Munjal v Casey CC [2010] VCAT 1026

1. The decision of the Responsible Authority is affirmed.
2. In permit application P328/09 no permit is granted.

Mr How Ng, planning consultant of Melbourne Planning Pty Ltd.

The proposal is for the development of a single storey dwelling to the rear of the existing dwelling and subdivision of the land into two lots. The new dwelling would have an attached double garage, accessed via an extended driveway within the eastern boundary.

Application under Section 77 of the Planning and Environment Act 1987.

Development Contributions Plan Overlay (Schedule 2)

Clause 32.01-4: construct two or more dwellings on a lot

Clauses 12, 14.01, 16.02, 19.03. 22.05, 22.15, 55 and 65.

The subject site is located on the south-west side of a bend in Michelle Drive, approximately 200m west of Amber Drive, Hampton Park. It is a wedge-shaped lot, with a curved frontage of 12.5m and a maximum depth of approximately 49m, yielding an area of 703m2.

There is a single storey brick veneer dwelling at the front of the site. A carport has recently been erected between the dwelling and the frontage. Another carport and a garage to the rear are accessed via a driveway within the eastern boundary. At the frontage is a 1.2m-high picket fence above a 600mm-high retaining wall. The site is devoid of vegetation, except for a eucalyptus tree within the rear boundary.

The site is within an established residential area. Peppercorn Park abuts the western boundary.

On 2 March 2010 I undertook an unaccompanied external inspection of the subject site and the locality.

RR Long Planning v Monash CC [2000] VCAT 810.

George Damaskos v Monash CC [2000] VCAT 1535.

1. Umesh Munjal applied to the Casey City Council for permission to construct a second dwelling and subdivide the land at 17 Michelle Drive, Hampton Park.
2. The Council did not receive any objections in response to the giving of notice of the application,
3. The Council's delegate adopted the planning officer's recommendation that the application be refused. A Notice of Refusal to Grant a Planning Permit was issued on 24 August 2009. The reasons for refusal referred to

non-compliance with six specific aspects of Clause 55 and overdevelopment of the site. 4. The permit applicant seeks a review of the Council's decision. 5. Since the lodgement of the application for review, the applicant has circulated amended plans that I allowed to be substituted.[1] Amongst other things, the substituted plans show the removal of the front fence, the covered verandah of the existing dwelling replaced with an open pergola, screening of windows adjacent to the driveway and the siting of the new dwelling altered to provide a larger area of private open space with a northern aspect. 6. A Landscape Planting Plan was tendered at the hearing. 7. In the light of the submissions, and my inspection, I consider that the principal issue to be determined is whether the proposed design incorporates acceptable car parking and vehicle access arrangements. 8. My finding is that the proposal does not represent an acceptable outcome in terms of car parking and vehicle access. Accordingly, no permit should be issued. 9. In setting out the reasons for my decision I do not recite all of the documentation tendered by the parties, as all material is retained on the Tribunal's file, 10. Before considering the key issue I note that the Council is generally supportive of a dual occupancy development on the subject site. It is quite a large lot. It is reasonably well served by bus routes and community and commercial facilities. In particular, it abuts a reserve available for active and passive recreation. The construction of a second dwelling would, in a small way, further urban consolidation objectives. The single storey scale of the proposed second dwelling is consistent with the predominant scale of development in the neighbourhood. The new dwelling - constructed of brick veneer, with a tiled hipped roof - would complement the existing dwelling. 11. The Council has not argued that the proposal would result in any unreasonable off-site amenity impacts. That reflects the fact that there were no objections as a result of the advertising of the proposal. 12. Furthermore, the substituted plans address some of the concerns arising from the original proposal. In particular, they include: * The removal of the 1.8m-high front fence; * The alteration or screening of the three habitable room windows of the existing dwelling that are adjacent to the extended driveway; and * An 'open pergola', rather than a verandah, over nearly all of the proposed private open space on the western side of the existing dwelling.[2]

Does the proposed design incorporate acceptable car parking and vehicle access arrangements?

