Nassar Pty Ltd vs Knox CC and Ors [2001] VCAT 381 (28 February 2001)

Application under s. 77 of the Planning and Environment Act 1987; Knox Planning Scheme; Multi-Unit Development; Density of Development; Neighbourhood Character; Traffic and Car Parking; Impacts on Residential Amenity.

The order of this Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for a multi-unit development on the land at Lot 44, Leo Close, Wantirna South, in accordance with the endorsed plans and subject to the following conditions:

1) Before the development begins, amended plans which are to the satisfaction of the Responsible Authority must be submitted to and approved by the Authority. When approved, the plans will be endorsed accordingly and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans substituted with the application but modified to show:

s Reduction in the size of Units 16 & 17, or deletion of one of these units, to allow a visitor parking area to the eastern end of the accessway to accommodate three cars. If a unit is deleted, other units at this eastern section of the site should be redistributed without a reduction in setbacks from the side boundary.

s A reduction in the size of Units 3, 4 and 5 by the deletion of a bedroom from each unit.

s An increase in the setback of Units 1, 3 and 4 from the southern boundary to a minimum of 5 metres.

s Relocation of Unit 5 (including garage) a minimum of 1 metre to the north.

s The provision of a 2 metre high fence along the eastern and southern boundaries of the site. Any trellis is to be self-supporting.

s Deletion of the visitor parking spaces adjacent to Unit 18 and in the driveway of Unit 17.

s Deletion of one visitor parking space opposite Unit 7 to ensure that the remaining four visitor spaces have adequate manoeuvring area.

s Deletion of the notation "visitors car" to each of the garages.

2) The development as shown on the endorsed plans must not be altered without the further permission of the Responsible Authority or such approval as may be granted under Section 87 of the Planning and Environment Act 1987.

3) Before the development begins, a landscape plan prepared by suitably qualified landscape architect which is to the satisfaction of the Responsible Authority must be submitted to and approved by the authority. When approved the plans will be endorsed accordingly and will then form part of the permit. The plans must show the layout of the garden areas, including existing and proposed species of trees and shrubs, grassed areas and any other landscape features. The landscape plan must be based on that prepared by Mr Cramer, landscape architect, as submitted to the hearing of Application for Review 2000/80362, and incorporate additional vegetation in landscape areas resulting from the modified building footprint and deletion of parking spaces.

4) Before the dwellings are occupied, the landscaping works must be completed to the satisfaction of the Responsible Authority, and thereafter maintained to the satisfaction of the Authority.

5) Before the development begins, three copies of drainage plans prepared by a suitably qualified Engineer must be submitted to and approved by the Responsible Authority.

6) Stormwater runoff from all buildings and hard standing areas shall be properly collected and discharged in a complete and effective drainage system within the property and shall not cause or create a nuisance to abutting properties as a result of the permitted development or its use.

7) Prior to the occupation of the dwellings, all access lanes and car parking areas shown on the endorsed plan must be fully constructed to a minimum standard of 100mm depth of reinforced concrete and properly formed to such levels as they can be used in accordance with the plans. Construction using an alternative hard standing sealed surface may be approved if detailed plans are submitted to and approved by the Responsible Authority.

8) Parking areas and access lanes must be kept available at all times for these purposes, and be drained and maintained to the satisfaction of the Responsible Authority.

9) An agreement shall be entered into to allow garbage collection to occur within the site and to indemnify those carrying out the garbage collection against an injury or property damage received, caused or sustained. This agreement shall be entered into and shall be binding on any future owner(s) of the dwellings.

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

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

b. The development is not completed within four year of the date of this permit.

The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires, or within three months afterwards.

The Responsible Authority is directed to issue a Permit in accordance with this Order.

Mr A Atkins, of Adrian Atkins and Associates, appeared on behalf of the Applicant for Review. He called Mr H Cramer, Landscape Architect of Point Five, and Ms D Donald, Traffic Engineer of Andrew O'Brien and Associates, to give evidence.

Ms M Simone, Town Planner, represented the Responsible Authority.

Mr J Ogden, Mr M Jose and Mr G Robertson appeared on their own behalf, and on behalf of a large number of other Respondent Objectors. Mr A and Mrs S Drury, Respondent Objectors, appeared on their own behalf.

