Victorian Civil and Administrative Tribunal|2001-12-11|Before: Property Consultants P

Saxony Property Consultants P L and Oceancare P L v Manningham CC Page and ors [2001] VCAT 2269 (11 December 2001)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Planning List - S. 77 Planning and Environment Act 1987 - Manningham Planning Scheme - Residential 1 zone - 10 dwellings - planning policy - court location - neighbourhood character - building bulk -traffic - car parking - overlooking - landscaping - amenity.

APPLICANTS FOR REVIEW: Saxony Property Consultants Pty Ltd and Oceancare Pty Ltd

Medium Neutral Citation [2001] VCAT 2269

With respect to permit application no. 12073, the Responsible Authority's decision to refuse the grant of a permit is set aside. A permit is granted for the construction of nine dwellings in accordance with the endorsed plans at 7 Bebs Court, Templestowe. The permit must contain the following conditions:

1. Prior to the commencement of the development, three copies of amended plans drawn to scale and dimensioned, 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 generally in accordance with the plans substituted by the Victorian Civil and Administrative Tribunal in Application No. 2001/22210, but modified to show:

1.1 The deletion of either Dwelling 6 or 7 and the provision of at least three additional communal visitor car parking spaces and a passing bay in this area;

1.2 The provision of measures along the south boundary to prevent direct overlooking from living rooms in dwellings 8 and 9 (as identified in the application plans) into the rear garden of the property at 7 Aumann Drive;

1.3 The provision of a communal bin storage area towards the front of the site, generally in the location shown on the application plans, but increased in size to accommodate garbage, green waste and recycling receptacles;

1.4 The crossing to be located with at least a 1 metre lateral clearance from existing street trees;

1.5 All paved areas within private open space areas indicated as porous with pavers to be laid on a compacted sand base;

1.6 Dwellings 1 and 2 with a dark coloured brick finish to the satisfaction of the Responsible Authority;

1.7 The garage for Dwelling 6 further setback a minimum of 1.0 metre to the east;

1.8 A schedule of all external materials and finishes showing the materials, colours and finishes of all external walls, roof, fascias, window frames, and paving (including car park surfacing);

1.9 The treatment of west facing habitable room windows either with external blinds/screens, solar efficient glazing or appropriately located shade planting;

1.10 Details of all retaining walls indicating height and type of construction;

1.13 Details of the height and type of all replacement boundary fencing; and

1.14 The position of all plant and equipment (including air conditioning units, heating units, hot water systems etc).

2. The existing gates at the front of the property must be removed unless measures are installed to ensure that visitor and service vehicles are able to access and, where appropriate, park on the land, to the satisfaction of the Responsible Authority.

3. Before the dwellings hereby approved are occupied, the owner of the land must make arrangements for the collection of garbage, green waste and material for recycling to the satisfaction of the Responsible Authority. The collection of garbage, green waste and material for recycling must thereafter continue to be carried out to the satisfaction of the Responsible Authority.

4. The development as shown on the endorsed plan must not be altered without the written consent of the Responsible Authority.

5. Prior to the commencement of the development, a landscape plan prepared by a landscape architect or similarly qualified person must be submitted to an approved by the Responsible Authority. The plan must be generally in accordance with the plan prepared by Craig Eldridge Design dated June 2001. The landscape plan must show the proposed landscape treatment of the site including the location of all existing and proposed species including:

5.1.1 details of all plant species, locations and appropriate height and spread of proposed plantings;

5.1.2 retention of the existing screen planting along the property frontage;

5.1.3 provision of a minimum of one tree with a minimum height of 2.0 metres at time of planting, in the area denoted as private open space for each dwelling;

5.1.4 incorporation of trees with spreading canopies; and

5.1.5 tree planting in the area of the area of the easement with species of shallow roots.

6. The whole of the land, including landscaped and paved areas must be graded and drained to the satisfaction of the Responsible Authority, to prevent ponding and to minimise overland flows onto adjoining properties.

7. Stormwater must not be discharged from the subject land other than by means of drainage to the legal point of discharge. The drainage system within the development must be designed and constructed to the requirements and satisfaction of the relevant Building Surveyor. A Miscellaneous Works Permit must be obtained from the Responsible Authority for any connection to Council maintained assets.

8. The owner must provide at its cost an on-site stormwater detention storage system to the satisfaction of the Responsible Authority, to limit the Permissible Site Discharge (PSD) to that applicable to the site coverage of 35% of hard surface area or to the pre-existing hard surface area if the pre-existing hard surface area is greater than 35%. The PSD must be designed for a 1 in 5 year storm and the storage must be designed for a 1 in 10 year storm.

9. Before the development starts, construction plans for the detention storage works must be submitted to and approved by the Responsible Authority.

10. The stormwater detention system must be maintained by the owner to the satisfaction of the Responsible Authority in accordance with approved construction plans.

11. Prior to the commencement of the development, all carparking and access lanes shown on the endorsed plan must be constructed with an all-weather seal coat comprising dark coloured concrete, pavers or bitumen.

12. All brickwork on or immediately adjacent to the boundaries of the site which is visible from adjoining properties must be maintained to the satisfaction of the Responsible Authority.

