PLANNING SCHEME - interpretation or consideration of VPP provision

The weight to be given to various parts of the Monash Planning Scheme, including Amendment C125 (Part 2).

POLICY - interpretation or application of policy

The weight to be given to the three preferred but inconsistent character statements currently available to decision makers.

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

The decision raises discrepancies that the Monash City Council and the Minister for Planning should consider prior to the gazettal of Amendment C125 (Part 2) to the Monash Planning Scheme.

This decision grapples with the vast inconsistencies between parts of the Monash Planning Scheme which place the review site as being within the boundaries of the Glen Waverley Activity Centre (being the municipality's higher order activity centre), and other parts of the Monash Planning Scheme, including the zone and the existing and proposed policies at 22.01, which seek to treat this neighbourhood in the same manner as other residential neighbourhoods far removed from an activity centre.

At present, there are three preferred character statements available to decision makers for sites within the City of Monash:

• The current Clause 22.01 Residential Development and Character Policy;
• The Monash Housing Strategy 2014; and,
• The proposed policy to Clause 22.01, as part of Amendment C125 (Part 2) to the Monash Planning Scheme.

The three applicable preferred character statements seek to achieve very different character outcomes for the review site. It is suggested that the proposal to have two different sets of preferred character statements once Amendment C125 (Part 2) to the Monash Planning Scheme is gazetted (one in the Monash Housing Strategy, and one in the revised Clause 22.01) is an undesirable approach, particularly given the level of inconsistency between the two sets of preferred character statements.

These discrepancies undermine the potential for the Glen Waverley Activity Centre to fulfil its intended role identified in policy.

The decision suggests these discrepancies are a matter the Monash City Council and the Minister for Planning should consider prior to the gazettal of Amendment C125 (Part 2) to the Monash Planning Scheme.

Monash Planning Scheme; Glen Waverley Major Activity Centre; preferred character statements within the Monash Planning Scheme; Amendment C125 to the Monash Planning Scheme; development outcomes within a higher order activity centre.

Makhmalbaf v Monash CC (Red Dot) [2018] VCAT 1641

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following people are joined as a party to the proceeding:

1. In application P413/2018 the decision of the responsible authority is set aside.
2. In planning permit application TPA/47302 a permit is granted and directed to be issued for the land at 7 Hinkler Road, Glen Waverley in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • To construct two dwellings on a lot

Adrianne Kellock, Town Planner of Kellock Town Planning

Construction of two, double storey dwellings one behind the other

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Clause 32.08-6 to construct two or more dwellings on a lot on land within the General Residential Zone

Clauses 10, 11, 15, 16, 21, 22.01, 22.05, 32.08, 52.06, 55, 65 and 71.02.

The land is a rectangular allotment with a frontage to Hinkler Road of 16.76 metres, a depth of 41.75 metres, and an overall area of 700 square metres. The land presently supports a single storey detached dwelling.

The Tribunal inspected the site and surrounding area prior to the hearing, on 26 September, 2018.

1. Bijan Makhmalbaf (the 'Applicant') seeks a review of the decision of the Monash City Council to refuse to grant a permit for the proposed development of two double storey dwellings on the land at 7 Hinkler Road, Glen Waverley (the 'review site'). The Council's grounds of refusal raise concern with the impact on neighbourhood character and the garden city character, and the level of compliance with a range of ResCode standards.
2. Since the Council's decision, Amendment C120 to the Monash Planning Scheme was gazetted on 25 January 2018, and for the first time identified[2] the review site as being located within the boundaries of the Glen Waverley Major Activity Centre. The Council's position on this proposal has not changed as a result of this Amendment.
3. One nearby neighbour opposes the grant of a permit, based on grounds related to neighbourhood character and a range of off-site amenity impacts. The Applicant made submissions about the front setback and the orientation of the front door, but otherwise focused his submissions on procedural matters relating to the planning permit application process at Council, which are not before me. He declined the opportunity I gave him to make any further submissions regarding the merits of the proposed development.
4. The issues or questions for determination are:

1. Is the proposal an appropriate response to the surrounding neighbourhood character? 2. Will there be any unreasonable off-site amenity impacts?

1. Is an appropriate level of internal amenity achieved?

1. Does the proposal appropriately provide for car parking and traffic movements?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Monash Planning Scheme, I have decided to set aside the Council's decision, and direct the grant of a planning permit subject to conditions. My reasons follow.

IS THE PROPOSAL AN APPROPRIATE RESPONSE TO THE SURROUNDING NEIGHBOURHOOD CHARACTER?

1. The review site is identified as being within the boundaries of the Glen Waverley Major Activity Centre, being the highest order activity centre within the Monash municipality. As such, it draws support for the establishment of medium and higher density housing from the Planning Policy Framework, as evidenced from the following policies.

