1. In permit application no. WYP2535/08, the decision of the Responsible Authority is set aside.
2. A permit is granted and is to be issued for the land at No. 32a La Coruna Gardens, Point Cook. The permit will allow the development of three single storey dwellings in accordance with the endorsed plans. The permit is subject to the conditions contained in Appendix 1 to these reasons.

Ms R Gray of ARG Planning. She called expert evidence from Mr D Hancox, traffic engineer of TTM Consulting Pty Ltd.

Ms G Brenchley for all Respondent Objectors, and persons listed in a petition she tendered, with Mr C & Mrs S Westhead.

Construction of three single storey dwellings. Each would contain two bedrooms and have a single carport/garage. Unit 1, facing the street, would have its own driveway into the short western end of La Coruna Gardens, while the other two dwellings would be accessed from a common driveway using the existing formed crossover to the site. The dwelling sizes range from 101 - 122 square metres (total area including porches and garages/carport).

Clauses 11, 12, 14, 15.12, 16.02, 19.03, 21, 22.01 and 65. The Point Cook Concept Plan 2000 and 2007 Addendum are cited in Clause 22.01.

The review site is located on the north side of La Coruna Gardens. This is a loop road extending from Palmer Avenue. The review site is at the northern end of the western part of the loop. It is at a bend in the road. Two residential lots are to its west. Nearly 30 lots have their principal frontage to the street.

The site is in the Point Cook Gardens Estate. It was subdivided close to 10 years ago and developed in the past 6-7 years. There are single and double storey dwellings and some vacant lots. A restrictive covenant applied to the review site and other lots. That expired in 2007. Among a range of matters, it limited development to one dwelling per lot.

1. Tony Sass proposes the development of site in Point Cook for three single storey dwellings. The site is within an area that was subdivided around 10 years ago and has seen dwellings erected over the last six or so years.
2. The Wyndham City Council determined to refuse the permit application and, as the proponent lodged this proceeding requesting the Tribunal to grant a permit, I must decide if a permit should be issued. The issues raised in submissions require me to determine the following questions:
   • Is the site suitable for more than one dwelling in principle?
   • Is the proposed development an acceptable response to neighbourhood character considerations?
   • Would the proposal undermine the orderly planning of the Point Cook area?
   • Would the proposal adversely affect the amenity of the area because of its impacts on traffic, parking or any other factor?

Is the site suitable for more than one dwelling in principle?

1. The review site is within a very large residential area that has established over the last 10 years. It is on land zoned Residential 1 without any Overlays to guide, or restrict, the specific form of development. In this context, given its size and orientation, without any significant impediments such as existing vegetation, a substantial slope, or awkwardly located easements, the concept of developing the land for more than one dwelling would be reasonable.
2. That conclusion is reached by considering the purpose of the Residential 1 Zone and policy directions contained within the Wyndham Planning Scheme that include[2]:
   • Providing for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
   • Providing access to a range and quality of housing opportunities which meet the needs of the population.
   • Directing growth to specific areas including Point Cook.
   • Promoting a diversity of housing choice in residential growth areas.
   • Encouraging diversity in subdivision and housing in terms of lot size and housing form.
3. With single storey dwellings containing two bedrooms, at around 8 and 10 squares each, the proposal offers a different and more compact housing product than the large single and double storey homes in La Coruna Gardens and the townhouses on smaller lots seen in the Point Cook Gardens Estate. The proposal provides choice and diversity. These outcomes are elements that weigh in favour of the permit application when its planning merits are assessed as a whole, but not exclusively so.
4. In this proceeding, the Council and Respondent Objectors submitted the review site should not be developed with more than one dwelling. They referred to a covenant that applied to the site and other lots within the Point Cook Gardens Estate. That prevented more than one dwelling per lot and further subdivision. Although the covenant expired in late 2007, they submitted the expectations and aspirations of residents were for single dwellings on the vacant lots. Moreover, they submitted that the planning of the larger Estate has provided ample opportunities for medium density housing and there is, therefore, no need for multiple units on sites like this.
5. The area has been carefully planned. An Outline Development Plan was approved in 1999 with an expectation of potentially more than 1,000 residential lots. Facilities include a primary school, community centre, wetlands and passive and active open spaces.[3] Diversity in lots and housing has also been planned. Higher intensity housing is focused on areas with excellent access to open space and walkways and it is here that attached townhouses on small lots can be seen or are proposed. One of these higher density locations is a row of lots on the north side of Palmer Avenue, backing onto properties fronting the south side of La Coruna Gardens. Here lots are 375 square metres with single storey homes, some with high site coverage based on the aerial photographs.
6. The pattern adopted in the Estate's planning and development can be appreciated. However, importantly, there is no statement or suggestion in Clause 22.01 or the Point Cook Concept Plan, as it relates to the area of the review site, that medium density housing should be precluded on sites other than those already subdivided for medium density housing.
7. There is no indication that in the last 18 months, since the covenant expired, that any steps have been taken by the Council to reinstate or replace that development restriction. No statement of preferred character has been drafted or adopted by the Council. Nothing is proposed for inclusion within the Planning Scheme that suggests or directs lots to contain only one dwelling. Residents could pursue an agreement with other land owners to introduce a voluntary covenant but there is similarly no indication any such steps have been taken. In summary, nothing has been proposed or put into place to prevent multiple units or re-subdivision in the case of the review site and its environs.
8. In these circumstances, I do not think it can properly be concluded that the notion of more than one dwelling on the review site must be rejected outright for any planning reason. There is no policy support for that conclusion in any material to which I was referred, whether tentative, draft or adopted. As noted in a letter tendered by Ms Brenchley from Peet Ltd[4], re-subdivision often occurs as suburbs mature and the same can be said for fresh development options on vacant lots.
9. In the absence of relevant policies and/or provisions directing a future development/design outcome, an assessment of the merits of the application must consider how the proposed built form response relates to the existing site context as required by the Residential 1 Zone and applicable provisions and policies such as Clauses 16.02 and 55. I address this next.

