Tass Angelopoulos v Moreland CC & Ors [2002] VCAT 589

1 Before the use or development commences, three copies of amended plans must be submitted to and when approved by the responsible authority become the endorsed plans and form part of this permit. These plans must be generally in accordance with the plans as amended by the Tribunal at the hearing but must be amended to show, to the satisfaction of the responsible authority:

b) Specification of the following on the elevations - natural ground level, finished ground level, finished floor level and total building heights measured relative to a level taken from a defined point on the footpath at the frontage of the site or in relation to Australian Height Datum (AHD).

c) Opaque glazing to any sections of first floor bathroom/toilet windows below 1.6m above floor level and screening to the side of the north-facing window of Bedroom 2 of each dwelling in accordance with Element 7 of The Good Design Guide for Medium Density Housing.

d) All materials, colours and finishes, with the exterior surface of the ground floor to be finished in face brickwork.

2 The development as shown on the endorsed plan must not be altered unless with the written consent of the responsible authority.

3. Any vehicle crossover and any ancillary road and road drainage works must be constructed in accordance with any requirements of the responsible authority.

4. All stormwater from the land must be collected by an underground pipe drain approved by and to the satisfaction of the responsible authority.

5. Noise attenuation must be provided to every air conditioning unit to the satisfaction of the responsible authority.

8. Any plumbing pipe, ducting and plant equipment below the roof surface must be concealed from external view. This does not include external guttering or associated rainwater down pipes.

9. A clothesline must be provided to each dwelling and located to the satisfaction of the responsible authority.

10. A mailbox containing a newspaper holder must to be provided to each dwelling. The mailbox dimensions, location and height must be consistent with the requirements of Australia Post to the satisfaction of the Responsible Authority.

11. Before the use or development commences, a landscape plan prepared by a suitably qualified person must be submitted to and approved by the responsible authority. The landscape plan must show the location, quantity, size and botanical name of each proposed tree, shrub and ground cover and show the treatment of each landscaped surface. An endorsed copy of the plan will form part of this permit.

12. Prior to the commencement of the use, each garden area must to the satisfaction of the responsible authority be landscaped with trees, shrubs and ground cover and then maintained. Each garden area must not be used for any other purpose.

13. This permit will expire if the development is not commenced within 12 months from the date of issue or the buildings and works are not completed within 24 months of the date of issue unless either of these dates are extended by the responsible authority in writing. An application for extension of time must be lodged in writing before the permit expires or within 3 months after the expiry date of the permit.

Mr. N J Tweedie of Counsel, instructed by Deacons lawyers, appeared for the applicant for review. Mr. Tweedie called, as expert witness, Mr. Stuart McGurn, town planner, of Fulcrum Town Planners Pty Ltd.

Ms Dianne Kenny and D & S Kenny appeared for themselves.

Ms Jane Sharp appeared for the Responsible Authority.

1. Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit to construct two two-storeyed dwellings.

2. At the commencement of the hearing, Mr. Tweedie made two applications:

s To amend the name of the permit applicant and applicant for review to Tass Angelopoulos, being the proponent of the development

s To substitute amended drawings in lieu of the original permit application drawings that had been considered by Council.

3. I consulted the parties present at the hearing on both matters. The amended drawings had been circulated to all parties in accordance with the Tribunal's Direction Notice. There were no objections to either request. There were, however, a number of written responses from parties to the review who did not attend the hearing. These responses were generally in the form of objections to the amended plans (ie. stating that the amended plans did not overcome the respondent's original grounds of objection and were not an objection to the substitution of amended plans).

4. I directed that the name of the permit applicant/applicant for review be amended as requested and that the amended drawings be substituted for the original permit application drawings.

5. An application was made for a number of additional parties to be joined as respondents to the Application for Review. These were various members of the Kenny family, namely D., B., R. M and D Kenny. The application also included Jarrod Kenny. However, Mr. Tweedie objected to the latter on the ground that Jarrod Kenny was under the age of 18 years. There was no objection by other parties to the balance of the above persons being joined as respondents. I so directed.