1. During the hearing Mr Hobbs advised that while the substituted plans address many of the Council's concerns with the original proposal, the Council remains opposed to the proposed development and subdivision. His submissions focussed on the outstanding concern that the revised design does not incorporate acceptable car parking and vehicle access arrangements. In particular, Mr Hobbs raised concerns about how vehicles would manoeuvre to and from the proposed garage for the new dwelling. He also provided a critique of the proposed reliance on a carport (authorised by a Building Permit issued on 27 March 2009) and open car space at the front of the site.
2. Mr Ng objected to Mr Hobbs making submissions in relation to the carport and open car space on the basis that they were not mentioned in the Council's grounds of refusal. Nevertheless, I allowed Mr Hobbs to make those submissions. I relied on the fact that the grounds of refusal specifically refer to Clause 55.02-5 (Integration with the street objective), Clause 55.03-9 (Access objectives) and Clause 55.03-10 (Parking location objectives) - which raise wide considerations relating to vehicle accommodation and access.
3. At the conclusion of the hearing I reserved my decision.
4. By facsimile to the Senior Registrar on 9 March 2009, Mr Ng raised concerns about the conduct of the hearing and requested that the matter be re-heard with a re-constituted Tribunal including or comprising a legal member. Specifically, Mr Ng argued that the Council had raised a new ground of refusal - objecting to the existing lawfully constructed carport and the car space at the front of the property. He claimed that in order to ensure natural justice the applicant should have the opportunity to rebut the ground and be given the chance to argue whether the Tribunal has the power to entertain argument against the carport and car space. Mr Ng also raised the issue of costs.
5. In response to that further submission I recognised that the wording of the grounds of refusal may not have foreshadowed the nature of the submissions put to me on behalf of the Council. As I also considered that the issue of parking and access would be determinative of the outcome in this review, I decided to give both parties the opportunity to make further submissions on the limited issue of the carport and car space at the front of property. I did not consider that it was necessary to reopen the hearing for that purpose.
6. My order on 15 March 2010 gave the parties the opportunity to make written submissions on the issue of the relevance to my decision of the existing carport and car space at the front of the subject site. In the reasons for that order I indicated that it was not self-evident that there was any legal issue arising from the matters raised by Mr Ng. Nevertheless, I provided Mr Ng with the opportunity to identify any specific question of law to be addressed. The Council was given the opportunity to make a responding submission. I also required the parties to advise whether they disagreed with me deciding any question of law,[3] and indicated that if any party disagreed, the question of law would be referred to a legal member for determination on the papers.

1. In response to my order, on 28 March 2010 Mr Ng (on behalf of the permit applicant/applicant for review) lodged a further submission. Amongst other things, Mr Ng requested that a legal member decide a question of law - formulated by Mr Ng as follows:

As the proposal is for a second dwelling on the land, does the Tribunal have power under cl. 55 of the Casey Planning Scheme Ordinance in assessing the proposed development, i.e. the second dwelling, to consider the existing frontage carport which has vested rights and base its decision on the existence of this carport?

1. On 9 April 2010 the Council's representative lodged a responding submission. Essentially, the Council contended that there is no question of law, but had no objection to me deciding any such question.
2. Given the position taken by Mr Ng, it was necessary to follow the course foreshadowed in my order; that is to refer the 'question of law' to a legal member for determination on the papers.
3. By order dated 6 May 2010 Deputy President Gibson nominated Senior Member Byard as the legal member to determine the question of law.
4. On 7 June 2010 Senior Member Byard's provided his opinion on the question of law, with reasons. It is attached as a schedule to these reasons. Senior Member Byard states:

In my opinion the answer to the question posed to me as a question of law and set out in paragraph 18 (as I have understand that question, and subject to what I have said in that paragraph) of the reasons below is: Yes. To put the question reformulated as I did in that paragraph, in other words, would it be an error of law to take the existing front garden carport into consideration in assessing the application for a second dwelling on the site, the answer becomes: No.

1. My determination of this review has taken into account that opinion, and the associated reasons. I note that Senior Member Byard's determination accords with the view I expressed during the hearing - and the submission of Mr Hobbs - that although the carport was lawfully erected it is appropriate to freshly assess it under Clause 55 as part of the proposed development of the whole of the land. In considering a proposal for a second dwelling there is an opportunity to consider and control the appropriate place for parking.
2. In this instance the need for the overall development to accord with Clause 55 is reflected in the fact that the substituted plans show modifications to the existing dwelling so that, for instance, it has an adequate area of private open space and privacy for the habitable room windows along the common driveway.

