Maher v Darebin CC [2014] VCAT 912

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

1. The decision of the Responsible Authority is set aside.
2. In permit application D/800/2013 a permit is granted and directed to be issued for the land at 50 Grange Road, Alphington in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construct two or more dwellings on a lot.
   • Create or alter access to a road in a Road Zone, Category 1.

Ms Cincotta called expert evidence from Mr J Glossop, town planner

Mr D Austen, Mr M Austen and Mr D Westlake appeared on their own behalf.

Construct a two storey building above a basement. The building comprises eleven dwellings with a mix of 1 and 2 bedroom apartments.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

Clause 32.08: General Residential Zone[1]

Clause 45.06: Development Contributions Plan Overlay (DCPO1).

Clause 32.08-4: A permit is required to construct two or more dwellings on a lot. A development must meet the requirements of Clause 55.

Clause 52.29: A permit is required to Create or Alter access to a road in a Road Zone, Category 1.

The site is located on the east side of Grange Road. The site has a regular configuration with a frontage of 20m, a depth of about 40m and an area of 809m2. A single storey dwelling occupies the site.

The site is located in an established residential area, and is about 700m from the Alphington Railway Station. The Fairfield Activity Centre is about 600m to the east.

A single storey dwelling occupies the site to the south. To the north, the land has been recently developed by the construction of two double storey dwellings to the rear of an existing dwelling. To the east (rear) the site has a direct abuttal with the rear of a three dwelling development. The secluded private open space of one of those dwelling abuts the site.

1. This is an application to review the decision of the Responsible Authority to refuse permission for the construction of 11 dwellings at 50 Grange Road, Alphington. The Responsible Authority issued a Notice of Refusal to Grant a Permit for reasons relating to neighbourhood character, policy issues, amenity impacts, and vehicle access issues.
2. The application was refused by the Council notwithstanding a recommendation by the Council's officers to grant a permit.
3. Prior to the hearing, the applicant circulated amended plans and I substituted these plans at the hearing. In broad terms, the amended plans reduced the height of the proposal, increased the building setbacks and made a number of detailed changes aimed at improving internal and external amenity impacts of the proposal.
4. Consequently, the Council advised me that while it continued to oppose the application on character grounds, it no longer pursued those grounds relating to external amenity impacts and vehicular access, subject to the imposition of permit conditions.
5. Objectors to the application have submitted statements of grounds that broadly support the Council concerns about the proposal's character impacts. Concerns about external amenity issues continue to be pursued by the objectors.
6. Having considered the submissions and the evidence, and having inspected the site and the surrounding area, I have concluded that the proposal incorporates a design response that is respectful of the character of this neighbourhood, and the proposal does not contribute to unacceptable amenity impacts. I have concluded that a permit should therefore issue.
7. My reasons are set out below.

1. The Council's opposition to this proposal is largely based on a concern about the scale of the proposed building which, in its submission, is excessive in a neighbourhood character and policy context.
2. The Council acknowledges that the review site is suitable for some form of medium density housing, especially having regard to its proximity to an activity centre, its main road location and the area and configuration of the site. From a policy perspective, the Council described the site as a good development site but not a site with such a compelling strategic context that justifies a built form that departs so dramatically from the existing and preferred character of this neighbourhood[2]. The Council submits that in the absence of local policy that identifies the review site as part of a locality in which increased medium density housing and change in built form character is encouraged, the proposal must be assessed against the preferred neighbourhood character statement for Precinct D4[3].
3. The Council submits that this proposal does not respect either the existing or preferred character of this neighbourhood because of the following specific aspects of the building design:
   • The building scale and architectural detail of this proposal, reflecting an apartment building typology, is not consistent with the preferred character of the neighbourhood and policy outcomes for this locality.
   • The front setback standard of Clause 55 (B6) is not achieved and the objective is not met[4]. Combined with the bold architectural style, the overall composition of the building presents as a prominent insertion into the streetscape that is not consistent with the modest or incremental changes contemplated by policy.
   • The proposal is an overdevelopment. This is reflected in the combination of the site coverage (62%), the reduced front setback, the apartment typology of the building (dwelling density of 1/73m2), the attached and continuous building envelope.
4. I agree with the Council's submission that the proposal is required to respect the preferred neighbourhood character. In undertaking the assessment of the proposal's design response however, a number of policy and site context factors create scope for an acceptable built form on this site that departs from the strictures of the Council's character policy and guidelines.
5. From a policy perspective, there is encouragement for the provision of a diversity of housing types in locations well served by transport and other services and facilities. The General Residential Zone is a zone in which this policy objective is to be pursued, subject to a proposal achieving acceptable neighbourhood character and amenity outcomes. The purpose of the zone is:

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

To encourage development that respects the neighbourhood character of the area.

