Victorian Civil and Administrative Tribunal|2005-09-16

Tapinos v Moreland CC [2005] VCAT 1958 (16 September 2005)

3 double storey dwellings urban village, Neighbourhood Character, Strategic Framework, inappropriate conditions.

1 Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

a

Written permission from the relevant authority to build over the easement along the western boundary.

b

Landscaping of all private and communal open space.

c

Removal of sheds and storage provided in garages.

d

The relocation of the clothesline for dwelling 1 to the eastern garage wall of dwelling 1.

e

Unit 1 set back a further 450m and Unit 2 300m from the common driveway.

f

A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples (3 copies in a form that can be endorsed and filed).

2 The development as shown on the endorsed plan(s) must not be altered or modified unless with the further written approval of the Responsible Authority.

3 The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must to the satisfaction of the Responsible Authority:

a

Be completed prior to the occupation of the development.

b

Be properly formed to such levels that it can be used according to the endorsed plan.

c

Be drained and surfaced.

d

Have the boundaries of all vehicle parking spaces clearly marked on the ground to accord with the endorsed plan.

4 Prior to the occupation of the development, all boundary walls must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.

5 The garden areas shown on the endorsed landscape plan and schedule shall only be used as gardens and shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.

6 Before the occupation of the development, an automatic system of external light must be installed and maintained on the land to illuminate access to the rear dwellings, operating between dusk and dawn and no direct light is emitted onto adjoining properties to the satisfaction of the Responsible Authority.

7 All stormwater runoff from the roofs and paved surface must be collected into pipes approved by and to the satisfaction of the Responsible Authority.

8 Prior to the commencement of the development, a legal point of discharge is to be obtained, and where required, a stormwater drainage plan showing how the site will be drained from the property to the stated point of discharge, must be submitted to and approved by the Responsible Authority.

9 A mailbox containing a newspaper holder must be provided for each of the dwellings at the street frontage. The mailbox dimensions, location and height must be consistent with the standards specified by Australia Post to the satisfaction of the Responsible Authority.

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

a

The development is not commenced within two (2) years from the date of issue of this permit.

b

The development is not completed within four (4) years from the date of issue of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1 This is a review of a refusal of the Moreland City Council to grant a permit for three double storey dwellings at 6 Howson Street, Brunswick West. The Responsible Authority refused the application on the following grounds:

1. The proposed development fails to satisfy the objectives of Clause 55. In particular it:

•

Fails to adequately justify how it is representative of site responsive design, which is respectful of neighbourhood character. In particular it fails to meet the objectives of Clause 55.02;

•

The site layout, articulation to the dwellings, the attached building form down the length of the site, the massing of the proposed development and its resultant impact on neighbourhood character and adjacent properties is unacceptable. In particular it fails to meet the objectives of Clause 55.02-1;

•

The orientation of the front entrance to dwelling 2 does not meet the objectives of Clause 55.03-7 and Clause 55.05-2;

•

The proposed landscaping is poorly resolved, provides minimal opportunity for the planting of canopy trees particularly to dwelling 3 and does not meet the objectives of Clause 55.03-8;

•

The proposed habitable room windows at the first floor level of the dwellings provide for unreasonable opportunities for overlooking to adjacent private open space areas and habitable room windows and does not meet the objective of Clause

55.04-6;

•

The detailed design of the development is poorly resolved and fails to satisfy the objectives of Clause 55.06-1.

2 The site with a frontage of 14.02m has an area of 555.5m2. It has a 1.8m wide easement at the rear. The site is flat. It presently contains a single storey dwelling set back 4.5m from the street and has a shed and some landscaping to its rear. The surrounding area is generally residential with a mixture of single and double storey dwellings with medium density development dating from the 20th century to today.

3 To the north is a medium density development with three double storey dwellings set back 2m from Howson Street. Each dwelling has a single garage and the access is via a single crossing down the southern boundary of the site. Opposite is a mix of single and double storey detached dwellings together with some medium density developments. To the south is a single storey dwelling and south of that are a number of medium density developments of an earlier type.