1. There are two aspects of the proposed car parking arrangement that need to be assessed - the retention of the existing carport and an uncovered car space within the frontage to service the existing dwelling (Unit 1) and the proposed double garage for the new dwelling (Unit 2).
2. In relation to the car parking for Unit 1, Mr Ng submitted that the ResCode requirement for two car spaces could be satisfied by reliance on the lawfully erected carport and the existing uncovered space in front of the porch. He argued that 'Protruding garages and carports are a norm in the area'. He also suggested that the proposed landscaping within the frontage would 'soften' the visual impact.
3. I do not consider that those factors justify the proposed car parking provision for Unit 1. If there were no existing carport and open car space within the frontage, it would be very unlikely that such an arrangement would have been supported if it were proposed as part of a development application. I appreciate that numerous other dwellings have garages towards the front of the properties. However, as single dwellings they were not subject to a Clause 55 assessment - in terms of neighbourhood character, integration with the street and energy efficiency. Furthermore, as noted by Mr Hobbs, the other instances of car parking within the frontage are invariably 'swing-in' garages (that is, their entries are not facing the street) and under the same roof as the dwelling. Nor do they obscure the windows of the associated dwellings.
4. Mr Ng also tendered photographs suggesting that cars are frequently parked at the front of properties in the vicinity - on paved areas, on front lawns and on nature strips. However, that it not a desirable situation. It does not justify parking at the front of the subject site.
5. The recent erection of the carport and the creation of the open car space have the 'benefit' of allowing an appreciation of the impact of that arrangement. I consider that the arrangement is unsatisfactory and contrary to the relevant Clause 55 standards. In that regard I note the following.
6. The carport is in front of the north-facing windows of the lounge room (a principal habitable room) and would restrict solar access to that room. Use of the uncovered car space (annotated as a visitor space) would hinder access to the porch and entry. Use of the uncovered car space would also potentially conflict with vehicles reversing from the garage of Unit 2. Upon referral of the application, the Council's Traffic Engineering Section advised that the car space 'is poorly located' for that reason.
7. The carport, the uncovered car space and their associated accessways - together with the driveway within the eastern boundary - would amount to an extensive paved area within the frontage. Notwithstanding the proposal to remove the existing high fence and create a landscaped area within the frontage[4], the area devoted to car parking and access would compromise the appearance from the street and is out of keeping with the character of the area. Although there is no local character policy in the Casey Planning Scheme, that finding is consistent with the findings of the Tribunal in the two cases cited by Mr Hobbs.[5]
8. Urban consolidation and increased densities inevitably involve change - particularly to the nature of what is often called the 'backyard realm'. To compensate for that change to the rear, a multi-unit development should provide the benefit of a good interface with the street. I consider that the proposed positioning of car parking areas within the frontage setback fails to deliver in that regard. It would also create an undesirable 'precedent' for the provision of car parking within the frontage on other redeveloped properties in the area.
9. Mr Ng suggested that the plans could be modified so as to remove the carport and just have an open car space in that location. I do not see that as resulting in a good interface with the street. It would also be contrary to the requirement of Standard B16 for each three-bedroom dwelling to have two car spaces, 'with one space under cover'.
10. In relation to Unit 2, Mr Hobbs raised specific concerns regarding the access to and from the proposed double garage. Utilising the turning template for an 85th percentile vehicle and a model car he demonstrated that up to 3 or 4 manoeuvres would be required just to get out of the garage - without hitting the southern wall of the existing dwelling.[6] A car would then have to reverse down the 26m-long driveway (with a width of only 2.8m), potentially past a car parked in front of the porch.
11. Mr Ng suggested that a vehicle could manoeuvre out of the western side of the garage, but could not demonstrate it. He also suggested that the plans could be further modified - perhaps simply by widening the door, or maybe reducing the size of one of the bedrooms and altering the location of the garage - to facilitate access.
12. Nevertheless, I agree with Mr Hobbs that that proposed arrangement does not accord with the first objective of Standard B14 (Access) 'To ensure that vehicle access to and from the development is safe, manageable and convenient.' Nor does it satisfy the objectives of Standard B15 (Parking location) 'To provide convenient parking for resident and visitor vehicles' and 'To avoid parking and traffic the difficulties in the development.'
13. I appreciate that lengthy reverse movements along driveways are not uncommon in suburban situations. The plans could potentially be modified to open up the area available for vehicles manoeuvring out of the garage for Unit 2. However, the existing development is a constraint on the capacity of the site to accommodate two dwellings and their associated car parking.
14. As observed by Mr Hobbs, given the large area of the subject site there should be scope 'to accommodate a second dwelling with a properly functioning garage and driveway layout'. An acceptable outcome may involve a more conventional arrangement - for instance, a garage and tandem visitor space for the existing dwelling to its rear, as well as a garage and turning area for the proposed additional dwelling. Space constraints may mean that only a single garage can be provided for a second dwelling. If so, in order to comply with Standard B16, the second dwelling would need to be restricted to a two-bedroom dwelling. I consider that such modifications would effectively amount to a transformation of the existing proposal. It is not possible to specify appropriate modifications by way of a requirement for plan amendments.

