Victorian Civil and Administrative Tribunal|2014-02-21

Salek v Casey CC [2014] VCAT 186 (21 February 2014)

Section 77 of the Planning & Environment Act 1987; Casey Planning Scheme; Residential 1 Zone; Dwellings; Neighbourhood character; Amenity; Waste collection.

Salek v Casey CC [2014] VCAT 186

The permit is subject to the conditions contained in the Appendix to these reasons.

Mr B Klemmer, Town Planner of Bill Klemmer & Associates.

The construction of an extension (garage) to the existing dwelling and the construction of three single-storey dwellings to the rear. Each dwelling is to have two bedrooms and is to be provided with one car space. Vehicle access is via a common driveway. Private open space is proposed in the form of courtyards.

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

Cl. 32.01-4 (construction of an extension to an existing dwelling if there is more than one dwelling on a lot; construction of a dwelling if there is at least one dwelling existing on a lot).

Cl. 11. 15.01, 16.01, 21, 22.05, 22.15, 22.17, 55 and 65.

The review site is located within the court bowl of Pyrus Court in Doveton. It is an irregular allotment with a curved frontage of 12.19 metres, a maximum depth of 35.5 metres and an overall site area of 1021.3 square metres. It is occupied by a single-storey detached weatherboard dwelling. The property is within a neighbourhood developed by the former Housing Commission of Victoria for public housing. Dwellings are typically modest in size, and are located on generous allotments. Dwelling styles vary, although consistency is displayed with respect to pitched roof forms, regular building proportions, modest footprints and a mix of construction materials - principally brick or concrete.

A site inspection was undertaken after the hearing.

The City of Casey has refused a planning permit for the construction of three dwellings to the rear of the existing dwelling at 16 Pyrus Court in Doveton. The construction of a single car garage for the existing house is also proposed. The grounds of refusal refer to matters of neighbourhood character, on-site amenity, vehicle access, landscaping, waste collection and overdevelopment.
This is an Application to the Tribunal for a review of the Council's decision.
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Casey Planning Scheme, I have decided to set aside the Council's decision. My reasons follow.
The objectives of Clause 55.02-1 are:

To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.

To ensure that development responds to the features of the site and the surrounding area.

The design response must be appropriate to the neighbourhood and the site.

The proposed design must respect the existing or preferred neighbourhood character and respond to the features of the site.

I was not taken to any statement of preferred neighbourhood character in any Planning Scheme policy or Council-adopted document. Accordingly, it is the existing character which must be respected.
The following extract from the Council's submission provides what I consider to be an apt description of the character of this neighbourhood:

The site is located within a well-established residential area predominantly represented by modest single storey detached housing. Dwellings are generally well spaced and well setback [sic] from street frontages and common boundaries with clear separation between the dwellings. Typically, the landscape area includes modest gardens interspersed with canopy vegetation. Front fencing is not common in the area.

