Victorian Civil and Administrative Tribunal|2006-12-22

The Application for Review is made by RFT Australia Pty Ltd against Council's refusal to grant a permit for the development of twenty-one (21) dwellings at 27 Canterbury Road & 10 Roslyn Street, Montrose. Council refused the application at its meeting 25 July, 2006 on the following grounds:

1. The design and layout of the proposed development will be incompatible with the neighbourhood character and would be detrimental to the visual amenity of the area.

2. The generic and repetitous design detail and form of the dwellings fails to respond to the neighbourhood character and thus the objectives of Clause 55.06-1 (Standard B31) of the Yarra Ranges Planning Scheme.

3. The proposed development falls to provide adequate vehicle and pedestrian links that will enhance local accessibility as outlined in Clause 55.02-4 (Standard B5) of the Yarra Ranges Planning Scheme.

4. The orientation and siting of the dwellings falls to maximise solar access in accordance with Clause 55.03-5 (Standard 810) of the Yarra Ranges Planning Scheme.

5. The development does not provide any communal open space given the number of dwellings proposed.

6. The development fails to respect the landscape character of the neighbourhood, provides an excessive level of paving throughout the site and will result in the removal of significant trees that are part of the forested hill landscape in the surrounding area.

7. The proposed development will not sensitively integrate with the landscape character of the neighbourhood given that insufficient opportunity has been provided for the retention of existing vegetation and the planting of new vegetation with spreading canopies throughout the site.

8. The proposed vehicle access to and from the site, that relies on a narrow driveway on No. 10 Roslyn Street, falls to provide a reasonable integration with the neighbourhood and adequate sense of entry. Furthermore, this access will not result in safe, mana and convenient vehicle movements on site as them is no two way access provided.

9. The elevated floor levels of some dwellings will result in unreasonable overlooking of the secluded open space of dwellings on Roslyn Street.

10. The noise associated with the movement of vehicles in the accessway on No. 10 Roslyn Street will result in unacceptable amenity impacts on the adjoining dwelling at No. 12 Roslyn Street and the existing dwelling at No. 10 Roslyn Street.

On 25th October, 2006 Council advised the Tribunal, applicant and objectors that the grounds of refusal were revised in light of the amended plans to delete grounds 8 & 10 and include the following grounds:

1. The proposed driveway configuration with sole access onto Canterbury Road falls to provide convenient, safe and efficient vehicle movements and connections within the development and to the street network in accordance with Clause 55.03-5 (Standard B14) of the Yarra Ranges Planning Scheme.

2. The information provided in support of the proposed development makes no reference to compliance with Clause 56 (as required pursuant to Standard B14) and additionally the internal access does not meet the relevant standards of Clauses 56.06-2, 56.06-4, 56.06-5 56.06-7 and 56.06-8.

3. The development does not provide for convenient access for service, emergency and delivery vehicles as required pursuant to standard B 14 under Clause 55.03-9.

4. The configuration of the driveway around the existing dwelling (Dwelling 21) will result in a reduction in the level of amenity of this dwelling.

2 At the commencement of the hearing Mr Milner applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Milner's request.

3 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

4 The subject land is a large regular lot is located on the north side of Canterbury Road, 113 metres south of Mount Dandenong Road, in Montrose. The frontage to Canterbury Road is 43.15 metres, the depth is approximately 229 metres and the area is 9924 square metres. The land is currently occupied by a single storey timber dwelling setback 45 metres from the frontage and some outbuildings.

5 The front (southern) half of the land is heavily vegetated with native and exotic vegetation The front of the land has the appearance of a large over mature garden. The rear is generally pasture used for horse agistment. The land falls 22.5 metres from front (south) to rear (north).

6 The surrounding area is a suburban residential area developed during the 1960's and 70's. Single storey dwellings on suburban lots are the predominant development type. The subject land and the land to the east are remnant, un-subdivided lots, both heavily vegetated, which appear to predated the suburban development of the locality.

7 The amending plans propose the retention of the existing dwelling and the construction of 20 new single storey dwellings ie:

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2 new dwellings are to be in front of the existing dwelling and 18 new dwellings to the rear;

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17 new dwellings are three bedroom dwellings and 3 new dwellings are two bedroom dwellings with floor areas ranging between 109 square metres and 137 square metres;

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Site coverage is approximately 37%, permeable surfaces exceed 40%, and there is one dwelling for approximately 470 square metes of site area.

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All dwelling are accessed from a single driveway extending from Canterbury Road with dwellings to either side for most of its length.

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18 dwellings will have a double garage, the 3, two bedroom, dwellings will have a single garage and tandem car space;

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17 visitor car spaces are provided throughout the site.

