What does the provision in the Scheme require?

1. Clause 32.08-4 of the Scheme contains the minimum garden area requirement for the construction or extension of a Dwelling or Residential building. It provides:

Whether or not a planning permit is required for the construction or extension of a dwelling or residential building on a lot, a lot must provide the minimum garden area at ground level as set out in the following table:

Lot size Minimum percentage of a lot set aside as garden area

[with emphasis and table reformatting by the Tribunal]

1. This clause requires that a lot must provide Garden area at ground level in accordance with the percentage relevant to the area of the lot. In the context of clause 32.08-4, where the construction or extension of (relevantly) a Dwelling is proposed, where a lot measures less than 400m2, it is not required to set aside a minimum percentage as garden area.[2]
2. A few terms warrant further discussion.

1. "Ground level" is defined in clause 72 of the Scheme to mean:

1. So the provision requires that the Garden area must be provided at the natural level of the site. A readily understandable example of an outdoor area that would not be included in the calculation, given the wording of the provision, might be an open roof top garden.
2. In the present proposal, dwelling 2 contains a swimming pool. The garden area plans submitted by the Applicant include the swimming pool in the calculation of the Garden area. As defined in clause 72 of the Scheme, Garden area specifically includes a swimming pool.[3] So on the face of the definition of the term, it is correct to include the area occupied by the swimming pool in the Garden area calculation. However, a question does arise as to whether the swimming pool is constructed at Ground level - ie at the natural level of the site.
3. It would be an illogical outcome if an item that was specifically included in the definition of the term Garden area was not able to be included in the calculation because the provision requires Garden area to be provided at Ground level. The installation of a swimming pool - or a tennis court or a deck for that matter - would require some ground work (ie excavation or filling) and may actually be constructed either above or below the natural level of the site, depending on the characteristics of the item, the site and what might need to be done to accommodate construction or installation. Taking a literal approach to this provision might result in a nonsensical (and likely unforeseen) outcome that would seem to be at odds with other parts of the Scheme (i.e. the definition of the term Garden area).
4. In the present case, on the basis that the swimming pool is an inground pool, it might be constructed partly at a level that approximates the natural level of the site, but it would largely sit below that level. I think a preferable interpretation is that the swimming pool is included in the Garden area calculation, having regard to the definition of the term Garden area specifically envisaging that such an outdoor element be included.

1. "Lot" is defined in clause 72 of the Scheme to mean:

A part (consisting of one or more pieces) of any land (except a road, a reserve, or common property) shown on a plan, which can be disposed of separately and includes a unit or accessory unit on a registered plan of strata subdivision and a lot or accessory lot on a registered cluster plan.

1. Clause 32.08-4 of the Scheme requires that a lot must provide the minimum Garden area. At the time that the planning permit application was lodged, the "lot" is the part of land that can be disposed of separately - i.e. it is the initial layout or lot configuration of the land.
2. In the present situation, the planning unit for the proposed development is comprised in two lots:
   1. Lot 1 on TP678452R, which measures 20,120.00mm x 50,300.00mm (or 20.120 metres x 50.300 metres); and
   2. Lot 2 on TP678452R, which measures 920mm x 26,370.00mm (or 0.920 metres x 26.370 metres).
3. The area of Lot 1 is 1,012.036m2 whilst the area Lot 2 is 24.260m2, with the total area of the planning unit for this development being 1,036.296m2.
4. Taking the reference to "lot" as being to the initial lot layout, clause 32.08-4 requires that:
   1. 35% of Lot 1 be provided as Garden area, equating to 354.213m2; and
   2. 0% of Lot 2 be provided as Garden area, given its area is less than 400m2.
5. So a total of 354.213m2 is required to be provided as Garden area on Lot 1 on TP678452R. Given the size of Lot 2 on TP678452R (being 24.260m2), no Garden area is required to be provided on that lot.
6. As an aside, a parallel can be drawn between this approach and how the planning permit application is assessed under ResCode - i.e. it is assessed under the clause 55 objectives and standards on the basis that the application is for the construction of two dwellings on a lot, despite the fact that the planning permission will result in subdivision of the planning unit into two newly configured lots, with one dwelling on each new lot. We do not analyse the planning permit application against the objectives and standards of clause 54, despite the outcome of this planning permit application being the creation of two newly configured lots.
7. Before turning to what is meant by Garden area and whether the minimum garden area requirement is satisfied, I will address the approach taken by each party, which differs from the above.

