[2004] VCAT 2148

With respect to permit application WH/13744, the decision of the Responsible Authority to grant a permit is set aside.

The Responsible Authority is directed that no permit be issued in accordance with this determination pursuant to the provisions of Section 85 of the Planning and Environment Act 1987.

Mr Atkins called Mr H Cramer to provide expert landscape architecture evidence.

1 This is an Application pursuant to section 79 of the Planning and Environment Act 1987 to review the failure by the Whitehorse City Council (`the Council') to grant a permit within the prescribed time for the development of three double storey dwellings at 390 Elgar Road Box Hill.

2 The application was lodged with the Council on 2 February 2003 and further information was requested on 4 April 2003 in a letter that also outlined the Council's initial concerns regarding the proposal. The further information was received on 22 July 2003.

3 The application was advertised in November/December 2003 and three objections were received. The grounds of objection were summarised in Mr Bowden's submission as:

* Increased vehicular traffic in an already small street.

* Overshadowing of adjoining property to the south.

* Overlooking of the adjoining property to the south.

* The proposal will result in `dominant or overwhelming development'.

* Upper level eastern windows will overlook the adjoining property to the east.

* The subject site is located at a dangerous intersection.

4 The application was referred to VicRoads who did not object.

5 On 14 May 2004 the permit applicant lodged this Application for review against the Council's failure to determine the application.

6 Mr Bowden advised that the Council had recently considered the application and resolved to support the development subject to conditions requiring changes to the design.

7 The review site is located on the southeast corner of Elgar Road and Mont Albert Road. It has a frontage to Elgar Road of 16.15 metres and a frontage to Mont Albert Road of 40.58 metres, with a total area of 778 square metres.

8 The site has a fall of approximately 700mm from west to east, and a 2 metre wide easement runs along the eastern boundary of the review site.

9 The site is currently occupied by a single storey brick dwelling setback 10.5 metres from Elgar Road and 2.4 metres from Mont Albert Road with access via a single crossover from Mont Albert Road. There are a number of existing trees on the site, particularly within the setback areas to each street frontage.

10 To the north, on the opposite corner of Elgar and Mont Albert Roads, are three double storey dwellings setback 5.0 metres from each street frontage.

11 To the east is a single storey weatherboard dwelling (Mr Sevior's property).

12 To the south is a single storey brick dwelling with a large shed in its northeast corner, adjacent to the review site (Mr Jeff's property).

13 To the west is Elgar Road that contains single and double storey dwellings.

14 It is proposed to construct three double storey dwellings on the review site.

15 Dwellings 1 and 2 contain three bedrooms and dwelling 3 contains two bedrooms. Private open space areas are provided for each dwelling, the majority of which is at ground level. Dwelling 2 has a first floor terrace on top of its single garage.

16 Dwelling 1 is provided with a double garage accessed via two single garage doors. Dwellings 2 and 3 are provided with a single garage with the opportunity for an additional car space in front of each garage. All vehicular access is via Mont Albert Road.

17 The dwellings contain a combination of face brickwork, rendered brickwork, and lightweight weatherboards to external walls with pitched tiled roofs.

18 The review site and surrounding properties are contained within a Residential 1 Zone pursuant to Clause 32.01 of the Whitehorse Planning Scheme (`the Planning Scheme'). The purpose of this zone includes:

* To implement the State Planning Policy Framework and the 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 is responsive to the site and the neighbourhood.

19 Planning approval is required to construct two or more dwellings on a lot and the objectives, standards and decision guidelines of Clause 55 must be considered.

20 Mr Bowden submitted that the proposal is in accordance with the key directions of Melbourne 2030 and highlighted the following clauses in the State Planning Policy Framework:

* Clause 14.02-2 that encourages consolidation of residential activities within existing urban areas;

* Clause 15.12 that encourages land use consistent with efficient use of energy;

* Clause 16.02 that encourages development of well designed medium density housing; and

* Clause 19.03 that seeks to achieve high quality urban design and architecture.

