Sass v Wyndham CC [2009] VCAT 1433

1. The decision of the Responsible Authority is set aside.
2. In permit application WYP2536/08 a permit is granted and directed to be issued for the land at 10 Santander Crescent, Point Cook. The permit allows the construction of three (3) single storey dwellings in accordance with the endorsed plans. The permit is subject to the conditions contained in Appendix A to these reasons.

To construct three (3) single storey dwellings. Unit 1 is detached and Units 2 and 3 share a party wall. Each dwelling has two bedrooms, a garage or carport to park one vehicle, and private open space in the range of 35 square metres to 50 square metres. The land will be accessed by two crossovers.

Section 77 Planning and Environment Act 1987

The land is rectangular in shape, with a frontage of 18.5 metres and a depth of 36 metres, and an area of 666 square metres. The land is located on the west side of Santander Crescent, approximately 90 metres south of the intersection of with Hemsley Promenade.

Verraraghavan v Wyndham CC [2008] VCAT 2509.

Smith v Wyndham CC [2008] VCAT 153

The parties 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 on 27th June 2009.

1. An application was lodged with Wyndham City Council to develop the Review site for three single storey dwellings in Point Cook Gardens estate which has been developed over the past 10 years. The residential suburb is substantially developed with only a few vacant lots remaining. Dwellings in Santanda Crescent are largely single storey with some two storey dwellings. All lots have one dwelling on each lot, as there has been a covenenant on each lot restricting development to only one dwelling per lot. The restrictive covenant expired in December 2007.
2. The application was advertised and eight (8) objections were received. The objections raised concerns with consistency with neighbourhood character, additional traffic and parking in the local street, car parking arrangements within the development, setbacks from the side boundaries, and concerns about the possible occupants who might reside in the dwellings.
3. Council determined to not grant a planning permit for the proposed development for the following reasons:

The proposed density and site coverage are contrary to the character of the neighbourhood.

The proposed infill development comprising medium density housing is totally at odds with the surrounding residential neighbourhood character.

The proposed infill development comprising medium density housing does not constitute orderly planning in the surrounding area.

1. All parties provided an overview of the State Planning Policy Framework and expressed general support for it objectives. I do not intend to repeat that planning framework at length. The relevant State Planning Policy Framework includes:

1. The relevant Local Planning Policy Framework includes:

1. In relation to the current proposal the State and Local Planning Policy Framework seeks to:
   • Encourage urban consolidation in established urban areas;
   • Encourage development that improves housing choice and accommodates future housing needs;
   • Facilitate residential and commercial development in existing activity centres with good access to public transport;
   • Ensure that development achieves a reasonable standard of amenity for existing and new residents;
   • Encourage the design of energy efficient buildings;
   • Ensure that development respects the existing or preferred neighbourhood character;
   • Achieve high quality urban design and architecture;
   • Protect the environment and achieve sustainable land use and development;
   • Protect the cultural and/or heritage significance of the locality.

1. I consider that the key issues to be determined are:
   • Is the site suitable for more than one dwelling in the context of the planning framework?
   • Does the proposal respect the character of the neighbourhood?
   • Is the proposal consistent with the orderly planning of the Point Cook area?
   • Does the proposal impose unacceptable amenity impacts?
   • Does the proposal provide satisfactory internal amenity for future residents?

Is the site suitable for more than one dwelling in the context of the planning framework?