A number of plans, photographs and other documents were tendered to the Tribunal. Witnesses were made available for cross-examination. All material has been considered by the Tribunal and is retained on file. The site and locality were inspected by the Tribunal subsequent to the Hearing.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Nassar Pty Ltd for a review of a decision by the City of Knox ("the Council") to refuse to grant a permit in application no. 20016017. A Notice of Refusal was issued by the Council on 2 October 2000 on the following grounds:

1. The proposed development will result in an unacceptable level of traffic on the immediate area and will create an unacceptable amenity impact on the residents of Leo Close.

2. The proposed development is an overdevelopment in terms of density, site coverage and impact from traffic.

3. The development does not provide proper and orderly planning.

2. The Application for Review was lodged on 6 October 2000 on the following grounds:

1. The density of the proposed development, being 1:500m2, is commensurate with the pattern of development in the neighbourhood and is appropriate to the site having regard to the infill nature of the site.

2. The increase in traffic that will result from the proposed development is easily accommodated within the existing road network and would not be detrimental to the amenity of the area or other residents in Leo Close.

3. The continuation of Leo Close into the subject site and the design of the development within the site is appropriate having regard to the location of the land and the features identified on the site.

4. Having regard to the proximity of the site to a major activity centre within the municipality, the form of development proposed is in accordance with local planning policies, which seek to support this form of development in such locations.

5. The design of the development on the site provides for the proposed dwellings to be situated within a landscape setting and this, together with the parklands provided internal to the site, will ensure that the development is of a nature that is compatible with the characteristic form of housing in the locality.

6. The reduction in the number of units from the previous application leads to a less intense use of the site and one that is more in keeping with the locality.

7. The proposal exceeds the provisions of The Good Design Guide for Medium Density Housing in all respects and is in conformity with the objectives and criteria of The Guide.

8. The low intensity of the development and the manner in which it has been designed does not represent an overdevelopment of the site.

9. During her submission, Ms Simone explained that a permit was required for the removal of native vegetation from the site in accordance with Clause 52.17 of the Scheme. Mr Atkins subsequently sought leave to amend the permit application to include that requirement, to which no objection was offered by any party. The Tribunal therefore granted leave for the application to be amended as requested.

10. The description of the area is similar (but not identical) to when the Tribunal previously examined a proposal for the land in Application for Review No. 2000/004669. The site is known as Lot 44 Leo Close or No. 530 Burwood Highway, Wantirna. It is situated at the head of Leo Close and abuts High Street Road to the north/north-west. Leo Close runs off Cornelius Drive and is approximately 6 metres in width. The site has an area of some 9,043 square metres and is irregular in shape. It previously formed part of the Banksia Nursery.

11. The land has a moderate slope from High Street Road falling towards Leo Close, however, there is less variation in slope between the subject site and surrounding properties. There is some vegetation on the site.

12. Properties to the east and south are developed for residential purposes. They include single and two storey dwellings with large setbacks and few front fences. There is limited canopy planting.

13. The site is located around 500 metres from the Knox City Shopping Centre, although the Tribunal was advised that this is around 800 metres in walking distance via the local road network.

14. The land forms part of the Rembrandts Park Estate that was developed in the mid 1980s. The Tribunal was advised that the original plan of subdivision was destroyed in a fire at the Council offices, but that the numbering of existing dwellings in Leo Close (1 & 2, 9-12) suggests that 6 additional lots may have proposed to complete development around Leo Close.

15. The Tribunal was also advised that the site had been approved for a 11 lot subdivision in November 1995 (permit Knx S171). That plan shows an extension of Leo Close in two sections - one following its existing alignment extending northwards, and an extension westwards to the rear of properties in Cornelius Drive. The Tribunal understands that the permit has lapsed.

16. Several service easements extend through the site, including a drainage reserve along the eastern boundary which is around two metres wide. The Tribunal understands that the title boundary extends to the abuttal with adjacent dwellings to the south, although part of the cyclone wire fence that surrounds much of the site is set in from that boundary.

17. It is proposed to develop the land for 18 units with a mix of single and two storey dwellings. Double storey units abut the northern boundary of the site, along the High Street Road frontage, and single storey units are proposed to adjoin existing dwellings (Units 1-5 and 15-18).