21 Mr Bowden highlighted various clauses in the Municipal Strategic Statement and concluded on page 8 of his submission:

In summary, the Municipal Strategic Statement (MSS) and Clause 21 of the Planning Scheme requires new development to make a positive contribution to the character of residential areas and provide sufficient open space to retain and enhance the character of the area and provide for lifestyle of future occupants.

22 Mr Bowden advised that the Tree Conservation local planning policy at Clause 22.04 is relevant to this proposal and highlighted that it seeks the retention of trees and the planting of new upper canopy trees.

23 Having considered the submissions, I am of the opinion that the site is suitable for a medium density housing development and this is supported by the Council, as well as by both the State and local planning policy frameworks. However, I find that the proposed three attached double storey dwellings is not an appropriate design response for the review site and in this neighbourhood context.

24 The Council determined that it would have approved the application as the design was generally appropriate in this neighbourhood subject to changes:

i Greater articulation of the Elgar Road façade of dwelling 1;

ii A 3 metre break between the first floors of dwellings 1 and 2 by reducing the upper floor area and reconfiguring the layout of the dwelling(s);

iii Relocating the crossovers 3.5 metres away from the existing street trees in Mont Albert Road; and

iv Modifying the width of the accessways, crossovers, garages and garage openings.

25 One of the outcomes of these changes is the reduction in the size of the first floors of dwellings 1 and 2 to reduce the extent of the attached building form at the upper level. Mr Sevior expressed concern about the visual bulk of the attached double storey built form, and the lack of transition to his single storey house next door. Mr Atkins highlighted there are other examples of large two storey buildings and two storey attached buildings within this neighbourhood including attached double storey dwellings at 378 Elgar Road and large double storey dwellings in Federation Street.

26 In regard to the neighbourhood character, I note that there are examples of double storey dwellings and more limited examples of attached double storey dwellings. The examples cited are, in my opinion, large bulky buildings. Mr Atkins referred to the three double storey dwellings on the opposite corner of Elgar and Mont Albert Roads and, given their immediate proximity to the review site in the Mont Albert Road streetscape, I have given them particular regard. I find that the key difference between these dwellings and this proposal is that the front and middle dwellings are 'attached' by their single storey double garages, whilst the middle and rear dwellings are attached at both ground and first floor levels. This means that there is a significant visual break between the first floor building forms created by the attached single storey double garages.

27 In comparison, this proposal has dwellings 1 and 2 attached at ground and first floor levels and dwellings 2 and 3 separated by a single garage with a first floor terrace and 1.0 metre high balustrade above. This design response does not provide a significant visual break like that which exists on the opposite corner of Elgar and Mont Albert Roads. I agree with the Council that the extent of the first floor along the length of the review site (the Mont Albert Road frontage) emphasises the building bulk and it should be reduced.

28 The Council has required greater articulation of the Elgar Road façade however Mr Atkins submitted that the façade is well articulated as a result of the setbacks and materials/finishes proposed. Mr Atkins has commented that the existing and proposed landscaping in the Elgar Road frontage will effectively screen the front dwelling from view. Whilst the landscaping is a key visual feature, it is also important that the building form be of a good design quality. I find that the plans submitted with the application do not visually demonstrate this articulation, particularly the materials and finishes, however I am satisfied that this could be dealt with by the inclusion of further detail or appropriate conditions.

29 I am of the opinion that the setbacks required from Elgar and Mont Albert Roads and the 2 metre wide easement adjacent to the eastern boundary have placed constraints upon the site layout opportunities for the proposed dwellings, resulting in the necessity to utilise an attached double storey building form. Whilst the front setbacks and open space areas are in accordance with Clause 55 and are appropriate, I find that the provision of private and secluded open space for dwellings 1 and 2 to be unsatisfactory.

