Thomas Anderson Design Pty Ltd v Frankston CC [2010] VCAT 528

1. The permit application plans are amended by substituting plans identified as Sheet No. TP03/F, TP04/F and TP05/F.
2. The decision of the Responsible Authority is set aside.
3. In permit application 416/2008/P a permit is granted and directed to be issued for the land at 5 Bainbridge Avenue, Seaford, in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows the construction of 8 dwellings.

Mr. Myer, town planner, of Taylors Development Strategists

Ms. Adrianne Kellock, town planner, of Kellock Town Planning Pty Ltd.

8 single-storey, one-bedroom, hipped-roof dwellings with occupancy generally limited to persons over 55 years of age. Two dwellings would be close to the street, a further six extending along the northern side of the site (with the rear dwelling abutting the rear boundary) and the eighth dwelling would also abut the rear boundary.

Review pursuant to Section 77 of the Planning and Environment Act 1987 of Council's decision to refuse to grant a permit.

Clause 32.01 of the Frankston Planning Scheme: construct two or more dwellings on a lot.

A flat, vacant, almost square lot situated on the western side of Brainbridge Avenue, with both width and depth of about 36.5 metres and an area of about 1,340 square metres.

1. Thomas Anderson Design Pty Ltd, as permit applicant, proposes to construct a group of 8 small, single-storey, one-bedroom dwellings on a large, square site. Council refused to grant a permit on six grounds relating to a variety of issues: from failure to respect the preferred neighbourhood character of the site's locality to various other examples of non-compliance with the provisions of Clause 55 (ResCode), including inappropriate carparking layout, inadequate provision for landscaping, inadequate provision of secluded private and communal open space, inadequate internal amenity and so on.
2. The proposed development is designated for use by residents aged 55 years or more, though the only effect this had on the layout is that one third of parking spaces are designated for disabled-persons parking.

1. Mr. Meyer asked me to order the substitution of amended plans. These had been circulated in accordance with the Tribunal's practice note. Having consulted Ms. Kellock, I so ordered.

1. Council required the permit application to be advertised, resulting in one objection. The objector, who resided in the property to the south of the subject site, withdrew this objection after reaching an agreement relating to the site's southern and front fencing. The provisions of this agreement have been included in the amended drawings.
2. Council referred the original permit application to various internal departments. None objected to the grant of a permit, subject to specified conditions. Council's urban designer, having noted

... the proposal is generally in accordance with the guidelines of the neighbourhood character statement

Then criticised the poor quality of its housing, the small rear yards with little opportunity to provide landscaping and the lack of communal open space, but without indicating whether these matters justified Council's refusal to grant a permit.

Does the proposal respect the existing or preferred neighbourhood character?

1. Council contended that the proposal failed to respect either existing or preferred neighbourhood character for a number of reasons, though primarily relating to lack of opportunities for planting and repetitious building form. I have concluded that the proposal is adequately respectful of neighbourhood character.
2. The site is situated within Precinct Seaford 4. The preferred neighbourhood character seeks to reinforce the identified existing character, exemplified by the requirement

The informal garden setting is to be maintained, and the native, coastal planting character and relationship with the creek environs are to be strengthened

• Providing space for retaining and planting of large trees
• Encouraging planting of indigenous coastal species
• ...
• Ensuring new buildings respect the low scale of the dwellings
• Ensuring buildings respect predominant front setbacks
• Ensuring buildings are setback for at least one side boundary
• ...

1. The low, single-storey scale of the proposal clearly complies with the existing and preferred neighbourhood character and the effect of only two dwellings set toward the street more than reflects the prevailing spacing of dwellings along the street. The buildings are set back from both side boundaries
2. The key issues that Mr. Kellock raised related to the fact of the front setback being less (6 metres) than that of adjoining dwellings (being about 7.5 metres) and the limited opportunities for landscaping towards the rear parts of the site, particularly along the row of six small private gardens along the northern side of the site. Other issues included design details of some dwellings, the repetitive character of the row of six units in three pairs along the northern side of the site and a 1.9-metre high fence that would be closer to the street than its associated dwelling.
3. The actual character of Bainbridge Avenue is seriously compromised by its past development history. While the adjoining dwellings do have setbacks of about 7.5 metres, there is opposite the site an older group of dwelling units having four building facades along the street with front setbacks of about 4.5 metres. To either side of these older units are extensive high fences to the rear of extensive parking areas associated with large commercial premises facing Wells Road, the next street to the east.
4. Council's submission stated that "the proposed front setbacks are inconsistent wit h the prevailing front setbacks of nearby dwellings", but this is not the test set out in the Character Statement; it is, rather
   • Ensuring buildings respect predominant front setbacks.
5. I conclude that the proposal's front setback of 6 metres complies with predominant front setbacks, as established in its nearer section of the street. I consider that to take account of only the dwellings to either side of the subject land is to take a too-narrow view of how "the predominant front setbacks" (of Bainbridge Avenue) are established. I find that it is appropriate to assess the neighbourhood character relationship between this proposal and its neighbourhood on a wider basis.
6. From the photographic evidence provided to me, the area does not have a particularly strong landscape character and, what landscape character there is is not particularly representative of a coastal feel. In this context, I conclude that the proposal provides generous opportunities for planting substantial canopy trees along the front setback and the forward portion of the southern boundary, with more limited but still adequate opportunities to reinforce this by further, more modest landscaping within the site. The Character Statement for Seaford Precinct 4 does not state that canopy trees should be planted around all site boundaries. While Council has criticised the small private gardens as being too small to allow reasonable canopy-planting, these gardens would have to be unreasonably large if they, or even a few of them, were to accommodate canopy trees of a scale designed to create an area-wide character.
7. The proposal includes a high fence on the street side of the area of secluded private open space of Dwelling 8, the end dwelling of the northern row of dwellings. This fence is to be 1.9 metres high and within about 3.5 metres of the street. Its position reflects an agreement between the developer and the adjoining resident and is the basis on which the latter party withdrew an objection. Council objected to the position of the fence within the 6-metre setback.
8. In my view, given that the fence has a length of only 5 metres within a frontage of about 36 metres and will abut a high paling side-fence that presently extends to the street, I consider this a reasonable outcome. There is adequate space between the proposed fence and the street for additional landscaping that would mitigate the appearance of the fence.