1. It follows from the above reasons that my conclusion is that the decision of the Council should be affirmed and a permit not be granted.

In my opinion the answer to the question posed to me as a question of law and set out in paragraph 18 (as I have understand that question, and subject to what I have said in that paragraph) of the reasons below is: Yes. To put the question reformulated as I did in that paragraph, in other words, would it be an error of law to take the existing front garden carport into consideration in assessing the application for a second dwelling on the site, the answer becomes: No.

1. In this case a member of the tribunal who is a qualified planner (and who incidentally holds a law degree) but who is not a legal practitioner has conducted a hearing and given some interim directions.
2. The case concerns a residential allotment in a Residential 1 Zone. There is an existing detached house on the allotment. It is proposed to construct a second dwelling on the land, behind the existing house. In accordance with the zone provisions found in cl 32.01 of the planning scheme, and in particular, cl 32.01-4 thereof, planning permission is required for such a development. The particular provision states that a permit is required to construct a dwelling if there is at least one dwelling existing on the lot. It will be relevant to note that the permit requirement relates to the whole of an allotment of land, not just part of a lot. The clause goes on to provide that such a development must meet the requirements of cl 55 of the planning scheme. Clause 55 is one of the so called "Rescode" provisions setting out a number of objectives and standards in relation to various considerations of planning merit and amenity. The specified objectives in cl 55 are required to be met whilst the standards represent a means, but not an exclusive means, of meetings such objectives.
3. There is a detached house on the land at present. It is intended to retain this house. The planning scheme does not impose a requirement for planning permission for a detached house on an allotment of the size of this one. That means that a detached house could be constructed or altered on the land without need of planning permission.
4. Of course, a building permit under the building control legislation is another matter altogether. It has purposes distinct from the planning legislation. They include obtaining a permit for the construction of a building. An application for such a permit requires plans and specifications and an assessment to ensure that the building proposed would be safe and sound during construction and after construction. The planning legislation includes many different planning concerns, purposes and policies.
5. Because there is no planning control over the construction of a detached house on a substantial allotment, it is possible, from a planning point of view, to proceed with a construction of a house that has detrimental effects on the amenity of the area. With no planning permit required, it is possible to build a house that is massive, bulky, dominant in the streetscape, out of harmony with the neighbourhood character, and such that it unreasonably overlooks or overshadows neighbouring properties. It is possible to construct front fences that are high, heavy and out of keeping with the neighbourhood character and to construct a garage or carport in a front garden.
6. Where planning permission is required there is control over these things. Where two dwellings are proposed, or a second dwelling behind an existing one, planning permission must be applied for. It is likely to be refused, or there are likely to be requirements for modifications, if the proposal includes adverse features of the sort I have just described, in spite of the fact that an owner might be able to impose them on the situation if the proposal was for a detached house or an extension to a detached house rather than, say, two dwellings.
7. The fact that an owner might be able to get away with such things for a detached house is not regarded as a reason why such impositions and detriments should be allowed where planning permission is required, and where the planning legislation enables them to be prevented.
8. In this case, an application for a building permit was made shortly prior to the application for a planning permit for the second dwelling. This building permit is for the construction of a high fence and a carport in the front garden. A building permit was granted. Presumably, the relevant authority or authorised person considered the building proposal to be acceptable in terms of the building legislation. The building permit having been issued the owner proceeded to construct the carport.