13. Prior to the approval of the endorsed plans by the Responsible Authority, a $5000 cash bond or bank guarantee must be lodged with the Responsible Authority by the permit holder to ensure the completion and maintenance of landscaped areas. Such bond or bank guarantee may be refunded or discharged in whole or in part, in the discretion of the Responsible Authority, after a period of 13 weeks from the completion of all works in accordance with the endorsed plans.

14. All existing vegetation shown on the endorsed plans to be retained must:

14.1 be marked with plastic tape and provided with a protective barrier erected a minimum of 1.0 metre from the trunks to assist in the preservation of such vegetation. Such barriers must be constructed prior to the commencement of works on site and be maintained to the satisfaction of the Responsible Authority during construction; and

14.2 be mulched to a depth of 75 mm at the base, to a distance of one metre from the edge of the canopy.

15 The owner must ensure that all contractors/tradespersons who install services or work near any vegetation to be retained are made aware of the need to preserve the vegetation and to minimise impacts through appropriate work practices. All excavation in proximity to the existing Lemon Scented Gum must be undertaken under the supervision of a qualified Arborist.

16 No vegetation, apart from that shown on the endorsed plan as vegetation to be removed may be felled, destroyed or lopped without the written consent of the Responsible Authority.

17 All upper level service pipes (excluding stormwater downpipes) and any mounted spa-bath pump must be concealed and/or screened to the satisfaction of the Responsible Authority.

18 All services, including water, electricity, gas, sewerage and telephone, must be installed underground and located to the satisfaction of the Responsible Authority.

19 External lighting must be located and baffled so as to ensure no loss of amenity to residents of adjoining properties to the satisfaction of the Responsible Authority.

20 All buildings, paved areas, drainage and landscaping must be maintained to the satisfaction of the Responsible Authority.

21 Once the permitted development has commenced it must be continued and completed to the satisfaction of the Responsible Authority.

22 If the Responsible Authority undertakes any works on the easement on the property, the owner/s must pay all costs associated with the reinstatement of any paving in that area.

23 All paving materials used in the area of the casement must to be easily removable, i.e. interlocking pavers, to allow Council access to the easement.

24 Consent to access the casement must be obtained from Yarra Valley Water and a copy forwarded to Council.

25 Except with the consent of the Responsible Authority, there must be no filling or excavation works to a depth in excess of 150mm over the easement.

26 No waste or material for recycling may be placed outside the boundaries of the property unless it is in an appropriate receptacle. Such receptacles must not remain outside the property except on those days which have been designated for the collection of the waste or recyclable material.

27 This permit will expire if one of the following circumstances applies:

27.1 The development is not commenced within two years of the date of issue of this permit; or

27.2 The development is not completed within four years of the date of commencement of the development.

The Responsible Authority may extend the time for the commencement or completion of the development if a request is made in writing before the permit expires or within three months afterwards.

Mr T Montebello, solicitor of Maddock Lonie and Chisholm, appeared for the Responsible Authority.

Mr S Jones, Barrister, instructed by Phillip Spark and Associates solicitors, appeared on behalf of the applicants.

Mr W Kusznirczuk, Planning Consultant, appeared on behalf of the respondent objectors. Mr J Page also made a submission on his own behalf.

1. This was an application under Section 77 of the Planning and Environment Act 1987 against the Responsible Authority's decision to refuse the grant of a permit with respect to permit application no 12073. The permit application seeks permission for the development of ten dwellings on land known as 7 Bebs Court, Templestowe.

2. The permit application was lodged with the Responsible Authority on 6 November 2000, originally seeking permission for the construction of eleven dwellings on the land. The Responsible Authority required notice of the application to be given and in response it received twenty three objections. Mr Montebello summarized the grounds of objection as follows:

* poor location relative to infrastructure required for medium density housing; and

* failure to constructively address site constraints and opportunities.

3. After notice of the application was given, the applicant submitted amended plans to the Responsible Authority for consideration. In general terms, the amended proposal reduced the number of dwellings from eleven to ten and the first floor component of two dwellings was removed making them single storey. The amended plans were circulated to the objectors for comment before the Responsible Authority made its decision.

4. The Responsible Authority subsequently considered the permit application on the 27 February 2001. Despite receiving a report from its planning officer which recommended that the application be approved, the Responsible Authority decided to refuse the application on the following grounds:

1. The proposed development is out of character with the area.

2. The proposed development will result in overdevelopment of the site.

3. The proposed development will result in inappropriate private open space for dwellings 7 and 8.

4. The proposed development will result in inappropriate setbacks.

5. The proposed development will result in inappropriate car parking arrangements for dwelling 6.

6. The proposed development inappropriately relies on tandem visitor car parking arrangements.

7. The proposed development will cause unreasonable detriment to the amenity of adjoining properties with regard to visual bulk in particular the 55.5 metres of unbroken wall adjoining the southern boundary.

8. The proposed development will cause unreasonable detriment to the amenity of the adjoining properties with regarding to increased traffic.

9. The proposed development does not provide appropriate arrangements for garbage collection.

10. The proposed development is not in accordance with the spirit and intent of the Good Design Guide for Medium Density Housing.