1. The Point Cook Gardens estate has developed over the past 10 years and largely comprises single detached dwellings on modest to larger lots. Some medium density housing has been developed in designated precincts around the town centre and open space areas. The Review site, like most of the estate is effectively flat, has access to reticulated services and is unconstrained to be developed for a detached dwelling or for more than one dwelling.
2. One of the central propositions in this matter is that Point Cook is a carefully planned estate comprising detached houses for families and that provision is made for medium density housing is specific locations and that provision makes it unnecessary and contrary to neighbourhood character to allow medium density housing in other locations.
3. Use and development in Point Cook is controlled through the Residential 1 Zone and no Overlays have been applied to the land. The planning framework set out in the Wyndham Planning Scheme includes a range of complementary policy statements that generally support the consolidation of urban areas, the provision of a range of dwellings to meet diverse housing needs, housing affordability, and diversity in subdivision and housing in terms of lot size and housing form.
4. The Point Cook Concept Plan is a Reference Document in the Wyndham Planning Scheme. I find that it provides little guidance in respect to the provision of housing. Under section 7.1 it notes that the Point Cook area will be a primary growth area and that it will be primarily used fr residential development. It suggest that point Cook will provide a diversity in housing types with significant potential for conventional and medium density housing. Section 5.1 of the Plan notes that the population profile is directed to older age profiles including those moving into retirement villages, that is accommodating a range of housing needs. The initial Point Cook Concept Plan 2000 makes no reference to the preferred locations of medium density housing.
5. An Addendum to the Point Cook Concept Plan dated October 2007 notes that higher densities will be required to lift the housing density from the initial 10 lots per hectare to the preferred density of 15 lots per hectare. Housing planning principle includes encouraging diversity in the density, form type and size of housing. It proposes that suitable locations for medium density housing will be facing open space or abutting activity centres and school sites. I note that the document does not try to preclude the development of medium density housing elsewhere in throughout the Point Cook area. Such a policy position would be contrary to the approved planning policy framework and neither a policy nor a reference document can make prohibited a use or development that is permissible in the Zone.
6. The residents relied on a Restrictive Covenant that limited development of their lots to only one dwelling. This Covenant expired in December 2007. As the covenant has lapsed the relevant policy framework emphasises diversity of housing to meet diverse housing needs and housing affordability. I can give no weight to an expired covenant. I was also advised that no actions are underway to reinstate the covenant, or to prepare a local policy that will try to limit medium density housing throughout the estate. No planning scheme amendments are being seriously entertained. I was advised that nothing is proposed that will prevent multiple units or re subdivision in the case of the review site or its environs. I therefore conclude that the proposed development is fully consistent with the current planning policy framework.
7. In these circumstances I cannot properly conclude that the proposal is inconsistent with planning policy, indeed, the proposal is highly consistent with the policies in the State and the Local Planning Policy Frameworks. In the absence of any clear policy directives constraining medium density housing, and assessment of the merits of the proposal must relate to how the proposed built form relates to the exisitg site context as required by the Residential 1 Zone and the applicable provisions such as Clause 16.02 and Clause 55.
8. It is my view that the proposed development is appropriate for an area like Point Cook. Not all households comprise two parents and children that require large houses. Over time, households will change through children growing older and wishing to establish their own households, older childless couples no longer needing the large family home and through families breaking up. It is appropriate that other dwellings are available for young adults, aged people single parents and lone person households. It is also appropriate that such housing be available throughout the community, subject to it being well designed and respectful of the character of the neighbourhood.

Does the proposal respect the character of the neighbourhood?

1. Santander Crescent and its nearby streets have been developed for large single storey and double storey houses. The dwellings have no front fences and attractive front gardens. Most dwellings have double garages and one vehicle crossover to the street.
2. The opposing submissions suggested that the proposed development was inconsistent with the prevailing character of the neighbourhood and the residents aspirations for the neighbourhood due to additional car parking and traffic, the provision of carports, possible impacts on infrastructure such as drainage. The residents also submitted that the design of the proposed dwellings was of a lower quality than the single dwellings.
3. Following my inspection of Santander Crescent and perusal of the plans, it is my opinion that the proposed dwelling is consistent with the character of the street.
4. The proposed dwellings are single storey which is consistent with most of the dwellings in Santander Crescent. There are few double storey dwellings in this part of Santander Crescent, and the proposed dwellings are consistent with the roof heights, roof pitches and roof form of the prevailing built form.
5. The front setback of 5.4 metres is also consistent with the prevailing setbacks. Most dwellings in this part of Santander Crescent have a setback of 5 metres from the street frontage. The dwellings on the adjoining lots are setback 5 metres and 5.1 metres and the proposed development aligns with the prevailing streetscape. The front setback will be landscaped which will provide a frontage very much in keeping with the streetscape. No front fences are proposed again consistent with the open streetscape.
6. The proposed development includes an additional crossover which is not consistent with much of the streescape. However the extent of the fronatage to be used for crossovers meets Stabndard ZZ of Clause 55. I also note that there are two examples close to the review site of lots having adjoining driveways that create the equivalent of two crossovers so the proposal is not a new feature in the streetscape.
7. The building footprint is somewhat larger than the prevailing footprint, although at 48 percent, the site coverage and permeability are comfortably within the requirements of Standard ZZ in Clause 55. I also note from the application plans and the aerial photos that many of the dwellings in this area have extensive footprints and extend to within 8 metres of the rear boundary. Large rear yards are not a prevailing or common feature of this neighbourhood.
8. Most of the dwellings in the street are constructed of brick veneer or render materials with concrete roof tiles. The proposed dwellings will be constructed of bricks with a brick pier feature at the entry to Dwelling One. The windows will be aluminium and the roofs will be of concrete tiles. I find that these materials are entirely consistent with the prevailing materials in the neighbourhood.
9. A final feature of neighbourhood character are the garages and carports built on the boundary. Garages built on the bundary are a common feature in this area, including both adjoining dwellings and one of the opposite dwellings. Carports are not common, only one is proposed and it is located to the rear of the lot, and from the street it will appear as a garage.
10. It is my opinion that the proposed development is an acceptable addition to the neighbourhood and that it respects and integrates with the prevailing neighbourhood character. It is consistent with the prevailing built form in terms of heights, setbacks, roof pitch and materials. When the landscaping has been established I consider that it will be a positive addition to the streetscape.

