Rawdon Hill Investments Pty Ltd v Casey CC [2003] VCAT 568 (14 May 2003)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Planning and Environment List - Section 77 Planning and Environment Act 1987 - Casey Planning Scheme - Residential 1 zone - clause 55 - construct 5 double storey dwellings - Policy - Neighbourhood character - car parking - location of private open space - overdevelopment.

APPLICANT FOR REVIEW: Rawdon Hill Investments Pty. Ltd.

SUBJECT LAND: 55 and 57 Sunningdale Crescent Cranbourne

MEDIUM NEUTRAL CITATION: [2003] VCAT 568

1. With respect to permit application no. P570/02, the Responsible Authority's decision to refuse the grant of a permit is set aside. A permit is granted for the development of five dwellings in accordance with the endorsed plans on land at 55-57 Sunningdale Road, Cranbourne. The permit must contain the following conditions:

1. The development must not be commenced until three (3) copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions. The plans must be submitted within two years of the date of this permit. When approved, the plans will be endorsed and form part of the permit. The plans must be generally in accordance with the plans drawn by Anderson Building Design identified as Ref No 02-0565 sheets 1, 2, 3 and 4 Revision B and the landscape plan by Green Garden Art identified as Drawing Number 02-0565 TPA sheet 1, but modified to show to the satisfaction of the Responsible Authority:

(a) The width of the driveway to Units 1 and 2 increased to a minimum of 3 metres.

(b) All materials, colours, building cladding and site treatment.

2. The buildings must not be occupied until the following works have been completed to the satisfaction of the Responsible Authority:

(a) The premises are connected to reticulated water supply, sewerage, drainage and underground electricity to the requirements of the relevant servicing authority.

(b) The areas set aside for car parking and access lanes as shown on the endorsed plan have been:

ii) Properly formed to such levels that they can be used in accordance with the plans.

(c) All landscaping works have been completed and subsequently maintained generally in accordance with the endorsed plan.

3. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan must not be altered or modified without the written consent of the Responsible Authority.

4. Water must not be discharged from the site other than by means of an underground pipe drain discharged to an approved outlet in a street or to an underground pipe drain.. An on-site stormwater retention system is required to be provided. The stormwater retention system will become the responsibility of the property owner to maintain.

5. Access to the site, including all vehicular crossovers, must be provided and constructed to the satisfaction of the Responsible Authority.

6. Where existing crossovers will not be used for this development, they are to be removed and the nature strips made good, to the satisfaction of the Responsible Authority.

7. A mailbox must be provided for each dwelling at the front entrance of the site to the satisfaction of the Responsible Authority and Australia Post.

8. A clothesline must be provided for each dwelling and must be located to the satisfaction of the Responsible Authority so as not to be detrimental to the visual amenity of the neighbourhood.

i) the development is not commenced within two years of the date of this permit; or,

ii) the development is not completed within two years from the date of commencement.

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

2. The Responsible Authority is directed to issue a permit in accordance with this order.

Mr K Adeyemi, Planning Officer, appeared for the Responsible Authority.

Mr N Hooper, Planning Consultant, appeared for the applicant.

1. This was an application made under Section 77 of the Planning and Environment Act 1987 by the permit applicant against the Responsible Authority's decision to refuse the grant of a permit with respect to Permit Application No. P570/02. The permit application seeks permission for the development of five double storey dwellings on land known as 55 and 57 Sunningdale Crescent, Cranbourne.

2. The permit application was lodged with the Responsible Authority on the 28 August 2002. The Responsible Authority required notice of the permit application to be given. No objections were received. The proposal was also referred to the Responsible Authority's traffic engineer, landscape approvals officer and drainage engineer. These officers offered no objection to the proposal subject to the inclusion of conditions on any permit that should issue.

