respondent. The decision of the responsible authority was affirmed. No permit was granted for permit application TP07/0067.
Key principles
The Tribunal’s decision was that this seven-dwelling proposal was unacceptable on the particular site, having regard to the planning scheme provisions and the site’s physical and...
Numeric compliance with ResCode standards did not resolve the Tribunal’s concerns where the proposal’s combined design and siting effects were inconsistent with the relevant...
Issues before the court
Whether the proposed dwellings were acceptable in neighbourhood-character terms.
Whether the development would provide acceptable internal amenity and landscaping.
Whether the car parking and vehicle access arrangements were acceptable.
Whether the permit applicant’s review should succeed following the responsible authority’s failure to decide within time.
Cited legislation
1 cited instrument linked from this judgment.
Plain English Summary
The Tribunal refused permission for seven two-storey homes on a sloping site beside Stony Creek. Although the proposal met some numeric standards and had housing-diversity benefits, its walls, layout, limited planting, amenity effects and parking arrangements did not fit the site and surrounding backyards. The Council’s decision was therefore affirmed.
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Deep Dive
2,340 words · generated 02/10/2026
What happened
Taner Manur sought review in the Victorian Civil and Administrative Tribunal after Maribyrnong City Council failed to determine within the prescribed time a permit application for seven two-storey dwellings at 8 Waratah Street, Footscray West. The application was made under section 79 of the Planning and Environment Act 1987. The Council had required notice to adjoining and surrounding owners and occupiers, received 11 objections, and advised that it would have refused the application had it decided it in time (Introduction, paras 1–3).
The site was a 1,549 square metre irregularly shaped block, falling about 4.5 metres from the street towards the rear. It abuts Stony Creek and a reserve. The site had been cleared of its former dwelling and most vegetation, although several trees remained at the rear, including a substantial eucalypt (Subject site and locality, paras 1–4). The surrounding properties were generally timber dwellings, with spacious backyards and vegetation along boundaries. The area also included examples of two-storey homes and more recent multi-unit development (Subject site and locality, paras 5–7).
The proposal placed seven dwellings around a central driveway. Each dwelling had a single garage, with tandem additional spaces proposed for the three-bedroom homes. A separate driveway was proposed for the front dwelling, together with one visitor car space (Proposal, paras 1–5).
The planning controls included a Residential 1 zone and an Urban Floodway zone, with the latter affecting a strip along the creek-side rear boundary. A dwelling was a prohibited use in the Urban Floodway zone. The site was also affected by the Land Subject to Inundation Overlay and a Development Contributions Plan Overlay. Melbourne Water did not object, subject to conditions if a permit were granted (Planning Scheme Provisions, paras 1–4). The Tribunal also considered state and local planning policies, Clause 55, and the decision guidelines in Clause 65.
The Tribunal affirmed the responsible authority’s decision and ordered that no permit be granted. Its reasons were not based on one isolated feature. The Member considered the proposal too intensive for this particular site, in part because its built form and access arrangement did not respond to the site’s flood and landscape constraints or the surrounding backyard pattern (Conclusion, paras 1–5).
Why the court decided this way
The Member recognised positive planning considerations. The site was relatively large, other multi-unit housing existed in the broader locality, the proposal would contribute to housing diversity and urban consolidation, and bus services were accessible. The Tribunal did not consider the distance to the nearest train station or major retail centre particularly problematic for increased housing (Basis of Decision, Introduction, paras 3–4).
Those considerations were balanced against the site’s constraints and its setting. The Tribunal accepted that residential intensification had some policy support, but considered that policy support for intense development was weaker than it would be at locations better served by public transport or closer to activity centres. The site’s irregular shape, slope, flood liability and creek abuttal also affected the intensity it could accommodate (Basis of Decision, Introduction, paras 5–7).
Neighbourhood character was a central issue. The Member accepted that the locality had varied building styles, including single- and two-storey homes and different external materials. The Tribunal was not opposed in principle to a two-storey form or the proposal’s contemporary architectural style. Its concern was more specific: the relationship of the development to the adjoining properties, especially their backyards (Neighbourhood character, paras 1–3).
Relying on the approach it had previously expressed in Withington v Bayside CC [2005] VCAT 1278, the Tribunal assessed neighbourhood character “in the round”, including the amenity of abutting backyards, rather than looking only at the street-facing appearance (Neighbourhood character, para 4). It found the area’s spacious backyards, modest outbuildings and boundary vegetation to be important contextual features. In its view, the proposal did not respond meaningfully to those features (Neighbourhood character, para 5).