Is the proposal an acceptable neighbourhood character response?

1. Criticisms of the proposal raised by the Council focus on the following design element that were said to be foreign to the area or residents' aspirations for this area - the extent of development proposed down the site, limited rear setbacks, a shallow front setback for Unit 1, the use of two crossovers/ driveways, a long driveway, garages with no space for storage, minimal opportunities for landscaping, and the design of porch treatments.
2. I agree with Mr Rantino that the area comprises large family homes, with fairly consistent front setbacks, double garages that are quite prominent in the streetscape, and backyards. Landscaping is developing and can be expected to have a stronger presence in time. Mr Rantino spoke of sizeable backyards but my inspection confirms that there is variability as to the extent to which built form extends into, or is seen, in a 'rear yard context'.
3. The proposal complies with Clause 55 with respect to matters such as the extent of frontage occupied by crossovers (Standard B14), side and rear setbacks and walls on boundaries (Standards B17 and 18). It has garage/carport boundary walls but no others; that is acceptable as many homes have a garage on a boundary. Even though there are few carports I do not find that is a reason to reject the proposal; Unit 1's carport would have a front door just like a garage. The presentation with one dwelling facing La Coruna Gardens, at the end of a vista along the western leg on this loop road, is acceptable as is the replacement street tree. The total amount of floor area is not dissimilar to one large house. The single storey form means the visual impact of the proposal is not intrusive or dominating.
4. The two features of the development that arguably represent the greater departure from the existing pattern of the immediate area are the two driveways and a side driveway serving Units 2 and 3. The exact form is not represented in this street but can be seen in the nearby area such as a pair of side by side units behind the review site fronting Dunkirk Drive. There are two dwellings in La Coruna Gardens with access to side driveways.
5. In addition, I viewed properties in the area with extensive hard paving in frontages and others using two crossovers in a drive-through format.
6. In this context, I find the design response involving two driveways to be acceptable given the site's position on this western arm or pocket of La Coruna Gardens where there is already considerable paving and the scope for planting within the nature strip (relocation of the street tree as is proposed). The driveway to Unit 1 would not be a prominent element in the streetscape in this context. A gate could be added to the common driveway.
7. I have also considered the front setback of Unit 1 that is shallower than the abutting properties to the east and west as well as all others nearby. At 4.7 metres, the building would sit forward of other dwellings that have setbacks of 5.1 - 6.8 metres based on the site analysis. The nature strip in front of the site widens to the west to be deeper than typically found in the street. However, that grassed area would be reduced to accommodate the crossover design recommended by Mr Hancox. On balance, I am persuaded that a minor increase in the front setback of Unit 1 is warranted without changing other setbacks or the position of other dwellings in the proposal. Mrs Gray suggested such a change could be accommodated.
8. For the above reasons, I find the proposal is acceptable because it would sufficiently respect the existing character of the neighbourhood. The form would not be the same as detached houses in La Coruna Gardens but the design does not represent a radical or unreasonable departure from the built form pattern in this establishing residential area or the Estate more broadly.

Would the proposal undermine the orderly planning of Point Cook?

1. Submissions advanced by Mr Rantino and Ms Brenchley on this question focused on the prospect that approval of the current permit application would set a precedent for other vacant lots to be developed with multiple units contrary to the vision for Point Cook. Ms Brenchley was particularly concerned about several vacant lots in La Coruna Gardens.
2. I have explained that there are no policies in the Scheme or adopted by the Council to which I was referred that advocates a position of no change. Nor is there any justifiable planning reason underpinning such a position based on the provisions of the Planning Scheme. There is nothing to support contentions that infrastructure capacity would be unreasonably extended or compromised by this proposal. Moreover, I do not consider the approval of the current permit application would undermine the orderly planning of the whole Estate. Any other proposals for multiple units would need to be tested on their own facts and circumstances but it is likely that other unit developments could be approved in the area as is evident from the Council's approval of the pair of dwellings in Dunkirk Drive.
3. I appreciate that such an outcome is not desired by existing residents. However, that does not mean the outcome is unacceptable in terms of the directions set by the Wyndham Planning Scheme.
4. Decisions about planning permits are not popularity contests. A responsible authority, and Tribunal on review, must decide upon a permit application on the basis of the provisions contained in the Scheme. Those provisions, as they exist today, must be objectively applied to the permit application. It is not open to the Tribunal to replace its preferences for those expressed in the Scheme or to superimpose the preferences and values of parties in the proceeding. If the Council seeks to limit unit development outside the smaller lots in the Estate then it should attempt to pursue its aims through processes such as an amendment to the Scheme.