Planning is to facilitate sustainable development that takes full advantage of existing settlement patterns and investment in transport, utility, social, community and commercial infrastructure and services.[3]

Build up activity centres as a focus for high-quality development, activity and living by developing a network of activity centres that:

• Comprises a range of centres that differ in size and function.
• Is a focus for business, shopping, working, leisure and community facilities.
• Provides different types of housing, including forms of higher density housing.
• Is connected by transport.
• Maximises choices in services, employment and social interaction.

Support the role and function of each centre in the context of its classification, the policies for housing intensification, and development of the public transport network.

Encourage a diversity of housing types at higher densities in and around activity centres.[4]

Encourage higher density housing development on sites that are well located in relation to jobs, services and public transport.[5]

1. Local policy provides a similar level of encouragement for the establishment of additional and more diverse housing in this higher order activity centre location.

There is an increasing demand for a variety of different housing styles to cater for changing household sizes and structures. State Government policy encourages higher housing densities near transport hubs and activity centres, such as Glen Waverley and Oakleigh.

Retention of neighbourhood character in residential areas will be enhanced by the identification of preferred areas for medium to high rise residential development within the municipality. These areas are generally within the Principal and Major Activity Centres.[6]

Direct high rise residential developments towards the Glen Waverley Principal and Oakleigh Major Activity Centres. These centres are well serviced by public transport, commercial, recreational, community and educational uses.[7]

Glen Waverley has experienced major renewal and redevelopment in the past few years that has revitalised the Centre. It is anticipated that the Centre will continue to grow and change into the following years. Council wishes to see Glen Waverley continue to develop as a major entertainment and retail centre for the eastern metropolitan region. This centre is also the appropriate location for the development of high rise residential development.[8]

The Glen Waverley and Oakleigh Major Activity Centres are the preferred locations for high rise residential development.[9]

To promote high rise residential development within the Glen Waverley and Oakleigh Major Activity Centres, to support ongoing economic prosperity, social advancement and environmental protection.[10]

1. Despite this clear and consistent policy encouragement for the establishment of additional and more diverse housing within this higher order activity centre location, I am faced with a contrasting and rather confusing planning framework in the Monash Planning Scheme, against which to carry out a neighbourhood character assessment. On the one hand, Clause 22.14 Glen Waverley Major Activity Centre Structure Plan contains the following vision.

The Glen Waverley Activity Centre will transform into a vibrant, more intensive and active urban centre, building on its distinctive cultural mix. The urban form will be clearly different from its surrounding residential and light industrial areas, which will maintain a more traditional suburban scale of development.

Shops and services will increase in range and diversity and the quality of activities and experiences will improve to meet the needs both of a growing number of local residents and workers, and visitors.

Glen Waverley will be recognised as a Centre that caters for people of all ages and mobility needs. There will be improved safety, security and accessibility measures in place, including more direct and attractive pedestrian and cycling routes through the Centre and improvements to the public transport infrastructure. The needs of motorists will be catered for by ensuring good access routes to businesses and improved parking facilities, however separated from the main routes for pedestrian, cyclists and public transport users.

High quality and diverse housing options will be available for a greater number of residents with a range of housing needs. Improved and additional open space and plazas, along with community and physical services will be in place for the local residents, workers and those who visit the centre. Although distinctly urban, the centre will be notable for its greenery and its sustainability measures.

1. Under the policy at Clause 22.14 the review site is located within Precinct 7, to which the following policies apply:

The surrounding residential precinct provides a key role in supporting the growth of the centre by delivering a diverse range of housing that is located in close proximity to shops and services, public transport and open space.

A number of streets will be enhanced as key walking and cycling routes connecting into the town centre.

• Encourage the intensification of housing in identified areas on High Street Road, Snedden Drive, Coleman Parade, Myrtle Street, Bogong Avenue and Springvale Road.
• Improve pedestrian and cycle links between the precinct and GWAC commercial area.

1. The review site is not included in the streets in which this policy encourages the intensification of housing, as those streets are contained in Area 7: Housing Intensification on Map 1: Land Use Plan to the policy. In contrast the review site is included in Area 8: Housing Diversity on the same plan. There is no additional guidance provided as to what is encouraged in Area 8.
2. This designation of the review site as a having a, "key role ... by delivering a diverse range of housing," is supported by the Monash Housing Strategy 2014, which was made a reference document to the Monash Planning Scheme[11] as part of Amendment C125 (Part 1) to the Monash Planning Scheme on 19 April 2018. Under the Monash Housing Strategy the review site is located within an Activity and Neighbourhood Centres, where the following guidance is provided.

Future Character: Development within these areas will support housing growth and diversification; be of high quality, contemporary design; support pedestrian comfort, accessibility and safety; and incorporate environmentally sustainable and water sensitive design features.