The Member noted that the proposed boundary walls complied with the numeric length limits in ResCode Standard B18. However, she considered their combined length, height and closeness to the boundaries excessive in this setting. In particular, the proposal included tall walls and a balcony screen near the southern boundary, and substantial lengths of built form on or close to that boundary. The resulting visual bulk was inconsistent with the spacious backyard feel of the neighbouring property and nearby allotments (Neighbourhood character, paras 6–10). The Tribunal also identified two-storey walls with close side setbacks as adding to the bulk concerns (Neighbourhood character, para 12).
Potential effects on neighbouring vegetation were another concern. The Member observed trees close to proposed boundary walls on both sides, including a large gum tree at No. 10 and cypress trees at No. 6. No arboricultural assessment of the proposal’s effects on that vegetation had been provided. In the Tribunal’s view, the layout appeared to depend on neighbouring landscaping to soften the development, rather than providing a sufficiently responsive landscape outcome within the site (Neighbourhood character, paras 13–15).
Landscaping opportunities within the development were also limited. The long driveway had little or no planting space between pavement and buildings, meaning that the internal environment would be dominated by paving and built form. The remaining substantial tree on the site was also to be removed to accommodate Unit 5. The Member considered a site-responsive design should assess existing trees’ health and landscape value before designing around those identified as worthy of retention (Landscaping opportunities, paras 1–5).
The Tribunal identified a range of internal amenity issues. Habitable-room windows, including bedroom windows, were close to the driveway, creating potential acoustic concerns. The visitor space was close to the windows of Unit 1’s family room and kitchen. Entries to most dwellings were not readily identifiable and lacked adequate shelter or transitional space. For Units 4 and 5, the positioning of tandem spaces further affected the entries, and the ground-floor façades were dominated by garage doors (Acoustic amenity and Dwelling entries, paras 1–4).
The private open-space provision for Units 4 and 5 met the numeric standards, but the Member considered its arrangement poor. The principal ground-level and intermediate terrace areas were not conveniently accessible from the main living areas, which were upstairs. The laundry arrangement also made access to the backyard clothesline inconvenient (Private Open Space, paras 1–2).
The Tribunal did not accept the objectors’ suggestion that additional traffic would cause “traffic chaos”. It described Waratah Street as a low-speed environment and had not been given evidence that the traffic could not be absorbed by the surrounding road network. But it remained concerned about the convenience and operation of the on-site parking layout. Although the number of spaces met the numeric standards, the visitor space could require reversing out of the site, and the three-bedroom units all relied on tandem parking. The proposed reversing area for Unit 4 also raised unresolved flood-related questions because of its relationship to levels and Melbourne Water’s conditions (Car parking and vehicle access, paras 1–6).
Before and after state of the law
The judgment is a site-specific VCAT planning decision, not a legislative amendment. The source does not identify a change in the law before or after the decision, nor does it describe a binding rule that altered the planning scheme. It records the planning controls and policy framework the Member applied in February 2008.
The decision explains that the proposal was assessed in a Residential 1 zone where a permit was required for two or more dwellings and Clause 55 applied. The Tribunal described the Clause 55 requirements as requiring development to meet the objectives and stating that it should meet the standards. It also records that a dwelling was prohibited in the Urban Floodway zone, that works there generally required a permit, and that the Land Subject to Inundation Overlay imposed further permit and referral requirements (Planning Scheme Provisions, paras 1–4).
The practical point from this decision is not that numeric standards ceased to matter. The Member expressly considered numeric compliance, including boundary-wall length and car-parking numbers. Rather, numeric compliance did not answer the broader assessment. The Tribunal still considered the combined effects, the relevant objectives, the site conditions, neighbouring amenity and the decision guidelines (Neighbourhood character, paras 6–10; Car parking and vehicle access, paras 3–6).
The decision also records the use of a “round” assessment of neighbourhood character, including backyard amenity, by reference to Withington. It does not establish from the provided text how later tribunals or courts developed that approach. No post-2008 cases or subsequent legislative changes are supplied in the judgment text, so a before-and-after account beyond the planning framework described here cannot be established from this source alone.
Key passages with plain-English translation
The Tribunal referred to the proposition that neighbourhood character should be assessed “in the round”, including the amenity of adjoining backyards, not just the street. In plain English, a design may have an acceptable street appearance yet still have unacceptable effects on the private outdoor areas and setting of neighbouring homes (Neighbourhood character, para 4, quoting Withington).