The Council's approach - the created lot approach

1. Firstly, it was put to me by the Council that because this planning permit application seeks planning permission for both development and the associated subdivision, the analysis of whether the minimum garden area is met should be undertaken based on the resultant lots, not the original lots. The resultant lots measure 506.016m2 (Resultant Lot 1) and 530.28m2 (Resultant Lot 2).
2. The Council submitted (in further written submissions) that given the planning permit application includes subdivision, the requirements of clause 32.08-3 of the Scheme apply. This provision states (among other things):

An application to subdivide land that creates a vacant lot capable of development for a dwelling or residential building, must ensure that each lot created contains the minimum garden area set out in Clause 32.08-4.

Where a vacant lot less than 400 square metres is created, that lot must contain at least 25 percent of the lot as garden area. This does not apply to land where an approved precinct structure plan or an equivalent strategic plan applies.

1. The Council argued that as the proposal creates two separate allotments, each lot created should have a garden area of 30% and referred to a diagram included in the publication by the Department of Environment, Land, Water and Planning (DELWP) titled Reformed Residential Zones (March 2017) in support of this "even distribution" of garden area across the created lots.
2. If I was to proceed in this manner, the requirement would be for:
   1. 30% of Resultant Lot 1 to be provided as Garden area, equating to 151.805m2; and
   2. 30% of Resultant Lot 2 to be provided as Garden area, equating to 159.084m2.
3. So, on this analysis, a total of 310.889m2 would be required to be provided as Garden area. This is 43.324m2 less than would be required if the analysis was undertaken on the lots in their initial layout and configuration (and as separately disposable) at the time that the planning permit application is lodged.
4. Having regard to the wording of clause 32.08-3, I do not think that the Council's approach is correct. Given this is a combined subdivision and development planning permit application, and that granting the permit will result in the construction of the two dwellings proposed and the associated subdivision, and will not result in the creation of vacant lots, I do not consider that clause 32.08-3 is relevant in so far as it refers to the minimum garden area being required for "each lot created" by the subdivision. The reference to "each lot created" by the subdivision is made in the context of those lots being vacant lots; the lots created as a consequence of this planning permit application will not be vacant as they will contain the dwellings also permitted to be constructed by the planning permit.

The Applicant's approach - the planning unit approach

1. The Applicant argued that the Garden area requirement should be assessed on the overall size of the planning unit ie the total of Lots 1 and 2. This would result in a Garden area requirement of 362.704m2 (being 35% of 1,036.296m2). This is around 8.5m2 more Garden area than would be required under what I consider to be the correct approach, given the initial lot layout and configuration.
2. Whilst I can see the appeal of measuring the Garden area in relation to the total planning unit, this interpretation is not supported by the language used in clause 32.08-4 and as such I cannot see a justification for basing the calculation on the area of the entire planning unit, where the planning unit in this case is comprised in two lots that could conceivably be disposed of separately. As such, I do not adopt that approach.

1. On the face of the language, the correct interpretation would have to be that the lot is taken to be the lot at the time the application for planning permit is lodged.
2. However, that the application of clause 32.08-4 of the Scheme could result in three different outcomes, based on three different interpretations, highlights the confusion that is caused by the manner in which the provision is drafted.
3. Planning Practice Note 59 "The Role of Mandatory Provisions in Planning Schemes" (June 2015) states under the heading "How to write mandatory requirements in planning schemes":

In writing a mandatory provision, it is important that the provision should:

• implement an objective
• be clear in its intent to users
• be able to achieve consistent and predictable results
• be as measurable as possible using a quantifiable measure
• be expressed in plain English using common terms.

1. Given the lack of either an objective or a clear intent having been expressed for the provision, it is telling that it remains unclear to me whether my analysis and interpretation is in line with what was intended by the drafters.
2. I wonder whether, if the intention of the provision is to require a certain percentage of land used for a Dwelling or Residential building[4] to be set aside as Garden area, this should be relative to, or measured against, the area of the resulting lot that is to contain the Dwelling or Residential building? Rather than relative to, or measured against, the area of the original lots, when it is clear that the location and layout of the Dwelling or Residential building will not align with those original lots? Does this matter?
3. If so, is there some merit in the Council's line of reasoning; approaching the calculation in a similar fashion as to how the Scheme deals with subdivision and the creation of vacant lots, where reference is made to "each lot created" containing the minimum garden area? Whilst the consequence of such an approach in the present situation would result in less Garden area being required, might it result in percentages that are more representative of what is sought in the table to clause 32.08-4 of the Scheme? Is this what was intended?
4. Given the limited information provided I am not in a position to conclude what might have been intended but in any event, I must apply the provision as it reads.