Detailed design standards may be found within Structure Plans or location-specific development controls.

Residential Outcomes: Mixed use and apartment development at a density appropriate to the context of the Activity Centre.

Higher density mixed use and apartment developments where identified by Structure Plans or location-specific development controls.

Potential for lower density mixed use and lower rise apartment developments in Neighbourhood Centres. On larger sites, in suitable locations, increased density may be appropriate, subject to careful design.

1. The framework I have described thus far recognises the location of the review site within the boundaries of the Glen Waverley Activity Centre, and the understandable desire to encourage increased housing and housing diversity based on a changing future neighbourhood character, rather than retention of the existing neighbourhood character.
2. On the other hand, there are also two preferred character statements that broadly seek to retain the existing neighbourhood character, and resist the type of housing changes expected in a higher order activity centre, and strongly encouraged by policy at a State, regional and local level in this location. Council's current Residential Development and Character Policy at Clause 22.01 places the review site within a Type C area where the following desired future character statement applies:

The neighbourhood character of this area will develop within a pleasant leafy framework of well-planted front gardens and large canopy trees.

Architecture, including new buildings and extensions, will, in the majority of cases, be secondary in visual significance to the landscape of the Character Type from the street. However, in neighbourhoods that currently have a large proportion of two storey houses, the architecture will gradually become more dominant, although it will always be buffered from the street by a well planted front garden that will ensure the soft leafy nature of the street will be perpetuated.

Setbacks will be generous and consistent within individual streets.

Building heights will vary between neighbourhoods. Those neighbourhoods where the diverse topography and well developed mature tree canopy provide a framework within which redevelopment can occur will have a larger proportion of two storey houses. In the lower, less wooded areas, buildings will be mainly low rise unless existing vegetation or a gradation in height softens the scale contrasts between buildings.

The built-form will be visually unified by well-planted front gardens that contain large trees and shrubs and street tree planting. Neighbourhoods that are influenced by the naturalistic landscape of the creek valleys or on highpoints and ridges will have a predominance of native trees in both the public and private realm. Trees within lots to be redeveloped will be retained wherever possible in order to maintain the established leafy character.

Streets which have a majority of gardens currently lacking fences will continue to do so. Walls and fences in other streets will be low to allow plants in the front garden to be visible from the street. Colours and materials will be sympathetic to the architecture of the house.

The soft quality of streets derived from the nature strips will be protected by ensuring that each lot frontage has only one single crossover. Landscape elements such as remnant indigenous vegetation and the large old coniferous wind-rows will be retained until horticulturally unstable.

The character of existing public open spaces within the Character Type, particularly those naturalistic corridors such as Damper Creek and Valley Reserve, will be protected by ensuring that buildings directly adjacent to such areas are set back and buffered with planting that complements that within the public open space.

1. This policy position is supported by the proposed amended Clause 22.01 Residential Development and Character Policy, which forms part of Amendment C125 (Part 2) to the Monash Planning Scheme. The amended Residential Development and Character Policy will place the review site in a character type that will apply to all of the suburbs in the northern part of the municipality, regardless of their proximity to an activity centre. The preferred character statement for this area is set out below.

Although there will be changes to some of the houses within this area, including the development of well designed and sensitive unit development and, on suitable sites, some apartment development, these will take place within a pleasant leafy framework of well planted gardens (front and rear) and large canopy trees.

Setbacks will be generous and consistent within individual streets. Building heights will vary between neighbourhoods. Those neighbourhoods where the diverse topography and well developed mature tree canopy provide a framework within which redevelopment can occur will have a larger proportion of two storey houses. In the lower, less wooded areas, buildings will be mainly low rise unless existing vegetation or a gradation in height softens the scale contrasts between buildings. Older houses will be well maintained through façade improvements and renovations. New development will be well-designed to complement the established buildings through consistent siting, articulated facades and use of materials. They will be encouraged to consider energy efficient and sustainability principles. Long expanses of blank walls will be discouraged, particularly when adjacent to public parks, reserves and other open space areas, where the building should address the public area.

Architecture, including new buildings and extensions, will, in the majority of cases, be secondary in visual significance to the landscape of the Character Type from the street. New development will buffered from the street and neighbouring properties by well planted gardens that will ensure the soft leafy nature of the street will be perpetuated.

Gardens will consist of open lawns, planted with a mix of native and exotic vegetation and trees. Existing mature trees and shrubs will be retained and additional tree planting within streets and private gardens will add to the tree canopy of the area.

Buildings will be clearly visible through these low garden settings, and non-existent or transparent front fences. Additional vehicle crossovers will be discouraged.

The built-form will be visually unified by well-planted front gardens that contain large trees and shrubs and street tree planting. Trees within lots to be redeveloped will be retained wherever possible in order to maintain the established leafy character.