To implement neighbourhood character policy and adopted neighbourhood character guidelines.

To provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport.

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

1. The review site does provide good access to services and transport. I note in this respect the Council's acknowledgement of the site's locational advantages[5] and its strategic context reflected in the Council's modified position on Amendment C138 that includes the site in an incremental change area.
2. The site context factors that are relevant to my assessment of the proposal's built form include the site's abuttal to Grange Road which is a main road carrying relatively high volumes of through traffic, and along which a built form character is emerging that is more robust than that identifiable in the hinterland residential areas located beyond Grange Road. While these hinterland areas exhibit a character more akin to that reflected in the Council's character description and preferred character statement, development along Grange Road exhibits a relatively diverse character, comprising medium density housing interspersed with remnant single dwellings. The more recent medium density developments along Grange Road are commonly double storey. In the immediate environs of the review site, there are examples of medium density housing abutting to the north and the east.
3. Having regard to these context considerations, I am satisfied that the proposal is respectful of the character of the neighbourhood. In reaching this conclusion I have been influenced by the following features of the design:

• The two storey height of the building is acceptable in a streetscape which comprises a mix of detached dwellings, villa units, town houses and flats. While I consider the prevailing scale of development along Grange Road to be predominantly single storey, a single storey height transition in this mixed, main road streetscape is acceptable. The maximum overall height of 7.6m is not excessive, and is less than the 9m specified as the maximum height in Standard B7 of Clause 55. The relevant objective of Clause 55 is achieved[6].
• The architectural expression is contemporary and incorporates a simple palette of finishes, materials and colours.
• The variation in setbacks, including the recessed upper level assists in providing visual interest and avoids the creation of sheer, unarticulated walls.
• The front setback varies from 4.7m, increasing to 8.7m on the north side and 6.4m on the south side. This is acceptable because the smallest setback is centralised on the site, with the deepest setbacks assigned to the site's peripheries where they appropriately transition to the neighbouring properties. The setbacks also provide ample opportunity for effective landscaping to be provided. I am satisfied that the relevant objective of Clause 55 concerning the front setback is achieved[7]
• The proposal exhibits a high degree of compliance with the relevant standards and objectives of Clause 55. In those limited instances where a standard is not met, the non-compliance is of no great consequence. There is for example a non-compliance with standard B8 which specifies a site coverage of 60%. The proposed site coverage is 62%. An amendment to the proposal to achieve compliance with the standard would contribute no significant benefit. The relevant objective is met[8]

1. Having regard to the above, the Council's submission that the proposal represents an overdevelopment is not sustained.
2. The Council's submission that the proposal is unacceptable because of its apartment typology is not supported by any relevant provision of the planning scheme. Mr Clarke referred to and relied on the Practice note Applying the Residential Zones prepared by the Department of Transport, Planning and Local Infrastructure[9] in support of that submission. The document contains a table with a series of questions and responses to those questions as they relate to each of the new zones. In the General Residential Zone the type of housing expected is identified as:

Single dwellings and some medium density housing. A mixture of single dwellings, dual occupancies with some villa units and in limited circumstances town houses where appropriate.

1. Mr Clarke submits that the Practice Note indicates that apartments are in effect limited to the Mixed Use Zone and the Residential Growth Zone. I note however, that in the General Residential Zone a dwelling is a section 1, permit not required use in the zone. The permit requirement derives from Clause 32.08-4 of the zone that states that a permit is required to construct two or more dwellings on a lot. A development must meet the requirements of Clause 55, unless the development is of five or more storeys, excluding a basement, in which case the Guidelines for Higher Density Residential Development (Department of Sustainability and Environment 2004) must be considered. It is a reasonable assumption that buildings of five or more storeys will typically assume a built form commonly referred to as apartments. Consequently, the General Residential Zone therefore contemplates developments that adopt an apartment typology and through the Guidelines to the Zone, identifies the matters to be considered when assessing an application for that form of development.
2. Whether a building which adopts an apartment typology is acceptable on a site in the General Residential Zone, will be a matter for consideration in each case, having regard to a range of relevant matters including the context of the site, the applicable policy framework, the design of the building, and its amenity impacts. I do not agree with the Council that the inclusion of a site in the General Residential Zone precludes the consideration of the site's suitability for an apartment building.