Is the proposal consistent with the orderly planning of the Point Cook area?

1. Submissions advanced by Mr Rantino, Mr Muir and Ms Lindell proposed that the approval of the development would be inconsistent with, and undermine the orderly planning of the Point Cook area. It was submitted that this development will set a precedent for other multi unit developments, and be inconsistent with concept plans that identify specific locations for medium density housing.
2. I have identified that not only are there no policies in the Scheme that directs me to not support proposals such as this, in my view, the Scheme provide strong policy support for proposals such as this. While residents suggested that the infrastructure of the area is inadequate, no expert evidence was provided to me to support the contention that the approval of this development would lead to the overloading or breakdown of the physical infrastructure ort road networks in the area.
3. The residents fear that approval of this development is likely to set a precedent for other similar developments in the area contrary to their expectations and wishes. I make the note again that their expectations are not reflected in the policy directions for the area as set out in the Planning Scheme. It is the Planning Scheme rather than the expectations of some local residents that must be considered in deciding the merits of this planning application.
4. I also note that there are relatively few lots still vacant in the area and that Point Cook appears to have a highly homogenous housing stock. It appears to me that there are few opportunities to add further housing into Point Cook including medium density housing. However over time the local community may find that having some greater housing choice in the local area to meet the housing needs of the adult child leaving home, the aged parent who wants to live close to the child's family or the separated parent who wants to reside close to the family is desirable.
5. Finally I cannot take into account what others may want to do on other lots in Point Cook. I must determine the matter before me on its planning merits. I on that basis I find that this development is consistent with the orderley planning and development of Point Cook.

Does the proposal impose unacceptable amenity impacts?

1. Grounds of Objection and submission made to me suggest that the proposed development will have detrimental outcomes on the neighbourhood due to increased traffic, on street car parking and potential safety risks arising from the garages / car ports built on the boundary.
2. The amount of car aprking provided in site complies with Standard B16 of Clause 55 which requires one space for a dwelling of two bedrooms. A development of three dwellings is not required to provide on site visitor parking. It is also not required to provide for all cars to be able to depart in a forward movement.
3. Additional parking can be provided on site in front of the garage for Unit One and outside the garage for Unit Three. People leaving Unit Three could reverse their cars into the space outside Unit Two and turn their car around in a three point turn if they did not want to reverse for the full length of the lot. The occupants of Units Two and three would need to ensure that this space is kept clear to ensure that the occupants of unit Three have unfettered use of the driveway.
4. I am satisfied that the amount of car parking proposed and the on site arrangements for access are acceptable.
5. Residents are concerned that their street is already congested and that three additional dwellings will exacerbate the existing situation leading to safety problems. In my view there is no necessary reason to assume that the residents of the new dwellings will not exercise the same care and responsibility as other drivers. The new residents are likely to be just as responsible as the existing residents. It is also possible that if the review site is developed for one large dwelling accommodating a family with adult children, it could generate traffic and car parking greater than the three proposed dwellings.
6. It was submitted that on street car parking will be a problem because a fire plug outside the review site means that no cars can be parked outside the review site and people will park in front of other dwellings. Car parking on the street is a public resource and needs to be shared amongst the various users. On street spaces are not owned by the adjoining land owner and people need to accept that visitors can park anywhere in the street provided they do not block driveways. I find that current weekend on street car parking congestion is not a reason the refuse this proposal.
7. The two neighbours to the north and the west expressed concerns that cars in the garages / carports to Units Two and Three could accidentally drive through the fence into the adjoining private yards. I find this highly improbable and if this did occur the driver would be liable to review and penalties from other jurisdictions. The owner of the property to the rear can install barriers within that property if the danger is perceived to be real, but I do not consider there to be a need for additional design responses within the review site.
8. The neighbour to the rear also expressed concern in regard to the effects of an open car part adjoining the rear fence, including lighting, noise and fumes. I note that the carport is located over a drainage easement, and hence a permanent structure cannot be built. I also note that a garden shed or outbuilding could be built without any approvals. However I agree that some protection should be afforded to ensure that activity in the carport does not intrude into the adjoining land and this can be managed through permit conditions.