1. Council objected to a range of detailed matters: the somewhat continuous nature of the built form along the northern side, one dwelling having a section of blank wall facing the street and no direct pedestrian entry to Dwelling 8 from the street. I conclude that these are all matters that are acceptable or can be resolved by permit condition.
2. The somewhat continuous character of the line of 6 units along the site's northern side face toward, in sequence from the street, a concrete driveway, carport, brick shed and glasshouse. I do not consider that the view of the proposed development from this aspect is at all sensitive and, in the circumstances, the appearance of these low dwellings is acceptable.
3. The eastern aspect of Dwelling 1, which faces Bainbridge Avenue, has a central entry and porch with a window to one side and a blank wall to the other, behind which is the kitchen. This elevation is relatively small, with a width of 8.5 metres. Council was concerned that there would be a lack of a "good connection with the streetscape". I consider Council's concern this issue to be trivial. In any case, it would be reasonably easy to place a strip-window in the blank wall, where it would provide light onto the kitchen bench. Dwelling 8 effectively has a side wall facing the street, with two conventional windows and a porch at the southern corner. I consider this to be a reasonable design.
4. The same approach applies to the lack of a direct pathway between Dwelling 8 (the other 'front' dwelling) and the street. This lack appears to be merely a drafting error, as there is a pathway that passes from the street and past Dwellings' 1 and 8 to give access to the other dwellings. It is relatively simple to provide a connection from this pathway to the porch of Dwelling 8.
5. I can deal with both of the above matters by way of permit condition. They are not appropriate reasons for a refusal.

1. Council was critical of detailed aspects of the parking layout. I conclude that, subject to minor changes that can be addressed by permit condition, the parking layout is acceptable.
2. The parking layout, of 9 open car spaces for 8 dwellings, is sufficient in numbers. The layout includes 3 disabled-persons parking spaces and these are set on the furthest, southern, side of the parking area.
3. Council had a number of concerns: that the disabled-parking is too remote; that there should be an additional pathway past the northern parking spaces to give access between the southern parking spaces and the 6 dwellings along the northern side of the site; also, that there should be an indent in the western end of the parking-access aisle, in order to facilitate the reverse manoeuvre of the car in the end bay.
4. I agree that it would be sensible to place the disabled-persons parking closer to the mass of dwellings and it appears to be practical to swap the two rows of parking, so that three disabled-persons spaces and one other be placed along the northern side of the carpark while the balance of 5 spaces is placed along the southern side. This would provide for an additional pathway past the northern car spaces but would bring the southern spaces about 1 metre closer to the street. Mr. Meyer advised me that this was feasible. Given that the whole development is to remain in one ownership, as seems to be the case, then there should be enough flexibility to ensure that small cars use the far-end parking bays.

1. Council also raised a number of extraneous issues, none of which I considered to have merit.
2. The only additional issue of any significance that Council raised was a desire to provide an area of communal open space, which would provide additional residential amenity by offsetting the limitations arising from the small areas of secluded private open space. The latter vary in size between 35 and 24 square metres, thus satisfying Standard B28 or the related objective of Clause 55.05-4 Private Open Space Objective.
3. ResCode does not require the provision of communal open space, though it is mentioned in the decision guidelines in relation to an assessment of the adequacy of proposed secluded private open space.
4. In this case, we have no evidence-based research or appropriate standards or guidelines to help us understand what, if any, benefits the residents would obtain from an area of communal open space in this kind of development and, if there would be any, what the necessary design and location requirements would be to ensure an effective outcome. I find that this suggestion has no demonstrated merit.
5. At the conclusion of the hearing, I raised concerns about the enforcement aspects of Condition 2, relating to a section 173 agreement concerning the use of the development by older persons. However, Council made no submissions and expressed no concerns about this aspect of the proposal. I conclude that it would be inappropriate for me to deal with it further.

