1 This was an application under s 82 of the Planning and Environment Act 1987 by objectors against the Bass Coast Shire Council's decision to grant a permit with respect to permit application no 030995. The permit application seeks permission for the construction of 2 double storey dwellings at 11 Martin Street Cowes.

a. Adverse impact on amenity of the Woodlands Estate.

b. Adverse impact on the neighbourhood character of the Estate.

c. Significance of the safety and security of the Estate.

d. Errors in the Council's original permit approval.

3 At the hearing Mr Young, Mr Mailes and Mr Thompson tabled and spoke to written submission to which they added oral argument. I was also presented with an array of other material including plans; maps; diagrams, photographs of the land and surrounding area. The submissions and other documents have been retained on the Tribunal's file.

4 At the commencement of the hearing Mr Thompson sought leave to amend the permit application by substituting amended plans that had been circulated to the Council and the applicants for review before the hearing. Mr Young and Mr Mailes offered no objection to the amendment. I allowed the substitution of amended plans under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

5 After the hearing I inspected the subject land and locality.

6 The subject land is located on the north side of Martin Street between Robwood Crt and Moore Street, Cowes. The land is rectangular in shape with a frontage of 17.5 metres, a depth of 40 metres and an overall area of about 700 square metres. The subject land is vacant, relatively flat and devoid of trees.

7 The properties to either side of the land, to the east and west, are also vacant with double storey dwellings located to the south.

8 The subject land is located within the "Woodlands Estate" which is a relatively new residential subdivision within the Silverleaves area. Mr Miales described the Woodland's Estate (in part) as follows:

As part of the general metamorphosis of Silverleaves, the Woodlands Estate is characterised by a mix of permanent and holiday residences. Dwelling designs include cottage style, ranch style and a variety of contemporary homes. Without exception, the dwellings reflect the casual and low key mood of Phillip Island, with generous setbacks and ample space between dwellings and their respective side boundaries.

The Woodlands Estate comprises some 44 allotments, of which about 31 are developed or are currently being developed, with a further 31 allotments remaining undeveloped at the time of writing this submission. Of the 31 developed allotments, 8 have dual occupancy developments - 25% of developed allotments, giving the Woodlands Estate a housing density of 1.2 dwellings per lot.

9 Further to the above, the subdivision provides relatively narrow road pavements with no formal kerb and channel or footpaths. Relatively generous grass verges extend from property boundaries to the edge of the road pavement with no formal indented on street parking.

10 The application seeks permission for the development of two double storey dwellings on the land in a side by side quasi "mirror image" pair layout, with the front setback slightly staggered.

11 The dwellings provide for main living areas; one bedroom with en-suite and amenities at ground level. Three bedrooms, a relatively generous "retreat" area and amenities are provided at first floor level. Both dwellings provide for a living floor space of 253 square metres.

12 Each dwelling is provided with a single car garage with the opportunity for a second car to be parked in tandem within the front setback.

13 The main private open space area for each dwelling measures about 87 square metres and is provided to the rear. A secondary smaller courtyard measuring about 31 is provided to the side of each dwelling.

14 Only garage walls are built to side boundaries with other setbacks conforming to or exceeding clause 55 requirements. The proposed site coverage is 46 per cent.

15 The design style is clearly contemporary and with rendered wall finish in varying colours.

16 Under the Bass Coast Planning Scheme, the subject land is located in the Residential 1 zone, the provisions for which are found at clause 32.01. The purpose of the 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.

17 "Dwelling" is an as of right or no permit required use within the zone, however, under clause 32.01-4, a permit is required to construct more than 1 dwelling on a lot. The relevant decision guidelines require consideration be given to, amongst other things, the provisions of the State Planning Policy Framework [SPPF], the Local Planning Policy Framework [LPPF], the purpose of the zone, orderly planning and the impact on amenity. Applications must also be considered against the provisions of clause 55 and compliance must be achieved with respect to all the objectives set out in that clause.

18 The land is also affected by the Vegetation Protection Overlay - Schedule 2 (VPO2). Although the land is affected by the VPO2, a permit is not required under this overlay given that the proposal does not involve nor is permission being sought for vegetation removal Accordingly I do not intend to refer to VPO2 any further.