The Member acknowledged that the proposed boundary-wall lengths met the numeric ResCode standard, but still found the number and combined length of walls excessive for the spacious backyard setting. In plain English, satisfying a dimensional limit did not automatically make the overall arrangement acceptable in its particular context (Neighbourhood character, paras 6–10).
The Member considered that the site design should first assess the health and landscape value of existing trees, then design around trees worth retaining. In plain English, the Tribunal regarded vegetation assessment as part of designing the development, especially beside a watercourse and where mature backyard trees were a feature (Landscaping opportunities, paras 3–5).
The conclusion that the proposal was “simply trying to squeeze too much development onto this site” summarised the cumulative assessment. In plain English, the problem was not merely the number of homes in isolation, but the fit between the proposal’s intensity and this site’s constraints, neighbours and landscape context (Conclusion, paras 1–5).
What fact patterns trigger this precedent
The reasoning may be relevant to planning assessments involving multi-dwelling proposals where a site adjoins established residential backyards and the effects are not apparent from the street alone. The judgment specifically addressed a location where neighbouring properties had spacious backyards, modest outbuildings and vegetation near shared boundaries (Neighbourhood character, para 5).
It may also be relevant where a proposal’s walls comply with numeric limits but their combined length, height, proximity and relationship to adjoining land remain disputed. Here, the Tribunal focused on cumulative visual bulk and the context of the neighbouring backyards, rather than treating numeric compliance as conclusive (Neighbourhood character, paras 6–12).
Other potentially comparable features include a long internal driveway with limited planting space; habitable-room windows close to vehicle movements; entries that are difficult to identify or lack shelter; and private open space that meets a numerical requirement but is inconveniently connected to living areas. The decision addressed each of those design characteristics in the context of this proposal (Landscaping opportunities, paras 1–5; Acoustic amenity and Dwelling entries, paras 1–4; Private Open Space, paras 1–2).
The flood-related discussion may be relevant where changes to vehicle access or reversing areas interact with flood levels, floodplain controls or referral-authority conditions. The Member did not determine that the proposed works were impossible. She recorded that their flood implications and Melbourne Water’s views remained unknown (Car parking and vehicle access, para 6).
These are features the Tribunal considered in this case, not a substitute for assessment under the controls applying to another site. The judgment’s outcome depended on the particular proposal, evidence and planning scheme context before the Member.
How later courts have treated it
The judgment identifies several earlier VCAT decisions. The Member stated that she had taken account of the decisions relied on by the applicant concerning neighbourhood character: Lindstrand Pty Ltd v Hume CC [2004] VCAT 793, Rita Kalamaras-Lebeiss v Monash CC & Ors [2001] VCAT 1913, and Australand Holdings Pty Ltd v City of Boroondara and Crow & Ors (1997/47741) (Neighbourhood character, para 1 and footnote 3). The text does not set out their reasoning or explain how the Member applied each one individually.
The Member expressly invoked Withington v Bayside CC [2005] VCAT 1278 for the approach of assessing neighbourhood character “in the round”, and then applied that approach to the backyard impacts in this case (Neighbourhood character, para 4). The judgment provided here contains no later decisions, appeal history or account of subsequent judicial treatment. Accordingly, it cannot establish how later courts or tribunals have treated Manur itself.
Still-open questions
The judgment leaves some factual matters unresolved. It notes that the outbuilding at No. 10 Waratah Street appeared to be habitable and that its status should be confirmed for any redesign, but it did not decide that question (Neighbourhood character, para 10). It also records that no arboricultural assessment was supplied to determine the proposal’s impacts on neighbouring trees (Neighbourhood character, para 14).
The source does not describe a revised proposal or determine whether a different dwelling number, layout or building envelope could be acceptable. Nor does it decide whether the identified amenity and parking shortcomings could be addressed through design changes. The decision is that this proposal was unacceptable on the material before the Tribunal.
The flood-related access issue was also unresolved. The Member identified proposed levels, existing ground levels and Melbourne Water’s conditions, then noted that the consequences of the reversing-area works and the flood authority’s views were unknown (Car parking and vehicle access, para 6). The judgment therefore does not supply a final technical finding about whether those works could be designed consistently with the relevant flood conditions.