3. After receiving a report form its planning officers which recommended that the application be refused, the Responsible Authority considered the proposal and made its decision to refuse the grant of a permit. The grounds of refusal are:

1. The proposal is contrary to the State Planning Policy Framework and the Local Planning Policy Framework.

2. The proposal fails to comply with clause 55 of the Casey Planning Scheme, particularly:

(c) Location of private open space (Standard B28)

3. The proposal is contrary to the orderly and proper planning of the area.

4. The proposal is an overdevelopment of the site.

4. The grounds of the application for review are as follows:

1. The proposal is consistent with the State Planning Policy Framework and the Local Planning Policy Framework.

2. The proposal complies with clause 55 of the Casey Planning Scheme, specifically:

(c) Location of private open space (Standard B28)

3. The proposal provides and (sic) orderly and proper planning outcome in the area.

4. The proposal is not overdevelopment of the site.

5. At the hearing Mr Adeyemi and Mr Hooper tabled and spoke to written submissions. In addition they also presented other material including plans, photographs of the subject land and locality, diagrams and extracts from documents relevant to the consideration of the proposal.

6. The submissions and material presented have given me a good understanding of the attributes of the subject land, its neighbourhood context, and the proposal under consideration.

7. At the commencement of the hearing Mr Hooper applied to amend the permit application by substituting amended plans for those submitted with the permit application. Mr Adeyemi offered no objection to the amendment requested by Mr Hooper. I allowed the amendment pursuant to clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

8. The subject site comprises two adjoining lots which in combination create an irregular quasi triangular shaped development site with an area of 1762 square metres located at the western end of Sunningdale Crescent. The site is vacant land. The land has a relatively moderate fall of about 2.5 metres from its eastern end to the west. There is no vegetation of any note on the site.

9. Land to the east is comprised of mostly vacant residential lots which vary in term of their shape and size. Land to the north is occupied by "Amstel Golf Course" whilst land to be developed as a drainage reserve exists to the south.

10. Sunningdale Crescent is a local street which runs into the subject land as a "dead end".

11. Contextually the land is located within an area designated for residential development which is still in the early stages of development given the existence of many vacant lots. Other nearby lots have been developed with either single or double storey detached dwellings similar in style with those being typically constructed in outer suburban areas such as this.

12. Lots in the area are affected by a restrictive covenant limiting development to a single dwelling only. Whilst the subject land is also affected, the covenant exempts the two lots that comprise the subject land and the two adjacent lots to the east from the single dwelling restriction.

13. The land is located some distance from the nearest public transport and local shopping facilities although there are various open space and recreational facilities nearby.

14. The application seeks permission for the construction of five double storey dwellings on the subject land. Two dwellings are to be constructed adjacent to the east side boundary whilst the other three dwellings are to be constructed further along the site to the west. Three dwellings are accessed via a driveway running extending from the west end of Sunningdale Crescent and then running along the north site boundary whilst the other two are to be accessed via a driveway which runs at 90 degrees to Sunningdale Crescent.

15. Each dwelling has its own individual design, however they all provide for main living areas, a study, amenities and a double car garage at ground level with three bedrooms at first floor level. Living floor area ranges from about 168 square metres to 186 square metres excluding porches and garages. The design style is not dissimilar to the suburban styles found in outer areas such as this. External finishes include brickwork, render and weatherboard cladding, roof tiles and panel lift garage doors.

16. Private open space is provided in the form of rear backyard areas ranging in size from 56 square metres to well over 100 square metres.

17. The overall building site coverage proposed is 39.5%.

18. Under the Casey Planning Scheme, the subject land is located within the Residential 1 zone the provisions for which are found at clause 32.01. The purpose of the zone is:

To implement the State Planning Policy Framework and 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.

To encourage residential development that respects the neighbourhood character.

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

19. "Dwelling" is an as of right use within the zone. However, a permit is required for the construction of more than one dwelling on a lot pursuant to clause 32.01-4. Proposals for the construction of more than one dwelling must be considered against, amongst other things, the decision guidelines at clause 65, the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF) and the provisions of clause 55.