5. The application for review was filed on the 26 March 2001. The grounds of the application are:

1. The proposal is in keeping with the character of the area.

2. The proposed development is not an overdevelopment of the site.

3. The proposed development allows for appropriate private open space for Dwellings 7 and 8.

4. The proposed development allows for appropriate setbacks in accordance with the requirements of the Manningham Planning Scheme.

5. The proposed development will not result in appropriate (sic) car parking arrangements for Dwelling 6.

6. The proposed development allows for sufficient car parking for visitors.

7. The proposed development will not cause any unreasonable detriment to the amenity of the adjoining residential properties in regard to visual bulk and is in accordance with the requirements of Element 6 Technique 3 of the Good Design Guide.

8. The proposed development will not cause any unreasonable detriment to the amenity of the adjoining properties in regard to increased traffic.

9. The proposed development does provide for appropriate arrangements regarding garbage collection.

10. The proposed development is in accordance with the spirit and intent of the Good Design Guide for Medium Density Housing.

6. At the hearing, the parties tabled and spoke to written submissions. In addition I was presented various plans, maps, extracts from policy documents relevant to the consideration of this matter together with photographs of the subject land and surrounding properties.

7. Mr Jones called expert evidence from Mr N Hooper, a town planning consultant,

Ms K Partenio, a traffic engineer and Mr C Eldridge, a landscape architect. The evidence in chief presented by these witnesses is set out in reports which were filed with the Tribunal and circulated to the other parties prior to the hearing. All witnesses were available for cross examination.

8. At the commencement of the hearing Mr Jones applied to amend the applications by making Saxony Property Consultants Pty Ltd and Oceancare Pty Ltd joint applicants. In addition

Mr Jones applied to amend the permit application by substituting amended plans for those which accompanied the application. Mr Montebello and Mr Kusznirczuk offered no objection. I allowed the amendments as requested pursuant to clause 64 of schedule 1 and section 127 of the Victorian Civil and Administrative Tribunal Act 1998.

9. At the end of the hearing I gave leave for further submissions on an Arborists report tendered by Mr Eldridge. A submission was received from the Responsible Authority.

10. After the hearing I inspected the subject land, surrounding properties and the locality.

11. The submissions, evidence and other material presented during the course of the hearing have been retained on the Tribunal's file and have been considered.

12. Bebs Court is a relatively short cul de sac (about 70 - 80 metres long) which extends from the east side of Smiths Road, Templestowe. The straight or "stem" section of the court has a road pavement width of about 7 metres and this widens into a rounded court bowl. Unrestricted kerbside parking is available along both the stem section and the rounded bowl end of the court. Bebs Court presents itself as an attractive residential cul de sac which carries about 50 vehicle movements per day. Smiths Road carries in order of 1250 vehicles per day. A small splitter island has been constructed in Bebs Court at its intersection with Smiths Road whilst various traffic calming devices have been installed along Smiths Road.

13. Seven properties have their sole frontage to Bebs Court whilst two other properties, located at the intersection of Smiths Road, have dual road abuttals (ie: to both Smiths Road and Bebs Court). Of these nine properties, eight are occupied by brick dwellings dating from about the 1980's. The ninth property, which fronts onto the north-east side of the court bowl, is a small local park which contains children's play equipment.

14. The subject land fronts onto the south side of Bebs Court, about 34 metres east of Smiths Road. The land has an irregular shape with a partly curved frontage of 26.31 metres, a depth of about 84.95 metres along the west boundary and an overall of area of 4271 square metres. The width of the land increases to 63.91 metres along its rear or southern boundary. The land slopes by about 6 metres from the north-west down towards the south-east. The subject land is about five times larger than all of the other properties fronting Bebs Court, with these having areas around 800 square metres.

15. A single storey detached dwelling located within a spacious and attractive garden setting comprising well maintained lawn and landscaped areas a swimming pool and tennis court currently occupies the land. The dwelling itself is well setback from the street and is largely obscured from view by a timber and bluestone fence set behind landscaping which runs adjacent to the frontage. Direct views into the property from Bebs Court are limited to those available through the steel picket gates located at the driveway entry.

16. The subject land has a direct abuttal with a number of residential properties. These include Nos 6 and 8 Bebs Court, three properties fronting the east side of Smiths Road and two properties fronting Aumann Drive all of which comprise typical suburban lots occupied by detached dwellings. The private open space areas appurtenant to these dwellings, some of which contain swimming pools, have some form of abuttal with the subject land. The other property abutting the land comprises a large vacant "battle axe" shaped lot, similar in size to the subject land, which is accessed from the Oliver Road.

17. The subject land is located within an established residential area. Although the area to the west of Smiths Road is also residential, most of this is zoned "Low Density Residential" and, as such, lots are typically much larger than those found in the area where the subject land lies.

18. The most proximate shopping centre is "The Pines" which is located about 1.5 km away. Local bus services running along Reynolds Road, about 400m away, represent the nearest form of public transport.

19. Mr Montebello set out the details of the proposal (as amended) as follows in his submission:

"The proposed development comprises 10 dwellings -6 double storey and 4 single storey dwellings. Each is a 3 bedroom dwelling, except for dwelling 1, which will have 4 bedrooms. A number of the dwellings offer an additional studio/study area. The average size of the dwellings is just under 18 squares.