Walls and fences will be low or non-existent to allow plants in the front garden to be visible from the street. Colours and materials will be sympathetic to the architecture of the house. The soft quality of streets derived from the nature strips will be protected by ensuring that each lot frontage has only one single crossover. Landscape elements such as remnant indigenous vegetation and the large old coniferous wind-rows will be retained until horticulturally unstable.

1. The Tribunal has recently issued a number of decisions that have struggled to address the somewhat confusing present state of the Monash Planning Scheme. This has occurred as a result of the splitting of Amendment C125 into Parts 1 and 2, the gazettal of only Part 1 to the Amendment at this stage, and the level of inconsistency between the two parts of the Amendment, and the Monash Housing Strategy.
2. In the decision of IPIA Pty Ltd v Monash CC [2018] VCAT 1290 the Tribunal considered a proposed multi-dwelling development in Clayton. In its reasons the Tribunal provides a thorough description of the background to Amendment C125 to the Monash Planning Scheme, its splitting into two Amendments, and the weight that can be given to various policies and varied standards in both the existing and proposed schedules to a zone as a result. In particular, this decision explored what weight should be given to Amendment C125 (Part 2), which has been adopted by Council and sent to the Minister for final approval and gazettal, in a form not supported by the relevant Panel Report. Therefore, while the Amendment C125 (Part 2) is at a stage of a seriously entertained planning proposal, the Tribunal had to consider what weight to give this Amendment, given the potential for the Minister to make changes to the Amendment in the manner recommended by the Panel.
3. In the decision of Kong v Monash CC [2018] VCAT 1462 the Tribunal considered a proposed student housing proposal also in Clayton. It identified the current gaps in policy as a result of the amendment to the Clause 22.10 Student Housing Policy as part of Amendment C125 (Part 1), to refer to the revised future character statements in the proposed Residential Development and Character Policy at Clause 22.01. However, due to the splitting of Amendment C125, the revised future character statements have not made their way into the Monash Planning Scheme as yet. The Kong decision also identified the vast differences between the various preferred character statements that can be said to apply to that locality, and had to determine the weight to be given to the different character statements.
4. In this proceeding, I cannot reconcile the vast differences that occur in the three preferred character statements that either apply or are proposed to apply to the review site, being those in:

1. The current policy to Clause 22.01 2. The Monash Housing Strategy 2014

1. The proposed policy to Clause 22.01, as part of Amendment C125 (Part 2) to the Monash Planning Scheme
2. As I have set out above, the preferred character statement in the Monash Housing Strategy is very different to the other two preferred character statements, and so it is not possible to give consideration to all three statements in my assessment, and make a decision based on that approach. Instead, I need to determine the weight to be given to each of the preferred character statements, and determine which one will guide my decision making in this proceeding.
3. I have decided to place the greatest weight on the preferred character statement contained in the Monash Housing Strategy, and the related policies at Clause 22.14. I make this decision for the following reasons.

1. The preferred character statement from the Monash Housing Strategy is the only one to recognise the position of the review site and surrounding neighbourhood within the boundaries of the highest order activity centre in this municipality. This is a location of strategic importance, and should not be treated the same as residential neighbourhoods far removed from any activity centre, which the other two preferred character statements seek to do. 2. The identification of a preferred character statement for residential neighbourhoods inside an activity centre, as provided in the Monash Housing Strategy, is a more specific and relevant guidance for the review site, as opposed to character statements for much broader areas, that comprise up to half of the residential areas in a municipality.

1. The policy at Clause 22.14 is a very recent policy, having been gazetted via Amendment C120 to the Monash Planning Scheme on 25 January 2018. It therefore reflects a policy position that has taken on board some of the more recent policy changes at a State and regional level. Out of the three preferred character statements that are before me, only the preferred character statement from the Monash Housing Strategy is consistent with the policy at Clause 22.14.