18. The single storey dwellings contain three bedrooms, with two of those units (Nos. 15 and 16) also containing studies or fourth bedrooms. The two storey units all contain three bedrooms with most also containing a separate study and computer room. The density of the development is 1:509 square metres, including the proposed Plantation Reserve.

19. Double car garages are proposed to all units, one of which is marked as a "visitor" space on the plans. Additional visitor spaces are shown in the driveways of 15 of the units. Further, 10 dedicated visitors spaces are proposed throughout the site, five to the western end of the site adjacent to Unit 5. This results in a total of 61 spaces on the site. All access is proposed via an extension to Leo Close and a T shaped cul-de-sac. Units 1 and 18 face the extended section of Leo Close, setback by 6 metres.

20. Two bin collection areas are proposed and a central mail-box area is sited near to the Leo Close entry into the site.

21. With the exception of Unit 5, the units are setback by a minimum of 4.05 metres from properties with frontage to Cornelius Drive. The garage to Unit 5 is sited on the southern site boundary and the Unit is setback by 1.5 metres. Units 15 and 16 are setback between 2.1 - 3 metres from properties with frontage to Appleberry Close.

22. A Plantation Reserve is proposed along the north-west boundary with an area of 140 square metres. It is intended to continue a reserve that extends along High Street Road to the west of the site.

23. The land is located in a Residential 1 Zone under the provisions of the Knox Planning Scheme. The purpose of the Zone is:

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

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

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

24. A permit is required to construct more than one dwelling on a lot pursuant to Clause 32.01-4.

25. The decision guidelines require consideration of a range of matters including the Good Design Guide for Medium Density Housing. In addition to Clauses 14 and 16 of the State Planning Policy Framework, a number of provisions of Clauses 21 (Municipal Strategic Statement) are relevant to the consideration of the proposal. These are discussed later in these reasons. The requirements of Clause 52.04 and the decision guidelines of Clause 65 must also be considered.

27. This site was the subject of a previous Application for Review heard by the same Division of the Tribunal (Application for Review 2000/004669) in March 2000. That Application considered a proposal for 23 units with a larger plantation reserve.

28. As in the case of the previous Application for Review, the key matters in this Application are the consistency of the proposed development with planning policy and neighbourhood character, amenity considerations, traffic and parking.

29. The Tribunal does not repeat matters relating to planning policies which are essentially unchanged since the previous Hearing and are recorded in its previous reasons.

30. Ms Simone referred to the Council's adopted Neighbourhood Character Study that includes the site in Character Area GC4 (Garden Court). It describes the area as distinctive because of its curvilinear and cul-de-sac pattern, and the presence of brick dwellings dominated by low-pitched, tiled roofs with wide eaves set in spacious often informal garden settings. The area is also distinguished by large front and side setbacks and an absence of (or low) front fences. The desired future character of the area includes the retention of remaining indigenous vegetation, consistent setbacks with an offset to at least one side boundary, the use of pitched, gabled and hipped roofs, and the siting of car ports behind the predominant front setbacks of dwellings.

31. Ms Simone submitted that the proposed development is not substantially different in its intensity to the proposal previously rejected by the Tribunal. She referred to the higher level of the site above adjacent properties and the building bulk that would be readily evident.

32. The submissions by Respondent Objectors supported the Council's position that the proposed development would not be consistent with the character of the area. Mr Jose sought to distinguish the subject site, within the Rembrandts Park Estate, from smaller lots in Appleberry Close that were part of a separate development and are within a different locality, being Knoxfield. Although the dwellings proposed are larger than those included in the previous Application, Respondent Objectors referred to the smaller size of the dwellings compared with others in Leo Close. Mr Jose also highlighted that the total number of bedrooms in the development had increased when compared with the earlier proposal.

33. Mr Jose emphasised that many residents had an expectation of a 6 lot development (ie. completing the missing numbers in Leo Close) and could not reasonably expect such an intensive development at the end of Leo Close as now proposed.

34. In response, Mr Atkins submitted that limited weight could be given to the Character Study as it still has yet to be exhibited or proposed for inclusion into the Scheme by an amendment. Nonetheless, he submitted that the development accords with many of the guidelines within it. Mr Atkins also submitted that, given the position of the land, the development would not alter the streetscape and visual appearance of Leo Close. Mr Atkins considered that garages were a dominant feature of the residential area and referred to a lack of architectural consistency. He considered that the court-style layout of the site, and the varied architectural form and detailing, are acceptable in the context of the area.