The buildings generally wrap around the boundaries in a U-shape. Two double storey dwellings, one on each side of the driveway, will directly front onto Bebs Court.

The development has the following approximate setbacks from boundaries:

* Northern boundary (Bebs Court) - ranging from 5.5 metres to 20.5 metres;

* Eastern boundary - ranging from 3.1 metres to 3.5 metres;

* Southern boundary - ranging from 4-7 metres; and

Rear private open space areas for the dwellings consist of courtyards ranging from 60 square metres to 191 square metres.

Each dwelling includes an attached, enclosed double garage. The development offers 2 shared visitor car parking spaces in the frontage near to unit 2, with the opportunity for tandem parking by visitors to each of the dwellings (except in front of garages 6, 8 and 9) immediately in front of the residents' garages.

Access to the development is proposed via a single crossover, shifted approximately 2.3 metres further west of its present location at the north-west of the site. Vehicles would access the dwellings and their garages via a central driveway.

A paved rubbish bin collection area will be constructed near the entrance to the property.

Screen planting is proposed along the western boundary and a new paling fence is proposed along the boundary shared with 45 Smiths Road. A new timber paling fence is proposed along part of the southern boundary. Tall screening shrubs are also proposed along this boundary.

The proposed development includes the replacement of the existing timber front fence with a semi-transparent, wrought iron fence with bluestone pillars.

Site excavation works are proposed along the western boundary and the south-western corner. Numerous retaining walls are proposed in key locations within the site.

Existing cypress trees along the south-eastern boundary are proposed to be retained for screening. Existing vegetation in the front setback is also proposed to be retained.

* dwellings are proposed at a density of 1 per 427 square metres of site area;

* the building site coverage is about 39 per cent;

* a total of 29 car parking spaces are to be provided, 20 of which are within garages, 7 are open car spaces in tandem with the front of garages and 2 spaces are provided in a small visitors car park located towards the front of the property, and

* private open space areas range in size from 73 square metres (dwelling 1) to 191 square metres (dwelling 3).

21. During the course of the hearing, Mr Jones suggested a number of modifications to the proposal which could be implemented by way of permit condition. I will discuss these as appropriate.

22. Pursuant to the planning scheme, the subject land is located within a Residential 1 zone, the provisions for which are found at clause 32.01. The purpose of the Residential 1 zone is :

To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

23. Under clause 32.01 "Dwelling" is an as of right use, although a permit is required for the construction of more than one dwelling on a lot pursuant to clause 32.01-4. Proposals for the construction of more than one dwelling must be considered against, inter alia, the decision guidelines at clause 65, the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF). Although the provisions of clause 55 are now in force, the "Transitional Provisions for Residential Development" at clause 52.04 require the proposal to be considered against the provisions of the Planning Scheme as it existed before the 24 August 2001. As such, the proposal is to be considered against the provisions of the Good Design Guide for Medium Density Housing.

24. The SPPF sets out general policies for planning in Victoria, with those relating to Settlement, Housing, and Design and Built Form relevant to the consideration of this proposal. The general thrust of these policies is to encourage the consolidation of existing urban areas including increased residential density, to provide for a wider variety of housing choice, the more effective and efficient use of physical and community infrastructure and to promote energy efficient design for new dwellings and subdivision. The policy at clause 16.2 also calls for development which is respectful of neighbourhood character. The policy for Design and Built Form and at clause 19.03 states, inter alia, that:

Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising impact on neighbouring properties.

25. The provisions of the LPPF are also relevant. The Municipal Strategic Statement (MSS) at clause 21.03 discusses future housing needs for the municipality as follows:

An ageing population coupled with the trend toward smaller family structures dominated Manningham's population and dwelling forecasts. This general trend toward smaller household size will lead to an imbalance between the housing needs of the population and the actual housing stock available. The ageing population and decreasing household size is expected to increase demand for single storey multi-unit development, dual occupancies, retirement villages, special accommodation houses and other forms of medium density housing.

26. In relation to residential amenity, the MSS states that:

Increasing pressure for redevelopment, consolidation and medium density housing raises issues about how these changes affect the character and amenity of our local neighbourhoods. In meeting future housing needs, the challenge is to provide for residential development in appropriate locations, to reduce pressure for development in more sensitive areas, and in a manner that respects the residential character and amenity valued by existing residents.

27. Section 21.12 of the MSS sets out objectives and strategies for the "Established Urban Areas". In the "overview" for this section, the MSS states in part:

Residential development will be directed to areas with fewer constraints in terms of infrastructure provision, topography, landslip, bushfire flooding and environmental or landscape significance. The amount of land available for residential development is also a constraint itself, as is sewerage servicing, in parts of Manningham.

Residential development that consolidates the role of established urban areas and reduces pressure for development in more sensitive locations will be encouraged. Higher density housing in close proximity to activity centres and transport routes and housing development that reflects demographic changes that are occurring will be encouraged. Medium density and dual occupancy developments are to be well designed, site responsive and not impact adversely on neighbours, the surrounding environment, streetscape and local neighbourhood character.