30 The private open space for dwelling 1 is generally located in the Elgar Road frontage bounded by a fence with 50% transparency hence it offers minimal privacy, minimal protection from noise and the southern portion will be in shadow for a significant proportion of the day.

31 The private open space for dwelling 2 consists of a south facing ground level area of 39.50 metres and a first floor terrace on top of the single garage. The southern ground level area will be in shadow for a significant proportion of the day and does not, in my opinion, provide for the reasonable recreation and service needs of the future residents.

32 Mr Jeffs and Mr Sevior both expressed concern about the terrace being out of character with the locality. I find that the site layout constraints and the desire to accommodate three dwellings on the review site have resulted in the inclusion of this terrace by necessity. Mr Atkins submitted that the terrace is included in the design response because of the overshadowing of the ground level area but it is not out of character, it is just different and assists in the solar access for this dwelling. I agree this terrace is a different architectural element in this neighbourhood and, whilst differing elements can be a valid design response, in this case I am of the opinion it is symptomatic of the problem associated with this design response tyring to squeeze the required open space areas onto the review site. I find that the terrace is not desirable in this case as a private open space area, and the internal amenity created for this dwelling with the terrace and south facing open space area is a poor design outcome.

33 Mr Jeffs expressed concern that the proposal would cast a shadow over his home and garden, and the proposed south facing bedroom windows in dwellings 2 and 3 and the upper level terrace of dwelling 2 would overlook the garden and family room of his house. I note that a shadow will extend onto the northern edge of the driveway on Mr Jeffs' property, which Mr Jeffs stated was used as an outdoor entertaining area. On balance, I find that this shadow is reasonable and complies with the requirements of Clause 55 of the Planning Scheme, as it will not impact upon the main private open space area at the rear of Mr Jeffs' property. In regard to the potential for overlooking, Mr Atkins submitted that the bedroom windows and terrace are more than 9 metres away from the main rear private open space area on Mr Jeffs' property but a screen could be included on the terrace if necessary. I have already found that the terrace is a poor design outcome for other reasons. In regard to the bedroom windows, I am of the opinion that they have the potential to directly overlook the area at the rear of Mr Jeffs' house and this can easily be addressed by incorporating screening devices as contained in Clause 55 of the Planning Scheme.

34 Mr Sevior stated that the car space in front of dwellings 2 and 3 should be 6 metres in length rather than 4.9 metres. He referred to the Council's in-house design policy that is neither a reference nor an incorporated document in the Planning Scheme; therefore I have not had regard to it. I have already found that the setback of the dwellings from Mont Albert Road is appropriate and I am of the opinion that the setback of the garages is also appropriate, as it provides the opportunity for a second car space in front of each garage.

35 This brings me to the landscaping and street trees, and I find that the landscape concept for the site is appropriate. I agree with Mr Atkins' submission that tree 7 should be retained and dwelling 1 should incorporate pier and beam construction to assist in its protection. The Council wants the crossovers located 3.5 metres away from the street trees but Mr Atkins submitted that this distance is unnecessary. He suggested that the setbacks be determined in consultation with an arborist and tabled an arboricultural report stating that lesser setbacks would be appropriate. Mr Bowden suggested that the Council's condition could be altered to require the location of the crossovers for dwellings 1 and 2 to be determined by a qualified arborist. I agree with this suggestion and am of the opinion that any new design response should incorporate setbacks that accord with an arborist's recommendations.

36 In conclusion, I find that the constraints associated with the site layout have resulted in an attached double storey built form that needs to be broken up further. I also find that the private open space areas for dwellings 1 and 2 are not a good design outcome. The design also requires modifications to the proximity of the crossovers to the street trees. I gave consideration as to whether to allow the permit applicant an opportunity to submit amended plans, however I am of the opinion that significant changes are required to address these concerns, hence any new design response should be the subject of a new planning application.

For the above reasons, the decision of the Responsible Authority to grant a permit is set aside. It is ordered that no permit be issued.