Finally, the supplied judgment text does not establish the later history of the case or changes to the relevant planning controls after February 2008. Any current assessment would require checking the applicable planning scheme and later legal materials, which are not included in this source.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (43 paragraphs)
[1]
Manur v Maribyrnong CC [2008] VCAT 194 (12 February 2008)
[2]
Application under Section 79 of the Planning and Environment Act 1987 (the Act) against a failure to determine the application within the prescribed time; Residential 1 zone; Urban Floodway zone; Land Subject to Inundation Overlay; Seven two-storey dwellings proposed; Site abuts Stony Creek and Reserve; Clause 55; Neighbourhood character; Bulk and scale; Site layout and internal amenity; Landscaping opportunities and impact on neighbouring trees; Car parking and traffic.
[3]
C Kwas; D M Kwas; L Risteski; K Tyson; A Ly; M Bradley; F Hoyland; J Cruzkshank; N Steward; P Rodgerson and B Murphy; Melbourne Water.
The decision of the Responsible Authority is affirmed. In permit application TP07/0067 no permit is granted.
[6]
Mr Spiro Neofitou, town planning consultant of Planning Vision
[7]
Mr Gintara Simkus, town planning consultant of Direct Planning
[8]
C and M Kwas in person and on behalf of K Tyson; A Ly; M Bradley; F Hoyland; J Cruzkshank; N Steward; P Rodgerson and B Murphy;
[9]
This case concerns a proposal to construct 7 new double storey dwellings on a 1549sq.m fan shaped block in West Footscray that adjoins the Stony Creek and a Reserve.
The Council required notice of the application to be given to the owners and occupiers of adjoining and surrounding properties and 11 objections were received. The Council did not make a decision within the prescribed time but advised that had it been in a position to do so, it would have refused the permit application.
Taner Manur, the permit applicant is now seeking this review.
In essence, the key issues for consideration in this case are whether:
The design and siting of the new dwellings is acceptable in neighbourhood character terms;
The development will offer future occupants good levels of internal amenity;
Landscaping and vegetation retention is acceptable;
The carparking and vehicle access arrangements are acceptable.
[10]
At the commencement of the hearing, Mr Neofitou sought leave to substitute the application plans with plans previously circulated to the parties and the Tribunal on 16 November 2007.
There being no objections from any party, I amended the application for permit by substituting the plans as requested.[1]
[11]
The review site is an irregular shaped lot with a frontage of 15.24m, rear west boundary dimension of 37.63m and sideages ranging in length from 57.73m to 65.34m. The land is located on the south-west side of Waratah Street, West Footscray at a bend in the road.
The site has been cleared of all buildings (formerly occupied by a single weatherboard dwelling) and most vegetation, except for several trees towards the rear of the site including a large eucalypt near the southern boundary. The land falls by about 4.5m from front to back.
A registered restrictive covenant encumbers the title but it relates to quarrying and the carrying out of noxious trades. It has no bearing on this proposal.
The Stony Creek and an associated reserve with an informal walking track abut the rear of the site.
Abutting properties to the north and south are developed with timber dwellings. No. 10 Waratah Street (south) also has a brick garage located on the common boundary and a small fibro bungalow in the back yard near the common boundary. There are a number of trees on this neighbouring site growing close to the common boundary at the rear.
To the north, No. 6 Waratah Street is developed with a single storey weatherboard dwelling with a substantial amount of boundary planting along the fenceline adjacent to the review site.
The area more broadly is developed with housing, comprising many timber homes either one or two storeys in scale. Two large unit developments comprising 2-storey brick dwellings have been recently constructed on the opposite side of the street further to the south-east.
Waratah Street is accessed from Somerville Road to the south and connects with Beaumont Parade to the north. The street contains a number of speed humps and double lines exist along much of the carriageway.
[12]
This proposal is for the construction of seven double storey dwellings. Four of the units would have two bedrooms and the remaining three are to have three bedrooms.
The units are arranged on either side of a centrally located driveway. Unit 1, the front dwelling, also has a separate driveway and cross-over close to the northern boundary.
Each dwelling is to be provided with a single car garage and in the case of the three bedroom units, a second car space in a tandem arrangement is also proposed.
A single visitor car space is shown on the south side of Unit 1.
Every unit has either a garage wall or a portion of the dwelling itself located on a side boundary.
Private open space areas are provided primarily at ground level except in the case of Unit 7 which is to have an upper level terrace with an area of just over 15sq.m.
The units are to be constructed of brick at ground level while the upper level is to be clad in either weatherboard or finished with render. Concrete tiles are proposed to most roofs. Some flat portions of roof appear as though they will be clad in metal decking.