1. Firstly, "Garden area" is defined in clause 72 of the Scheme as meaning:

An uncovered outdoor area of a dwelling or residential building normally associated with a garden. It includes open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like. It does not include a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre.

1. Both clause 32.08-4 and the term Garden area apply to a Dwelling or a Residential building, both being land use terms defined in clause 74 of the Scheme.
2. The opening words "[A]n uncovered outdoor area of a dwelling or residential building normally associated with a garden" define the term, and are followed by specific inclusions and exclusions that flesh out those words.
3. I deal with each of these components in turn.

What is "[A]n uncovered outdoor area of a dwelling or residential building normally associated with a garden"?

1. The first thing to note is that the area must be outdoor and uncovered.
2. These terms are not defined in the Scheme or in the Planning and Environment Act 1987 (Act) or in the Interpretation of Legislation Act 1984 (IL Act). Clause 71 of the Scheme provides that a term used in the Scheme has its ordinary meaning unless that term is defined in the Scheme or in the Act or IL Act. As such, the ordinary meaning of the term is to be adopted.
3. The meaning of the term "outdoor" should be fairly clear, being defined[5] as meaning (relevantly):

1. However, the area must also be uncovered.
2. "Uncovered" is defined[6] as meaning (relevantly):

while "cover" is defined to mean (relevantly):[7]

1. to put something over or upon as for protection or concealment.

2. to be or serve as a covering for; extend over; occupy the surface of.

and "covering" is defined to mean (relevantly):[8]

1. something laid over or wrapped about a thing, especially for concealment, protection, or warmth.

1. So the area located in the open air must be one that has no cover or shelter put over or upon it for, for instance, protection, concealment or warmth.
2. Secondly, the uncovered outdoor area must be one that is "normally associated with a garden".
3. "Garden" is defined[9] as meaning (relevantly):

1. a plot of ground devoted to the cultivation of useful or ornamental plants.

2. a piece of ground, or other space, commonly with ornamental plants, trees, etc., used as a place of recreation: a botanical garden; a roof garden.

5. (of recent urban developments) deliberately planned so as to have many garden-like open spaces: a garden city.

1. As can be seen, what is ordinarily understood to be a "garden" generally relates to the provision of green space or areas of soil for the cultivation of, or planting of, vegetation.
2. However, the opening words refer to the uncovered outdoor area being one that is "normally associated with a garden", where the highlighted words broaden the concept beyond what might strictly be considered to be a "garden". The use of the words "normally associated with" is suggestive of outdoor elements that "regularly" or "as a rule"[10] "keep company with"[11] a garden.
3. So the Garden area is not just referring to areas of space for cultivating plants; it also refers to uncovered outdoor areas that regularly keep company with these green spaces. The specific inclusions - open entertaining areas, decks, swimming pools and tennis courts (along with the inclusive phrase "and the like") - support this interpretation.
4. In my mind, this begs the question: what is the purpose of this provision? I note that I am unaware of any Planning Practice Notice having been issued by the Department of Environment, Land, Water and Planning ("DELWP") to provide guidance in this respect, despite early indications that this would occur. At this point I am again reminded of the contents of Planning Practice Note 59.
5. In saying this, DELWP has produced some material. The DELWP publication "Reformed Residential Zones - New minimum garden area requirement" (March 2017) provides some commentary regarding the requirement, although in large part this reiterates the content of the clause and the Garden area definition. However, under the heading of "Why has the new garden area requirement been introduced?" the following appears:

Changing lifestyles and housing preferences mean there is significant demand for more housing, and different types of housing to meet the current and future needs of the community.

We want to make sure that housing is affordable, and that the community is provided with diverse housing choices. But not at the expense of our valued neighbourhood characteristics such as our heritage, trees, garden areas, and streetscapes.

The new garden area requirement ensures the green open character of our neighbourhoods will be protected, by requiring a mandatory minimum garden area be provided when land is developed.

1. I also observe that the DELWP publication "Reformed Residential Zones" (March 2017) states that the Victorian Government was introducing a range of new measures that build on the advice of the Managing Residential Development Advisory Committee, including as follows:

The Committee raised concerns about whether the capacity to meet housing requirements has been limited by the way the zones have been applied. The limited ability of some municipalities to accommodate a fair share of this growth was also a concern.

The Committee found greater flexibility is needed in the Neighbourhood Residential Zone.