Does the proposal provide satisfactory internal amenity for future residents?

1. Ms Gray submitted that the proposed development meets all of the appropriate standards, and Mr Rantino did not identify any standards that are not meet, apart from the matter of neighbourjhood character and car parking / access arrangements. Hence there is agreement that the development meets the standards of Clause 55 in respect of internal amenity. My review of the plans leads me to conclude that the development provides satisfactory:
   • Entry areas visible from the street.
   • Private north facing open space adjacent to living areas.
   • Overlooking to and from other dwellings.
   • Overshadowing of private open space.
   • Daylight to habitable rooms.
   • Enclosures for the storage of bins and general household items.
   • Clothes drying facilities.

2. It is my opinion that the design of the three dwellings will provide satisfactory amenity for its occupants.

1. 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.
2. The permit will include conditions which have regard to the submissions and evidence of the parties, and the matters which arise from our reasons.

The development of three (3) single storey dwellings at No 10 Santander Crescent, Point Cook.

1. The development and/or uses permitted by this permit must not be commenced until three copies of a site layout plan drawn to scale and with dimensions is submitted to and approved by the Responsible Authority. When approved this plan will be endorsed and will form part of this permit. Such plan must show:

(a) The new proposed vehicle crossings for the units to be in accordance with Council standard drawing SD4-3 and to be connected to adjoining property crossing and to be 3.4 metres at the title boundary.

(b) Location of existing services on the street frontage, including poles, street trees, fire plug and kerb crossover.

(c) Screening with solid materials at the rear of the car port for dwelling three for that part of the car port that is above the fence.

1. The development and/or uses permitted by this permit as shown on the endorsed plan(s) and /or described in the endorsed documents must not be altered or modified (for any reason) except with the prior consent of the Responsible Authority.

2. Prior to the commencement of the development hereby permitted, three copies of a landscaping plan prepared by a suitably qualified person must be submitted to the Responsible Authority and when endorsed will form part of this permit. Such a plan will show the following to the satisfaction of the Responsible Authority:

(c) The botanical name, height and width at maturity, and location of all vegetation to be used;

(d) A works specification, and method of preparing, draining, watering and maintaining the landscape area.

The landscape area(s) shown on the endorsed plan(s) must be planted and maintained to the satisfaction of the Responsible Authority and once landscaped must not be used for any other purpose except with the prior written consent of the Responsible Authority.

The development permitted by this permit must not adversely affect the amenity of the locality.

The appearance of the subject land must not adversely affect the amenity of the locality.

Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

A concrete kerb of a minimum height of 150 mm or such other form of barrier as the Responsible Authority may approve, of sufficient height to prevent the passage of vehicles, must be provided in Garages Two and Three to prevent the vehicles causing damage to garden areas, to prevent vehicular access/aggress other than where driveways are provided and to prevent vehicles projecting beyond the boundaries of the subject land.

Vehicular access to the subject land from any roadway or service land (and vice versa) must be by way of a vehicle crossing(s) constructed at right angles to the road, to suit the proposed driveway(s) and vehicles that will use the crossing. The location, design and construction of the vehicles crossing(s) must be approved by the Council. Any existing unused crossing(s) must be removed and replaced with concrete kerb and channel and any services or infrastructure, including street trees, that require relocation or modification as a result of proposed crossovers must be relocated or modified at the permit holders cost and to the satisfaction of Council.

The whole of the subject land, including landscaped and paved areas, must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.

Each dwelling is to be directly connected to Council's underground stormwater drainage system.

The development is to make provision to retard/detain a minimum totals volume of 4,000 litres before discharging to Council's stormwater drainage system.

The development permitted by this permit must not be occupied until:

(a) The parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority, and

(b) The garden and landscape area)s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.

1. All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the Responsible Authority and all care must be taken to minimise the effect of such activities on the amenity of the locality. All noise associated with the construction of the development must comply with EPS's Environmental Protection (Residential Noise) Regulations 1997 No 120 and State Environment Protection Policy (Control of Noise from Commerce, industry and Trade) No N-1.

2. Prior to the commencement of the development hereby permitted, approval must be obtained from the relevant authorities to construct any buildings and works over the easement.

3. This permit will expire if the development permitted by this permit is not commenced within 2 years and completed within 4 years from the date hereof. The time within which the development must be completed may on written request made before or within three (3) months after the expiry of this permit be extended by the Responsible Authority.