One of the Council's key concerns is the attached form of the development. It was submitted that the continuous nature of the buildings from the front to the rear, and from the east to the west, is uncharacteristic of what exists in the locality. A further issue was raised regarding the 'clustered' appearance of the dwellings at the rear of the property, which is not in keeping with the open back yard character displayed by surrounding allotments. It was said that this design response produces a poor interface with the adjoining sites.
In response to this issue, the Applicant offered to delete the garage of Unit 3 and the carport of Unit 4, replacing these with uncovered car spaces. The submission was that this would provide separation to the built form, by creating spaces between the dwellings to reflect the detached forms within this neighbourhood. In addition, the Applicant also offered to replace the garage of Unit 2 with a car space to provide further permeability through the development in this part of the site.
Having regard to the spaciousness which characterises this neighbourhood, I consider that there is a basis to the Council's concerns. As proposed, the development has a relatively intensive appearance as a consequence of the attached forms, particularly Units 2 and 3. The Applicant's offer to replace the garage and carport of Units 3 and 4 respectively with open car spaces will adequately address this issue, by providing meaningful separation between the dwellings.
In respect of the offer to replace the garage of Unit 2 with a car space, I have not been persuaded that this is necessary. The secluded private open space area of Unit 1 (the retained existing dwelling) has a north-south dimension of 5.0 metres, which is more than sufficient to provide adequate separation between these two dwellings. I will not require this change.
Despite the very generous front gardens and back yards, there is an evident lack of canopy vegetation throughout this neighbourhood. Planting is generally low level and informal in nature. The Council submitted that the siting of the development does not provide adequate opportunity for the planting of vegetation which would exceed two metres in height. In response to my questions, it became apparent that this concern is confined to the side setback areas and those parts of the proposed secluded private open space which are within existing and future drainage easements.
In general terms, this neighbourhood is not characterised by vegetation between dwellings and their side boundaries. I do not see that such landscaping is necessary in order to satisfactorily respond to the area's character. Nor do I consider that planting within the side setbacks is necessary in order to mitigate any visual bulk impacts, given the modest scale of the dwellings and their overall height, which does not exceed 4.7 metres measured to the roof ridge.
Although a drainage easement extends along and within the site's southern boundary, this forms part of the larger secluded open space areas of Units 2 and 3. These courtyards will, in part, have dimensions of 4.7 metres and 5.3 metres, providing sufficient scope to plant meaningful vegetation , including canopy trees. Depending on where the plants are positioned within the courtyard, careful species selection will be required to ensure that they do not interfere with the drainage asset which exists within the easement.
Taken overall, there is adequate space throughout the development for landscaping which will make a positive contribution to the site and its immediate surrounds. This opportunity exists in the large front setback area (109.5 square metres) and in the proposed secluded private open space areas, which will range in size up to in excess of 70 square metres. The Council did not raise any concerns regarding the extent of landscaping proposed for the central driveway area, submitting that is was adequate.
A further reason why the Council opposes the development relates to waste collection. I was advised that the Council's waste service will not collect bins from court bowls and that, consequently, residents are required to place their bins within the 'neck' (or straight section) of the court for collection. I was further advised that Council's position is that the maximum distance between dwellings and their waste collection points should not be more than 50 metres. In this instance, the Council submitted that, according to its contractor, there is insufficient room along the neck of the court within 50 metres of the review site to accommodate the additional bins.
The Applicant offered to have the waste collected by a private waste collection service, which utilises smaller trucks than those of the Council's contractor, and submitted that collection could therefore occur within the court bowl.
While I acknowledge the Council's concerns, I have not been persuaded that the issue of waste collection should be a determinative one in this instance. The Council confirmed that there is capacity within the neck of the court for the placement of additional bins on collection days, but that the distance required to be travelled would be more than 50 metres. I have no information to explain how the 50 metre 'threshold' was arrived at, or why this should represent the outer limit of distance to be travelled when placing bins for kerbside collection. In any event, the requirement for the preparation and submission of a Waste Management Plan, as provided for in the Council's draft permit conditions, should represent an appropriate means of addressing this issue. Should the Council not agree to kerbside collection, it is open to the Applicant to consider the use of a private contractor, with the necessary details being incorporated into the Waste Management Plan.
The Council submitted that any Waste Management Plan should be the subject of an Agreement pursuant to Section 173 of the Planning and Environment Act 1987. I do not think this is necessary Waste Management Plans are commonly required for multi-dwelling proposals where planning permission is required solely for the development (ie the dwelling use is 'as-of-right'). A permit condition should be sufficient. Relying on the principles established by case law[2], a condition requiring the implementation of an approved Waste Management Plan continues to have on-going effect, even once the development is completed. Indeed, the condition will continue to have effect as long as the owners of the land take the benefit of the permit.
The Council raised other issues with the proposed development, none of which form sufficient basis for the refusal of a permit. I will comment on these briefly:
- The plans show swept path diagrams/turning circles for vehicles exiting the proposed garages and carport. What is shown is that vehicles reversing out from the garage of Unit 3 will need to pass the entry porch of Unit 2. The Council is concerned about the safety implications for pedestrians arising from this arrangement. I am not persuaded that this concern is substantiated. The porch and entry to the dwelling are set back from the driveway and provide clear visibility of this area. Any vehicle undertaking the reversing manoeuvre will be visible to a person exiting the dwelling. In any event, the Applicant's offer to replace the garage with a car space allows the reversing manoeuvre to occur in front of Unit 3, and avoids the scenario raised by the Council.
- Selected habitable room windows are set back 1.0 metre from the driveway. In order to comply with Standard B15 at Clause 55.03-10[3], the windows would need to incorporate a minimum 1.4 metre sill height to protect occupants of the rooms from vehicular noise. This is achieved for all windows, and is acceptable.
- All dwellings have north-facing living room windows. The Council drew attention to the relatively small size of the window associated with the lounge room of Unit 3 and suggested that north light into this space could be enhanced by installing a skylight. The Applicant has no objection to such a requirement, and I have included a condition to this effect.
- There is limited (or no) opportunity for any unreasonable inter-viewing between dwellings as windows are principally on oblique angles to each other. It is noteworthy that those windows of concern to the Council all face the common driveway and are exposed to the publicly accessible area of the site. Any privacy concerns occupants may have can be readily addressed through the commonplace use of curtains and the like.