20. The land is also affected by the Development Plan Overlay - schedule 1 (DPO1). The DPO requires that a permit to construct a building must not be granted until a development plan has been prepared to the satisfaction of the Responsible Authority unless the schedule states that may be granted beforehand. Schedule 1 allows a permit to be granted beforehand to "subdivide land to create a lot for an existing building". In any other case a permit must be generally in accordance with the development plan. Any application under any provision of the scheme which is generally in accordance with the development plan is exempt from the notice and decision requirements under the Act and there are no third party appeal rights. In the case the "Cranbourne Outline Development Plan" is the approved development plan for the area.

21. The SPPF sets out general policies for planning in Victoria, with those relating to Settlement and Housing relevant to the consideration of this proposal. The general thrust of these policies, as set out in clauses 14 and 16, is to encourage the consolidation of existing urban areas, increase residential densities and to provide for a wider variety of housing, including well designed medium density housing which is respectful of the character of established neighbourhoods.

22. According to the MSS, Casey is located in a growth corridor to the south-east of Melbourne and is an attractive housing location for growing families. The MSS also recognizes that the municipality has "more single detached houses with substantially fewer multi-dwellings". Under the MSS, the subject land is located within "The Built Up Area". Main planning issues for "The Built Up Area" that are relevant to the consideration of this proposal include redevelopment pressures on established residential areas and high car dependency of the resident population. The MSS forecasts that in 20 years time, Casey will have a more mature population and "demand for dwellings other than detached houses will increase....." Objectives for "The Built Up Area" include the provision of a range of housing choices and to reduce car dependency. Strategies include the redevelopment of existing residential areas at higher densities with those located within 400metres of activity centers tertiary institutions and railway stations as the preferred locations for medium density housing.

23. The "Residential Development Policy" at clause 22.05 also applies. The objectives of this policy are:

To provide a planning framework to guide the orderly development of residential land that is responsive to community aspirations for housing needs.

To identify existing environmental features, land uses and constraints which need to be considered in the development of land for urban purposes.

To identify requirements in relation to the provision of transport infrastructure, utility services, community facilities, open space and other land use matters which are necessary to serve the needs of the local and wider community.

To create a high quality living environment recognizing environmental sustainability.

24. Amongst other things, it is policy that residential development be in accordance with any approved development plan and new development must be staged in an orderly manner having regard to the availability of social and physical infrastructure.

25. Melbourne 2030 identifies the need for a more compact city, however, new development must be responsive to neighbourhood character.

26. After considering the submissions presented by the parties, the details of the proposal and the relevant matters in the planning scheme and legislation, it seems to me that the key issues in this matter are:

* Does the subject land have attributes which make it a suitable site for medium density housing?

* Is the development of the land for medium density housing in accordance with the planning scheme's policies?

* Has the proposed development has been designed to respectful of neighbourhood character?

* Will the proposed development provide satisfactory parking and private open space?

27. In relation to the first issue, it is clear that, in physical terms, the subject land has attributes that make it a suitable candidate site for some form of appropriately designed medium density housing. Although triangular in shape, the land is relatively large in terms of its overall size and it has reasonable proportions. The land has a moderate fall, the easements are not awkwardly positioned, there is no vegetation to consider and there was no evidence to suggest that the infrastructure in the area cannot accommodate the demands associated with the proposed development. In addition, the land has a direct abuttal with only one other residential property located to the east. Whilst the land is not particularly well located in terms of walking distance to public transport and shops, this is not uncommon in new developing areas and not something which in itself would render the land unsuitable for more than one dwelling.