9. Having done so an application was then made for a planning permit for a second dwelling to be constructed in the backyard. The application also sought two-lot subdivision.
10. On 24 August 2009, the responsible authority issued a notice of refusal to grant a planning permit for the second dwelling and the two lot subdivision. It did so specifying the following reasons for refusal:
    1. The proposal will not achieve acceptable outcomes in terms of Clause 55 of the Casey Planning Scheme, specifically:
       • (a) Clause 55.02-5 Integration with the street;
       • (b) Clause 55.03-5 Energy efficiency objectives;
       • (c) Clause 55.03-9 Access objectives;
       • (d) Clause 55.03-10 Parking location objectives;
       • (e) Clause 55.05-4 Private open space objective;
       • (f) Clause 55.05-5 Solar access to open space objective
    2. Based on the above, the proposal fails to respond appropriately to the opportunities and constraints of the site and, the proposed site coverage, extent of boundary walls, etc not withstanding, will be an overdevelopment of the site.
11. It can be noted that the first ground refers to the proposal being unacceptable generally in terms of cl 55 of the planning scheme and then goes on to mention some specific Rescode provisions. The second is in general terms but refers to site coverage and overdevelopment. Utilising front gardens for secluded open space or for accommodating and manoeuvring motor vehicles is frequently a sign of overdevelopment.
12. At the hearing before my colleague, revised plans were submitted which met a number of the concerns of the responsible authority. However, the responsible authority continued to oppose the proposal on certain grounds including that the proposal did not provide acceptable car parking and vehicle manoeuvring arrangement and the carport and car space in the front garden.
13. The town planner appearing for the applicant complained that the responsible authority was thereby raising matters not specified in the grounds of refusal, and without having given other notice. The town planner concerned is an experienced planning practitioner and advocate.
14. I do not intend to determine the question of whether this amounted to the raising of new grounds as opposed to these matters having been implicit in the grounds given and obviously relevant in a way that should have been appreciated by an experienced planning practitioner.
15. The planner advocate subsequently sought a rehearing or reconstitution of the tribunal for a further hearing and for the raising of a purported question of law. The member hearing the case gave directions to enable the parties to make further written submissions, an opportunity that was availed of on behalf of the applicant, including a reply to the answering submission made on behalf of the responsible authority.
16. In my opinion, these arrangements sufficiently satisfy the requirements of natural justice, so far as the conduct of this appeal is concerned.
17. The question of law has been referred to me for my opinion. I am a qualified legal practitioner, and authorised by the legislation to give such an opinion. The matter might have been dealt with by the presiding member, particularly as she holds a law degree and is highly experienced as a planner, including in relation to planning law. However, the permit applicant objected to her determining the matter. That has resulted in the referral to myself.
18. The question posed by the applicant's planner is formulated in the following terms:

As the proposal is for a second dwelling on the land, does the Tribunal have power under cl. 55 of the Casey Planning Scheme Ordinance in assessing the proposed development, i.e. the second dwelling, to consider the existing frontage carport which has vested rights and base its decision on the existence of this carport?

I perceive a certain fuzziness about the question formulated in these terms. Also the word "ordinance" does not appear in or relate to modern Victoria Planning Provisions planning schemes like this one. Further, I question the use of the expression "vested rights" in this context. It might have been clearer to pose the question as to whether it would be an error of law to take the existing front garden carport into consideration in assessing the application for a permit for a second dwelling on the site.

