorian Coastal Council 1998.

* The maintenance and improvement of the coastal landscape.

* The preservation of views from the waters of Westernport Bay, Bass Strait and Anderson Inlet.

* The intensity of human activity that the coastal landscape can sustain.

* The protection of the area for its recreational value.

* The extent of any proposed removal of native vegetation.

* The need for landscaping or vegetation screening.

* The location, dimension and level of any excavation or alteration to the natural surface including works to stabilise buffers in areas of fill or excavation.

* The works to control drainage and stormwater run-off from any building, access road or driveway.

* The impact the provision of physical infrastructure (particularly electricity and telephone) will have on the landscape.

* The location of any building envelopes and siting of services in any proposed subdivision.

* The views, if any, of the Department of Natural Resources.

31 In relation to planning policy, there is a raft of policies, objectives and strategies within the scheme that are in some way relevant to the consideration of the proposal.

32 The SPPF sets out general policies for planning in Victoria, with those relating to Settlement, Housing and Design and Built Form relevant to the consideration of this proposal. The general thrust of these policies, at clauses 14 and 16, is to encourage the consolidation of existing urban areas to make better use of infrastructure and to provide for a wider variety of housing that better meets the needs of the community. Planning policy also calls for medium density housing which is designed to be respectful of the character of established neighbourhoods. The policy for Design and Built Form at clause 19.03 encourages development that achieves architectural and urban design outcomes that make a positive contribution to neighbourhood character and enhances the public realm.

33 In relation to the LPPF, clauses 21.03 [Key Issues], 21.04 [Vision], 21.05-1 {Settlement] and 21.05-3 [Housing] within the Municipal Strategic Statement [MSS] are relevant to the consideration of the proposal. I will refer to the various issues, objectives, policies and strategies set out in these clauses as appropriate.

34 Mr Green also referred to the Phillip Island and San Remo Design framework. This document does not yet form part of the planning scheme, however, under this document, the strategies for Newhaven include consolidating development within the township and encouraging buildings of high quality.

35 After the permit application was lodged with the Council, notice under s 52 of the Planning and Environment Act 1987 was required to be given. In response, the Council received 13 objections against the proposal. Mr Green summarised the grounds of objection as follows:

* Adverse impact on residential amenity especially as a result of a loss of sunlight;

* Servicing and traffic, with particular reference to eastern driveway; and

* The development will set a precedent for future development in the area.

36 Despite receiving a report from its town planning officer recommending that a permit be granted, the Council decided to refuse the permit application on the grounds cited earlier in these reasons.

37 After having considered the submissions and evidence presented by the parties, the relevant matters to be considered under the planning scheme and legislation and the details of the proposal, it seems to me that the key issues in this proceeding are as follows:

* Is the subject land a suitable site for 3 dwellings?

* Is the redevelopment of the land for 3 dwellings supported by the purpose of the zone and planning policy?

* Has the proposed building been designed to be respectful of neighbourhood character and in accordance with the requirements of DDO1?

* Will the proposed development have unreasonable impacts on the amenity of neighbouring properties and the area generally?

* Will the proposed dwellings provide future occupants with a satisfactory standard of residential amenity?

Is the subject land a suitable site for 3 dwellings?

38 The starting point in the consideration of proposals such as this is to consider whether the subject land has attributes that make it candidate site for some form of appropriately designed medium density housing.

39 In this case, the land has a relatively large overall area of about 1144 square metres. Even if the 7.13 metre wide driveway area is excluded, the balance of the land has an area of about 973 square metres. Whilst I do not accept Ms Manning's assertion that the driveway area should be excluded from the site area, even if it is, the remaining area is a reasonably large regular shaped parcel of land with good proportions in terms of width and depth.

40 The existing building on the land is not significant or important in its own right from either an architectural or heritage viewpoint.

41 I was not made aware of any significant vegetation or awkwardly positioned easements to consider.

42 The driveway section of the land provides good access to Cleeland Street and I note that the land also has the benefit and potential to use the common property that extends along the east side boundary.