Planning Scheme and Zoning/Overlay/Schedule Controls

7. Residential 1 zone. Surrounding land is also zoned Residential 1.

s The proposal does not meet the overall objectives of the Good Design Guide in relation to the elements of the Neighbourhood Character and Site Layout and Landscaping.

s The proposal does not meet the objectives of the Municipal Strategic Statement, and in particular the strategic statements of Housing and Urban Design, Urban Character and Street Landscaping.

s The proposal does not respect or make a positive contribution to the existing urban character of the area and represents inappropriate bulk, scale and form in the area.

s The proposal is an overdevelopment of the site.

s The proposal will result in a loss of amenity to the abutting dwellings.

9. The grounds of the Application for Review were largely a rebuttal of the grounds of refusal.

10. The land is situated at 10 Pearey Grove, Pascoe Vale.

11. The land is rectangular and flat, with dimensions of:

12. I have adopted the description of the site and its locality as provided by Ms. Sharp.

"The site is located on the northern side of Pearcey Grove .... The site is currently occupied by a single storey weatherboard house with a side garage and setback of (about) 7.6m.

The surrounding area comprises of generally single storey weatherboard dwellings with some brick single storey dwellings. One double storey dwelling is located at 4 Pearcey Grove, which is a new dwelling. The dwellings generally have setbacks between 6-8m with no front fence or a 1.0m fence. The dwellings generally have side driveways and relatively little significant landscaping in the form of trees and vegetation."

13. I have adopted the description of the proposed development provided by Mr. McGurn.

"The application envisages the demolition of the existing dwelling on the site and in its place the erection of two attached, double storey dwellings with associated car parking. The proposal incorporates the following components:

- Both dwellings are set back 8.5 metres from the frontage and 1.2 metres from the side boundaries at ground level. At first floor they are set back 9.85 metres from Pearcey Grove and a minimum of 10.2 metres from the eastern and western boundaries.

- Each dwelling is a mirror image of the other, with study, laundry, kitchen and open area dining and living located at the ground floor and three bedrooms (the master with an en-suite) and bathroom situated at the first floor.

- Two crossovers are proposed, situated at the eastern and western boundaries of the site, both leading to a garage situated next to the verandah and entry point for the dwellings.

- Both dwellings are set back about 10.2 m from the rear boundary and private open space of about 82 square metres is provided for each dwelling.

- The proposal reaches an overall height of about 7.25 metres to the ridge of the roof live with a corresponding floor-to-ceiling height of 2.7 m (at both ground and first floor).

- The design adopts a simple contemporary approach with framed entries, regularly proportioned fenestration and a similar roof form to surrounding dwellings.

- Materials include brickwork and render with timber-framed windows, tilt panel doors to the garages with glazing panels and concrete tiled roof. The front fence is a combination of iron palisade plus render."

14. During the course of the hearing I was provided with a substantial array of information relevant to the decision to be made in this Application for Review. In brief summary this background information included written and verbal submissions, written and verbal expert opinions and a number of photographs from the various parties and the expert witness. These documents will all remain on the Tribunal's file.

Matters for Consideration Under Planning Controls and Policies

15. The Planning and Environment Act 1987 (Vic), Section 84B, sets out the matters the tribunal must take into account in determining an Application for Review. Section 84B(2) also requires the Tribunal to take into account any matters which the Responsible Authority could have taken into account, for example, under s.60 of the Planning and Environment Act 1987.

16. In addition to the above, relevant planning strategies and policy includes the following:

s SPPF clauses 14.02-2, Clause 15.12-1, Clause 16.02-1

s Municipal Strategic Statement, which identifies the the declining population and falling household size and includes proposals to increase the housing stock and to create a new urban character while recognizing valued characteristics of the existing fabric. Moreland's focus of change will be around designated urban villages, as indicated on the Strategic Framework Plan in the MSS. The subject site is located in an area where "development is to proceed in accordance with the Good Design Guide for Medium Density Housing."

s Clause 22.09 Vehicles Crossover Policy - seeks to minimise the number of vehicle crossovers.