1. The gist of this is to suggest that the responsible authority, and the tribunal on review, cannot consider the front garden carport in determining the application, whether to refuse it or to impose conditions requiring alterations.
2. The argument depends on the proposition that the carport was legally constructed and is legally in position. That much is true. As long as the owner is content with the existing single detached dwelling on the land, there is not much the responsible authority or the neighbours or anyone else can do about it, even if they consider the carport to be a blight in terms of planning merits. However, the situation changes once there is an application for a planning permit for a second dwelling. When such a proposal is assessed, the assessment must be made in relation to the whole of the allotment, and not just part of it or the rear part or the part where the second dwelling is proposed. The proposal involves the whole of the allotment including the existing house and what is on the land, as well as the proposed new buildings or works. In my opinion, this can give rise to a refusal, or requirement for modifications including the deletion of a front garden carport.
3. The owner can retain the carport as long as he likes if he is content to have only the existing detached house. Even if a permit for a second dwelling is granted, he need not act upon it if he is unhappy with it. He can still retain the single detached house and the front garden carport, but not if he acts on a permit that requires the removal of the carport. That will be his choice (unless he is refused a permit for a second house on account of the front garden carport).
4. In my opinion the front garden carport is relevant in assessing the second dwelling application, and it is entirely proper for that to be taken into consideration. I do not think that doing so would be to take account of an irrelevant matter or to act for an ulterior purpose.
5. The argument to the contrary based on the Rescode provisions applying to the proposed new dwelling is not persuasive. It is the new dwelling in its context on the allotment, and in relation to the existing dwelling that must be considered, not only under cl 55, but more particularly pursuant to cl 32.01-4, which is the provision giving rise to the need for the planning permit in the first place. It will be remembered that cl 32.01-4 refers to "the lot" (not just part of it).
6. The assertion that the new "development" namely the proposed new house is prospective is all very well, but the proposal for it must be considered in relation to the existing context in which it is proposed to be constructed. In other words, it is necessary to consider the site as a whole. In that light the whole site, including the front garden carport can be seen as things that fairly and reasonably relate to the prospective development.
7. I am not dissuaded from this view by the argument to the effect that the existing carport is part of the existing "neighbourhood character in the area". The argument apparently is meant to mean that the carport has to be accepted as part of the existing neighbourhood and that it can have no adverse impact on the neighbourhood character of the area.
8. That proposition is not really logical. Such a feature would normally be regarded as detracting from, or a detriment to, the neighbourhood character. That is so, whether or not this proposal proceeds, at least while the carport is allowed to remain.
9. The applicant's planning advocate referred to two cases namely Planning and Drafting Pty Ltd v Monash CC[7] and Damaskos v Monash CC[8]. In both those cases front yard carports or car parking were disallowed. Such decisions are in keeping with a general approach that would normally refuse such facilities in such locations; and only allow them, if ever, only in exceptional circumstances. Those cases really relate to the merits assessment of the proposal. As such, they might tell against the allowing of this front garden carport.
10. The advocate sought to distinguish the first case on the basis that the chairman was not a legal practitioner and the second on the basis that it was a new development rather than one involving a second dwelling behind an existing house that is to be retained. Neither of these differences touch on the principle or general approach involved and so are not relevant distinctions. The advocate mentioned the cases to distinguish them. Presumably he thought they would weigh against his client's case if they could not be distinguished. He was right in that. His trouble is that the differences he points to do not distinguish those cases in a relevant way. Their relevance is as cases against carports or car spaces in front gardens.
11. The applicant has sought an order for costs preparing post hearing written submissions. That question is not referred to me and I will not determine it. It may be relevant as to whether the grounds given extend to the questions in contention and whether the planning advocate did or should have anticipated such issues, particularly if notice was given in other correspondence expressing concern about such matters as the front garden carport.
12. There is some controversy in the written submissions tendered for my consideration as to whether the previous building permit application was really part of a stratagem to establish the front garden carport as a fait accompli to avoid a second dwelling permit that would disallow such a carport. It is not necessary for me to consider those matters.

[2] In response to my concerns about the extent of the pergola, Mr Ng acknowledged that it could be removed, or at least scaled back.

[3] Under Clause 66(1) of Schedule 1 of the Victorian Civil and Administrative Act 1998.

[4] There is also the prospect of further improving the presentation by modifying the existing high paling fence along the western boundary so that its tapers towards the frontage - like the property on the west side of the reserve.

[5] Long v Monash CC [200] VCAT 810 and Damaskos v Monash CC [2000] VCAT 1535.

[6] That reflected the critique of the Council's Traffic Engineering Section that vehicles on the western side of the garage will have difficulty reversing out of the garage.

[7] [2000] VCAT 810

[8] [2000] VCAT 1535