35. In relation to the character of the area, Mr Atkins submitted that the relationship of the site to lots in Appleberry Close is a relevant consideration and that the neighbourhood cannot be considered as narrowly as only being Leo Close and the Rembrandts Park Estate. He referred to the density of development as similar to the 450 - 600 square metre lots in Appleberry Close.

37. As said previously by the Tribunal, the Tribunal agrees with Mr Atkins that the Council's Neighbourhood Character Study must be given less weight than if it was incorporated into the Planning Scheme. However, it remains that the description of the area set out in the Study accords with many of the features observed by the Tribunal on its inspection for this Application and its previous inspection. The curvilinear street pattern is a dominant feature, as is the open style of gardens and front setbacks. Some garages are apparent but they are not unreasonably dominating. Landscaping is generally medium to low, with limited canopy trees.

38. Having regard to this setting, the Tribunal comments that simply because there is no other development of this type in the immediate area is not a reason why the Tribunal would reject the proposal. The policies of Clause 21 of the Planning Scheme, formulated by the Council, encourage housing diversity and urban consolidation. This large site abuts a busy intersection, is near to a major retail centre, and is under-used. In the absence of special design or other controls that seek to promote a specific design response for just reasons, it is unreasonable to conclude that all new housing must be identical in density and form to that existing in Leo Close or Cornelius Drive. A multi-unit development will necessarily differ from the predominant style of detached homes on separate lots.

39. The Tribunal appreciates that there may have been some expectation by local residents that development on the subject site would be in the form of single lots fanned around the end of the court bowl. It is noteworthy that had that occurred, any the of the lots could have potentially been developed for a dual occupancy or multiple units.

40. This development achieves a lower density of 1:509 when compared with the previous proposal of 1:311 square metres. This results from a lesser number of houses and a reduction in the size of the plantation reserve that allows units to be spread over a larger area. Even though some of the units are larger than the previous scheme, the increased building area has the benefit of allowing the dwellings to be detached and this achieves a much stronger sense of spacing and separation. That outcome is more consistent with the character and density evident in the area and addresses one of the Tribunal's fundamental concerns in the previous Application, being the intensity of the building mass, rather than the numbers of units or bedrooms per se.

41. One of the criticisms made by the Tribunal in relation to the 23 unit development was the excessive built mass evident from the solid form of dwellings joined by garages, with little or no landscaping in between for most of the development and a long row of unbroken built elements. The revised scheme has sought to address this issue by providing detached houses. This responds better to the sense of spacing present in the immediate neighbourhood. Similarly, the Tribunal considers that the more varied architectural form of the dwellings is a desirable improvement.

42. In most instances, garages are behind the face of each dwelling, or do not protrude forward of the unit. The provision of public walkways assists further to break up built elements and offers visual relief through landscaping. The siting and setbacks of Units 1 and 18 fronting the extension of Leo Close are also acceptable.

43. The intensity of the development will be most apparent to adjacent residents and those travelling along High Street Road. The Tribunal has no issue with the building mass when viewed along High Street Road. In terms of the site layout, the Tribunal finds the positioning of dwellings to the east of the site to be tight, as evident in the limited separation between Units 15, 16 and 17 and the narrow setback along the eastern site boundary. Similarly, it finds the western end of the site to be crowded by the close position of Unit 5 to the southern boundary and the siting of five visitor spaces near to that unit, two of which abut the boundary. The Tribunal addresses Unit 5 and visitor parking throughout the site later in these reasons.

44. The properties to the south, along Cornelius Drive and at No. 2 Leo Close, will view single storey dwellings along the southern section of the site, the floor level of which is around 0.5 - 1 metre above the rear gardens of those adjacent dwellings. The Tribunal considers that some additional setback is required to Units 3 and 4, to a minimum of 5 metres, to provide further separation and additional planting. This would also have the benefit of improved sunlight access to those south-facing private open spaces. This could simply be achieved by deleting one bedroom and reconfiguring each unit.