For these reasons, I have concluded that, subject to conditions, the development achieves a satisfactory level of compliance with the relevant provisions of the Casey Planning Scheme. It follows that my decision is to grant a permit. The Council's decision is set aside.

The construction of an extension (garage) to the existing dwelling; and
the construction of three dwellings to the rear of the existing dwelling

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. When approved, the plans will be endorsed 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 submitted with the application (identified as Drawing 1A Site Plan; Drawing 2A West Elevation - Unit 1 (Existing), Unit 2, Unit 3, North Elevation - Unit 1, South Elevation - Unit 1; Drawing 3A East Elevation - Unit 2, Unit 1, North Elevation - Unit 2 & Garage 1, South Elevation - Unit 2; Drawing 4A North Elevation - Unit 3, South Elevation - Unit 3, West Elevation - Unit 4, Unit 3; Drawing 5A South Elevation - Unit 4, North-East Elevation - Unit 4, North-West Elevation - Unit 4, East Elevation - Unit 3; prepared by Dandenong Drafting, dated May 2012) but modified to show:
- (a) proposed Unit 2 and Unit 3 labelled correctly;
- (b) the deletion of Garage 3 and its replacement with a car space. The car space dimensions must comply with the requirements of Clause 52.06 of the Casey Planning Scheme;
- (c) the deletion of Carport 4 and its replacement with a car space. The car space dimensions must comply with the requirements of Clause 52.06 of the Casey Planning Scheme;
- (d) the provision of a skylight to the lounge room of Unit 3;
- (e) deletion of the bin collection area from the frontage of No.14 Pyrus Court;
- (f) deletion of the proposed "crushed rock" from the secluded private open space of Units 2, 3 and 4 and its replacement with an alternate permeable surface; and
- (g) a comprehensive schedule of construction materials, external colours and finishes, colour samples (swatches).
Before the development starts, a landscape plan prepared by a person suitably qualified or experienced in landscape design to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale on A1 sized paper with dimensions and three copies must be provided. The landscape plan must show:
- (a) a survey (including botanical names, trunk location, trunk diameter and canopy spread) of all existing vegetation to be retained and/or removed. The survey must include any street tree;
- (b) buildings and trees (including botanical names, trunk location, trunk diameter and canopy spread) on neighbouring properties within three metres of the boundary;
- (c) details of surface finishes of pathways and driveways;
- (d) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
- (e) landscaping and planting within all open areas of the site;
- (f) a hard garden edging to all garden beds adjoining turf or gravel surfaces;
- (g) 1200mm organic mulch diameter around any retained or proposed trees in lawn area.