17. A permit is required to construct more than one dwelling on the subject site.

18. The issues relevant to this decision are the effect the proposed development would have on neighbourhood and streetscape character and a number of amenity effects on the neighbours, including parking, traffic and visual intrusion. As a background, Council's MSS includes a general range of housing policies relating to the need to increase the numbers of dwellings, housing variety and population. Council accepted that the area generally and the street in particular were places where, in principle, increased housing would be appropriate. Council's Neighbourhood Character Study noted that, for Area 18 (which includes the subject site) "some redevelopment of the area with medium density development could help revitalize the area." On this basis, the question is not one of whether increased residential development is appropriate per se, but whether the design proposed in this case is appropriate to its specific setting. The proposed development will introduce one additional dwelling.

19. There were varying submissions relating to the effect of the proposed development on the streetscape and neighbourhood character.

20. Ms Sharp noted that "two storey dwellings in single streetscapes are generally considered satisfactory" but then went on to refer to "the dominance of the upper level with the attached, `square-like' appearance, the modern hard forms of the verandah protrusion and the ground level garages and the solid front fence with metal gate openings (which) are not features that are characteristic of Pearcey Grove or compliment the character." Elsewhere in her submission, Ms Sharp observed that the development would have a "dominant upper level to Pearcey Grove (which) does not satisfactorily complement the existing neighbourhood character of modest single storey dwellings." Notwithstanding her earlier concession, the later comment seems to imply that the only redevelopment that would be acceptable in Pearcey Grove would be by modest single storey dwellings. Ms Sharp also submitted that the fence would be out of character as it includes partially solid fencing and "hard surface frontage".

21. My general interpretation of Ms Sharp's submission, however, is that the proposal fails because of the detailing of the design. This then reduces the test of complimentarity with existing dwellings to matters of a relatively minor level of detail - ie. the second floor level would apparently be acceptable to Council if some small details are altered to be more `conventional' with reference to surrounding housing design.

22. I can accept, up to a point, that the relationship between new and existing buildings can be affected by both coarse and minor details and, if general matters of scale and siting can be made largely acceptable, detail can sometimes enhance or destroy the acceptability of the visual relationship between old and new. While Council has criticised the `square-like' appearance of the first floor, I believe that it would look decidedly odd if it were not square-like, as that is the typical feature of first floor levels of both detached and multi-unit dwellings. In this case, the designer has sought to adopt a similar type of hipped roof and degree of roof pitch. The design has also set the first floor walls back from the ground floor walls at front and sides, in order to reduce the visual bulk of the first floor. The roof does have the modern design feature of minimum eaves, though there was no specific comment on this point by any of the parties. The detailing of the building is generally less fussy than the recently constructed, two-storeyed detached dwelling a few doors to the east and on the same side of the street. There is some distinctive, if modest, articulation of the east and west elevations at both ground and first floor level, which will break up any tendency to blandness of these elevations.

23. I do not see that there is any strong point to Council's criticism in these respects. Given that Council concedes that a two-storeyed dwelling is acceptable in principle, I do not consider that this there is anything about this design that will make it otherwise dominant. Mr. McGurn agreed that there could be a change of materials to ensure greater sympathy with adjoining dwellings, eg using external face brickwork to ground floor with light coloured or finished render at first floor.

24. As an aside, the amended plans are in all respects a vast improvement on the two earlier different versions of the proposal that are on the Tribunal's file and, from my quick review, these are quite gross in their blandness and unimaginative design.

25. The building, as presented in the coloured elevations, is to be a light colour but with a dark coloured roof. The light coloured walls will certainly reduce any tendency for the building to be dominant, though it would be desirable that the roof colour reflect that of other roofs in the area and, at least, avoid colours of an intensity that would create excessive contrast. Some kind of darkish-grey/brown tone would seem appropriate, as that is the colour of the tiles on a number of other roofs nearby. From the oblique view from the street, the building's first floor will be partly concealed by the hipped roofs of its neighbours and it will not stand any more dominant than would any other two storeyed dwelling amongst other single storeyed houses.

26. The matter of colour and choice of material can be dealt with by permit condition and do not, in my view, create any substantive or irredeemable problem. I agree that the use of such extensive areas of plain rendered wall finish will on the one hand be quite eye-catching while, on the other, appears to be a less critical element of the design. I consider that there may be advantages in making some greater use of material that occur in the locality and use of face brickwork for the more visible or prominent portions of the ground level would be desirable. Because the designer may feel that this strikes at the integrity of the design, there may be a request to make other small but consequential changes to the entry treatment. If any such changes are within the general scale of that which forms part of the amended drawings, they should be acceptable.