28. The MSS goes on to identify key issues, objectives and strategies for the existing urban area. Key issues are:

* The impact of medium density housing, including the redevelopment of ageing housing stock and impact on character and quality of urban environments.

* The provision of housing to cater for all stages of the life cycle and changing family structure.

* Dwindling residential land stock for extension of residential areas.

* Maintaining population levels sufficient to sustain adequate, high quality physical and community infrastructure.

29. The Design and Development Policy at clause 22.01-3 states, with respect to neighbourhood and streetscape character, it is policy that:

* Development be designed to respond to topography, orientation, townscape/built form, landscape features and site coverage of neighbouring and nearby land.

* Landscape treatment be compatible with the neighbouring area.

* The form of development and activity levels generated by the proposal be compatible with surrounding land use.

30. Relevant urban design principles set out in the policy include that:

* Development promotes innovative, contemporary built form which complements the surrounding built form with respect to height, scale, proportion, bulk and roof form and pitch.

* Development be setback sufficient distances from side and rear boundaries to prevent detrimental impacts to neighbouring properties by way of building bulk, overshadowing and to enable appropriate landscape treatment to be provided to soften the appearance of buildings and works.

31. The Responsible Authority has also prepared a Neighbourhood Character Study which is in draft form. Under the study the land is located within a "Modern Curvilinear Subdivision" character area. The citation for this area sets out a description of the area, a statement of the desired future character and identifies threats to that desired character. Amongst other things, the citation identifies loss of tree cover in private gardens, construction of front fences and unit development with inadequate front and side setbacks, large site coverage and resulting inability to provide canopy trees as threats to the valued character_._

32. After reviewing the submissions and evidence presented, the provisions of the planning scheme and the Good Design Guide, it seems to me that the key issues that require my consideration are:

* Whether the subject land is a suitable candidate for some form of well designed medium density housing having regard to its physical attributes and its location within a small residential court.

* Whether the proposal is supported by planning policy.

* Whether the proposed development represents an appropriate design response for the land having read to neighbourhood character, the amenity impacts on surrounding residential properties and the requirements of the Good Design Guide.

33. In relation to the first issue, after having reviewed the site analysis, the submissions and evidence presented, it seems to me that the land has a number of physical attributes which clearly makes it capable of supporting some form of well designed medium density housing.

34. First, it must be recognised that the subject land is very large. It is substantially larger than all the other properties in Bebs Court and the majority of those in the surrounding residential area.

35. Second, despite Mr Montebello's assertion that the land's curved frontage is a constraint because it is narrower than most of the site, I consider that the frontage, at about 26 metres, is substantial and it is sufficient to allow the property to be easily identified and for good access.

36. Third, although irregular in shape, unlike many properties fronting the rounded bowl section of a court, this property does not suffer from boundaries intersecting at acute angles resulting in awkward areas for development. In this case, the land has good proportions, it widens substantially from just beyond its front boundary and there are no awkward areas to consider.

37. Fourth, the land is located within an established residential area where all physical infrastructure services are readily available. There was nothing presented which demonstrates that existing infrastructure cannot accommodate the additional demand associated with medium density development.

38. Fifth, whilst the land falls by about 6 metres from front to rear, the slope extends over a considerable distance and is therefore relatively moderate. It can be easily managed and with appropriate design, can be used in a positive way.

39. Sixth, the existing buildings on the land are of no particular significance. There was no reason advanced to suggest that it is inappropriate for any of the existing buildings to be demolished.

40. In addition, although the garden areas are attractive and well maintained, there are few trees on the land. Most of the existing "open space" is covered by lawn, the pool, the tennis court and paved areas. The redevelopment of the land will not involve the removal of substantial vegetation.

41. In paragraph 43 of his submission, Mr Montebello identified a number "physical attributes" which the Responsible Authority considers are "site constraints". After having considered these, it seems to me that whilst they are factors that should be taken into account when preparing an appropriate design response, they are not factors that render the land unsuitable for medium density housing.

42. Taken overall, I find that the land's "physical" attributes favour its potential development for medium density housing.

43. Next, I turn to the subject land's suitability for medium density housing having regard to its location within a small residential court. On this issue Mr Montebello and Mr Kusznirczuk essentially relied on a number of Tribunal decisions to support the proposition that the "caution" must be taken when considering medium density housing proposal on land located within a court environment. They argued that factors such as the high amenity offered by a court environment due to the low number of properties, the quiet traffic environment given the absence of through traffic as well as the difficulties associated with the development of irregular shaped lots all work towards making it more difficult to successfully introduce medium density housing within a court without causing unreasonable impacts on amenity.

44. In support of these submissions, they relied on the comments expressed by various divisions of the Tribunal in cases involving subdivision and medium density housing on land located in a court. Decisions cited were J A Thompson Surveyors V Knox City Council (1998/37377 1 VPR see editorial comment at 32), JWJ Investments Pty Ltd v Manningham City Council (1999/77653), Parella v Knox CC and Ors (1999/92183 5 VPR see editorial comment at 4) and Majda v City of Monash and Ors (2000/13240 as per Parella).