1. The balance of policy at both a State, regional and local level supports the establishment of medium and higher density housing in this location within a higher order activity centre. It is the preferred character statement within the Monash Housing Strategy which best supports and reflects these policy aspirations, and therefore is consistent with the manner in which policy should be read as a whole. 2. The Monash Housing Strategy 2014 is a Council adopted strategy, and is a reference document to the Monash Planning Scheme. Indeed, it represents the most recent strategic intent to be implemented in the Monash Planning Scheme, as it was part of Amendment C125 (Part 1) gazetted on 19 April 2018. 3. The other two preferred character statements in both the existing and proposed policies at Clause 22.01 of the Monash Planning Scheme, provide generalised preferred character statements that apply to land both within the highest order activity centre, and far removed from any activity centre. It does not make sense for there to be a strategic intent to achieve the same preferred character outcome for these divergent locations. As such, these preferred character statements do not greatly assist me to understand what is sought in this activity centre location. 4. The existing policy at Clause 22.01 is very dated, and does not represent the current strategic intent of this Council. It also does not reflect the changes in policy at Clause 22.14, and inclusion of the review site in the boundaries of the activity centre, that have occurred since the creation of this policy. 5. While the proposed policy for Clause 22.01 as part of Amendment C125 (Part 2) does in theory reflect a more updated policy position, it is fundamentally inconsistent with the Monash Housing Strategy 2014, and the policies encouraging housing diversity found at Clause 22.14. The intent to adopt a single preferred character statement for half of the municipality's residential neighbourhoods, regardless of their position within, proximate to or well removed from an activity centre, also stands in contrast to the policy approach expressed elsewhere to encourage housing diversity and housing change in well serviced locations, including activity centres.
2. As such, I will conduct my analysis giving greater weight to the policies at Clause 22.14 and the Monash Housing Strategy, rather than the existing and proposed policies at Clause 22.01.
3. As an aside, I do not understand how it is that Amendment C125 to the Monash Planning Scheme contains two very different sets of preferred character statements, one in the Monash Housing Strategy, and another at the proposed Clause 22.01 Residential Development and Character Policy. While the two preferred character statements appeared to align for the sites involved in the Tribunal decisions of IPIA Pty Ltd v Monash CC [2018] VCAT 1290 and Kong v Monash CC [2018] VCAT 1462 due to the location of those sites in the Monash National Innovation and Employment Cluster, as I have explored above, the two preferred character statements from Amendment C125 call for vastly different outcomes for the review site in this proceeding. This is a matter for the Council and the Minister to consider prior to the gazettal of Amendment C125 (Part 2).
4. I also do not understand why the Monash Planning Scheme currently places the review site within Schedule 2 to the General Residential Zone, and Amendment C125 (Part 2) proposes to apply Schedule 3 to the General Residential Zone to the review site. Both of these Schedules seek to apply equally to land within the Glen Waverley Activity Centre, and far removed from the activity centre context, when very different character and built form outcomes would seem to be appropriate to pursue in the different contexts. Again, this is a matter for the Council and the Minister to consider prior to the gazettal of Amendment C125 (Part 2).
5. These discrepancies undermine the potential for the Glen Waverley Activity Centre to fulfil its intended role identified in policy.

1. In this proceeding, the Council submits that the proposed development is not an appropriate response to the surrounding and preferred future neighbourhood character having regard to the following elements of the design response:

1. The bulk and mass of the proposed dwellings, which they submit is inconsistent with the modest scale of surrounding dwellings; 2. The layout, which fails to provide sufficient space for new canopy trees and other vegetation;

1. The proposal to construct high front fencing within part of the front setback; and,

1. The front façade of Dwelling 1 which they submit will appear bulky, having regard to its overall mass, front setback, low level of articulation and a dwelling entry that is not visible in the streetscape with a very small front porch.
2. I am not persuaded by these submissions, and instead find that the proposed development, subject to a small change to its front setback, is an appropriate response both to the surrounding existing context, and the preferred character statement found in the Monash Housing Strategy. I make this finding for the following reasons.
3. Firstly, the proposed scale and bulk is an appropriate response to this neighbourhood, for the following reasons:

1. The scale is consistent with a number of the existing dwellings already found in this neighbourhood, which includes some units at two storeys in height, and a number of large newer dwellings that are gradually replacing the existing housing stock. Planning policies that strongly encourage the achievement of additional housing in this activity centre location, would see the construction of multi-dwelling developments such as that proposed for the review site, as a preferable outcome to the large replacement single dwellings that appear to be the other main form of development in this locality. Such outcomes should be encouraged by approving multi-dwelling development at two storeys in scale that reflects the emerging built form in this neighbourhood. 2. The existing low scale single storey multi-dwellings that exist on the adjoining properties and which were built in the post-war era do not represent the optimum form of development for the review site, now it has been identified as being within the boundaries of a higher order activity centre. As such, the proposed development on the review site should not be expected to respect the scale and form of the dwellings on the adjoining properties to its east and west.

1. The preferred future character statement as set out in the Monash Housing Strategy encourages the development of housing growth and diversification, as well as contemporary design. It expects apartment development as one of the outcomes in this activity centre. It is clear therefore that larger built forms that present greater scale to the streetscape are actively encouraged by this future character statement and should be expected to form part of the future character of this neighbourhood.