19 In relation to planning policy, there is a raft of policies, objectives and strategies within the scheme that are in some way relevant to the consideration of the proposal.

20 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, at clauses 14 and 16, is to encourage the consolidation of existing urban areas to make better use of infrastructure and to provide for a wider variety of housing that better meets the needs of the community. Planning policy also calls for medium density housing which is designed to be respectful of the character of established neighbourhoods. The policy for Design and Built Form at clause 19.03 encourages development that achieves architectural and urban design outcomes that make a positive contribution to neighbourhood character and enhances the public realm.

21 In relation to the LPPF, clauses 21.03 [Key Issues], 21.04 [Vision], 21.05-1 {Settlement] and 21.05-3 [Housing] within the Municipal Strategic Statement [MSS] are relevant to the consideration of the proposal. I will refer to the various issues, objectives, policies and strategies set out in these clauses as appropriate.

22 Mr Young also referred to the Phillip Island and San Remo Design framework. This document does not yet form part of the planning scheme, however, under this document, Cowes is identified as the preferred location for absorbing much of the shire's anticipated population growth over the next 20 years.

The Council's consideration of the permit application

23 The permit application was lodged with the Council on 6 October 2003. The Council directed that notice of the permit application be given and in response, it received 4 objections. Mr Young summarised the grounds of objection and the concerns raised as follows in his submission:

a. The character of the estate, which should be considered as part of the overall character of "Silverleaves".

b. The number of dual occupancies in the estate as:

i. subdivision was designed for a single dwelling on each lot;

iii. they are mainly used for holiday rental, whose occupants create unreasonable noise.

c. The quality of dual occupancies as they are of poor standard and made of low quality cheap materials.

i. the estate has only one entry and exit point (Moore Street);

ii. the roads are narrow and shared by pedestrians, as there are no footpaths;

iii. there is inadequate street parking, particularly during major events; and

iv. the estate is approximately two kilometres from the shopping centre which means more people will drive.

24 The permit application was also forwarded to the council's Assets Management Department for comment. According to Mr Young, this department offered no objection to the proposal.

25 The Council subsequently considered the proposal and the objections and resolved to approve the permit application subject to 12 conditions which appear on the Notice of Decision to Grant a Permit [NOD] issued on 23 December 2003.

26 After having considered the submissions and other material presented by the parties, the relevant matters to be taken into account pursuant to the planning and legislation and the details of the proposal, it seems to me that the key issues in this matter can be dealt with under the following questions:

i Does the subject land have attributes that make it capable of accommodating an appropriately designed 2 dwelling development?

ii Is the development of the subject land for 2 dwellings supported by planning policy?

iii Has the proposal been designed to be respectful of neighbourhood character?

Does the subject land have attributes that make it capable of accommodating an appropriately designed 2 dwelling development?

27 Considering whether the subject land has attributes that would make it a candidate site for a development comprising more than 1 dwelling is a useful starting point in this case.

28 The subject land comprises a regular shaped residential lot with an overall area of about 700 square metres. The land is not overlay large, however, given its area, width and regular shape, it is big enough to accommodate more than 1 dwelling. Further, the land is relatively flat and is devoid of buildings, vegetation and awkward easements. The land is also located within an urban area with relatively new infrastructure services available. All of these factors support the land's potential to be redeveloped for more than 1 dwelling.

29 Whilst these factors support the land's development potential, it is also appropriate to consider factors that may act as constraints. The most obvious factor to take into account is the road infrastructure within the Woodland's Estate subdivision. Whilst the road reservations themselves are relatively wide, the road pavements have been kept to minimal widths. In Martin Street, the road pavement is about is about 4 metres. There is no formal kerb and channel nor are there footpaths. Traffic calming devices have been installed in Moore Street and there are various pathways forming pedestrian linkages within the estate.

30 In my view, it is clear that this subdivision has been designed to provide for a "slow" traffic/pedestrian friendly environment. Further, it is apparent that the width of the road pavement and lack of indented parking makes on street parking awkward. There is reliance on the grassed verges for parking.