45. In considering these decisions, it seems to me that three main themes emerge. The first is that the Tribunal has acknowledged that the residents of properties located in courts can generally expect and usually enjoy a higher level of amenity than those who reside in conventional streets. The limited number of properties usually found within the court environment and the absence of through traffic seem to be the main factors that contribute to this higher level of amenity. The second is that properties in courts, particularly when located at the very end, can present constraints that militate against development at higher density. Examples of these constraints include irregular shaped lots, their abuttal with a higher number of properties than usual and the impact of extra traffic. The third is that whilst the court environment offers a high level of amenity and properties within them may present constraints, this does not mean that, as a matter of principle, there can be no medium density housing in a court.

46. On the last of the three points, it is significant to note that in each cases cited, the Tribunal did not express the view or come to a finding that there should be no increase in density simply because the property in question was located within a court. For example in an often recited passage from the J. A Thompson case the Tribunal [Senior Member Marsden] said:

These comments should not be construed as meaning that there should be no increased density in courts or cul-de-sacs. What the Tribunal suggests however, is that the amenity bar is set higher than, for example, in situations where streets are located in a normal grid pattern.

47. In Madja's case, the Tribunal [Member Sharkey] stated that there is "no reason why units per se should be prohibited in a court situation."

48. It is arguable that the circumstances before me are different to those in the above cases because they involved relatively small redevelopment proposals, that is, in the order of two to three dwellings. However, in Zahlan v Knox City Council and Ors (1999/96846 unreported), a case which presents circumstances more akin to those in the case before me, the Tribunal [Member Moles] found it appropriate to grant a permit for the development of thirteen dwellings [at a density of 1:444 square metres] on an irregular shaped lot of 5779 square metres at the end of a small court in an established outer suburban residential location.

49. Accordingly it seems clear that this proposal should not fail, in principle, because the subject land is located within a court. The property's frontage to a court is simply a factor, albeit a particularly important one, to be taken into account in the consideration of amenity impacts and the merits of the design response.

50. The consideration of the proposal must of course also be made in light of the planning scheme's strategies and policies. On this issue Mr Montebello and Mr Kusznirczuk highlighted the various policies in the local section of the planning scheme that "encourage" residential development at higher densities near activity centres and public transport routes. In simple terms they argued that there is a lack of strategic planning and policy support for this proposal because the land is not located in close proximity to an activity centre and good public transport, and accordingly, this is a factor which should weigh against the grant of a permit given the intensity of the development proposed.

51. After reviewing the planning scheme's policy frameworks as a whole, I consider that the approach advocated by Mr Montebello and Mr Kusznirczuk represents a very narrow interpretation and application of the planning scheme's policies. The planning scheme sets out many policies, within both the SPPF and LPPF, which must be considered and balanced to facilitate appropriate outcomes. These include the need to consolidate the existing urban area, making more efficient use of existing infrastructure, providing greater housing choice within the municipality and maintaining existing population levels. The proposal will clearly make a positive contribution towards the achievement of these planning outcomes. The proposal's consistency with this aspect of planning policy cannot simply be ignored.

52. Furthermore, whilst there are various strategies and policies within the MSS that encourage higher density residential development near activity centres, this is not to say that medium density housing is discouraged in all other locations. The MSS does not say that this is the case. Rather, the MSS, at clause 21.12, recognises that there is a "dwindling" supply of land for the extension of residential areas and that much of the land in the municipality is environmentally sensitive and subject to constraints that inhibit its development potential. In response, the MSS calls for and encourages residential development "...that consolidates the role of established urban areas and reduces pressure for development in more sensitive locations". In this case, the subject land is located within an established urban area and not in a "sensitive" location where development potential is constrained by factors such as the lack of infrastructure, difficult topography, potential for landslip or because the land is considered to be of environmental or landscape significance. None of these constraints exist in this case.

53. Accordingly, although the strategies and policies which direct higher density housing to locations near activity centres and transport routes seek to bring about very worthwhile outcomes, they do no more than represent one of the many ways by which the consolidation of Manningham's existing residential areas is to be achieved. To restrict medium density development to only those locations in close proximity to activity centres and public transport routes is simply too restrictive in circumstances where it is recognised that the supply of land suitable for development is limited.

54. Although Mr Montebello asserted that the land is located within a "low density residential environment", the reality is that it is not located within the "Low Density Residential" zone but rather, it forms part of an established residential area comprised primarily of lots that are of a size that is readily found in many middle to outer suburban locations. The inclusion of the land and the surrounding area within the Residential 1 zone is no accident and it is relevant to appreciate that the purpose of the zone includes to provide for "residential development at a range of densities with a variety of dwellings".

55. The subject site is a large and essentially under utilised parcel of land within the established urban area. Its physical attributes are such that it is clearly capable of supporting a medium density housing development. When consideration is given to the "dwindling" residential land stock within the municipality and the need to provide more housing within established area, I find that, in principle, the development of this parcel of land for medium density housing accords with the general thrust of the planning scheme's housing and urban consolidation policies as well as the purpose of the zone.