[13]
The land is within two zones - a Residential 1 zone and an Urban Floodway zone. The Urban Floodway zone affects about a 5m wide band along the full length of the rear boundary adjacent to the creek reserve.
In a Residential 1 zone, a planning permit is required to construct two or more dwellings on a lot. Such applications must meet the requirements of Clause 55 of the Scheme (Rescode). These requirements are that a development must meet the objectives and should meet the standards of that clause.
In an Urban Floodway zone, a planning permit is required for most buildings and works. A limited number of uses are permitted in the zone. A dwelling is a prohibited use.
As well as protecting water quality and identifying waterways, major flood paths and high hazard areas exposed to the greatest risk and frequency of flood events, one purpose of the Urban Floodway zone is:
[14]
To ensure that any development maintains the free passage and temporary storage of floodwater, minimises flood damage and is compatible with flood hazard, local drainage conditions and the minimisation of soil erosion, sedimentation and silting.
[15]
In this zone, permit applications require referral to the relevant floodplain authority - in this case Melbourne Water. This authority has not objected to the current proposal subject to the inclusion of various conditions on any permit granted.
The site is also affected by two overlays. They are the:
Land Subject to Inundation Overlay (LSIO); and
Development Contributions Plan Overlay - Schedule 5 (DCPO5).
The LSIO affects the rear third of the site. A planning permit is required to construct a building or to carry out works, including a fence and road works and applications require referral to Melbourne Water
Under the DCPO all new development attracts a levy for the provision of community infrastructure. As this was not a contentious part of this application it is unnecessary to say anything more about this overlay.
There are a number of State planning policies relevant to this case and I have taken them into account.[2]
Local planning policies of most relevance are to be found at:
Clause 21.04-1 - Residential Land Use; and
Clause 21.043 - Open Space
Clause 22.01 - Residential 1 Zone Land Use and Development Policy.
In essence, housing related policies encourage the provision of diverse housing types as well as affordable housing. This is to be balanced against high standards of urban design in new developments, as well ensuring that increased housing densities will not result in a decline in amenity of adjoining houses. The Residential Land Use Framework Plan (Clause 21.04-1) identifies various precincts where new housing development is to be encouraged to varying degrees. This site is within a "Residential Redevelopment Area".
The need to preserve and enhance natural features including waterways and riparian corridors are other policy objectives.
In relation to Stony Creek, policies seek to:
increase opportunities for public access including the provision of safe and attractive pathways along full length of the Stony Creek; and
improve planting and stream quality.
Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering permit applications. Of relevance are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.
[16]
The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.
Before turning to the key issues in dispute, I begin by observing that there are a whole suite of site and contextual factors that require consideration when determining the acceptability of proposals like this.
As pointed out by Mr Neofitou, it is true that there are a number of positive attributes that weigh in favour of the site's redevelopment. This is a relatively large site and other multi-unit development is evident in this neighbourhood, such as the 2-storey units at 19 and 21 Waratah Street built in recent years and large flat developments from the 1960's/1970's at No.'s 13 and 15 Beaumont Parade.
This development would also advance dwelling diversity and urban consolidation objectives. The site is within an established residential area and has access to several bus services along Geelong Road and Roberts Street within 200m. While the nearest train station (Tottenham) is 1.2km away to the north-west and the nearest major retail centre (Central West Plaza) is about 1.7km away, I do not regard these distances as particularly problematic in terms of the site's suitability for an increased level of housing.
On the other hand, I agree with Mr Simkus' submission that there is not policy support for an intense development of this site compared to other locations better serviced by public transport and in or close to appropriate activity centres.
The site also has a number of physical and environmental constraints and these temper the intensity of development. These constraints include the site's liability to flooding, irregular configuration, sloping topography, and abuttal to Stony Creek. In addition, any development must respond to key contextual factors including the open back-yard character or feel of properties in this locality.
I have come to the conclusion that this proposal has not responded to these circumstances appropriately and is not acceptable for a number of reasons which I will now explain.
[17]
Is the design and siting of the new dwellings acceptable in neighbourhood character terms?