4 The land is very close to major facilities including parks, shopping centres and schools.

5 This involved the demolition of the existing building and the construction of three double storey dwellings with Dwelling 1 set back 3.5m from Howson Street with its first floor set back another 800mm. The two rear dwellings are both double storey with single garages and they are attached to each other by the garages. Private open space of 40m2 plus is provided for each dwelling. Vehicular access will be via the existing crossover. The maximum height of the dwellings is just over 7m to the ridge. Construction materials are a mixture of brick render and weatherboard with corrugated iron roofs.

6 The application was made on 5 October 2004. Further information was sought and received and on 23 December 2004 the application was advertised. No objections were received. On 11 April 2005 the refusal to grant a permit was issued by the Responsible Authority on the grounds as listed. The application was referred internally with the traffic engineers making some comments about the width of the garage doors and the internal radii of the driveway system.

7 The land is zoned Residential 1. No Overlays apply to the site. A planning permit is required for the development of two or more dwellings on a lot under Clause 32.01-4 of the Planning Scheme. The relevant state of local planning policy frameworks together with Clauses 55 and 65 of the Scheme must all be considered in the assessment of this application.

8 The land is located in an Urban Village under the Moreland Planning Scheme, in accordance with Clause 21.05-2 - Focus Areas for Change. In the planning scheme the site is located within the Grantham Street/Union Street Urban Village. A key aspect of these focus areas for change is that higher density is expected to be achieved within Urban Villages.

9 Clause 21.06-1 of the Scheme also provides, in the Council's words "compelling strategic reasons to support urban consolidation and to provide new housing developments in existing areas". There are seven objectives relating to Council's housing policy and these include:

•

a development making positive contribution;

•

preferred neighbourhood character; and

•

encouraging the development of well planned urban villages.

10 In Clause 22.02 - the development within designated urban villages policies promote the use of contemporary architecture that respects the scale and form of surrounding buildings.

11 The Responsible Authority has an Amendment C43 to the Scheme which is Moreland Urban Character Policy draft in which buildings over three storeys and a new neighbourhood character are part. The buildings over three storeys part of this Amendment has been adopted and forwarded to the Minister. The rest of the policy has been retained to have more work done on it in accordance with the Panel recommendation. The site is in Moreland Character Study Area 82. This relates to Victorian, Edwardian housing and interwar housing but also refers to flat development from the post-war period that dominates the character of some streets. The Responsible Authority indicates it has a preferred future character for this area and this seems to relate to predominantly single detached dwellings, a substantial rear open space devoid of developments and single storey rather than two storey development.

12 Both parties spoke to written submissions that together with plans and other information were all retained on the Tribunal file.

13 In his submission Mr English provided a slightly different context for the Local Planning Policy Framework in referring to the MSS. Objective 5 of the MSS states encourages the development of well planned urban villages and its strategy is to support increased housing intensity that exceeds the density benchmarks identified in the table in diagram 2. Diagram 2 relates to densities in excess of 1/200 square metres.

14 It is a recognised aspect of Moreland that its population has been steadily declining over the last 20 years. There is a need therefore to provide housing diversity for smaller families and the older population on small allotments.

15 In support of his submission Mr English quoted three previous Tribunal decisions. The first was Waylan Consulting Group v Moreland City Council, L Bate & Ors Appeal No. 2000/14971. In that decision the Tribunal constituted by the writer addressed the issue of change that is a key aspect of urban villages that "may not lead to preservation of existing neighbourhood character or streetscape but rather the development of new neighbourhood character and streetscape".

16 The second, Bill Tsiavos v Moonee Valley City Council P408/2004 in which the Tribunal noted:

I agree with the above view except that, in my opinion, when the concept of urban villages is applied to existing areas of primarily detached, single storeyed housing, it is not so much a case that an urban village policy "may not lead to preservation of existing neighbourhood character" as that such policies must inevitably lead to a change, often substantial, to the existing neighbourhood character.