56. Whilst the proposal accords with the purpose of the zone and the planning scheme's policies in so far as they relate to housing and urban consolidation, this does not mean that any form of medium density development may be allowed on this site. Planning policy, the purpose of the zone and the relevant decision guidelines also call for development which is respectful of neighbourhood character, does not have unreasonable impacts on the amenity of the area and accords with the requirements of the Good Design Guide. This leads me to the next issue, namely whether the development of ten dwellings on the subject land, in the form proposed, is appropriate having regard to neighbourhood character considerations.

57. The subject land is located within a middle to outer suburban context with the majority of lots developed with either a single or double storey dwellings set within traditional front and rear yard areas. By and large, dwellings are constructed in brick, they have pitched roofs and the architecture reflects suburban styles in vogue during the 1980-1990's. Although a number of dwellings are substantial in size, development in the neighbourhood is generally at conventional suburban densities with properties combining to create a feeling of space and "openness". There are few examples of medium density housing, even in the wider neighbourhood context. The dwellings, the well maintained gardens within which they exist and relatively low traffic levels all combine to create a pleasant and attractive neighbourhood setting offering a relatively good standard of residential amenity.

58. It is quite evident that the proposed development is somewhat different to that which is found on adjoining properties and the surrounding area. The proposed dwellings are at a higher density, the building site coverage is greater, open space areas per dwelling are smaller and the spacing between dwellings is different given that all but one of the proposed dwellings is attached in some way to another dwelling.

59. In cases involving medium density housing, it is often argued that such proposals are out of keeping with the character of the neighbourhood because the density and overall level of development exceeds that which prevails in the surrounding residential area. In Zahlan's case, the Tribunal was confronted with this very argument with objectors submitting that the development would change the "open" and "treed" character of the suburb. However, in response to these submissions, the Tribunal stated that:

In relation to this matter, as the Tribunal has said on previous occasions, an increase in density per se cannot be a factor weighing against the grant of a permit for medium density housing. By its very nature medium density housing implies an increase in density. Other characteristics of the housing must be looked at, therefore, when assessing appropriateness in terms of neighbourhood character. Such factors include opportunities to plant canopy trees, the architectural style of the dwellings, space between dwellings etc.

60. After having reviewed the submissions and evidence presented on this issue, I am of the view that the proposed development has been designed to be respectful of neighbourhood character.

61. In relation to streetscape character, I agree with Mr Hooper's view that the front part of the proposed development will be read as two detached dwellings setback a significant distance from the street. Although both dwellings are double storey in height, they will represent an acceptable form of infill within the streetscape given that the spacing in between them and with dwellings on adjoining properties is consistent with that which is found in the area, they are well setback from the frontage, the architectural style and materials are compatible with those of surrounding development and existing landscaping at the front of the property is to be retained.

62. As for the balance of the development, I also find that it has been designed in an appropriate manner. Although most of the dwellings are attached, I agree with Mr Hooper that the overall visual bulk presented is not unreasonable and acceptable within the neighbourhood setting. The inclusion of two storey dwellings within this development is reasonable given that the land is located within a neighbourhood context where double storey development is not uncommon and reasonable spacing is to be provided in between the upper level components. The mix of single and double storey dwellings, the stepping down of dwellings down the length of the site to follow the slope, the articulation of walls and landscaping all work towards mitigating visual bulk. In addition it is relevant that although dwellings are attached and form a continuous development form, no adjoining property will be "exposed" directly to the full impact of such continuity. Because the land adjoins a number of properties, the extent of development presented directly to all but one of the adjoining properties will be largely that associated with one or two dwellings. This is not an unreasonable outcome given the suburban context of the area.

63. The exception to this is the property to the east at No 6 Bebs Court which will have two double storey dwellings to the west side and a single storey dwelling to the rear. However, after inspecting this property, it is readily apparent that existing trees located along the common boundary with the subject land will largely mitigate the impacts associated with the two double storey dwellings to the west. This vegetation is dense and creates a substantial screen. The dwelling to the south is single storey and will not present excessive or unreasonable bulk.

64. I also consider that the overall level of development represents a reasonable and balanced response to neighbourhood character considerations. The overall density (1: 427 square metres) and site coverage (39%) are no where near the "statistical" maximums that could be achieved through the simple application of the Good Design Guide techniques. All setbacks, car parking (in terms of numbers) and private open space areas exceed what is required under the Guide. The site layout also makes allowance for what can be reasonably be described as very good landscaping opportunities adjacent to the central driveway and the open space areas. Many canopy trees are to be provided. I consider that all of these factors demonstrate that the design has responded to its context. A far more intensive level of development would be achieved on a similar site in locations closer to central Melbourne and perhaps even in other parts of this same municipality.

65. Concern was raised during the course of the hearing about the existing Lemon Scented Gum located near the north east corner of the property. Although this tree is shown as being retained on the plans, Mr Eldridge produced an Arborist's report which recommends that this tree should be removed because of its poor structure. After the hearing I received comments from the Responsible Authority's landscape architect who confirmed the validity of the concerns raised in the Arborist's report. However, the Responsible Authority's landscape architect expressed the view that if the tree can be retained, it should be retained given that it is one of the few substantial trees in the area. I agree with this view and consider that the various options outlined in the Arborist's report should be explored. If, however, after the appropriate consultation with the Responsible Authority's landscape architect it is found that the retention of the tree is not viable, then its removal should not be considered inappropriate or fatal to this proposal.