The Government agrees and the dwelling cap in the Neighbourhood Residential Zone is being replaced with a new mandatory garden area requirement. This will protect the open garden character of neighbourhoods and allow for more housing diversity.[12]

The garden area requirement increases the amount of garden space that must be provided for new residential developments. New developments in the Neighbourhood Residential Zone and General Residential Zone will need to comply with the new garden area requirement. It is mandatory, and cannot be varied.

The garden area requirement provides the opportunity for greater housing choice in Victoria's neighbourhoods while protecting the open space character.[13]

1. Whilst this material is not contained in the Scheme, a Planning Practice Note it reflects the reference in the explanatory material for Amendment VC110 that refers to the provision being inserted to protect the garden suburban character of existing urban areas. Together, this provides some indication of the Government's motivation in amending the Scheme to include this requirement.
2. Based on the above material (which I have used in an endeavour to derive a purpose), the wording of the provision and the definition of Garden area, it strikes me that the purpose of introducing a minimum garden area requirement for a lot is to ensure that the lot retains a minimum percentage of it as uncovered space that is either garden or of a nature that regularly keeps company with a garden, in order to contribute to a perception of openness or space around the built form when viewed from outside the site, whether or not this openness or space is given over to plantings. This openness or space can then contribute to the open garden character of neighbourhoods.
3. Viewed in this light, elements of a proposed development that are either garden or of a nature that regularly keep company with a garden and that contribute to a perception of openness or space around the built form might be areas that are included in the calculation of the Garden area, whereas elements of a proposed development that run contrary to this might properly be excluded from the calculation.
4. The specific inclusions - open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like - appear to be consistent with this interpretation, in that these areas are outdoor, uncovered, normally associated with a garden and contribute to a sense of openness or space around the built form.
5. The specific exclusions, being:

...a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre,

also appear to be consistent with this interpretation, as although these areas are outdoor they are either not uncovered ("roofed area"), are not normally associated with a garden ("a driveway, any area set aside for car parking") or do not contribute to a sense of openness or space ("any area that has a dimension of less than 1 metre").

...open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like.

1. In the preceding section I made some comments regarding the requirement that the Garden area be provided at "Ground level" and the implications of this in terms of the specific inclusions. I addressed the swimming pool that is proposed for dwelling 2 and why I considered it was appropriate to include the area forming the swimming pool in the Garden area calculation.
2. Depending on the facts of a particular case, there might be instances where, legitimately, an area that is claimed to be included in the Garden area calculation should not be so included - for instance, a roof top garden. However, in other situations where, for example, benching of a site is required to create a more useable, tiered lawn on a sloping site, it would not seem reasonable to not include such lawn area on the basis that it is not provided at the natural level of the site.
3. Having regard to the opening words of the definition, the key criteria are whether the area is uncovered, outdoor and normally associated with a garden.
4. The garden area plans submitted by the Applicant include the following parts of the development in the Garden area calculation:

1. the rear setback area of each dwelling that is shown in the Landscape Plan as being an area of lawn with some canopy vegetation along the rear boundary; 2. the areas in the rear of each dwelling between the side boundary fence and the covered alfresco area, and the areas to the side of each dwelling, that have a dimension of more than 1 metre and that are shown on the Landscape Plan as containing canopy vegetation;

1. the swimming pool for dwelling 2; 2. uncovered areas in the side and rear setbacks of each dwelling that appear to be paved on the Landscape Plan; 3. areas that are in the nature of service yards to the side of each dwelling; and 4. the area of the front setback of dwelling 2 containing stepping stones to access the verandah and entry to the dwelling.
2. In my view, the above areas are all reasonably included within the concept of an uncovered outdoor area normally associated with a garden. Even the service yards for each dwelling are, in my mind, outdoor areas that are normally associated with a garden, in that a person looking at such an area would likely consider it to be associated with their garden, notwithstanding it is not intended to, or would usually, contain plantings. I note that in the proposal before me the above areas are uncovered and clear to the sky and that the dwellings do not contain eaves overhanging these areas.

What is excluded from the Garden area calculation?

...a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre.