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Stylistically the dwellings are simple suburban brick veneer dwellings with tiled roofing with eaves.

8 In relation to the current proposal the state and local planning policy framework seeks to:

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Encourage urban consolidation in established urban areas close to urban and community facilities;

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Encourage development that improves housing choice and accommodates future housing needs;

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Encourage the design of energy efficient buildings;

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Ensure that development respects the existing neighbourhood character;

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Ensure that development respects the landscape character of the locality, protects significant trees and allows for the establishment of substantial trees.

9 A permit is required for construction of dwellings under the Residential 1 Zone provisions and for access to a road in a Road Zone. There are no overlay provisions.

10 Notwithstanding the number of dwellings proposed, this is a very conventional villa unit development. The proposed dwellings are modest single storey dwellings. The architecture is simple, conventional, domestic architecture incorporating face brickwork and pitched tiled roofs. The site coverage and dwelling density figures for the proposal suggest a moderate intensity of development. It is therefore disappointing that the parties were unable to reach agreement in relation to the redevelopment of the land and that it has become a matter to be resolved by the Tribunal. For the purposes of these reasons I intend to resolve the matters raised during the course of the hearing under the following broad headings:

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Landscape issues;

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Movement issues;

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Architectural issues;

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The retention of the existing dwelling;

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Community open space;

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Privacy; and

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Waste collection.

11 The subject land is a large lot fronting onto Canterbury Road a major divided arterial road. In the immediate environs of the site the surrounding cadastral pattern is one of small unconnected subdivisions access directly from the arterial road network. The relative isolation of the land in this context and the conventional nature of the development means that the only important neighbourhood character issue, is the extent to which the proposal produces an outcome which is consistent with the landscape related policies of the planning scheme.

12 The council argues that the proposal results in the removal of too much of the existing vegetation, and makes insufficient provision for the establishment of a new landscape.

13 The southern 50% of the subject land is occupied by a relatively dense overgrown garden. The garden includes a large number of trees, with the more substantial trees being concentrated towards the southern end of this garden. The subject land is more than 200 metres deep. The proposed dwellings are not distributed evenly across the site. Within the first 60 metres of the site extending north from Canterbury Road, only three dwellings are proposed, the existing dwelling, and two new three bedroom dwellings. These three dwellings occupy approximately 2700 square metres of the overall site area. This very low density of development in the southern third of the site is a direct response to the character of the existing vegetation. The design's purpose is to retain some of the most significant trees on the site and the existing vegetated character of the site when viewed from Canterbury Road.

14 Further to the north on the site additional significant trees are to be retained, but the more intensive development proposed means that more of the existing vegetation will be lost.

15 In relation to the retention of existing trees I am satisfied that the proposed design is site responsive, produces the best possible outcome from a neighbourhood character perspective, and strikes an appropriate balance between planning objectives in relation to housing and landscape. In particular the design solution enables the retention of many of the most important trees on the site, which is at the same time that part of the site which will most dramatically effect the landscape character of Canterbury Road.

16 Each of the proposed dwellings will have a large well proportioned area of private open space, and along the length of the common access driveway there are substantial opportunities for the establishment of new landscaping. The proposed dwellings are single storey dwellings quite small trees could produce a canopy which exceeds the height of the dwellings. I am satisfied that there is ample opportunities within the proposed design to establish a new landscape on the land, particularly to the north of the existing dwelling. I am satisfied that an appropriate landscape design properly implemented will produce an outcome which is entirely consistent with the planning scheme requirements.

17 It is my overall conclusion in relation to these landscape issues that the proposal is site responsive in its strategies to retain existing vegetation, and allows ample opportunities for the establishment of a new landscape setting for the proposed dwellings.

18 The council was of the view that the proposed access driveway achieved inadequate design standards, and that the development as a whole failed to provide for adequate neighbourhood accessibility.

19 The proposed access driveway has been designed in accordance with the standards contained in clause 55. Prior to the hearing the Applicant "tweaked" the layout of the proposed access driveway to demonstrate that it could be used by a 12 metre truck. It was the Applicant's position that the proposed driveway would provide the accessibility, and importantly, the amenity, expected of a common property access driveway in a medium density development such as this.

20 The council and its witness were of the opinion that because the access driveway exceeds 60 metres in length, it should comply with the relevant standards of clause 56 Residential Subdivision, and that in particular because the access driveway exceeded 100 metres in length the access driveway should achieve the standards appropriate to an access street.