66. Taken overall, when consideration is given to the context of the land, I find that the proposal has been designed to be respectful of neighbourhood character. I appreciate that the appearance of the site "outlook" from adjoining properties will change. However, the land's appearance and the outlooks available over it are based on the existence of a very low level of development. Given the size, zoning and context of the land as well as the policies which apply, it would not be unreasonable to anticipate that some form of change would occur.

67. Next I turn to whether the proposal has been designed in a manner which will not result in unreasonable impacts on the amenity of neighbours. I have already dealt with concerns relating to the impact on neighbourhood character and visual bulk. However, several other issues were also raised, with the most significant of these being the traffic and parking impacts.

68. Dealing with traffic, it is clear that when compared to the current situation, the proposed development will significantly increase the number of vehicle movements in Bebs Court. The evidence presented by Ms Partenio was that Bebs Court presently carries around 50 vehicles per day. Ms Partenio said that dwellings forming part of medium dwelling developments in middle to outer suburban locations typically generate traffic in the order of 6-8 vehicles per day. Based on these figures, it can be expected that the proposed development, which seeks to introduce an additional nine dwellings, will bring about an increase in traffic volumes between 54 and 72 vehicle trips per day. This will be a noticeable increase in traffic and it is understandable that the residents are concerned about the impact on the quiet and tranquil amenity of the court environment.

69. In _Zahlan'_s case, the Tribunal was confronted with similar concerns. On this issue the Tribunal said:

I am of the view that in the absence of any other major problems associated with this proposed development, and given that the new traffic volumes in Elliot Court would remain well within the acceptable limits for a residential street, that, in the context of State and local policies calling for urban consolidation, it is not appropriate that this factor preclude the development of this large lot. It is acknowledged that the residents of the court will recognise a change, but the new traffic levels are not unreasonable.

70. There is little doubt in my mind that such an increase in traffic will be noticeable and will have some impact on the amenity of the court environment. However, the relevant consideration is not whether the proposal will have some impact, but rather whether the impact is reasonable or otherwise.

71. In this case, the circumstances are such that the traffic impacts should not preclude the grant of a permit. First, Ms Partenio's evidence was that the increase in traffic is well within the "design capacity" or the engineering standard of Bebs Court. This evidence was not challenged in any substantive way. Second, even with the projected increase in traffic, the overall volumes in the Bebs Court will, in my view, still be relatively low and consistent with those which are experienced in what can reasonably be considered to be quiet residential streets. Third, when consideration is given to the zoning of the land, the polices and strategies in the planning scheme, the land's substantial size and its favourable attributes for development, it is not unreasonable to anticipate or expect that such a property could be developed for more than one dwelling and that this would, as an inevitable consequence, lead to increases in traffic. Accordingly I find the traffic impacts to be acceptable.

72. Concerns were also raised about whether adequate on site car parking is provided given the constraints associated with kerbside parking in a rounded court bowl. Kerbside parking in court bowls can be problematic given that, when compared to normal streets, fewer spaces are available and even a few parked cars can make vehicle manoeuvring difficult. In circumstances such as this I consider that medium density housing should be designed so that there is little reliance for parking in the court itself. This requires not only the provision of sufficient on site car parking, but such car parking must be available and conveniently located for use by both residents and visitors. I have previously expressed views along these lines in my decisions in Parella's case previously cited, Suleyman Ahmet Pty Ltd v Brimbank City Council (2000/44097 unreported) and Fagone v Brimbank CC and Ors (2000/49883 unreported). Similar views have also been expressed by other divisions of the Tribunal (see Weis Development Pty. Ltd v Yarra Ranges Shire Council 1998/26387 1 VPR 33)

73. Given the land's location and that all dwellings have at least three bedrooms, it is appropriate that at least two car spaces be provided for the residents of each dwelling. The proposal essentially provides two spaces per dwelling within the double garages which represents satisfactory parking for residents.

74. The plan also shows the provision for nine visitor spaces, two of which are to be provided in a "common area" about 10 metres from the front of the subject land, with one space to be provided in "tandem" with seven of the ten garages. There is insufficient space in front of the garages appurtenant to dwellings 6, 7 and 8 to provide for a tandem car space.

75. I agree with Ms Partenio that the overall number of parking spaces to be provided easily exceeds the Good Design Guide's requirements. The key issue here though is whether the spaces provided for visitor parking are located for convenient use as required by Objective E8.O1 of the Good Design Guide.

76. After having reviewed this proposal and considered Ms Partenio's evidence, I do not consider the visitor car parking arrangements to be satisfactory. Whilst I accept that the provision of two open car spaces in the common area is appropriate, I doubt that these are sufficient to meet the likely demand generated by visitors in this type of location. They are also located some distance from the dwellings at the rear of the land.

Saxony Property Consultants P L and Oceancare P L v Manningham CC Page and ors [2001] VCAT 2269

At a glance

Court

Decision date

Before

Source

Judgment (217 paragraphs)

Saxony Property Consultants P L and Oceancare P L v Manningham CC Page and ors [2001] VCAT 2269 (11 December 2001)

Parties

Legislation Cited (2)