1. The Council raises concerns about the acceptability of the proposal's internal amenity. The Council submits that the proposal does not maximise northern orientation and Standard B10 of Clause 55 is therefore not met. The Council identifies the secluded private open spaces for a number of the dwellings as being unacceptable in terms of their area and configuration, orientation and useability. Concerns about solar access to open spaces are also raised.
2. The Council's submission on these issues is largely predicated on its opposition to an apartment building on this site, and there does not appear to be an acceptance that the internal amenity of an apartment building needs to be assessed differently to that of townhouse or villa unit type developments.
3. It is not necessary for me to record my findings with respect to each of the issues raised by the Council. It is sufficient for me to record my finding that the proposal provides an acceptable level of internal amenity for future residents. Each apartment does have open space in the form of either ground floor courtyards or balconies. All habitable rooms have access to natural daylight and ventilation, and northern daylight is available to first floor apartments on the south side of the building, through clerestory windows. A full range of site services are provided.
4. The Council did not pursue its ground of refusal relating to external amenity impacts. The Council is satisfied that these impacts are acceptable.
5. Objectors however did raise some issues in this respect, primarily in relation to overlooking to the east. Mr Glossop provided a detailed analysis of the proposal's amenity impacts on its neighbours, and his analysis has demonstrated to my satisfaction that the relevant standards and objectives of Clause 55 relating to matters such as overlooking, overshadowing, daylight access, and visual bulk are met and in many respects exceeded. I am therefore satisfied that there are no amenity impacts that are unacceptable.

1. It follows from the above reasons that it is my conclusion that the decision of the Responsible Authority should be set aside and a permit issued.
2. In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

• Construct two or more dwellings on a lot.
• Create or alter access to a road in a Road Zone, Category 1.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the plans circulated for the VCAT hearing of 12 June 2014 but modified to show:
   • (a) An additional small canopy tree within the SPOS of Dwelling 1.
   • (b) Any modifications in accordance )with the Sustainable Design Assessment (Refer to Condition 6 of this Permit). '
   • (c) Any modifications in accordance with the Waste Ma,nagement Plan prepared by Leigh Design and submitted with the application. /
   • (d) Any modifications in accordance with the requirements of the VicRoads conditions.

When approved, the plans will be endorsed and form part of this Permit.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. This Permit will expire if either:
   • (a) The development does not start within three (3) years from the date of this Permit; or
   • (b) The development is not completed within five (5) years of the date of this Permit.

As relevant, the Responsible Authority may extend the times referred to if a request is made in writing:

(a) Before this Permit expires;

(b) Within six (6) months after the expiry date; or

(c) Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

1. Prior to the issue of a building permit for any building or any works authorised by this permit, a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay.
2. Before buildings and works start, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will be endorsed and will then form part of this Permit. The Landscape Plan must be prepared by a suitably qualified person and must incorporate:
   • (a) A minimum of two (2) low to medium, deciduous, canopy trees fronting bedrooms 1 and 2 of Dwelling 1. Pyrus Calleryana 'Capital' is recommended.
   • (b) Details of all existing trees to be retained and all existing trees to be removed, including overhanging trees on adjoining properties. The genus, species, height and spread of all trees must be specified
   • (c) A planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity and quantities of all plants
   • (d) Details of all surfaces including lawns, mulched garden beds and hard paving (such as asphalt, concrete, brick or gravel)
   • (e) Street trees within the nature strip/s adjacent to the property
   • (f) All constructed items including retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting, clotheslines etc.
   • (g) Edge treatment between grass (lawn) and garden beds
   • (h) An outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences. An outline of buildings on adjoining land, including the location of windows and doors which face the subject site must also be shown
   • (i) The location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided
   • (j) Clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers.
   • (k) A scale, North Point and appropriate legend

The species of all proposed plants selected must be to the satisfaction of the Responsible Authority.

1. Before the development starts, a Sustainable Design Assessment (SDA) detailing sustainable design strategies to be incorporated into the development to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by the Responsible Authority. The SDA must outline proposed sustainable design initiatives within the development such as (but not limited to) energy efficiency, water conservation, stormwater quality, waste management and material selection. It is recommended that a STEPS report (residential) or Sustainable Design Scorecard (SDS) is undertaken as part of the SDA.