1. To some extent, the meaning of "a driveway" and "any area set aside for car parking" is selfevident and would include driveways/accessway and uncovered areas that are intended to be used for car parking. In the present case, the garden area plans submitted excluded the areas covered by each driveway.
2. "Building" is not a defined term in the Scheme but is defined in the Act as including:

(a) a structure and part of a building or a structure; and

(b) fences, walls, out-buildings, service installations and other appurtenances of a building; and

(c) a boat or a pontoon which is permanently moored or fixed to land.[14]

1. The term "building" is defined inclusively and broadly. Its reference to a "structure" along with "fences, walls, out-buildings, service installations and other appurtenances of a building" leads to potentially many things being included within this concept, including, perhaps, some of the specific inclusions in the definition of Garden area.
2. The term "building" is part of the phrase "any building or roofed area".
3. The term "roofed area" is not a defined term in the Scheme. If an area is roofed this would ordinarily mean that it was under the cover of a "roof", where "roof" is defined in the Macquarie Dictionary, 6th Edition, as meaning (relevantly):

1. the external upper covering of a house or other building.

1. This concept of "any building or roofed area" being excluded from the Garden area calculation has the potential to introduce uncertainty, depending on the facts of the case.
2. In the present case, the garden area plans submitted by the Applicant exclude the covered alfresco deck area to the rear of each dwelling from the calculation. I think that this is the correct approach and that a covered alfresco area is within the concept of a "roofed area" and, as such, is not what is envisaged to be included in the Garden area calculation. In the present case, the covered alfresco area is an area that is under the cover of a roof that is to be constructed of the same fabric as the external upper covering of each dwelling (ie Lysaght).[15]
3. Whilst an obvious exclusion, the ground level footprint of the built form of each dwelling was also excluded from the Garden area calculation in the garden area plans. I note that there are no eaves proposed in the design, nor are there any balconies or design features that protrude beyond the ground level footprint, over 'bare' ground.
4. The final exclusion is for "any area that has a dimension of less than 1 metre". I note that there was some conjecture about a section of the northern side setback, between the northern wall of bedroom 2 of dwelling 2 and the common boundary fence with 75 Hare Street, and whether this measured 920mm or 1 metre. It has subsequently been clarified that the distance between the northern wall of bedroom 2 and the common boundary fence measures 1 metre and that the built form is located on Lot 1 on TP678452R, whereas the 920mm strip of land that is closest to the common boundary fence is on Lot 2.
5. Given my earlier finding that Lot 2 on TP678452R is not required to provide any Garden area (given its size of 24.260m2), this section of the planning unit that is comprised in Lot 2 should be excluded from the calculation area. (I deal with this further, below.)
6. I observe that the garden area plans do not include the path in the front setback of dwelling 1 that leads to dwelling's entrance. Part of this area is covered by the open timber pergola near the entrance whereas the remainder is clear to the sky. I am unsure why at least part of this area has not been included in the Garden area calculation, given the front path would not seem to fall within any of the specific exclusions and, but for the fact it is shown as a solid path rather than of stepping stone form, is not dissimilar to the entrance area to dwelling 2 that was included in the calculation. Such an area would seem to be an uncovered outdoor area normally associated with a garden.

Does the proposal satisfy the minimum garden area requirement?

1. The garden area plans submitted by the Applicant calculate the Garden area as meeting the requirements of clause 32.08-4 of the Scheme. this is calculated both:
   1. on the basis of the area being taken as the entire planning unit (ie the area of Lots 1 and 2 combined) and the requirement being 35%:
      1. Garden area of 377.83m2 of a total 1,036.30m2, equating to 36.46% of the area of the planning unit; and
   2. on the basis of the area being assessed against each Resultant Lot and the requirement being 30%:
      1. dwelling 1: Garden area being 164.52m2 of 506.02m2, equating to 32.15% of Resultant Lot 1; and
      2. dwelling 2: Garden area being 213.31m2 of 530.28m2, equating to 40.23% of Resultant Lot 2.
2. Having regard to my earlier analysis of the use of the term "lot" in clause 32.08-4, I have found that the correct approach is to calculate the minimum garden area based on the area of the existing Lot 1 on TP678452R (being 1,012.036m2), meaning that the required percentage is 35%. Calculating 35% of 1,012.036m2 equates to 354.213m2 of Garden area.
3. The Applicant's garden area plans identify Garden Areas 1 to 9. It is clear that the sections identified as "Garden Area 1" to "Garden Area 8" (inclusive) are located on Lot 1 on TP678452R. These sections total 338.21m2 in area.[16] This is 16.003m2 short.
4. Garden Area 9 comprises all of Lot 2 on TP678452R and part of Lot 1 on TP678452R. Garden Area 9 measures 39.62m2 but the area of Lot 2 on TP678452R, being 24.260m2, needs to be deducted. This leaves 15.36m2. Of this 15.36m2, some of the remaining areas that are on Lot 1 on TP678452R would measure less than 1 metre in dimension,[17] and so would be excluded from the calculation. However, there is an area between the driveway and northern edge of Lot 1 on TP678452R that is greater than 1 metre in dimension and of an area at least 7.6m2 that could be included.
5. Whilst this would still result in a shortfall based on the areas shown on the submitted plans, I am of the view that the path area in the front setback to dwelling 1 could be included, and even if the part covered by the open timber pergola was taken out, including this front path area would equate to approximately an additional 12m2. [18]
6. Including this area would result in the minimum garden area requirement being met. If I did not include this 12m2 area, there would be a shortfall and the requirements of clause 32.08-4 would not be met.
7. Either way, I turned my mind to whether compliance could be achieved by including a planning permit condition that required the provision of the minimum garden area. Given my findings below regarding neighbourhood character, it is unnecessary to address this issue, save to say that such a course of action might be reasonable in some circumstances.[19] Similarly, even if I am wrong in my interpretation of clause 32.08-4, I would have refused this planning permit application anyway for the reasons below.
8. As a final comment, it is somewhat perplexing to me that this extent of analysis is required in order to determine whether a mandatory provision of the Scheme is or is not met. Perhaps consideration could be given to some of the matters raised above and further clarity provided.