Would the proposal adversely affect the amenity of the area because of its impacts on traffic, parking or any other factor?

1. Submissions and statements of grounds filed by Respondent Objectors identified concerns about increased traffic and parking in La Coruna Gardens. They were particularly concerned about cars parking outside other lots, the provision of only one car space being provided per proposed dwelling, vehicles reversing from the site, and increased traffic.
2. The amount of parking provided on-site accords with Standard B16 of Clause 55, at one space per two bedroom dwelling. Based on the provisions of the Planning Scheme through Clause 55, for a development of three dwellings accessing a local street, there is no obligation on the proposal to provide any of the following:
   • more than one car space per two bedroom unit (that is the case even though existing residents in the street in larger homes may have more than 2 cars per household on average).
   • on-site visitor parking although there would be room for tandem parking for both Unit 1 and Unit 3.
   • for all cars to be able to depart in a forward motion.
3. I am satisfied that the amount of parking proposed on-site and arrangements for access are acceptable based on Mr Hancox's evidence. Residents may park on-street as will their visitors. That parking is a public resource and a street frontage to any lot is not for exclusive use. There will be room for cars to move along La Coruna Gardens even if that means residents need to stagger vehicle parking as occurs in many residential streets.
4. I am not persuaded that increased traffic associated with the proposal would be unacceptable or that safety issues would arise with respect to the confluence of driveways in this western bend of La Coruna Gardens. There is no reason to assume that new residents would not exercise the same care as existing residents when being careful of children playing in the street. There are no inherent safety issues arising provided the changes identified by Mr Hancox are implemented to allow for a car to more easily depart Unit 1 and to enter the main carriageway of La Coruna Gardens in a forward motion.
5. I am also satisfied, based on Mr Hancox's evidence, that there is adequate room for the placement of garbage bins for the three units and neighbouring residents on collection days.

1. For the above reasons, the Application for Review is allowed. I am satisfied the proposal represents a suitable design response having regard to the site's circumstances and the applicable provisions and policy directions within the Wyndham Planning Scheme. I will therefore direct that the decision of the Responsible Authority be set aside and a permit issued subject to conditions.

1. 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 been provided. The plans must be in accordance with the plans dated 23.09.08 but modified to show:
   • (a) The front setback of Unit 1 increased to 5.1 metres without changing the position of the north, east or west elevations.
   • (b) Access to Unit 1 modified in accordance with the plan prepared by TTM Consulting Pty Ltd drawing no. 641001 Issue A 03/06/09.
2. The development and/or use(s) 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 written consent of the Responsible Authority.
3. 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:
   • (a) All surface treatments.
   • (b) The location, type and height of all fencing.
   • (c) The botanical name, height and width at maturity, and location of all vegetation to be used.
   • (d) A works specification, and the method of preparing, draining watering and maintaining the landscape area.
4. 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.
5. The development permitted by this permit and the appearance of the subject land must not adversely affect the amenity of the locality.
6. 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.
7. A concrete kerb of a minimum height of 150mm or such other form of barrier as the Responsible Authority may approve, of sufficient height to prevent the passage of vehicles, must be provided where necessary to prevent vehicles causing damage to garden areas, to prevent vehicular access/egress other than where driveways are provided and to prevent vehicles projecting beyond the boundaries of the subject land.
8. Vehicular access to the subject land from any roadway or service lane (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 vehicle crossing(s) must be approved by the Responsible Authority. 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 the Responsible Authority.
9. 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.
10. Each dwelling is to connect directly to Council's underground stormwater drainage system.
11. The development is to make provision to retard/detain a minimum total volume of 4,000 litres before discharging to Council's stormwater drainage system.
12. 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.
13. 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 EPA'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.
14. This Permit will expire if one of the following circumstances applies:
    • (a) The development is not commenced within two years of the date of this Permit; or
    • (b) The development is not completed within four years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards. END CONDITIONS

[1] I have considered all submissions and accompanying material assisted by my inspection. I do not recite all of the material presented which is retained on the Tribunal's file.

[2] Extracts from the Residential 1 Zone and Clauses 21.04, 21.05 and 22.01.

[3] Point Cook Concept Plan 2000. There was an earlier concept plan in 1996. The 2007 Addendum relates to a review of a specific area as shown in that report.

[4] Letter dated 17 June 2009. The letter states Peet was the developer responsible for masterplanning Point Cook Gardens.