21 Mr Knol's evidence seemed to indicate that this opinion arose from the view that the access standards in clause 55 were essentially a compromise, and that once an access driveway exceeded 60 metres in length the compromises inherent in clause 55 should no longer be allowed to apply. In my view this is simply misguided. Medium density development under clause 55 is usually a different model of urban development to that which results from conventional residential subdivision. These differences do not cease to exist merely because an access driveway exceeds 60 metres in length. The design considerations are often identical. The design standards applicable to one form of development may be relevant considerations in the design of the other. Nevertheless in most instances the design solution for access in a medium density development will be different to that for a conventional residential subdivision. Such design solutions are not a compromise, but are intentionally different.

22 The council's grounds of refusal seem to indicate that the design guidelines associated with Standard B14 have the effect that the development must comply with the relevant standards of clause 56. This is not correct. The relevant standards of clause 56 are instead matters which must be considered in deciding whether or not the access objectives set out in clause 55.03-9 have been achieved.

23 Mr Knol was clearly of the view that because the access driveway exceeded 200 metres in length, it failed to provide convenient access, because it did not limit the length of time local drivers need to spend at a low speed. He clearly advocated a target speed of 30 kilometres an hour, the target speed appropriate an access street.

24 It seems to me that the council has engaged in a completely mechanistic application of design standards based on an entirely inappropriate conclusion in relation to design speed. Here we are dealing with a common property access driveway serving 21 small dwellings in a medium density development. This scenario is just not comparable to that of a public street in an interconnected subdivision designed to the standards appropriate for an access street.

25 In my view the proposed access driveway will provide an entirely adequate shared pedestrian and vehicular space for the purposes of this development. The fact that the design is for an essentially low speed environment is a desirable rather than an adverse outcome. Indeed, I am sure it is an outcome which would be consistent with the expectation of future residents.

26 Pedestrian linkages from the development to the broader neighbourhood are indeed quite poor. This is however hardly a valid criticism of this development. It is simply a consequence of a history of poor planning decisions in the locality which have led to a patchwork of disconnected subdivisions. This historic legacy cannot be rectified by this landowner, or this development. The future residents of this development will be disadvantaged to a degree because of this low level of accessibility, but no more so than any other resident in the broader neighbourhood.

27 The conditions proposed by VicRoads require a left turn lane to be constructed on Canterbury Road to facilitate left hand movements into the site from Canterbury Road to the proposed common property access driveway. At first glance this appears to be uncontroversial requirement. However, submissions made by Mr Williams, and Mr Knol gave me cause to consider the reasonableness of the requirement in the context of this particular application and the character of the locality.

28 Mr Williams indicated that he thought that a 20 metre lane and a 20 metre taper would be the standard design solution. Mr Knol considered that the left turn lane should be extended west to Rosalyn Street, and perhaps even beyond Rosalyn Street. The size of these left turn facilities seem extraordinary for a development which will generate less than 20 left turn movements in the peak hour.

29 The cross over to the proposed access driveway will function as a minor intersection. It will be fourth in a series of similar intersections with the existing intersections all being to the west of the site at Airlie Crescent, Woodbridge Close and Rosalyn Street. None of these existing intersections have a left turn lane. In addition to these intersections there are a number of private driveways accessed directly from Canterbury Road.

30 Having inspected the site I think that the left turn facility proposed by Mr Williams and Mr Knol are unrelated to the likely traffic impact of the proposal. It is probably desirable to improve left turning facilities onto Canterbury Road in this location for all the intersections referred to above, and for the subject site, but I am ultimately of the view that this is a matter which can be addressed when and if Canterbury Road in this location is upgraded. In my view it will be sufficient for a crossover to be constructed and for there to be some additional shoulder sealing, to provide a level of access from the road to the access driveway geometrically similar to that which currently exists at Rosalyn Court.

31 In relation to detail design the council is critical of the repetitious architecture and the failure to make best use of the northerly aspect of dwellings

32 In my view the the difficulty with this criticism is tat if the design had adopted a more varied approach one could with equal validity say that the proposal has failed to achieve an appropriately integrated architectural style and pattern of development. In my view:

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It is commonplace and appropriate that villa unit style developments employ a consistent architectural style and pallet of materials;

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The consistent architectural theme does not impinge upon the public realm, it does not in any sense affect a streetscape in which variety may be arguably an aspect of character;

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A unified pallette of materials, and repetitive floor plans, can reduce costs, and therefore aide in the affordability of housing.

33 The long axis of the subject land is north south, therefore most of the proposed dwellings have an east west axis, and good aspects to both the east and west.

34 In most instances there are spaces between dwellings, and therefore the possibility of a northern aspect for the proposed dwellings. However, in many instances the dwelling floor plans have garage located to the north of the dwelling, and the living spaces to the south. The council criticises the design on the basis that it fails to take advantage of the possibility of a northern aspect.