27. Ms. Sharp also criticised some of the architectural features at the front of the building, notably the rectangular architectural device used to identify and emphasis the front porch area of each dwelling, also the fencing and garage doors, referring to these as "modern hard forms of the verandah protrusion and ground level garages and the solid front fence with metal gates."

28. Mr. McGurn's written evidence did not address this particular detail. Under cross-examination, he expressed the opinion "it is reasonable to add some new features - a balance between reflecting the existing features and adding some new ones." With respect to the garage doors, Mr. McGurn considered that a considerable effort had been made to minimise their contrast, including the use of wood paneling and glazing insets. He also suggested that it would be reasonable to make such changes to the fence as reducing the extent of solid panels, though he noted that some fences in the street or constructed of wire. Mr. McGurn also expressed the opinion that the garage doors would be less dominant than in a single storeyed dwelling, where they would necessarily form a larger proportion of the total front elevation.

29. All the above issues that were raised by the parties and expert evidence are very much matters of detail. On the one hand, there was a view that suggested that any new building should replicate the materials, details and proportions of the existing dwellings. I accept that some use of similar details, colours and materials will assist in mitigating other inevitable differences between new and old buildings, but I believe that Council and the respondents are seeking an excessive degree of conformity. I accept Mr. McGurn's view that it should be possible to introduce some new architectural features, but I also consider that they should not dominate or overwhelm. Inevitably, it is a matter of judgment as to what particular mix of replication and new features, a building's scale and proportions, is acceptable or unreasonably prominent in an established area.

30. In my opinion, and subject to some changes of materials (discussed later), the building's architectural character is acceptable.

31. Council did not raise any issues relating to parking and traffic. Neighbours referred to a number of Tribunal decisions which had refused permits for medium-density housing at the end of court bowls, based on the fact that the Tribunal had considered, in a number of cases, that residents in courts were entitled to expect a higher residential amenity (in relation to traffic and parking) than residents in linking streets. I do not consider that these submissions are relevant to this case, where the site is not at the end of a court bowl but a short distance away. While the development will, on occasion (as will any dwelling) create a demand for on-street parking for visitors or residents who find it more convenient to momentarily leave their car on the street, I do not consider that this will create unreasonable or unacceptable nuisance for neighbours. The Good Design Guide requires 1.5 car spaces per dwelling and the development proposal will have two. Tandem spaces are also acceptable.

32. With respect to traffic, the additional dwelling will, at most (and using widely accepted design standards, as set out in VicCode 1) create one additional vehicle movement in the morning and evening peak hour periods. I consider that quite acceptable.

33. Ms. Sharp submitted that the northwards extent of the first floor level, which would extend about 3 metres north of the northernmost alignment of the dwelling to the west and about 6 metres north of the northernmost alignment of the dwelling to the east was excessive and overbearing. The section of the side walls of the proposed building that would extend beyond the neighbouring buildings and overlap their rear gardens will be set back 3.3 metres from the fence in almost all parts. The rear gardens of the adjoining dwellings to west and east are about 17 and 21 metres deep respectively. The extent to which the new dwellings will `overlap' these rear gardens is relatively modest and, in my judgment, acceptable.

34. Neighbours were concerned about possible overlooking from the first floor level, particularly into the rear gardens.

35. The design of the first floor level already anticipates concerns about overlooking and incorporates a fin on the northern elevation to minimise overlooking from each of the new dwellings into its new neighbour's rear yard. Submitters pointed out other opportunities for overlooking from the first floor (I do not consider overlooking from ground level to be an issue of any concern). Working from front to rear along the east and west first-floor elevations, I make the following comments.

s No overlooking will occur from the en-suite bath rooms, as they have obscure glazing

s Overlooking from the staircase will be incidental and inconsequential

s Overlooking from the second bathroom can again be dealt with using obscured glazing

s Overlooking from the second bedrooms' main windows (those facing west and east) is either towards the carport (west) or the side of the dwelling adjoining (east) and given that these overlooking rooms are bedrooms, is acceptable

s There is the possibility of overlooking, or a serious perception of it, from the north-facing window of Bedroom 2 in each dwelling into the adjoining secluded areas of open space and some modest vertical screening would be appropriate. This screening need not extend to the wall face but could have its opaque section commencing a short distance out, to allow some side lighting to the window.

s The secondary (east / west) window of Bedroom 3 for each dwelling is acceptable as views out of these windows to the north-east or north-west (as the case may be) will not be readily available, due to the fact that the windows are placed close to the southern wall of the bedroom.