17 In the third, Rizzo Constructions v Moreland City Council Appeal No. P2299/2004, the Tribunal in referring to Waylan Consulting Group v Moreland City Council, L Bate & Ors stated:

Development at higher densities and at a larger scale than would be acceptable to the Responsible Authority in residential areas not included in urban villages will inevitably lead to changes in neighbourhood character. This is entirely consistent with urban village designation. If Moreland City Council continues to maintain that the existing neighbourhood character of precincts in urban villages is to be retained it runs the risk of having costs awarded against it.

18 It should therefore be plainly obvious to the Responsible Authority that its continuing insistence upon a preferred neighbourhood character of basically what exists now is unsustainable in urban villages.

19 The area in question has no Heritage Overlays and it is not covered by a Neighbourhood Character Overlay. It is in an urban village in which there is an expectation of change by the very nature of the urban village concept. As such the proposal is well supported by policy.

20 In relation to the merits of the proposed development itself, I do not agree with the Responsible Authority that there is a lack of articulation to Dwelling 1. I find that the materials are reasonable as there are other examples of such materials within the area. I find the setbacks are also reasonable with the exception of the setbacks of Dwellings 1 and 2 in relation to their 4m radii for driveway edges. These are too close to actual corners of buildings and therefore I had suggested that there be a slight alteration in their setbacks. Each unit has ample secluded private open space in their rear yards that are set back well from the common boundary with the property to the north. I have no problem with the situation of the entry way for Unit 2, I think it is quite appropriate mid block to have a dwelling entry not facing the street, particularly when there is a window that faces up the drive. Not every dwelling can have a direct access or direct view of the street in the case of a development that is designed down a block. It has a far better access to its garage.

21 Overlooking has been dealt with adequately by the designer in that for the most part the rooms are minor bedrooms and bathrooms. Any windows are certainly far enough removed from the northern property windows and therefore there will be no screening of those windows.

22 In relation to conditions I noted at the hearing that the Council had conditions requiring each unit having a tank, a solar hot water service and gas boosted hot water systems. There was also a requirement for a 5 star energy report. All these in my view are totally inappropriate, because in a way they are inequitable as they do not apply to all dwellings being built within the municipality but only to those that require a planning permit. In any event there is more than one way to skin a cat.

23 In Hasan v Moreland City Council application for Review No. P967/2005, the President, Justice Morris and Member Rae have dealt with these issues in detail. That review was in relation to conditions requiring:

•

gas boosted solar hot water systems;

•

rain water tanks;

•

5 star energy rating.

The same conditions I have refused to entertain.

24 The decision in P967/2005, while disagreeing that the conditions are ultra vires, determined that they are an inappropriate mechanism to achieve a sustainable energy outcome. The President and Member Rae concluded that such requirements should not be discriminatory and that the appropriate way to achieve energy efficiency by regulation is the Building Regulations where they are already applicable.

25 The Tribunal stated:

22. One of the advantages of relying on the building regulations to effect energy and water efficient dwellings is that all dwellings require a building permit. By contrast, it is not usual for a single dwelling to require a planning permit. If environmentally sustainable design is to be incorporated into dwellings, it ought be incorporated into all dwellings.12 As a matter of logic, this does not mean that the planning system will always be an inappropriate mechanism to impose sustainability conditions. But if the planning system is to be used to impose the same requirements as those imposed by the building control system, one may ask: what is the point? And if the requirements are different, one may ask: is it fair to discriminate between different forms of housing?

23. We think in applying sustainability conditions it is unfair to discriminate between dwellings that require a planning permit and dwellings that do not. If more stringent sustainability conditions are imposed on multi-unit developments (which require a permit) than detached houses (which usually do not require a permit) this adds to the comparative cost burden of the former type of dwelling. This discourages urban consolidation, contrary to policy. It also overlooks the fact that the nature and location of multi-unit dwellings often makes them more energy efficient than detached houses. Further, multi-unit development is often directed at lower income households. Why should these households have to pay a higher burden than other households?

24. We also think it is less efficient to impose the conditions at the planning permit stage when such matters can be left to the building regulations.

26 The Tribunal concurs with and follows that decision and therefore deleted proposed conditions 7, 8 and 9.

Tapinos v Moreland CC [2005] VCAT 1958

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Tapinos v Moreland CC [2005] VCAT 1958 (16 September 2005)

Parties