1. The proposed development does not take advantage of the extent of development that is encouraged within the preferred character statement under the Monash Housing Strategy. It proposes the construction of two articulated dwellings on the review site, with recessed upper levels. The proposed Dwelling 1 will present as a relatively well articulated dwelling in the streetscape, with a substantial difference in setbacks between the ground and first floors, and the first floor presenting as a very narrow element at the front facade, with stepping in and out of the built form for the extent of the first floor of this dwelling.
2. As I have observed above, the one change that I intend to make to the proposed development is to require a small increase in the front setback to Dwelling 1 at its ground floor. This dwelling is proposed to have a ground floor setback of 5.5 metres. It is sited between dwellings that have setbacks of 5.9 and around 7.6 metres. The review site is covered by the General Residential Zone, where the Schedule to the zone seeks a front setback of 7.6 metres. If the standard had not been varied by the Schedule to the zone, then the front setback standard found at Clause 55 would require a setback of 6.75 metres.
3. In this context of a higher order activity centre, I find it appropriate to allow some flexibility in the front setback to the review site, especially when the Schedule to the zone that applies to the land, equally applies to land removed from the activity centre context. The Monash Planning Scheme is seeking for a different character outcome to be achieved on land within the activity centre. When that is not recognised by a variation to a standard that applies equally to land inside and outside of the activity centre, it is reasonable to apply the varied standard with some flexibility to land within the activity centre.
4. I consider that a front setback of 6.7 metres will achieve an appropriate built form outcome for this neighbourhood. I make that finding having regard to the pattern of front setbacks found elsewhere in this neighbourhood, to the ability to achieve a generous landscape setting including canopy trees within a 6.7 m setback, particularly given that only one driveway is proposed within the front setback, and the overall level of articulation provided between the ground and first floors of the proposed development.
5. If the Applicant desires to have a small front porch and a front door in a recessed side wall within the front facade, I find that to be an appropriate approach for the review site. It will not reduce the level of articulation within the front facade by a degree that raises any concern. Further, I am satisfied that the location of the front door in the front facade will be obvious on angled views, and by the location of the small porch. For these reasons I am not persuaded by the Council's submission that the proposal lacks a sense of address.
6. The proposal seeks to fence in part of the front yard, to a width of 3.6 metres, in order to extend the area of secluded private open space for Dwelling 1. I find this to be an appropriate approach in the streetscape, particularly reflecting on the location of a high front fence across all of the frontage of the adjoining property to the east. The balance of the front yard will present as an open garden, consistent with the Council's Garden City Character policies.
7. Finally, as I have already observed above, I consider that a front setback of 6.7 metres will achieve an appropriate landscape presentation to the street, and enables the establishment of canopy trees within the front setback in accordance with the Council's Garden City Character policies. Having regard to the existing pattern of development in this neighbourhood, I do not consider that landscaping along side setbacks is an important or necessary component of future development within the review site. The rear setbacks vary between 4.5 and 3.3 metres, and I find that this will enable the achievement of an appropriate landscape interface to the rear boundary.
8. The one Respondent in this proceeding submits that the proposed dwellings will look like factories. He wants a flat roof to each of the garages with no rooms constructed over them, as well as a rear setback of 5.0 metres. While the elevations do not do the proposed design justice, I cannot agree that they make the proposed dwellings appear like factories. The dwellings have pitched roofs to the ground and first floors, a change of materials from the brickwork at the ground floor to lightweight cladding at the first floor, a high level of articulation through a range of setbacks to the ground and first floors, and a range of window proportions. All of these elements would not be found in any factory design. Having regard to the overall design of the built forms proposed for the review site, I am satisfied that they will integrate with the surrounding residential built forms.
9. Each of the two proposed garages are to be sited adjacent to garage walls on adjoining properties. As such there is no benefit to be gained by having a flat roof on the garages, or by removing the first floors from above the two garages. While the adjoining Respondent may have been required to have flat roofed garages when they built their dwellings some decades ago, that is no longer an expectation of development in this neighbourhood.
10. I also do not consider it necessary to provide a 5.0 metre rear setback. I note that one of the adjoining properties is developed with a built form much closer to the rear boundary, and that development in this neighbourhood is commonly constructed very close to the rear boundary. I am satisfied that this proposal presents an appropriate built form to the rear interface, and will provide for a reasonable level of landscaping opportunities along the rear boundary.
11. For these reasons I find that the proposed development is an appropriate response to the surrounding existing and preferred future neighbourhood character, and is an appropriate response to the guidance provided by the Monash Planning Scheme, subject to a slight increase to the front setback to the ground floor of Dwelling 1.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. Besides the rear setback being within the preferred setback of 5.0 metres, which I have already addressed above, the Council does not argue that there will be any unreasonable forms of amenity impacts on the surrounding properties.
2. Off-site amenity impacts are generally measured in terms of visual bulk, overlooking and overshadowing. The review site benefits from the context provided on the adjoining properties to the east and west. The adjoining property to the east is developed with two dwellings that are constructed either on the boundary with the review site, or within 1.1 metres of that boundary. As such, these dwellings have a very limited level of interaction with the review site, with secluded private open space located at the very front or rear of that site, and with few habitable rooms having an outlook towards the review site. Where two kitchens and two bedrooms do have an outlook towards the review site, that outlook is from a position 1.1 metres away from the side boundary fence. As such that boundary fence will have a limiting impact on the level of visibility that will be achieved to the proposed dwellings on the review site.
3. On the adjoining property to the west are two dwellings. The dwelling at the front of that site is separated from the review site by the common driveway, and has a limited outlook towards the review site. The dwelling at the rear of that site has a wall on the boundary with the review site, and an area of secluded private open space at the very rear that will align with the rear area of secluded private open space proposed on the review site. As such, these two dwellings on the adjoining property to the west also have a limited level of interaction with the proposed development on the review site.
4. I have not been persuaded that the proposed dwellings will result in an unreasonable built form impact on the adjoining properties. The proposed dwellings provide a good level of articulation between the setbacks to the ground and first floors, and a high variety of setbacks and materials, as well as a pitched roof form to both the ground and first floors. Further, the proposed setbacks and heights comply with Standard B17,[12] and the built form is positioned such that it is closer to the less sensitive interface to the east of the site, and with more generous setbacks to the slightly more sensitive interface to the west of the review site.
5. The proposed development will have a setback of 4.5 metres to the first floor from the rear boundary, and the ability to plant landscaping within the rear setback. The presentation to the rear boundary will be of a low scale development with articulation between the ground and first floors, pitched roof elements, a variety of window forms and a change of materials.
6. For these reasons I find that the proposed development will not result in any unreasonable levels of visual bulk to the adjoining properties.
7. The shadow diagrams submitted with the application demonstrate that there will be some overshadowing of the adjoining properties to the east and west of the review site in the morning and afternoon respectively. That is to be anticipated, and is not evidence of an unreasonable level of development on the review site. The extent to which the adjoining properties will be overshadowed is to a minor degree at either the start or end of the day, and is an appropriate level of overshadowing having regard to the relevant standards set out at Clause 55 of the Monash Planning Scheme.
8. Finally, overlooking from the proposed dwelling is addressed by the location of windows to the first floor, or where necessary, by the addition of screening to windows. I agree with the submission of Council that one additional window needs to be screened, and will apply the condition as drafted by Council.
9. For these reasons I find that the proposed development will not result in any unreasonable levels of off-site amenity impacts to the surrounding properties.