[18]
Mr Neofitou submitted that "the existing neighbourhood character comprises of a mix of dwellings of different styles, forms and proportions". He argued that new development will inevitably bring with it some change but that respecting neighbourhood character does not mean preventing change. In support of these arguments he referred to a number of Tribunal decisions and I have taken these into account.[3]
I agree with Mr Neofitou that there are a number of different dwelling styles evident in the area. There are examples of both single and two-storey buildings nearby constructed of brick or timber and which have evolved over a broad time span. In the immediate vicinity of the site, many dwellings are however timber and most are of modest proportions. The recent two-storey unit developments at No.'s 19 and 21 Waratah Street are located some distance away. In my view these newer dwellings exert a lesser influence over the review site than the dwellings generally in the precinct between Hatfield Crt and Beaumont Parade. Nevertheless in principle, I do not hold particular concerns about the presence of a two-storey building and the overall architectural style of this development in this part of the streetscape. A mix of brick, timber and render to external walls is proposed together with tiled pitched roofs. This is a contemporary design response not uncommonly found on infill sites of this kind within established suburbs.
I do however have some reservations about the visual bulk of Unit 1 relative to its neighbours in streetscape terms. This unit's two-storey wall has a front setback of 5m compared with the 5.5m average suggested under ResCode (Standard B6). This new wall would sit further forward of both neighbouring dwellings which are single storey and have front setbacks ranging from 6m to 7.7m. Further, the upper level wall sits on the same plane as the ground floor wall below - contributing to my concerns about the bulk of this unit.
My greatest concerns with this proposal in neighbourhood character terms revolve around the back-yard impacts upon neighbouring properties. As I said in the case of Withington v Bayside CC[2005] VCAT 1278:
[19]
43. ...an assessment of neighbourhood character ought to be undertaken 'in the round'. That is, any assessment should not be limited to streetscape impacts but rather, the amenity of abutting properties including back-yards must also be considered.
[20]
Neighbouring development and indeed the eight other allotments on this side of Waratah Street with abuttal to the Creek are characterised by spacious back-yards with dwellings that occupy either the front third or half of allotments. While outbuildings are not uncommon in back-yards, these are typically modest structures. The presence of vegetation on neighbouring land along boundaries in common with the review site is another key characteristic. All of these features are important influences to which any development must respond in a meaningful way. I consider that this proposal is not respectful of these features.
Primarily, I am concerned about the number and height of walls located on or close to both side boundaries in terms of visual bulk and impact on neighbouring vegetation.
In relation to walls located on boundaries, I acknowledge that their total length complies with the numeric ResCode standard (B18) at Clause 55.04-2. On the north side, the ResCode standard would allow 23.83m while the length of walls total 19.2m. On the south side, these dimensions are 21.93m while 17.2m is proposed. Notwithstanding their numeric ResCode compliance, I consider that the number and combined length of walls on these boundaries to be excessive in the context of the spacious quality of back-yards that characterises both neighbouring sites and other properties on this side of Waratah Street.
Moreover, although the proposed length of walls on boundaries meets ResCode Standard B18, their height on the south boundary does not. The relevant part of this Standard states that walls on or within 150mm of side or rear boundaries:
[21]
... should not exceed an average of 3 metres with no part higher than 3.6 metres unless abutting a higher existing or simultaneously constructed wall.
[22]
On the south side, walls associated with Unit 5 and 6 have a height ranging from 3m to 3.6m, Unit 7's garage would have a height of 4m to 4.4m. In relation to the latter wall, a balcony screen proposed atop the garage would bring the height of this structure on the south boundary to 6m. Unit 7's bedroom 1 is to have a height ranging from 3.1m to 3.4m.
The combined length of these walls and their height is quite significant and uncharacteristic of development in this part of Waratah Street. Their dimensions, together with the minimal side setbacks ranging from 1m to 1.74m for the remaining walls at ground and first floor level would give rise to unreasonable visual bulk.
In short, I find that locating 33m of buildings on or within 1.7m of the south boundary to be at odds with the spacious backyard feel of No. 10 Waratah Street and other properties nearby. The presence of outbuildings on the neighbouring southern property does not change my view about this. Those buildings are modest single storey structures and do not have a visually dominating appearance. On a related point, the outbuilding at the rear of No. 10 appears to be habitable. It has curtained windows and an air conditioner. In any redesign, the status of this building (that is whether it is habitable or not) should be confirmed so that a proper assessment of the proposal's impacts upon this neighbouring structure can be determined.
Contributing to the concerns I have identified, two-storey walls of Units 4, 5 and 6 have side boundary setbacks that either do not comply or achieve only marginal compliance with Standard B17 of ResCode. For example, Unit 5 would have a 6.5m high wall 1.74m from the south boundary and Unit 4's two-storey wall would have a 6m height just 1.66m from the north boundary.