43 Contextually the land is located within an established urban area surrounded by residential use and development. The appropriate infrastructure is available. Local shops are within easy walking distance as are parkland and other recreational facilities. Further the land offers the potential for expansive panoramic views over the marina and bay.

44 Although the land comprises an irregular shaped lot and is prominently located adjacent to public parkland and the coastline, these are not factors that lead me to the view that the land cannot accommodate more than 1 dwelling. Rather, they are factors that need to be properly considered in the preparation of a satisfactory design response.

45 When consideration is given to the size and context of the land, it is not difficult for me to find that it has attributes that make it a suitable candidate site for appropriately designed medium density housing.

Is the redevelopment of the land for 3 dwellings supported by the purpose of the zone and planning policy?

46 In Sim and Others V Bass Coast Shire Council and Anor (P63/2004 unreported) which is a very recent decision of mine issued on 24 May 2004, I analysed the zoning and planning scheme policy context as it applied to a 2 dwelling development at Silverleaves. Essentially the zoning and policy context are the same in this case. As such I recite the relevant passages of the Sim decision as follows:

33. The purpose of the Residential 1 Zone and the planning scheme's decision guidelines require consideration to be given to the provisions of the policy frameworks.

34. The purpose of the Residential 1 Zone is not limited to providing for single detached dwellings on the conventional residential lots. Rather the purpose of the zone includes providing for a variety of dwellings that meet the needs of diverse households that we have within the community and, specifically, at a range of densities. [my emphasis]

35. On reviewing the SPPF, it seems clear to me that the policies at clauses 14.01 and 16.02 provide substantial support for the redevelopment of the subject land for well designed medium density housing. These policies encourage and support development that works toward the consolidation of residential development within existing urban areas, makes better use of existing infrastructure and improves housing choice. Medium density housing is one of the vehicles which enable State Planning Policy to be implemented.

36. It is also relevant that the Council's own MSS lends strong and unambiguous support for the development of suitable land within existing urban areas for medium density housing.

37. The MSS states that the Council anticipates that the shire will experience population growth over the next 20 years and that additional housing will be required to accommodate such growth. In response to this, the MSS makes clear statements about how this growth is to be managed. At clause 21.03-1 the MSS states:

Council has a strong commitment to urban consolidation and will continue to generally resist encroachment of urban areas into the surrounding rural lands. As population grows, so will the pressure to expand urban development.

Urban consolidation is important to both maximising infrastructure (particularly sewerage) and the protection of the Shire's natural resources that are often located on the periphery of urban areas.

38. At clause 21.05 -1, the MSS sets out a range objectives consistent with this approach including the provision of residential land within each town to accommodate anticipated population growth, to consolidate urban development within existing urban areas, to maximise the use of infrastructure and to actively promote infill development within area zoned for residential purposes. At clause 21.05-3 the MSS objectives include to provide for a range of housing types and to increase residential densities. To facilitate these outcomes, the MSS strategies include encouraging increased residential densities in all urban areas.

39. On reviewing the planning scheme's local policies, I accept that they seek to facilitate outcomes that will not unreasonably compromise the municipality's environmental and rural assets as well as residential amenity. However, what is also abundantly clear is that the planning scheme's local strategies specifically and quite unequivocally call for the consolidation of and increased density in existing urban areas.

47 I went on to conclude at paragraph 48 of that decision:

48. The simple fact of the matter is that the land is within an urban area and zoned for urban purposes. The planning scheme clearly and quite unequivocally directs medium density housing to locations such as this.

48 The same conclusions can be drawn in this case. The land is located within an established urban area. The purpose of the zone allows for development at various densities. The thrust of the Council's own policies and strategies is clear, namely, that new urban development is to be directed to existing urban areas. Newhaven is one of Phillip Island's established urban areas and there is nothing in the scheme to support the view that it should be treated in a substantially different way compared to other residential areas in the municipality.