IS AN APPROPRIATE LEVEL OF INTERNAL AMENITY ACHIEVED?

1. None of the parties in this proceeding raise any concerns in relation to the level of internal amenity to be achieved by the future occupants of the proposed dwellings on the review site. While the Council raise concerns with the width of the areas of secluded private open space for both dwellings, those concerns were raised in relation to the ability to plant vegetation within the spaces.
2. In any event, I find that the proposed provision of 71 m² of secluded private open space for Dwelling 1 at a minimum width of 3.6 metres, and 74 square metres of secluded private open space for Dwelling 2 at a width of between 3.3 and 4.4 metres, to be an appropriate level of provision for the two proposed dwellings. I am satisfied that areas of these dimensions and overall space will be able to provide for the reasonable recreation needs of residents of these dwellings, particularly having regard to the level of access that will be enjoyed to the activity centre, and the level of opportunities for recreation that exist within the activity centre.
3. In relation to the other components of the proposed design that is before me, I find that the proposed development will achieve an appropriate level of internal amenity for future occupants. I make this finding having regard to the sizes of the individual rooms, their ability to receive solar and daylight access, the convenient car parking facilities provided on site, and the overall layout of the proposed dwellings.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. None of the parties in this proceeding raise any concerns with regards to car parking and traffic matters. The proposed development provides the level of car parking on site that is required under Clause 52.06 of the Monash Planning Scheme, by providing a double garage to each of the proposed dwellings. The proposed access point to the review site will utilise the existing crossover, and will comprise a driveway that appropriately provides for turning movements within the site. Finally, there has been no suggestion made that the level of increase in traffic associated with one additional dwelling on the review site will not be able to be accommodated on the surrounding road network. For these reasons I find that the proposed development will appropriately provide for car parking and traffic movements.