The development must be constructed in accordance with the requirements! recommendations of the Sustainable Design Assessment to the satisfaction of the Responsible Authority.

1. The landscaping as shown on the endorsed Landscape Plan must be completed to the satisfaction of the Responsible Authority before the development is occupied and/or the use starts or at such later date as is approved by the Responsible Authority in writing.
2. No later than seven (7) days after the completion of the landscaping, the permit holder must advise Council, in writing, that the landscaping has been completed.
3. The landscaping as shown on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority.
4. Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.
5. Before the dwellings are occupied, an automatic external lighting system capable of illuminating all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.

The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.

1. The land must be drained to the satisfaction of the Responsible Authority.
2. With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
3. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
4. Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
5. Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
   • (a) Constructed;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all-weather sealcoat; and
   • (d) Drained

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

1. Before the development is occupied, vehicular crossing(s) must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s), crossing opening(s) or parts thereof must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

1. A modified crossover and driveway to Grange Road must be constructed to the satisfaction of VicRoads and the Responsible Authority to a width of 5.0 metres in width. The crossover shall be constructed to be flared at 60 degrees to the footpath on both sides with 3.0 metre radial turnouts at the kerb line and there must be at least 1 .0 metre clearance from any fixed object (poles, trees, pits etc.).
2. Clear sight triangles in accordance with ASINZS 2890.1: 2004 'Off Street Parking' Clause 3.2.4 shall be provided at the property line to ensure adequate visibility between vehicles leaving the driveway and pedestrians on the footpath. The visibility criteria must allow for a driver's eye height of 1.15 metres above the road surface.
3. Any security boom gate, barrier, gate or similar device controlling vehicular access to the premises must be located a minimum of 6.0 metres inside the property.

[1] At the time of the hearing the site was zoned Residential 1. Amendment VC116 was gazetted on 1 July 2014. The amendment (among other matters) rezoned the land to General Residential. There is no schedule to the zone as it affects this site. Amendment VC116 is part of the implementation of wide ranging reforms to residential zones in all planning schemes. During the course of the hearing, I was advised of the pending introduction of the General Residential zone to the site and all parties were provided with the opportunity to make submissions to me about the implications for this application of the introduction of the General Residential Zone. Following the gazettal of Amendment VC116, I have perused the gazetted version of the General Residential Zone and I am satisfied that there are no differences of any significance between the gazetted version and the version about which the parties presented their submissions to me.

[2] Pursuant to the local policy at Clause 22.04 of the planning scheme, the site is located in precinct D4. The preferred neighbourhood character statement contained in the Darebin Neighbourhood Character Study & Precinct Guidelines 2007 emphasises the established suburban character of the area, typified by Californian bungalows, large gardens and predominantly single storey scale of buildings.

[3] Amendment C138 to the Darebin Planning Scheme implements a review of the Municipal Strategic Statement. The Amendment has been exhibited and a Panel considered submissions in early 2014. At the time of the hearing of this application for review, the Panel report had not been released. The exhibited version of the Amendment included the review site in a minimal change area, however I was advised that at the Panel hearing the Council adopted a different position and included the review site and all land on both the east and western sides of Grange Road in an incremental change area. This was considered to be more consistent with the designation of Grange Road as a Strategic Corridor in the proposed Strategic Framework Plan. The residential area abutting the review site to the east (rear) continues to be included in the minimal change area. The exhibited Amendment describes incremental change areas as residential and commercial areas that have the capacity to accommodate a moderate level of residential development over time. It is expected that the general character of Incremental Change Areas will evolve over time as new yet modest types of development is accommodated.....

[4] The B6 standard requires a setback of 6.935m. The proposed setback is 4.95m to the face of the porch.

[5] Alphington and Fairfield Railway Stations are within 1 kilometre. Bus routes operate on Grange Road. Local shopping centres are within 500 m of the site. Extensive recreational facilities (Darebin Parklands and Pitcher Park) are available locally.

[6] The objective of Clause 55.03-2 is: To ensure that the height of buildings respects the existing or preferred neighbourhood character.

[7] The objective of Clause 55.03-1 is: To ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site.

[8] The objective of Clause 55.03-3 is: To ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site.