49 It was suggested by Mr Patkin that development on this site should be limited to no more than 2 dwellings. This is clearly his subjective view about what is reasonable. The residents in the Sim case also put forward a subjective figure as to what the dwelling density should be. I rejected those submissions in that case and I do so again in this case. First, for some time now dwelling "density" has not been found to be an effective way of measuring the appropriateness of proposals. It is no accident that the density benchmarks set out in the now defunct Good Design Guide were abandoned in ResCode [clause 55]. The use of dwelling density as a reliable measure is overly simplistic and unhelpful. Second, I cannot find any sound planning basis to support Mr Patkin's assertion that there should only be 2 dwellings on the land. There was nothing presented to show how this figure could be justified having regard to the purpose of the zone or the planning scheme's policies.

50 I agree with the conclusion reached by the Tribunal in Deal Corporation Projects Pty Ltd v City of Stonnington and Ors [1999] VCAT 2217 when Member Moles stated:

The question which arises in these proceedings is whether or not the particular intensity of the development proposed is acceptable. I agree with the views of Mrs Monk in the decision quoted by Mr Pitt (Appeal 1997/47029 Monde Developments Pty Ltd v City of Stonnington - unreported), however, that the appropriateness of a particular proposed density of development is to be judged not by its compliance with some magical number or formula,...................., but on factors on such as whether the amenity impacts for neighbours are reasonable, the manageability of off-site traffic effects, and an acceptable relationship to neighbourhood character.

51 I agree with the above sentiments and will proceed to the consideration of impacts of the proposal.

Has the proposed building been designed to be respectful of neighbourhood character and in accordance with the requirements of DDO1?

52 Although the purpose of the zone and the thrust of the planning scheme's housing and urban consolidation policies clearly encourage infill development to be located within the shire's existing urban areas, this does not mean that any form of development will be acceptable. Rather, planning policy also requires development to be respectful of neighbourhood character. In this case, the provisions of DDO1 also require consideration to be given to the impact on the coastline.

53 Mr Green and the objectors submitted that the proposed development has not been designed to be respectful of neighbourhood character. In addition it was asserted that the proposed development fails to comply with the requirements of DDO1. Particular aspects of the proposed development that were criticised include the overall height of the building, its mass and continuous form and the visual impact that it would have on views form the adjacent recreation reserve and wider coastline area.

54 In his evidence Mr Glossop set out a somewhat elaborate discourse on the consideration of neighbourhood character issues including the notion that "respecting" neighbourhood character does not mean preventing change. Mr Glossop said that the consideration of neighbourhood character issues needs to take into account the notion that there will be some change in the municipality's existing residential areas given the thrust of the Council's urban consolidation strategies. In relation to the notion that the concept of respecting neighbourhood character does not mean preventing change, Mr Glossop drew support for this proposition from a practice note issued by the Department of Infrastructure.

55 In relation to the merits of the proposal, Mr Glossop expressed the view that in this case, the extent of change is mostly occurring at ground floor level with only a small level of change at first floor level. He presented diagrams that show the extent of change at each level. Further he added that the new development is located well away from Cleeland Street and that it will have a minimal impact on the streetscape. In relation to the impact on the public reserve, Mr Glossop said that the proposal will improve the appearance of the existing building and it will be finished to a higher standard than at present.

56 In considering this issue, the first point to be made is that I agree with Mr Glossop that the notion of "respecting" neighbourhood character does not mean that there can be "no change" or more of the same. If the planning scheme required new development to replicate what already exists it would say so. The notion of respectful development must embrace the type of "change" that is supported by policy.

57 The second point to be made is that the subject land is not a vacant or "greenfield" site. It already contains a 2 storey building with a height of just over 8 metres. This is not a case where a new building is being introduced into the area. Rather, the building already exists and is part of the neighbourhood and its character. I would have thought that it would be reasonable to take this into account in assessing the level of change and impact on the neighbourhood character and the coastline.

58 It is apparent that the majority of the new additions to the building are to occur at ground level. There will be some extra mass at first floor level, however, I agree with Mr Glossop that the extent to which this occurs is not significant or that it adds an unreasonable degree of visual bulk given its setback off boundaries and the level of articulation.