31 The nature of the road infrastructure servicing the subject land and wider neighbourhood is a relevant factor to consider and may act as a constraint on the land's development potential. However, the nature of the road infrastructure does not, in my view, mean that there is no potential for the land to be developed for more than 1 dwelling. Rather, it is a factor that needs to be taken into account and it must be demonstrated that the design has responded to this factor in an appropriate way.

32 Accordingly I find that the land has attributes that make it a potential site for a development comprising more than 1 dwelling. However, the design will need to take into account and properly consider the nature of the road infrastructure, particularly, its capacity to accommodate additional traffic and parked vehicles.

Is the development of the subject land for 2 dwellings supported by planning policy?

33 The purpose of the Residential 1 Zone and the planning scheme's decision guidelines require consideration to be given to the provisions of the policy frameworks.

34 The purpose of the Residential 1 Zone is not limited to providing for single detached dwellings on the conventional residential lots. Rather the purpose of the zone includes providing for a variety of dwellings that meet the needs of diverse households that we have within the community and, specifically, at a range of densities. [my emphasis]

35 On reviewing the SPPF, it seems clear to me that the policies at clauses 14.01 and 16.02 provide substantial support for the redevelopment of the subject land for well designed medium density housing. These policies encourage and support development that works toward the consolidation of residential development within existing urban areas, makes better use of existing infrastructure and improves housing choice. Medium density housing is one of the vehicles which enable State Planning Policy to be implemented.

36 It is also relevant that the Council's own MSS lends strong and unambiguous support for the development of suitable land within existing urban areas for medium density housing.

37 The MSS states that the Council anticipates that the shire will experience population growth over the next 20 years and that additional housing will be required to accommodate such growth. In response to this, the MSS makes clear statements about how this growth is to be managed. At clause 21.03-1 the MSS states:

Council has a strong commitment to urban consolidation and will continue to generally resist encroachment of urban areas into the surrounding rural lands. As population grows, so will the pressure to expand urban development.

Urban consolidation is important to both maximising infrastructure (particularly sewerage) and the protection of the Shire's natural resources that are often located on the periphery of urban areas.

38 At clause 21.05 -1, the MSS sets out a range objectives consistent with this approach including the provision of residential land within each town to accommodate anticipated population growth, to consolidate urban development within existing urban areas, to maximise the use of infrastructure and to actively promote infill development within area zoned for residential purposes. At clause 21.05-3 the MSS objectives include to provide for a range of housing types and to increase residential densities. To facilitate these outcomes, the MSS strategies include encouraging increased residential densities in all urban areas.

39 On reviewing the planning scheme's local policies, I accept that they seek to facilitate outcomes that will not unreasonably compromise the municipality's environmental and rural assets as well as residential amenity. However, what is also abundantly clear is that the planning scheme's local strategies specifically and quite unequivocally call for the consolidation of and increased density in existing urban areas.

40 Mr Mailes submitted that 8 [or about 25 per cent] of the 31 developed lots within the estate have already been developed with 2 dwelling [dual occupancy] developments and that this has resulted in a density of about 1.2 dwellings. He went on to submit that the "residents contend that at 1.2 dwellings per allotment............ the housing density has reached a reasonable level".

41 I have several difficulties with this line of argument.

42 First, for some time now dwelling "density" has not been found to be an effective way of measuring the appropriateness of proposals. For example in Monde Developments Pty Ltd v Stonnington CC (1997/470290 unreported) Senior Member Monk commented:

During the hearing I expressed the view that density per se was not as relevant an issue as the manner in which that number of dwellings manifested itself on the site in terms of its impact on the neighbourhood, local infrastructure and neighbours and the liveability of the development for future residents.

43 Further to this, in Deal Corporation Projects Pty Ltd v City of Stonnington and Ors [1999] VCAT 2217 Member Moles commented:

The question which arises in these proceedings is whether or not the particular intensity of the development proposed is acceptable. I agree with the views of Mrs Monk in the decision quoted by Mr Pitt (Appeal 1997/47029 Monde Developments Pty Ltd v City of Stonnington - unreported), however, that the appropriateness of a particular proposed density of development is to be judged not by its compliance with some magical number or formula,....................,but on factors on such as whether the amenity impacts for neighbours are reasonable, the manageability of off-site traffic effects, and an acceptable relationship to neighbourhood character. I will turn now to such considerations.