A second concern related to the siting of walls on or close to boundaries is the impact on neighbouring vegetation. During my inspection, I observed several trees such as a large gum tree in the neighbouring property to the south (No. 10 Waratah Street) proximate to the boundary walls of Units 5 and 6 and cypress trees in the backyard of No. 6 Waratah Street proximate to the boundary wall of Unit 4.
No arboricultural assessment of this proposal's impact on neighbouring vegetation accompanied this application - a concern raised by Mr and Mrs Kwas who own No. 6 Waratah Street. Consequently I am unable to conclude that this proposal has been sensitively designed to take into account the presence of neighbouring vegetation.
[23]
Will the development offer future occupants good levels of internal amenity?
[24]
Mr Simkus submitted that the appearance and layout of driveway and parking facilities would be poor. This in turn and would result in poor levels of amenity capable of being enjoyed by future occupants of the development. The design of front entries and private open space arrangements were also criticised.
I will deal with each of these matters in turn.
[25]
I agree that the opportunity for any significant landscaping within driveway areas is poor. Planting beds between units and the driveway pavement are minimal or non-existent, limiting scope for tree planting in this area. The implications of this are twofold.
Firstly, the internal streetscape will be dominated by paving and buildings. I regard that outcome as inconsistent with the landscape character of this neighbourhood and this site which abuts Stony Creek. While planting is possible at the rear of the site, scant planting opportunities exist within the driveway which extends for a distance of nearly 50m between the space at the rear and the front setback area.
On a related point, in a letter dated 19 November 2007, the Tribunal was informed by the Council that "the appeal site has been cleared of all buildings and majority of vegetation". My inspection confirms this. While it is always difficult to confirm the health and worth of trees that have been removed in such circumstances, and thus whether trees were removed to gain a development advantage,[4] the site analysis plan indicates that a number of large trees existed on the site, including an 8m high elm, 7.5m high eucalypt, 9m high deciduous tree and various other trees. As I have mentioned, in addition to some smaller trees along the rear boundary, only one substantial tree remains on the site - a eucalypt which has a height of about 9m in the site's south-west corner. That tree would also require removal due to the siting of proposed Unit 5.
I do not regard this situation as altogether satisfactory. I consider that a site responsive design would firstly involve an assessment of the health and landscape value of existing vegetation, especially the large trees which appear to have once existed on this site. The sensitive design of buildings taking into account the location of trees identified as being worthy of retention should then follow.
That approach is particularly important in locations like this adjacent to a watercourse, in a context where large trees in backyards are a feature and with consideration to the ResCode landscaping objectives at Clause 55.03-8 which state:
[26]
To encourage development that respects the landscape character of the neighbourhood.
[27]
To encourage development that maintains and enhances habitat for plants and animals in locations of habitat importance.
[28]
To encourage the retention of mature vegetation on the site.
[29]
Secondly, many habitable room windows, including master bedrooms, are to be located close to the driveway pavement, with potential acoustic amenity implications. This would be contrary to Standard B15 of ResCode and one objective under Clause 55.03-10 which is:
[30]
To protect residents from vehicular noise within developments.
[31]
Similarly, I also regard the position of the visitor car space close to Unit 1's south facing family room and kitchen windows as poor.
[32]
I also share the Council's concerns with the design of front entries. At Clause 55.05-2, ResCode Standard B26 states that:
[33]
Entries to dwellings and residential buildings should:
[34]
Be visible and easily identifiable from streets and other public areas.
Provide shelter, a sense of personal address and a transitional space around the entry.
[35]
Except for Unit 1, unit entries are not well defined or readily identifiable, offer poor levels of transitional space around them and in some cases provide little or no shelter. The positioning of neighbouring tandem car spaces adjacent to the entries of Units 4 and 5 add to my concerns with the visibility and amenity of these entries.
In the case of Units 4 and 5, the ground level façades are also dominated by a garage door, an outcome I regard as poor from an internal streetscape perspective.
[36]
While the amount of private open space provision complies with the relevant numeric ResCode standards for each unit, I consider the proposed arrangement in respect of Units 4 and 5 to be poor. For these units, three areas of private open space are proposed in the form of a substantial ground level area, a terrace at an intermediate level and 4.5sq.m of balcony space at the upper level. However the main private open space at ground level and the terrace areas are not conveniently accessible from a living room given the siting of main living areas on the upper level.