59 The site coverage is well within the requirements of clause 55. Ms Manning argued that the driveway area should be excluded from this calculation. I do not agree. The driveway is part of this site, just as it is part of other medium density housing developments. The site area and the proposal are what they are. It is somewhat artificial to manipulate facts, such as site area, simply to attempt to achieve a more favourable statistical outcome.

60 When consideration is given to the actual extent of change, I cannot agree that it will result in a substantial or disruptive departure from what already exists. The new additions will not have any significant impact on the Cleeland Street streetscape given the distance from the frontage and that they would be largely obscured by the Van Cuylenburg's dwelling.

61 Various double storey dwellings already exist near the reserve. The dwelling on the adjoining property to the east is an example of relatively new development and has continued the existing theme. The building's overall height is not to be increased and I accept that the standard of the external finishes will be superior to the existing situation.

62 In relation to views from the coastal area, it is difficult to see how the extra building area would create a discordant element when viewed from the adjacent reserve or further away. On reviewing the DDO1 and the Coastal Areas guidelines, I am unable to come to the conclusion that the change to the built form, albeit that some minor elements will exceed 7 metres in height, will result in unacceptable change or that the existing impact on the coastline will be substantial or intrusive.

63 Further, this proposal has been designed to have an outlook over the reserve. This is most appropriate and in line with current design practice as it provides for passive surveillance over this public space thus adding to safety and security. I do not agree that access points should be limited as considered necessary by the Council. Aside from the impracticality of providing single access, I do not consider that the impacts of 3 dwellings would be so substantial so as to cause unreasonable damage to the reserve.

64 I find that the proposal is acceptable having regard to neighbourhood character and DDO1.

Will the proposed development have unreasonable impacts on the amenity of neighbouring properties and the area generally?

65 The objectors raised several concerns in relation to the impact on their amenity. I will set out my findings with respect to each of these below.

66 There are 2 specific traffic issues to consider. The first is whether the development would result in an unreasonable increase in traffic. The second is whether vehicle access via the strip of common property should be denied to the residents of the proposed dwellings.

67 In dealing with the first issue, it is relevant to note that the existing building is not used solely for the purpose of a dwelling; rather, it operates as a guesthouse that can accommodate up to 10 persons. The level of traffic generated by the existing use of the land could reasonable be regarded as being more intense than if the land were used simply as a dwelling.

68 Whilst no expert traffic evidence was called, based on my experience it could reasonably be anticipated that dwellings of this type would generate about 10 vehicle trips each per day. Whilst they may be used for holiday rentals, I would not expect the number of vehicle trips to be markedly different. Adopting this figure, the proposed use of the land would generate in the order of about 30 vehicle trips per day. This of course, does not represent the increase in traffic bearing in mind the existing use would already generate traffic. I would expect the actual increase to be about 20 vehicle trips per day assuming that the existing use generates 10 trips. Averaging this out, it means that the additional traffic would be between 1 and 2 extra vehicle trips per hour if they all occur within the 12 daylight hours of the day, say between 7.00 am and 7.00pm. This is not a substantial increase in overall traffic. Further, the driveways and surrounding roads can accommodate this. With the layout designed to enable all vehicles to enter and leave the land in a forward direction, I do not consider that this poses a safety risk.

69 The second issue relates to whether access should be available via the strip of common property. At present, the applicants are able to get access from Cleeland Street via this strip. Mr and Mrs Van Cuylenburg submitted that it should not be used as it would pose safety problems for their children. I understand that they ride their bikes and sometimes play in this area.

70 Further, there may also be a legal dispute as to how this common property strip can be used. Determining this dispute is not a matter before me or that falls within the scope of this application for review. The question before me is whether there is a basis upon which I can deny the applicants the opportunity to use the common property area if they are entitled to use it based on town planning reasons.