IS THE PROPOSAL AN ACCEPTABLE RESPONSE TO NEIGHBOURHOOD CHARACTER?

1. The site is located in the General Residential Zone, approximately 194 metres from the Echuca commercial precinct located within the Commercial 1 Zone. The site is proximate to a supermarket, shops, food and drink premises, primary school and hospital. The site is well located to make a contribution to providing additional housing for the Shire, which has a higher population of younger (school-age) people and older people, compared with other areas of regional Victoria.[20]
2. Clause 21.02 Settlement and Housing has amongst its objectives "to encourage infill development in order to maximise the use of available infrastructure capacity and consolidate urban communities" and "to encourage a wider variety of housing types, especially smaller and more compact housing, to meet the changing needs of the community".
3. Clause 21.06-1 deals with neighbourhood character and provides:

A neighbourhood character assessment is required of all residential applications, and it is considered that the 'scale' of a building is the most relevant of the assessment criteria, referring to its height, bulk, setbacks and separation between buildings. Council will primarily assess neighbourhood character focussing on the 'scale' and design of a structure as the benchmark reference point.

To promote a high standard of architecture, landscaping and urban design,

Promote high-quality and attractive residential developments which provide a high level of amenity and include appropriate landscape treatments.

Encourage building setbacks in accordance with the prevailing character,

To provide a visually attractive urban environment which creates a positive image,

Ensure that multi-dwelling housing is well landscaped, with tree and shrub selection creating a positive visual image.

Ensure there is adequate scope for canopy tree planting in private properties and within Street reservations.

1. The Council also referred me to Objective 4 of that clause, being "to recognise places of distinct neighbourhood character". For such places, the strategies address matters such as maintaining the landscape settings of buildings and the tree canopy of neighbourhoods, maintaining the rhythm of spacing between buildings, assessing the character impacts of development, focusing on the 'scale' of the proposed structure and avoiding side-by-side residential development where this is not characteristic of the neighbourhood.
2. The Applicant argued that the site was not located in a place of distinct neighbourhood character and, as such, that objective and its associated strategies were not applicable to the proposal.
3. The site is not identified as an infill area in the Echuca Town Structure Plan 1 - Echuca Central contained in clause 21.09-1 of the Scheme. Notwithstanding, the Council acknowledged that the subject site is well located and, given the extent of multi-unit developments within the surrounding area, infill development on this site could reasonably be expected.
4. The Council considered that the existing neighbourhood character was a mixture of housing styles and lot sizes but where the dominant character is of one dwelling fronting the street with generous front setbacks and minimal walls on boundaries. Dwellings are generally modest in scale and form, have pitched roofs and with carports and/or garages visually screened or located behind the front facade of dwellings, and secluded private open space to the rear. The Council described other multi-unit developments within the area as being generally of battle-axe configuration or one behind the other, with a single pitched roof dwelling fronting the street, a single shared crossover and the building setback from the side and rear boundaries.
5. The Council argued that:

...the presentation of the dwellings with dominant garages, a front fence to Dwelling 1, narrow lot frontages which offer no street surveillance, is all alien to the streetscape and contrary to the orderly planning of the area. Council is also aware other [sic] inappropriate side-by-side developments as shown in the below photo. Side-by-side dwellings are not a form or style which council is seeking to replicate.[21]