35 Discussion with the building designer during the course of the hearing demonstrated that the chosen design solution was not an ill considered failure to take advantage of a design possibility. Rather, it was the response to the topography of the site.

36 The subject land has a moderately significant fall from south to north. To reduce the extent of cut and fill, and to reduce the level difference between the living spaces of the proposed dwellings and the appurtenant private open space, the designer elected to locate the living spaces towards the southern edge of the relevant dwellings.

37 It seems to me the designer has produced a satisfactory, and cost effective outcome. It may be the case that a more elaborate spit level design could minimise the need for excavation and minimise the level difference between living spaces and private open spaces while achieving a northern aspect. Alternatively the existing buildings could use a different roof form incorporating clerestorey windows to provide northern light to living spaces located to the south of the proposed dwellings. However, the existence of these more expensive possibilities does not render the current proposal either ill considered or inappropriate.

38 The Applicant's decision to keep the existing dwelling, has the effect that the common access driveway has to be diverted sharply around the dwelling. A similar less torturous path for the common access driveway is possibly a desirable outcome, although it must be said that the current layout is in effect a useful speed control device. However, having inspected the subject land and the dwelling, it seems to me that the existing dwelling is a perfectly sound and well maintained building, and therefore the benefits which accrue from its reuse outweigh any benefits which might arise from the changes to the layout of the access driveway. I do note however that some care would have to be taken in the preparation of the landscape plan to protect the existing dwelling from headlight glare.

39 The council argued that there should be some communal open space provided on site. It is true that just as the neighbourhood pedestrian networks are poor, there is a similar lack of neighbourhood level public open spaces. The proposed dwellings are quite small, and all have quite generous private open spaces. The level of amenity enjoyed by future residents of these dwellings will be similar to that enjoyed by other residents in the neighbourhood. I do not think that a small communal open space serving some 20 odd dwellings in a medium density development is an effective or useful substitute for a neighbourhood park, and communal open space other than that already proposed towards the front of the site is not required.

40 While the proposed dwellings are single storey dwellings, the slope in the land is such that in some instances windows and doorways are elevated to the extent that a view would be possible over the fence and trellis proposed. In such instances additional private measures should be considered. In this suburban context I think that the privacy measures contemplated should be additional trellis screening, or landscaping, rather than opaque glass in windows or other such devices. Moreover, physical screening devices such as trellises should be limited to achieving the relevant ResCode standard, that is privacy impacts within 9 metres. More distant views to private open spaces or habitable rooms on adjoining properties should be managed through landscaping.

41 As is often the case with medium density development proposals, waste collection became a significant issue in the debate about the practicality of the proposal. It is normal for municipalities to collect rates for the purpose of waste collection from residential properties. The way in which this service is provided has changed over time, it is now the norm that waste collection trucks are large vehicles manned by a single person who does not leave the vehicle to collect the bin. The service provided is becoming more cost effective but much less flexible and unable to readily accommodate larger medium density developments.

42 This is not a case where the delivery of a particular aspect of urban infrastructure is or should be a real limitation on the achievement of planning scheme objectives in relation to the provision of affordable and diverse housing forms. Indeed the common solution is for the Responsible Authority to require, or the permit applicant to volunteer, a private commercial arrangement for the collection of waste. So the reality is that if the municipality will not provide the service then somebody else will.

43 However does this solution create an affordability or equity issue. The municipality and the developer are in effect transferring the responsibility for and the associated costs of the collection of waste to the future resident. Yet at the same time the municipality collects rates for the purpose of waste collection a service which is not been provided to these residents. I am unaware of any municipality that rebates rates collected for the purpose of waste collection when a particular resident is required by that municipality to make his or her own private arrangements for waste collection.

44 In a broader sense it is not possible for this equity issue to be resolved in the context of a particular permit application. Except that a permit requirement that waste collection be undertaken by a private commercial arrangement should be avoided unless utilisation of the municipal service impracticable.

45 In this case the difficulty is the distance from many of the dwellings to the road. Mr Milner proposed a solution whereby the Body Corporate will be required to employ a person to move bins from individual dwellings to the roadside, for collection by council, and then return the bins to each of the dwellings. At one level this is a slightly hotch potch arrangement, but has the benefit that future residents are at least gaining the benefit of the service for which they pay.

46 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit granted.

47 In deciding the conditions to be included on the permit I have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

Environment Act 1987

RFT Australia Pty Ltd v Yarra Ranges SC [2006] VCAT 2655 (22 December 2006)

RFT Australia Pty Ltd v Yarra Ranges SC [2006] VCAT 2655

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

RFT Australia Pty Ltd v Yarra Ranges SC [2006] VCAT 2655 (22 December 2006)