71 The strip of land in question would appear to be common property and was created as such. This is shown on the approved plan of subdivision. It does not form part of the Van Cuylenberg's lot although they get access into their driveway from it. It is not unusual to find a driveway in common property serving more than one dwelling.

72 It seems that the applicants have been able to get access to their property via this strip of land. I would think it reasonable that the Van Cuylenberg's would have purchased their property on the understanding that this area is common property, it is not part of the private open space on their lot and that the applicants have the ability to gain access over it. If this were not its purpose, on the face of it, there would appear to be no sound reason for having created this strip common property in the first place.

73 Given that this proposal is likely to generate low levels of additional traffic and that at least some of it would use the driveway along the west boundary, I am unable to find that the use of the common property for vehicle access is unreasonable. The amount of traffic will be low. If it is eventually determined that the applicants do not have rights to use the common property for access, the driveway along the west side boundary provides satisfactory access for the development.

74 Concerns were raised that inadequate car parking is provided on the land given that the units could be used as holiday rentals thus generating a higher parking demand than typically applies to dwellings in other locations. In this case, the proposed dwellings are provided with 2 car parking spaces each within double garages.

75 In the Sim, I acknowledged that Phillip Island's population swells during holiday times and that dwelling units may be occupied by more persons than in typical households. Friends may visit families living on the Island or, alternatively, groups may seek to share a rental dwelling. In Sim I concluded that:

66. In my view, it is inappropriate to provide a single car space with a second space for large dwellings such as those proposed when the road infrastructure clearly does not have the capacity to accommodate "spill over" parking.

67. My views would be somewhat different if the land had a frontage to a more conventional residential street where kerbside parking is available. Even if the demand for such kerbside parking is high at times, at least the opportunity to park on street is provided within the wider area. In this case, the practical opportunity for this to occur is very limited in the Woodlands Estate.

76 I think this case can be distinguished from the circumstances in Sim in 2 ways.

77 First, the subject land is located within a residential area where the road infrastructure is clearly capable of accommodating kerbside parking. In the Sim case, where the actual road pavement was about 4 metres wide, it was unsuited to accommodating substantial kerbside parking. The kerbside parking in Cleeland Street may be in high demand at times, however, kerbside parking is available throughout this area.

78 Second, in my view, there is clear capacity to accommodate some visitor car parking spaces on the land, say 2 spaces parked in a parallel layout along the western side of 7.13m wide driveway. These car spaces may not be required at all times, and accordingly, may be designed in a manner that allows them to be incorporated into the landscaping. For example in Cuthbertson v Bass Shire Council and Anor [2004] VCAT 882 the Tribunal stated:

Again, on a greenfield site there is no reason why visitor parking can't be included, even on grasscrete or other softer landscaping medium.

79 Although this is not a "greenfield" or vacant site, it is desirable for such spaces to be provided. The provision of such spaces would require a narrowing of the landscaping strips of the driveway and make the driveway itself narrower. However, given the low traffic volumes, the circular access arrangement and the pavement width remaining, it would be possible to provide 2 parallel spaces within the driveway section. This can be achieved by permit condition.

80 Having regard to the capacity of the road infrastructure to provide for kerbside parking and the spaces that can be provided on the land, I find satisfactory car parking is provided.

81 Concerns were raised about building bulk. Earlier in these reasons I have already found that whilst the proposal increases the intensity of development of the land, this is supported by policy and the extent of change is not so great that it will bring about an outcome whereby the building form is not respectful of neighbourhood character or unacceptable having regard to the DDO1.

82 The main impact of building bulk is from the upper levels. In this case, I accept Mr Glossop's evidence that the extent of the change at the upper floor level is not substantial. Further the building is well articulated and setbacks are complied with. The additional built form will be noticeable or seen from adjoining properties and those further afar, however, this does not make it unacceptable.

83 Concerns were raised about the potential for overlooking, particularly from windows and decks. An opportunity exists to provide a screen to the side of the westernmost deck. I think this appropriate.