1. In particular, the Council was concerned about the side-by-side nature of the proposed development, its visual dominance of the streetscape, the creation of lot sizes inconsistent with the existing pattern and spacing of buildings in the area, and the resulting 10.9 metre frontage of Lot 2, where more than 6 metres of this would be dominated by a double garage.
2. During the hearing an issue emerged regarding the accuracy of the front setback for the adjoining 75 Hare Street as shown on the Site Context Plan and Design Response Plan submitted by the Applicant. The front setback was shown as 6 metres whereas it was stated by the Applicant after the hearing[22] that this measurement is actually 11.2 metres. The Applicant claimed that the unit to the south at 71 Hare Street was correctly shown in the application plans as being setback 8 metres from Hare Street.
3. The Council, in its further written submission, stated that the front setback for 75 Hare Street is actually 11.5 metres (not 11.2 metres), while that for the lot further north, at 77 Hare Street, is 11.4 metres (and not 11.2 metres).
4. Consequential to either correction (ie whether either the Applicant or the Council are correct as to the front setback for 75 Hare Street), Standard B6 of clause 55.03-1 of the Scheme requires a 9 metre front setback rather than the 6 metres proposed.
5. Subsequent to the hearing, in the further written material submitted to the Tribunal, the Applicant put forward a suggested redesign that would accommodate a 9 metre front setback, where the increased setback was achieved by taking space from the internal layout of each dwelling. The Council submitted that I should not consider this further redesign. Even if I was to approach the altered design as a suggestion as to what I could impose by way of a condition 1 amendment to the plans, for the reasons elaborated on below, increasing the front setback would not be sufficient to overcome the concerns that I hold in relation to this proposal's response to the neighbourhood character of the area.
6. In addressing the Council's arguments regarding neighbourhood character, the Applicant argued that as there is no specific neighbourhood character guidelines that apply to the Hare Street area, the general neighbourhood character policy contained in clause 21.06 is that which applies. It was argued that given that policy applies to the entire Shire, this is an indication of the level of neighbourhood character significance that the Council considers the Hare Street area has.
7. The Applicant argued that the area contains an eclectic mix of housing types and styles with no defining or dominant style and that the design concept respected key elements of the surrounding built form, such as no development to the site boundaries in the front half of the land, single storey form and compliance with most of the prescriptive requirements of clause 55 of the Scheme. The Applicant also argued that the design concept is based upon an outward view of the proposal as a single dwelling form and that the use of the same construction material for the front facade and the garage door of dwelling 1 assists in the integration of that garage within the overall development.
8. In assessing this application, I have had regard to the existing neighbourhood character along with the policy contained in clause 21.06-1 of the Scheme, which I acknowledge is quite general in its nature. Noting that there is no detail provided in the Scheme as to what is meant by a place of "distinct neighbourhood character" (as referenced in Objective 4 of clause 21.06-1), and mindful of the acknowledgement by the Council that the Hare Street area contains a mixture of housing styles and lot sizes, I am not persuaded that the site is within a place of distinct neighbourhood character for the purposes of Objective 4. Accordingly, I have not taken the associated strategies of Objective 4 into account in my analysis. However, having said this, considerations such as rhythm and spacing, landscaping, dominance of buildings and dominance of car parking structures are broadly covered by other, relevant objectives and strategies of clause 21.061 and by the objectives of clause 55.02-1 of the Scheme:

To ensure that the design respects 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.