36. From the above, I conclude that an appropriate degree of protection can be provided for privacy for the neighbours by the following:

s Obscure glazing below 1.6m for bathroom windows on the first floor level

s Screening to the northern windows of Bedroom 2 of each dwelling.

Changes to the Dwelling Type and Lifestyle of Future Residents

37. In this case, some of the neighbours' submissions indicated that they were objecting to anything that did not replicate the type of dwellings in which they lived and which would presumably in the future continue to be occupied by families similar to what they now are or were like when they moved in. While this desire is understandable, it flies in the face of recent and continuing changes to urban accessibility, housing prices, household sizes and the need for greater housing variety than we have ever previously experienced. As in almost all of these submissions, all parties suffer from the fact that no one has any objective, research-based information as to the type of households that are likely to live in dwellings such as those proposed, so that all parties, including the Responsible Authority, are forced to speculate and base their expectations on their worst fears.

38. At the conclusion of the hearing, all parties had the opportunity to comment on Council's `without prejudice' conditions. The following discussion identifies the conditions as numbered in Council's advice.

39. Mr Tweedie objected to Condition 1(a), requiring remote control operation of the garage doors, as unreasonable and as a matter that should be left to the developer or future occupants.

As the parking provision meets the requirements of the Good Design Guide and there is no reason to conclude that traffic conditions on the street will be congested, I conclude that, while this would be beneficial, there is no reason arising from the design of the proposed development or its siting that requires this condition.

40. In relation to any further window screens, Mr. Tweedie asked that this be specifically stated, rather than being left as a general performance requirement.

41. Re Condition 4, Mr. Tweedie submitted that provision of an additional street light was unreasonable as the proposed development had not crossed any threshold of pedestrian activity, shading or concealment that would specifically warrant such a requirement. I accept.

Night time pedestrian activities will barely change and there can be no effect of the design that would increase the risk for pedestrians. Certainly, Ms Sharp did not offer any further submission in explanation of this condition. In these circumstances, the only plausible reason for such a condition is that a development permit creates the opportunity for Council to obtain funding for public infrastructure from private developers.

42. Mr. Tweedie objected to Condition 7 that all telecommunications and power cables be located underground. Ms. Sharp advised me that Condition 7 was based on an existing Council policy but Mr. Tweedie and his client had previously seen no copy of this policy. I required a copy of this policy to be made available and allowed time for further written submissions, which were provided by Council and Mr. Tweedie.

I note, following this information and further comments, that Council's MSS (Cl. 21.06-5 refers to a document titled "Moreland's Putting Cables and Electricity Lines Underground Strategy 1998" and requires developers to comply with that policy. Mr. Tweedie submitted that the policy has no status as, though it has been adopted in a later form by Council, it has never been incorporated into the scheme as either a referral or incorporated document. The Tribunal has frequently commented on the lack of status of such documents. Furthermore, Mr. Tweedie submitted that, to paraphrase his arguments, it is unfair to expect the permit applicant for a dual occupancy to carry the high cost of undergrounding cables in a street where the public infrastructure is above ground and all other domestic connections are also above ground - in effect, a high cost to the permit applicant for minimal public benefit.

43. Mr. Tweedie objected to the requirement (Condition 10) that the mail box include a paper holder.

While this requirement is trivial, its imposition in terms of cost is also trivial and has a certain merit, so I will let it stand.

44. Mr. Tweedie also objected to Condition 11, which presumes to adopt the requirements of ResCode, which is not applicable to this application, as it is subject to the transition provisions.

I accept Mr. Tweedie's submission in this respect, as the condition effectively seeks to set aside the Rescode transition provisions. I see no reason why Moreland should not be consistent with state planning policy in this respect.

For the above reasons, Council's decision is set aside. It is appropriate for a permit to be granted for the construction of two two-storeyed dwellings and I so order.