84 In considering this issue it is relevant that the objective at clause 55.04-6 is to limit views into the secluded open space and habitable room windows of surrounding properties. It does not call for the total elimination of all potential for overlooking. There is a long line of Tribunal decisions that clearly spell out that it is unreasonable opportunity for overlooking that is unacceptable. For example, in Dervenchy Nominees Pty Ltd v City of Brighton, D Abrahams and Others [1994/25491 14AATR 104], the former Administrative Appeals Tribunal said:

In the Tribunal's opinion, concerns regarding potential overlooking are both overstated and misconceived. It is not the intention of the Planning Scheme that every possible opportunity for overlooking be eliminated. Time and time again the Tribunal is obliged to observe that some degree of overlooking between neighbours is part and parcel of everyday urban living. It is unreasonable opportunities for overlooking which must be curtailed."

85 The sentiment that the planning scheme calls for the protection from unreasonable potential for overlooking as expressed in this long standing and often cited passage is repeated time and time again. [see Mattan Homes Pty Ltd v Manningham City Council [2002] VCAT 828 and R and R Park v Bayside City Council and Others [2002] VCAT 808]

86 Further, this is not an environment where the amenity is based on total privacy. There are many double storey dwellings in the area that provide opportunity for overlooking. A screen can be put in place at the most sensitive point, namely the western deck. When consideration is given to the layout of the surrounding dwellings, the positioning of their secluded open spaces, the nature of the locality and the relationship between windows and decks with surrounding windows and open spaces, this proposal does not result in unreasonable potential for overlooking.

87 I have reviewed the shadow diagrams. The shadows clearly fall within acceptable parameters when assessed against clause 55.

88 The setbacks are sufficient to provide for satisfactory daylight to windows of surrounding dwellings.

89 The land is located within an urban environment. It is already used for guest accommodation. The land is to be used for residential purposes. The noise generated from the land will be of a residential nature. There is nothing unreasonable about this. There was nothing presented to substantiate the claim that the proposed use of the land would result in noise that is unreasonable within a residential area.

Will the proposed dwellings provide future occupants with a satisfactory standard of residential amenity?

90 Ms Manning expressed concern that the proposed units do not have private open space.

91 The proposal provides each dwelling with an upper level balcony/deck area, off a living space plus further open space at ground level. Whilst I appreciate that not everyone will find this form of open space satisfactory, this does not make it unacceptable. Rather, the decks meet the ResCode requirements in terms of size, they have good proportions, are located to the north and provide for extensive panoramic views. The amenity provided by these decks is of a high standard. The ground level courtyards will supplement the decks. I agree that a more detailed landscaping proposal is required, however, this can be achieved by condition on permit.

92 In other respects I consider that the proposed dwellings will provide future occupants with good amenity. The layouts are functional, on site parking is provided and good daylight will be available to bedrooms and main living areas.

93 On reviewing the proposal, I am satisfied that future residents will have an acceptable level of amenity

94 The subject land has attributes that make it a suitable site for medium density housing. The redevelopment of the land for medium density housing directly accords with the specific and clearly articulated thrust of local planning policy that calls for more housing and for this to be accommodated within existing urban areas. Newhaven is an established residential area and is not exempted from these policies.

95 On assessing the impact on neighbourhood character, it is relevant to take into account the existing situation. Further, the notion of respecting neighbourhood character must also embrace the change that will be brought about by other policies that clearly call for the consolidation of existing urban areas within the shire. A balance must be struck. When consideration is given to the existing situation and the thrust of policy and the details of the design, I consider that an acceptable balance has been struck and the proposal is respectful of neighbourhood character. Further, I do not consider that the change in the built form will offend the DDO1 requirements.

96 I have considered the amenity impacts on the area and surrounding properties and found them not to be unreasonable. Further the proposed dwellings will provide their occupants with good amenity.

Lusted v Bass Coast SC [2004] VCAT 1004

At a glance

Court

Decision date

Source

Judgment (203 paragraphs)

Lusted v Bass Coast SC [2004] VCAT 1004 (28 May 2004)

Parties

Legislation Cited (1)