1. The grounds advanced by the Council in this proceeding may be reasonable and appropriate to apply to the proposed development of a site outside the boundaries of the Council's highest order activity centre. However, the character outcomes expected within a neighbourhood within the boundaries of the Glen Waverley Major Activity Centre should be different, although in this case the proposed development is also a very reasonable response to the manner in which the nearby properties have presently been developed.
2. When the Council made its original decision to refuse to grant a permit, Amendment C120 to the Monash Planning Scheme had not yet been gazetted, and the review site was not located within the boundaries of the activity centre. This is reflected in the Council's delegate report which does not mention the activity centre. It is symbiotic of the Council's approach to this proceeding to note that Council's position in relation to the proposed development did not change at all, having regard to the subsequent inclusion of the review site and the broader neighbourhood within the boundaries of the Council's highest order activity centre. In my view a different approach is required to such properties, to encourage the built form outcomes that are expected by policy, and the Monash Housing Strategy, within this activity centre location.
3. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

1. Before the development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. The submitted plans must clearly delineate and highlight any changes. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the advertised plans but modified to show:
   • (a) The provision of a 6.7 m front setback to the ground floor of Dwelling 1. It is acceptable for this to be achieved by filling in part or all of the ground floor alfresco area, with additional floor space.
   • (b) A corner splay or area at least 50% clear of visual obstructions (or with a height of less than 1.2 metres), which may include adjacent landscaping areas with a height of less than 0.9 metres, extending at least 2.0 metres long x 2.5 metres deep (within the property) both sides or from the edge of the exit lane of each vehicle crossing to provide a clear view of pedestrians on the footpath of the frontage road.
   • (c) Screening of the first floor south facing window serving Bedroom 4 of Dwelling 1 in accordance with the requirements of Standard B22 of Clause 55 of the Monash Planning Scheme, unless it can be satisfactorily demonstrated that treatment is not required to address overlooking issues into neighbouring habitable room windows within 9 metres.
   • (d) Fixed obscure glass to a minimum height of 1.7m above finished floor level to Dwelling 2's north facing and west facing first floor habitable room windows.
   • (e) A sill height of 1.7 metres above finished floor level to Dwelling 1's east facing rumpus room window.
   • (f) The 1.8 metre high picket within the front setback of Dwelling 1 relocated so that it is setback in line with the front façade of the dwelling.
2. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3. All common boundary fences are to be a minimum of 1.8 metres above the finished ground level to the satisfaction of the Responsible Authority. The fence heights must be measured above the highest point on the subject or adjoining site, within 3 metres of the fence line.
4. A landscape prepared by a Landscape Architect or a suitably qualified or experienced landscape designer, drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority prior to the commencement of any works. The plan must show:
   • (a) The location of all existing trees and other vegetation to be retained on site;
   • (b) Provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development;
   • (c) Planting to soften the appearance of hard surface areas such as driveways and other paved areas.
   • (d) A schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material.
   • (e) The location and details of all fencing.
   • (f) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.
   • (g) Details of all proposed hard surface materials including pathways, patio or decked areas.

When approved the plan will be endorsed and will then form part of the permit.

1. The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
2. Before the occupation of the buildings allowed by this permit, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from each driveway onto the footpath. Such a system may include either:

(a) a trench grate (150 mm minimum internal width) located within the property; and/or

(b) shaping the driveway so that water is collected in a grated pit on the property; and/or

(c) another Council approved equivalent.

1. Stormwater discharge is to be detained on-site to the predevelopment level of peak stormwater discharge. Approval of any detention system is required from Council prior to works commencing. Please refer to the notes section of this permit for additional details.
2. The nominated point of stormwater connection for the site is to the south-west corner of the property where the entire site's stormwater drainage must be collected and free drained via a pipe to the 150 mm Council drain in the nature strip via a 900 mm x 600 mm junction pit to be constructed to Council Standards. Note:- If the point of discharge cannot be located then notify Council's Engineering Division immediately.
3. Any new drainage connection into a Council drain requires the approval of the Council's Engineering Division prior to the works commencing. Please refer to the notes section of this permit for additional details. A refundable security deposit of $500 is to be paid prior to the drainage works commencing.
4. Engineering permits must be obtained for new connections to the Council drains and these works are to be inspected by Council (telephone 9518 3555).
5. All new crossings must be a minimum of 3.0 metres in width.
6. The crossing is within 1.50 metres of an adjoining crossing and shall be converted to a double crossing.
7. All new crossings are to be no closer than 1.0 metre measured at the kerb to the edge of any power pole, drainage or service pit, or other services. Approval from affected service authorities is required as part of the vehicle crossing application process.
8. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
   • (a) The development is not started within two (2) years of the issue date of this permit.
   • (b) The development is not completed within four (4) years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] That is, identified for the first time in the Monash Planning Scheme.

[3] Clause 11 of the Monash Planning Scheme

[11] The Monash Housing Strategy 2014 is listed as a reference document at Clauses 21.12 Heritage, 21.13 Sustainability and environment, 22.09 Non-residential use and development in residential areas policy and 22.10 Student accommodation policy, and is referred to within the policy at Clause 21.01 Introduction under the headings 'Maintaining the garden city character' and 'The importance of neighbourhood character and heritage.'

[12] As set out in Clause 55.04-1 of the Monash Planning Scheme