28. In relation to the second question, I have no difficulty in finding that the development of this site for some form of well designed medium density housing accords with the general thrust of the planning scheme's policies relating to urban consolidation and housing. It is clear that the policies at clause 14 call for and encourage the consolidation of residential development within existing urban areas. Whilst the area within which the subject land lies is still in its early development phase, it is nonetheless a designated urban area under the MSS and given its Residential 1 zoning. It is also relevant that the MSS itself calls for higher density development within "The Built Up Area" and for dwellings which add to choice. This proposal is consistent with the thrust of these policies. Whilst the land is not within a preferred location for medium density housing, the MSS does not say that this form of housing can only occur within the preferred areas or that it is discouraged from being developed elsewhere. I also note that the Mr Adeyemi did not say that the proposal offends the Cranbourne Outline Development Plan [which is the relevant plan under the DPO] in any way.

29. I also note that the two lots which comprise the subject land and the two nearest lots have also been designated for medium density development. They are not subject to the single dwelling covenant. Accordingly these four lots represent one of the limited opportunities for medium density housing to occur in the immediate area. Given the thrust of the scheme's policies, it is desirable that that they be developed at a higher density than that which can be achieved on other surrounding lots.

30. In my view, the planning scheme's policies make it clear that higher density development can be acceptable in urban areas such as this and on this particular site.

31. However, this is not the only aspect of planning policy which is directly relevant to the consideration of this proposal. Planning policy, the purpose of the zone and the requirements of clause 55 also call for development which is respectful of neighbourhood character. This leads me to the third key question.

It is considered that the proposed design is out of character with the surrounding development by way of siting, dominance of garage doors, poor design with respect to pedestrian links, and south facing open space area. Neither does it make a positive contribution to the character of the neighbourhood and therefore cannot be said to further the standards of the code [ResCode].

33. Mr Ademeyi then went on to criticize several aspects of the proposal. He alleged that the vista of the site when viewed from Sunningdale Crescent would be one dominated by hard paved surfaces and several garage doors. He also asserted that the bulk presented by the five dwellings would be excessive having regard to the preferred character for this area.

34. Mr Hooper noted that the land is located within a new subdivision and that very few dwellings have been constructed near the site. However, he went on to observe that in the wider estate, about 50% of the lots have been developed with a mix of single and double storey dwellings, many with double garages and with less articulation than what is proposed in the development before me. Mr Hooper went on to conclude that that:

This proposal will be completely in keeping with the emerging character for this area, as defined by the type of dwellings that have already been constructed. It is noted that (typical in new estates) often the separation between dwellings is not substantial and that front setbacks are generally the minimum allowed.

35. After having considered the submissions and the material presented, it seems to me that the proposal represents a reasonable design response in relation to neighbourhood character and I do not agree with Mr Ademeyi's criticisms.

36. The site layout allows for the informal continuity of Sunningdale Crescent by way of a driveway which has a varied alignment flanked by good landscaping. I do not accept that garage doors will dominate the appearance of the site when viewed from the street. In fact, quite the contrary will occur given that the garages are located well into the site and they do not project forward of the dwellings. Limited views of the end garage door will be available after the landscaping matures, however, these will be far from dominant. Rather, the driveway will provide an attractive and safe pedestrian and vehicular environment for people to enter and leave this site and provides a good linkage with the surrounding street network.

37. I also consider that the dwelling layout allows for the continuity of the general development pattern along the streetscape, albeit that it will be at greater intensity.

38. The double storey nature and design of the dwellings is also acceptable. The proposed dwellings are not out of place in a new area where it is likely that many lots will be developed with larger double storey contemporary style homes. The overall bulk presented in this case can be accommodated on this site given its limited abuttal with other residential properties, its location adjacent to the golf course and drainage reserve, the size of the open space areas and the ability for this site to provide good quality landscaping as shown on the landscaping plan tendered by Mr Hooper.

39. Overall, I find that the proposed development has been designed to be respectful of neighbourhood character.

40. In relation to the fourth issue, I consider that this proposal provides satisfactory parking. Double car garages are provided for each dwelling and this is appropriate. Whilst there is no dedicated visitor car space available on site, I do not consider that this should be fatal to the application. In particular I note that two indented kerbside spaces are provided in front of the subject land. The context of this site is such that these spaces will be used by visitors given the land's abuttal to the golf course and the limited number of nearby residential properties. It is also likely that as a matter of practicality, opportunity for informal visitor car parking will be available in tandem with some of the garages. In the circumstances, I consider the car parking provision to be reasonable.