1. Whilst the Council did not hold specific concerns regarding the contemporary design of the structure, the roof style or the height of the central element, I consider that these aspects of the proposal are significant. When considered in conjunction with the extent of built form across the front of the site, the two crossovers sought, the extent of garaging for the site that will be evident in the streetscape and the front fencing proposed to one dwelling but not to the other, I find that these all combine to create an outcome that will be jarring in the streetscape and not in keeping with or respectful of the existing neighbourhood character or one that will contribute to a preferred neighbourhood character.
2. I agree that surrounding properties are diverse in style and that there are some modern inclusions within Hare Street. However, whilst I would not go so far as to say that Hare Street has a "distinct neighbourhood character", in my opinion the section of the streetscape relevant to the subject site is characterised by dwellings of a relatively modest scale located behind generous, well vegetated front setbacks, more often than not with a pitched roof. Building fabric is predominantly red, orange or brown brick or white render, with some weatherboard. Generally speaking, car parking structures have a lesser presence in this section of Hare Street. I was taken to examples where car parking structures were perhaps more dominant, however, I note that these properties are some distance from the subject site, albeit still on Hare Street. The unit development at 68 Hare Street, which is proximate to the subject land and has very prominent and dominant car parking in the front setback, is an anomaly in the streetscape and is not one that, in my view, should be replicated.
3. The proposal incorporates too many elements that differ from the streetscape of this part of Hare Street to be considered respectful of the existing neighbourhood character. The proposal seeks to be viewed as a single dwelling and, to that end, has an attached front façade. However, as a consequence of its attached nature, the built form extends effectively across the width of the site. This is unlike most properties in this area where at least one side setback contains space between the dwelling and boundary (often associated an accessway).
4. When viewing the front façade, one's focus is drawn to the central double storey built form 'block' containing the entrance to dwelling 2 and the study of dwelling 1, measuring 5.6 metres in height. This central block has a flat roof and is clad in dark grey, vertical metal deck sheets, which serve to visually elongate this central section. On either side are the flat roofed garages for each dwelling, which also present as block elements to the street, albeit in different materials and shades of grey. Whilst the design contains a raked Lysaght roof to each dwelling, this is set some way back from the street and, as such, will have less visual impact compared with the flat roof that is in the foreground of each dwelling.
5. The colours, materials, and effectively flat roofed nature of the proposal are all distinctive elements. I was taken to 59 Hare Street as an example of a modern, flat roofed, white rendered townhouse development that featured construction to the boundary. This property is a corner block and to some extent stands alone as an example of a number of elements distinctive from Hare Street being combined in one development. In any event, as it addresses Hare Street, the building presents as one dwelling with one pedestrian entrance, whilst the car parking structures and access ways address Eyre Street.
6. The creation of a second crossover as a consequence of the side-by-side nature of the development removes a further part of the front setback from potential plantings. Whilst the crossover for dwelling 2 is 3 metres wide, the accessway widens to the width of the double car garage, removing this part of the front setback from planting. Acknowledging that several of the surrounding properties do not feature heavily vegetated front setbacks, it remains the case that those properties generally have sufficient area in front of the dwelling to provide a perception of space between the dwelling and the street. Whether as designed or with the alternative, increased front setback suggested by the Applicant in further written submissions, I consider that views of the front setback will be dominated by the built form, the car parking structures, and the accessways. Little vegetation will be evident on either side of the dwellings whilst that proposed for the central private open space courtyards between the dwellings, to the extent that it might be visible from outside the site, will have limited visual impact given its location and likely resultant height.
7. Overall, is my view that this building will dominate the streetscape due to its size, bulk, design, roof style, proposed colours and materials, car parking structures, two accessways, and lack of meaningful remaining space in the front setback for plantings that could soften the impact of all of this. Accordingly, I find that the proposal does not respect existing neighbourhood character or contribute to a preferred neighbourhood character.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

1. [2] Contrast this with clause 32.08-3 dealing with subdivision of land. In that clause, where a vacant lot less than 400 square metres is created, that lot must contain at least 25 percent of the lot as garden area.

[3] This is addressed in further detail below.

[4] being those land uses that trigger this requirement - refer to the Garden area discussion below.

[5] Refer Macquarie Dictionary, 6th Edition.

[10] With reference to the definition of the term "normally" in the Macquarie Dictionary, 6th Edition.

[11] With reference to the definition of the term "associate with" in the Macquarie Dictionary, 6th Edition.

[12] Refer Reformed Residential Zones (March 2017), Department of Environment, Land, Water and Planning, at page 8.

[14] Refer section 4 of the Planning and Environment Act 1987.

[15] In saying this, if the verandah roof was to be constructed of a different material I do not think that would matter, so long as the area remained a "roofed area" in that it is provided or covered with a roof.

[16] Being 24.88m2 + 45.92m2 + 57.02m2 + 36.70m2 + 23.56m2 + 3.97m2 + 23.63m2 + 122.53m2.

[17] on Lot 1, notwithstanding that they might be, for instance, of 1.5m dimension between the built form and the common boundary fence when Lot 2 is also taken into account.

[18] This area measuring 1.5 metres wide by approximately 8 metres.

[19] I note here, however, that it might not be desirable to impose such a planning permit condition where it is unclear what design outcome will eventuate as a consequence of compliance - eg will the provision of additional garden area in order to meet the mandatory minimum result in the removal of articulation to a façade resulting in a unarticulated elevation, which might be undesirable in some circumstances?

[20] Refer clause 21.01-1 of the Scheme.

[21] Refer Submission on behalf of Council at [6.2.9].

[22] In its further written submission.