44 It is no accident that the density benchmarks set out in the now defunct Good Design Guide were abandoned in ResCode [clause 55]. The use of dwelling density as a reliable measure is overly simplistic and unhelpful.

45 Second, the assertion that a density of 1.2 dwellings per lot is "reasonable" is subjective. This figure simply reflects the current level of development. There was nothing presented to demonstrate why this figure is appropriate or how it is supported by the purpose of the zone or the thrust of planning policv.

46 Third, if, as Mr Mailes contends, a density of 1.2 dwellings per lot is "reasonable", then this density has not yet been reached in the Woodlands Estate. The estate comprises 44 lots. Given that only 8 of these lots have thus far been developed for "dual occupancy", more lots will need to be developed in this way if even this subjective "reasonable" density is to be achieved.

47 I do not accept that it is appropriate to apply a subjective density figure as was put forward in this case. There is no sound planning basis for it. The appropriate approach is to consider a proposal against the thrust of the planning schemes policies and to assess its impacts.

48 The simple fact of the matter is that the land is within an urban area and zoned for urban purposes. The planning scheme clearly and quite unequivocally directs medium density housing to locations such as this. The redevelopment of the subject land with an appropriately designed 2 dwelling development is consistent with the thrust of policy. I appreciate that the applicants for review consider that "enough is enough" in terms of dual occupancy developments, however, the scheme as its stands, particularly the local policies that have been put in place by the Council, do not support their position.

49 I will now turn to the consideration of the specific impacts of the proposal.

Has the proposal been designed to be respectful of neighbourhood character?

50 Whilst the purpose of the zone and planning policy support the notion that suitable sites be developed for more intense development, this is not to say that "anything goes". Amongst other things, the purpose of the zone, planning policy and the objective at clause 55.02 require that development be design to be respectful of neighbourhood character.

51 It was asserted by Mr Mailes that the proposal has not been designed to be respectful of neighbourhood character. Whilst Mr Mailes made substantial submissions on this issue, it was apparent during the course of the hearing that the concerns raised on neighbourhood character were with respect to the attached side by side layout, boundary to boundary construction and the view that there is a lack of "space" around buildings. Mr Mailes submitted that there is no other development within the Woodland's Estate that is based on the attached "side by side" layout and as such, this proposal is not respectful of neighbourhood character.

52 In trying to come to grips with the notion of how to define neighbourhood character and what constitutes respectful development, Mr Mailes drew support from the DOI Practice Note "Understanding Neighbourhood Character" dated December 2001. In particular, Mr Mailes pointed to references in the practice note that state that development application documentation must show how the design response derives from and responds to the key features identified in the neighbourhood and site description and that "respect for neighbourhood character means that development should try to fit in".

53 In assessing neighbourhood character issues, it is necessary to identify the key features and characteristics of the neighbourhood. The Woodlands Estate is a relatively new residential subdivision which is in the early stages of its development. Whilst most properties are now developed, dwellings are relatively new and gardens are in the early stages of being established. Single dwellings and dual occupancies occupy the developed lots. There is a mix of single and 2 storey dwellings and, by and large, design styles are of a contemporary nature and incorporate variations in features such as the roof forms (curved and pitched), materials, colours and finishes. There are no examples of attached side by side dwellings.

54 In considering this issue, the first point to be made is that the notion of respectful development does not mean more of the same. This is made clear in the following extracts from the DOI practice note which provides assistance in the application of Standard B1 at clause 55:

Respecting neighbourhood character does not mean preventing change. The neighbourhood character standard is not intended to result in the replication of existing building stock or stop change.....

Respecting neighbourhood character does not mean limiting the scope of design interpretation and innovation, or mimicry or pattern book design. Instead it means designing the development to respond to the features and characteristics identified in the neighbourhood.