41. Mr Ademeyi also said that the Responsible Authority has concerns about the southern orientation of the open space to three of the dwellings and the location of the open space of unit 1 in between double storey development. Whilst the open spaces for three units 2, 3 and 4 are to the south, I note that the proposal has been designed to ensure that compliance is achieved with Standard B29 which relates to sunlight access to open space. Mr Hooper demonstrated that the level of compliance is not marginal. This has been achieved because the open spaces are much bigger than the minimum required and because the upper level of the dwellings have been stepped back. This is a very good design response for a site like this. Whilst there will be shadowing of open space areas, I think Mr Hooper demonstrated quite clearly that some part of the open space areas for each unit will receive direct sunlight at various times the day. In relation to unit 1, I accept Mr Hooper's submission that the design has sought to reduce the impact of two storey walls by stepping the upper level back away from the open space. I also note that the open space areas exceed the minimum requirements in terms of size, they are well proportioned and access is available from a living room area within each dwelling. The open space easily satisfies the requirements of the various relevant objectives under clause 55.

42. In relation to the final issue, whilst Mr Ademeyi submitted that the proposal represents an overdevelopment of the site, I was far from persuaded that this is the case. Mr Hooper presented a very detailed assessment of the proposal against the provisions of clause 55. This analysis showed that the site coverage of 39% is well below the 60 maximum, the level of on site permeability is over double the minimum 20% required, compliance is achieved in relation to setbacks and the open space areas are generous and easily exceed the minimums in both total amount and proportions required. Substantial landscaping is to be provided. I also note that there are no problems in terms of daylight to habitable rooms windows.

43. Mr Ademeyi did raise some internal amenity concerns. One relates to the potential for overlooking from an upper level bedroom window of unit 3 into the open space of unit 1. However, I do not share his concerns given that the views that would be available are very limited and on the oblique.

44. Mr Adeyemi also raised concern about a window to the study to unit 3 facing the garage wall of unit 1. Mr Adeyemi said that the 1.2 metre setback is unacceptable because of potential noise conflict. He suggested that the appropriate setback would be 1.7 metres which is the "rule of thumb" used by the Responsible Authority. In response to my questions, Mr Adeyemi was unable to explain how the Responsible Authority arrived at its "rule of thumb" and how a 500mm increase in setback would turn an unacceptable situation into one which is acceptable to the Responsible Authority. Whilst I do not think that a window facing a garage wall provides a particularly attractive outlook, it must be noted that the study also has a second window available facing towards the rear yard. The amenity of the study is acceptable.

45. It is also relevant that I record that Mr Adeyemi did not submit that the proposal will cause unreasonable impacts on the amenity of adjoining properties.

46. Given the thrust of planning policy which encourages the development of medium density development on sites such as this, the proposal's compliance with the requirements of clause 55 and the lack of any unreasonable impacts on amenity, I find that the proposal does not represent an overdevelopment of this site.

47. This proposal is clearly worthy of a permit. The site is suitable for medium density housing. Mr Ademeyi conceded this during the hearing. The proposal is supported by planning policy and the purpose of the zone. The proposal has been designed to be respectful of neighbourhood character and it achieves satisfactory compliance with clause 55. It will not result in any unreasonable impacts on the amenity of the surrounding area whilst the residents of the proposed dwellings will enjoy a good standard of amenity. Proposals that meet these requirements are clearly in accordance with the orderly planning of the area.

48. Accordingly, the Responsible Authority's decision is set aside. A permit is granted subject to conditions. I have settled the final form of the conditions after having considered the views of the parties. I agree with the Responsible Authority's view that the driveway to units 1 and 2 should be widened to 3 metres to provide suitable vehicle access. I accept Mr Hooper's view that the requirement for a stormwater detention system is better set out as part of condition 4.