45. The Plantation Reserve was discussed in the previous Application where the Tribunal was advised that it was included as a requirement of the Council, dating back to the approved 1995 11 lot subdivision. At that time, Ms Simone was unable to advise the Tribunal of the Council's views about a possible reduction in the size of the Plantation Reserve, as was proposed at that time by Mr Atkins. Mr Atkins advised the Tribunal at the hearing of the current matter that discussions with Council had resulted in a reduction in the size of the reserve to 140 square metres, although Ms Simone submitted that the Council would prefer the area to be increased in accordance with a 1992 Riddell Road Local Structure Plan.

46. The Local Structure Plan on which the Council relied is not incorporated into the Planning Scheme nor referred to in it. The Tribunal notes Ms Simone's explanation as to why this is so, being that the subject site may be the only one left where the reserve remains to be provided.

47. The Tribunal stated previously that it appreciated the value of the Plantation Reserve in enhancing the streetscape of High Street Road but that there appeared to be some justification to reduce the size of the Plantation Reserve and no apparent impediment to do so. There is no suggestion in the officer report that this aspect of the development was a concern and it is not a ground included by the Council as a reason for refusal of the current application. Given the wide road reservation adjacent to the site, and that properties in Appleberry Close have already affected the continuity of the reserve, the Tribunal does not find that the reduced area of the reserve is a reason to reject the proposal.

48. Mr & Mrs Drury expressed concern about the potential for overlooking from Units 5 and 6 to their dwelling and rear garden at No. 23 Cornelius Drive. A reference was also made by Mr Jose to the potential for overlooking from the upper level of Unit 14. Mr & Mrs Drury also referred to level differences between the subject site and their property that would accentuate the visibility of the new units.

49. In response, Mr Atkins submitted that off-site amenity impacts had been adequately addressed given that single storey units are proposed along the southern and eastern parts of the site. He suggested that fencing could assist to ensure that overlooking between units and the rear of No. 23 Cornelius Drive was prevented.

50. The Tribunal accepts that fencing, to 2 metres, can assist to reduce overlooking between Units 1-5 and the properties to their south caused by the level differences. Screen planting would also filter views between properties. The Tribunal does not consider overlooking from any of the proposed two storey units to be an issue in terms of impacts on existing residents. Units 6 and 14 are some 12 and 19 metres respectively from the nearest adjacent property. This well exceeds the requirements of the Good Design Guide.

51. Some comment has been made above about the site layout and the visual bulk of units along the southern section of the site, resulting primarily from their elevated position over existing houses to the immediate south. Having regard to the single storey nature of the units and their roof form, and with the change noted above by the Tribunal, the Tribunal is of the view that this section of the development will not unreasonably impinge on the amenity of the adjacent properties. The presence of the units will be apparent, however, their form is not unusual where lots back onto one another. The increased setbacks will reduce visual bulk to No. 2 Leo Close.

52. Two issues were raised in relation to internal amenity considerations by Respondent Objectors; that some habitable room windows within the development are closer than 9 metres and that there is lack of communal open space.

53. In response, Mr Atkins submitted that the areas of open space to each dwelling exceed the requirements of the Good Design Guide and are not unreasonably shaded. He also submitted that all habitable room windows within the development are separated by more than 9 metres.

54. The Tribunal takes no issue within the quantity of private open space provided to each unit and in many cases, the minimum requirements of the Good Design Guide are well exceeded. No area falls below the minimum required volume. The additional public walkways are appropriate to facilitate access through the site. The Tribunal has some concern about shading to the south-facing gardens of Units 1, 2, 3 and 4 and while there would be access to sun in the rear of those spaces, the Tribunal considers that an additional setback to Units 1, 3 & 4 to a minimum of 5 metres would assist to enhance the amenity of the private open space while simultaneously allowing further opportunities for screen planting to reduce the visual impact of the development for properties to the south (as discussed above).

55. The Tribunal notes only one instance where habitable room windows are separated by less than 9 metres - being Units 5 and 6. This is not fatal to the Application and the adjustments required to Unit 5 as described above in turn allow that matter to be re-considered.

56. Ms Simone considered on-site parking to be sufficient to service the needs of the development. She agreed with the evidence of Ms Donald that the internal arrangement of some car spaces required review and recommended that the two visitor parking bays indented into the extension of Leo Close be deleted as they are uncharacteristic of the area.

57. Respondent Objectors were concerned about the overflow of parking from the development into narrow Leo Close, given its narrow form, and Cornelius Drive.