55 In my view, the above extract makes it clear that the notion of respecting neighbourhood character does not mean that every single design element must already exist in some way, shape or form within a neighbourhood before it can be included within a new proposal. Such an approach would prevent change, innovation and potentially stifle the construction of better buildings. Such an outcome would be inconsistent with the thrust of policies which clearly encourage change, diversity and innovation.

56 Second, where a high degree of consistency in design style and siting is identified as an outcome to be achieved, it is usual to find that design guidelines have been put in place. In this case, I was not made aware of any design guidelines to be followed for new buildings in the Woodlands Estate.

57 Third, the subject land is not located within a long established residential neighbourhood where the character is set, rather, substantial opportunity exists for new development with just under a third of the lots still vacant. It seems to me that in such a context there should be a fair degree of "freedom" in terms of building form and architectural style. It would be nonsense for the neighbourhood character to be set by the first few dwellings in such an estate with a requirement that everyone else follow. If design and architectural freedom cannot be given in a developing estate where there are no design guidelines in place, where can it be given?

58 In my view, this proposal has been designed to be respectful of the neighbourhood. It involves the provision of 2 dwellings. The double storey height of the buildings is consistent with that of other buildings as is the front setback. The contemporary design style, materials and finishes are not out of place. Satisfactory opportunity is provided for landscaping in both the front setback, the side courtyard areas and in the rear open space. Although the side by side site layout is different, this is not a flaw; rather, it builds on the diversity that already exists. The level of on boundary construction is modest, limited to single storey 6.5 metre long walls.

59 I find that given the context of this site, the proposal development is acceptable having regard to neighbourhood character.

60 I now turn to the issue that I consider to be the "Achilles heel" of this proposal, namely, the proper provision of on-site parking.

61 Before turning to this issue, it is appropriate that I record that the proposal generally meets the quantifiable standards set out at clause 55. In particular, the site coverage [49 per cent] is well below the 60 per cent allowed under Standard B8, height and setbacks comply with Standards B6, B7 and B17, respectively, open space easily exceeds the requirement in Standard B11. Further, no concerns were expressed with respect to the issues of overlooking, overshadowing or daylight to windows. I accept that the proposal provides satisfactory opportunity for landscaping within the front setback and around the land.

62 Turning to the car parking issue, the proposal effectively provides for 2 on site spaces for each dwelling in the form of a single car garage with the opportunity for a second car space in tandem. The provision of 2 spaces for each of dwelling complies with the number of spaces required under Standard B16.

63 Earlier in these reasons I went to some length to set out the details of the road infrastructure in this neighbourhood. Essentially the road pavements are narrow and not conducive to parking on street. Further there is no indented parking provided.

64 Mr Mailes raised concerns about the adequacy of the off-street parking given the size of the dwellings and their capacity to be used as holiday rentals. It was submitted that Phillip Island is a tourist destination with population numbers swelling substantially during holiday periods, long weekends and when major events are held and that during such periods, it is not uncommon for homes to be occupied by more than one family or by groups of people thus placing great pressure on parking within the estate. Mr Mailes expressed the view that the road infrastructure cannot cope with both the increased parking and traffic as it reduces safety, particularly for pedestrians.

65 It would be fair to say that Mr Young and Mr Thompson essentially relied on the proposal's compliance with Standard B16 in making their submissions that adequate on-site car parking is provided. I do not think that it is as simple as this. Consideration must be given to the context of the land. In Weis Development Pty. Ltd v Yarra Ranges Shire Council (1998/26387 1 VPR 33), Member Monk commented on the suitability of providing a single car garage and tandem space for dwellings to be located on a site with a frontage to a court bowl as follows:

In many instances this Tribunal has found that a single car garage plus tandem car space constitutes a sufficient provision per dwelling for a unit development comprised of modest sized units. In most instances the kerb can be relied upon as a safety valve for spillover parking. However, despite the proximity of the site to a shopping centre within which buses terminate and where, according to Mr Rollis, a telebus system operates, I am not persuaded that lower car ownership levels would necessarily apply to such three bedroom dwellings in an outer urban location. In my opinion there is a real prospect for spillover car parking - not only for visitors but by residents - and I am not persuaded that it would be appropriate for this spillover to occur within the court bowl.