All species selected must be to the satisfaction of the Responsible Authority. The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

Before the development starts, drainage plans must be submitted to, and approved in writing by, the Responsible Authority. The plans must show the provision of an On-site Stormwater Detention (OSD) system. The plans must be drawn to scale with dimensions and three copies must be provided. The stormwater retention system will become the responsibility of the property owner or body corporate to maintain.
The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Before the development is occupied, or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
The landscaping shown on the endorsed plans must be maintained in accordance with the endorsed plans to the satisfaction of the Responsible Authority. Areas shown on the endorsed plans as landscaped must not be used for any other purpose. The maintenance of the landscaping includes the removal and replacement of any dead, diseased or damaged plants.
Construction activities must be managed so that the amenity of the area is not detrimentally affected, through the:
- (a) transport of materials, goods or commodities to or from the land;
- (b) inappropriate storage of any works or construction materials;
- (c) hours of construction activity;
- (d) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste and storm water runoff, waste products, grit or oil;
- (e) presence of vermin

The dwellings must not be occupied until the following works have been completed to the satisfaction of the Responsible Authority:
- (a) the proposed alterations to Dwelling 1 (existing dwelling) have been completed in accordance with the endorsed plans to the satisfaction of the Responsible Authority;
- (b) the premises are connected to reticulated water supply, sewerage, drainage and underground electricity to the requirements of the relevant servicing authority;
- (c) the car parking and driveway areas have been constructed with coloured (dusted) concrete or asphalt in accordance with the endorsed plans;
- (d) all landscaping works have been completed in accordance with the endorsed plans;
- (e) a letter box and street number have been provided to the satisfaction of the Responsible Authority.
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.
Before the development starts, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by, the Responsible Authority. The Waste Management Plan must detail how household waste (garbage), recyclables and garden waste will be managed and collected from the land.

The storage and collection of waste and recyclables must be undertaken in accordance with the approved Waste Management Plan to the satisfaction of the Responsible Authority.

Stormwater must not be discharged from the site other than by means of an underground pipe drain discharged to an approved outlet to the satisfaction of the Responsible Authority.
Polluted drainage must not be discharged beyond the boundaries of the lot from which it emanates, or into a watercourse or easement drain, but must be treated and/or absorbed on that lot to the satisfaction of the Responsible Authority.
The proponent must construct the outfall drainage providing a legal point of stormwater discharge to each dwelling.
Appropriate sediment control measures must be undertaken during construction to ensure that the development site is adequately managed in such a way that no mud, dirt, sand, soil, clay or stones are washed into or allowed to enter the stormwater drainage system.
Vehicular crossings must be constructed to the road to suit the proposed driveway to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority.
The existing crossover, kerb and channel and nature strip must be reinstated in accordance with City of Casey Standard Drawings.
Adequate lighting at driveways must be provided for safe night-time traffic movement in accordance with Australian Standards AS/NZ 2890.1:2004.
Clear sightlines must be provided for adequate visibility between vehicles leaving access driveways and pedestrians at the property lines in accordance with Australian Standards AS/NZ 2890.1:2004 S3.2.4 Fig 3.3. Obstructions including letterboxes, meter boxes, front and boundary fencing, vegetation and the like must be restricted to a maximum height of 1.0m.
The gradients of access driveways must be in accordance with Australian Standards AS/NZS 2890.1:2004 Section 2.6.2. The maximum gradient of domestic driveways must be 1 in 4 (25%), driveway access property line shall be 1 in 20 (5%) and across a footpath and proposed crossover 1 in 40 (2.5%).
The walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
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 years from the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] See the decision of the Supreme Court in Benedetti v Moonee Valley CC [2005] VSC 434

Salek v Casey CC [2014] VCAT 186

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Salek v Casey CC [2014] VCAT 186 (21 February 2014)

Parties