58. A total of 61 car spaces is proposed, which is similar to the previous proposal when taking into account changes suggested to the earlier scheme by Ms Donald. Mr Atkins, again relying on the evidence of Ms Donald, submitted that the 61 spaces exceeds the requirements of the Good Design Guide and would ensure that parking demand generated by the development is accommodated on site. Ms Donald referred to a number of modifications that could be made to the internal layout to ensure that adequate turning radii are provided, including the deletion of two visitor spaces to the western end of the site.

59. The Tribunal finds that parking proposed on-site to service the development more than satisfies its obligations in this regard. The Tribunal considers that many people visiting the site will chose to come into the development, as close as possible to their destination. There will be situations where visitors, or residents, chose to park in Leo Close or Cornelius Drive, however, the use of public parking areas by some residents or visitors (as presently occurs) is not unreasonable and there is no evidence that it will result in unsafe conditions.

60. The Tribunal accepts Ms Donald's evidence that a visitor space at the western end of the site and in the driveway to Unit 17 should be removed. This will have the benefit of allowing some additional landscaping near to the southern boundary behind No. 25 Cornelius Drive. The Tribunal also accepts Ms Simone's submission that the two spaces on the east side of the Leo Close extension, abutting Unit 18, should be removed to be consistent with the remainder of the area. The Tribunal has some difficulty with the three visitor spaces dotted along the internal driveway and would prefer that these be concentrated into a single parking area to the west end of the site. Modifications to reduce the size of Units 16 and 17, or the deletion of one of those units, would enable a parking area to be set aside. Given the opportunity for visitors to park in the majority of double-width driveways, the siting of a second visitor parking area at the end of the driveway is not considered to be inappropriate nor would it require all visitors to traverse the whole of the site to locate a car space.

61. Traffic considerations have been left until now in these reasons, so that they can be contemplated in context of the above findings.

62. An increase in traffic was the principal concern of the Council and a significant issue to nearby residents. The Tribunal was referred by Ms Simone and Objectors to its findings in the previous Application where it said that the projected increase in traffic would result in a significant and unreasonable change. Those opposing the proposal referred to their continuing concern about an excessive increase in vehicle traffic in Leo Court, additional traffic in Cornelius Drive and delays at the intersection of Wallace Avenue and High Street Road during peak periods.

63. Ms Simone submitted that the intensity of the development is essentially unchanged from the previous proposal and consequently traffic estimated to be generated by the development will unreasonably impact on the tranquillity of Leo Court. Others submitted that a similar number of car spaces is proposed as in the previous scheme and therefore the traffic activity remains excessive.

64. The evidence of Ms Donald was that between 126 and 180 additional vehicle movements per day could be expected from the development, compared with 161-230 additional vehicle movements per day resulting from the previous proposal (which was assessed on the basis of 3 bedroom units, even though some had only 2 bedrooms). She estimated that a 6 lot development would generate between 42 and 60 cars and that the previously approved 11 lot proposal would be expected to result in 77 to 110 cars. Based on a survey undertaken by her identifying delays to vehicles turning from Wallace Road into High Street Road, she stated that an additional 16 vehicles in the morning peak would not impact on the performance of that intersection or cause significant delays to other vehicles.

65. The number of vehicles generated by the development would be higher than that generated by residents within Leo Close currently. That would occur whether a 6 lot, 11 lot or larger proposal proceeded on the subject site. The key issue is whether the degree of change arising from the current proposal is reasonable. This was a matter examined by the Tribunal in the previous Application for Review. The Tribunal was reminded of its own comments as follows:

Residents explained their expectations about living in a quiet cul-de-sac location. In this regard, Ms Simone also referred to the Tribunal's comments in 1998/37377:

In most cases, persons purchasing property in a court do so in the expectation that they will obtain a higher level of amenity than those who reside in through streets. Courts, because of such factors as small population numbers, narrow street widths and the absence of through traffic, seem to offer a greater degree of tranquillity which is highly prized by residents. Often, as in this case, the allotment pattern itself militates against even modest increments in density. These comments should not be construed as meaning that there should be no increased density in courts or culs-de-sac. What the Tribunal suggests however is that the amenity bar is set higher than, for example, in situations where streets are located in a normal grid pattern.