In this regard therefore I accept the Council's submissions that the shape and location of a court bowl site is indeed a site constraint which may affect the density technique of Element 1 of the Good Design Guide. To this end I agree that the three unit development with its double garages plus tandem visitor parking spaces, proposed for No. 18 is a better response to the constraints of this court bowl location.

67 It is apparent from the above decision that in determining the suitability of the car parking provision it is necessary to evaluate the nature of the proposed dwellings and the context of the land. In Weis, the Tribunal found that the constraints on parking associated with the land fronting onto a court bowl was a reasonable basis upon which to depart from the usual parking standard.

68 In this case, the land does not front onto a court bowl, however, the road infrastructure is constrained by its narrowness thus giving it limited ability to accommodate kerbside parking; the proposed dwellings are relatively large and there is a reasonable likelihood that they will provide accommodation for more people than a typical household during holiday seasons.

69 It may be that the provision of 2 car parking spaces for each dwelling is sufficient for non-holiday times, however, I have substantial doubts that it is enough for the busier holiday times when Phillip Island's population swells. On this issue I note that in relatively recent times, Member Quirk expressed concerns about simply relying on the ResCode rate for parking in Cuthbertson v Bass Shire Council and Anor [2004] VCAT 882 when he stated:

In relation to visitor parking and boat trailer parking, I am inclined to agree with Mr and Mrs Cuthbertson that, because Phillip Island is a highly sought after tourist location for fisherman and holiday makers, there is a good chance that people who occupy these buildings may own power or sail boats and will look to store them on or near the site. I agree with Mr Murphy that there are specific businesses set up to store boats and caravans, however, this is a new development and consequently there must be room on an almost 2000 square metres site for some boat storage. This need can also be applied to visitor parking. Just complying with the standards of ResCode and the Planning Scheme doesn't necessarily mean that enough parking is provided on the site. Again, on a greenfield site there is no reason why visitor parking can't be included, even on grasscrete or other softer landscaping medium. [underlining my emphasis]

70 In my view, it is inappropriate to provide a single car space with a second space for large dwellings such as those proposed when the road infrastructure clearly does not have the capacity to accommodate "spill over" parking.

71 My views would be somewhat different if the land had a frontage to a more conventional residential street where kerbside parking is available. Even if the demand for such kerbside parking is high at times, at least the opportunity to park on street is provided within the wider area. In this case, the practical opportunity for this to occur is very limited in the Woodlands Estate.

72 This is not case where the constraints on kerbside parking mean that there can be no dual occupancies in the Woodland's Estate. Rather, I would have thought that a design response that provided for a double car garage for each dwelling with additional opportunity for visitor parking would represent an appropriate design solution. I have considered whether this could be achieved by modifying the current proposal so that double garages are provided in lieu of single garages with the paved area extended to provide 2 spaces in tandem in front of each garage. Whilst the on site car parking provision would be appropriate, the dominance of garages and paved surfaces in the front setback would not be acceptable from a streetscape character viewpoint. An alternative design needs to be found.

73 I accept that the subject land has attributes that make it a candidate site for a 2 dwelling development. I do not accept that there is any sound planning rationale behind the assertion that a density of 1.2 dwellings per lot is appropriate for the Woodland's Estate. I accept that the development of more than 1 dwelling on this site accords with the thrust of the very clear local policies which encourage consolidation of existing residential areas. However, the application of policy must take into account specific design considerations.

74 I also find that that the proposed side by side "attached" dwelling layout and contemporary design are acceptable having regard to neighbourhood character considerations.

75 The road infrastructure is constrained. The provision of a single car garage with a second space in tandem for relatively large dwellings fronting a road with very limited capacity to accommodate kerbside parking is not an acceptable design response. Significant car parking over spill into the narrow streets within the estate is not an appropriate outcome. There is substantial opportunity for this to occur during holiday times when dwelling occupancy rates are high.

76 The Responsible Authority's decision will be set aside. No permit is granted.