I also note that these units are provided with a laundry under a stair case at ground level. External access to any clothes line in the back yard would need to occur by either exiting via the front door or by going through the master bedroom. I do not think this is a good functional layout.
[37]
Are the carparking and vehicle access arrangements acceptable?
[38]
Objectors raised concerns about the adequacy of on-site parking. It was also submitted that the extra traffic generated by the new dwellings would cause road safety and amenity problems in Waratah Street.
I do not think that the additional traffic would result in traffic chaos within Waratah Street, as feared by objectors. This is a low speed environment and I have not been provided with any evidence that the traffic generated by this development could not be readily absorbed into the surrounding road network.
I do however have some concerns with the convenience of the proposed on-site car parking arrangements. I firstly acknowledge that the number of car parking spaces proposed to service this development complies with the relevant numeric ResCode standards.
I consider that the location of the visitor car space is poor - if tandem spaces in front of garages are occupied, visitors exiting from this space will need to reverse from the site. I do not regard that as a particularly convenient arrangement.
While ResCode also contemplates the provision of tandem car spaces, all three bedroom units rely on this configuration - an approach I regard as undesirable in the particular circumstances of this case. I say this because tandem parking is a less convenient arrangement than the parking of vehicles side by side. Residents of these units will however have limited choice other than to park in this way instead of kerbside for short stays, given the presence of double lines along many places in Waratah Street.
Modifications would also need to be made to the location of Unit 4's entry steps which presently restrict reversing movements from Unit 5's garage. A reversing bay would also need to be provided at the western end of the driveway to facilitate reversing movements from Unit 4's garage. These works would appear to encroach on land within the Urban Floodway Zone and below the applicable flood level of 13.1m AHD. In doing so, I observe that:
Unit 4's garage floor level is proposed at 13.3m;
existing natural ground level within the required reversing area is approximately 12.45m AHD (850mm lower than Unit 4's garage level);
conditions required by Melbourne Water on any permit issued include that:
driveways are to be no more than 350mm below flood level (i.e. no lower than 12.95m AHD but at least 0.5m higher than existing ground level);
[39]
This development would not be responsive to the spacious backyard character of surrounding dwellings. The length and height of walls on or close to side boundaries is excessive, would be visually bulky and may adversely impact on neighbouring vegetation. Opportunities for landscaping within the site are limited and contextually would not be commensurate with the landscape character of neighbouring land.
There are also a number of shortcomings with the internal layout and levels of amenity capable of being offered to future residents. These include the design of dwelling entries, proposed driveway configuration relative to the positioning of habitable room windows and private open space arrangements for Units 4 and 5.
While the number of car parking spaces proposed on the site is adequate, the siting of visitor and tandem spaces would not offer convenient and efficient movements.
Given my findings, I consider that this proposal is simply trying to squeeze too much development onto this site.
For the reasons I have set out, the decision of the Responsible Authority is affirmed. I will direct that no permit is to issue.
[2] These statewide policies include Clause 11 (Introduction), Clause 12 (Metropolitan Development); Clause 15.12 (Energy Efficiency) and Clause 16.02 (Housing).
[42]
[3]Lindstrand Pty Ltd v Hume CC[2004] VCAT 793; Rita Kalamaras-Lebeiss v Monash CC & Ors[2001] VCAT 1913; Australand Holdings Pty Ltd v City of Boroondara and Crow & Ors (1997/47741)
[43]
[4] One decision guideline under the ResCode landscaping objective at Clause 55.03-8 is whether a tree was removed to gain a development advantage.
Parties
Applicant/Plaintiff:
Manur
Respondent/Defendant:
Maribyrnong CC [2008] VCAT 194
Legislation Cited (1)
Environment Act 1987
AI Analysis
Outcomerespondent
Disposition:
The decision of the responsible authority was affirmed. No permit was granted for permit application TP07/0067.
Indeed it would seem that given the number and length of walls sited on or close to side boundaries, particularly on the south side, this proposal seems to rely on borrowed landscaping from its neighbours. I do not regard that outcome as reflective of a "development that respects the landscape character of the neighbourhood" - the first ResCode objective for landscaping at Clause 55.03-8.
It is primarily for these reasons that I conclude that this proposal should be refused.
fill is to be kept to a minimum below the 13.0 metre contour.
While such works may be possible, in light of these conditions the flood related implications of these works and therefore Melbourne Water's views are unknown.