The Tribunal understands that residents living within a cul-de-sac expect a high level of amenity and concurs with the view of Senior Member Marsden in 1998/37377 in relation to some of the features which are valued in those locations. The Tribunal also agrees that this does not preclude more intensive development forms, however, in this case, the substantial increase in traffic resulting from the subject development would produce a significant and unreasonable change.

66. The Tribunal's attention was also drawn to the comments on Ms Moles in Application for Review 1999/96846 Zahlan v City of Knox and Ors, reviewing a 14 unit (single storey) proposal at the end of a court in Knoxfield, where she said:

What is proposed here is the addition of the traffic and parking demands of thirteen additional dwellings on to the short court bowl of Elliot Street to the west of Rodney Drive, which, as earlier noted, at present gives access to only nine dwellings. The question which arises is whether the off-site impacts in this regard are so significant as to warrant refusal of the residential development of this large underutilised lot.

I am of the view that in the absence of any other major problems associated with this proposed development, and given that the new traffic volumes in Elliot Court would remain well within acceptable limits for a residential street, that, in the context of State and local policies calling for urban consolidation, it is not appropriate that this factor preclude the development of this large lot. It is acknowledged that the residents of the court will recognise a change, but the new traffic levels are not unreasonable.

67. While the current proposal has a similar level of parking on-site as was provided in the earlier 23 unit scheme, it is evident that the amount is well above what may reasonably be expected to be generated by the development on a typical day. Therefore, it is reasonable to expect that the car spaces would not always be fully occupied. Moreover and importantly, the Tribunal accepts the evidence of Ms Donald that there will be a reduced level of vehicle movement when compared with the earlier development proposal. The Tribunal also accepts that the level estimated is well within the capacity of this street even as an "access place", as defined by VicCode 1. Ms Donald estimated that there would be up to a total of 220 vehicle movements per day in Leo Close, compared with a desired maximum for an access place of 300 vehicle movements per day.

68. The circumstances of the current proposal are similar in some respects to the matter considered by Ms Moles and the Tribunal finds itself reaching the same conclusion. Ms Donald has given evidence that while there would be an increase in the volume of traffic, it would be well within the engineering and environmental capacity of Leo Close and Cornelius Drive. The Tribunal finds that there would be an increase in traffic that may be apparent to residents and that may cause some impact on amenity. However, the degree of change in terms of additional traffic movement is not unreasonable in terms of the anticipated volumes and, having overcome the fundamental flaws in design and building mass that contributed to the earlier development proposal being rejected by the Tribunal, the Tribunal does not consider there to be sufficient basis to refuse the proposal on traffic grounds alone. The changes required by the Tribunal to some units and to remove a small number of parking spaces will marginally reduce the intensity of the development.

69. The Tribunal turns briefly to some other matters raised in submissions or that were at issue previously.

70. Tree removal was a matter raised in the previous Application but was not a major issue in this later Application. Mr Cramer explained that a number of trees along the northern boundary would be retained and explained the form of additional planting that is proposed. The Tribunal finds that the planting proposed by this development is acceptable and there is no basis on which issues concerning tree removal would cause the Application to be rejected.

71. In its previous findings, the Tribunal commented on the failure of the design to take advantage of the opportunity to provide public access to High Street Road. This has been overcome by the provision of two walkways. While the Council offered no objection to them, and suggested that lighting be provided, Mr Jose referred to the concerns of some residents about additional pedestrian movement in local streets. The Tribunal finds there to be no basis to sustain an objection to the walkways because of additional pedestrians will use local streets.

72. Mr & Mrs Drury expressed concern about water flow across the site and the potential for their property to be impacted by drainage and stormwater flow from the development. The Tribunal was advised by Mr Atkins that a mound or levee positioned in the vicinity of proposed Unit 5 was constructed when the nursery occupied the land and prevented water draining onto adjacent sites. He submitted that matters relating to stormwater flow could be addressed by conditions.

73. The mounds do not appear to be reflected in the contours shown on the plans but are obvious on the site. The Tribunal agrees with Mr & Mrs Drury that it is essential for drainage and stormwater associated with the development to be properly managed to ensure no off-site impacts result. The Tribunal is, however, satisfied that this matter can be addressed by conditions requiring the Council to be satisfied that this aspect of the development can be properly addressed before any development proceeds. It will impose conditions to that effect.

For the above reasons, the Application for Review is allowed, and I will order that the decision of the Responsible Authority be set aside and that a permit issue subject to conditions.