1. At the conclusion of the hearing, we discussed Council's draft permit conditions. Several of these, which sought to maintain Council's position as put forward in submissions, are clearly inappropriate in the light of my findings.
2. I have deleted a number of sub-sections of Condition 1 as being contrary to my findings, as set out earlier. I have require amendments to the parking layout, as discussed earlier and an additional eastern window to Dwelling 1. I accept the spacing between dwellings as reasonable for servicing requirements
3. I have deleted Condition 6(c), which specifies quantitative requirements for the landscape plan, as being unnecessarily detailed at this stage; this is a matter that can be developed in discussions between the developer and Council.
4. I have included a separate requirement for the preparation of a car park management plan and deleted the related sub-condition of condition 1.
5. I have also deleted footnotes.

1. Prior to the commencement of works, 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 (3) copies must be provided. The plans must be generally in accordance with the amended plans circulated by the permit applicant prior to the hearing, labeled TP03 and TP04 Issue No. F and dated November 2009, but modified to show: -

1. An additional strip-window to the front facade of Dwelling 1 2. Provision of a pedestrian path that connects to the front entry of Dwelling 8.

1. The parking area rearranged so that the disabled-persons' parking is provided to the northern side of the parking area and a second pedestrian pathway is provided from the northern dwellings and the southern parking bays.

1. All communal paths within the development (i.e. excluding front entry paths serving dwellings 1 and 8) to have a minimum width of 1.5 metres, to improve pedestrian access. 2. The provision of at least one (1) visitor car space, which must be clearly labelled. 3. Deletion of the crossover adjacent to the northern property boundary. 4. Introduction of a verandah or wide eaves or a pergola over the north facing living room windows serving dwellings 3 to 8 inclusive, to improve energy efficiency. 5. The finished floor levels of all decking areas designed to allow access directly from the living area of each dwelling, or alternatively replacement of the decking areas with paving. 6. The front fence set back a minimum of 2 metres from the street frontage. 7. A schedule of colours, materials and finishes. 8. A landscape plan in accordance with Condition 7 of this permit.

Section 173 Agreement

1. Before the development commences, the owners of the land must enter into an agreement with the Responsible Authority made pursuant to Section 173 of the Planning and Environment Act 1987 and must make application to the Registrar of Titles to have the agreement registered on the tile to the land under Section 181 of the Act, which provides that:

1. Only persons who are at least 55 years of age will be allowed to reside that the subject land. 2. Where a couple (whether married or not) intend to take up residence at the subject land, the couple will not be allowed to take up residence unless at least one of the couple is at least 55 years of age; and

1. Other than where b) applies, the consent of Council must be obtained prior to authorising any person less than 55 years of age to take up residence at the subject land for the purpose of being a caretaker/manager or other aged care related service provider.

1. The development and subdivision as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

2. Floor levels shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. The permit holder must make a payment of $100 to the Responsible Authority for the planting of a new street tree to replace the tree to be removed within the front nature strip. This payment must be made before the removal of the tree.

1. A car park management plan must be prepared to the satisfaction of the responsible authority and, when endorsed, will become part of the permit. The plan must include a means of allocating parking spaces to the dwellings and indicating this allocation for users. The plan may be amended to the satisfaction of the responsible authority.

1. Before the development starts, a landscape plan prepared by a person suitably qualified or experienced in landscape design, to the satisfaction of the responsible authority, must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan will be drawn / printed to scale with dimensions and three copies must be provided.

1. The plan is to appropriately respond to landscape objectives outlined in the neighbourhood character precinct, Seaford 4, to the satisfaction of the responsible authority. * (i) The planting theme is to consist of 60% Indigenous Coast Banksia Woodland and 40% native species.

2. The plan must be drawn in accordance to the landscape plan requirements as set out in the Frankston City Landscape Town Planning Guidelines, to the satisfaction of the responsible authority and include:

(i) All existing significant vegetation, within and abutting the property (within 3m). These trees are to be labelled or an 'Existing Significant Vegetation Schedule' is to be included - Botanical Name, Height and Spread.

(ii) 'Tree Protection Notes and Diagrams' for all significant vegetation to be retained on site and abutting the development. This is to ensure that site project managers and all contractors / subcontractors involved with construction are clear about location and protection measures during the entire construction process.

1. Before the occupation of any dwelling, the landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority. The landscaping must thereafter be maintained to the satisfaction of the Responsible Authority at all times.

Provision of a Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI pre-development value to the satisfaction of the Responsible Authority.

Prior to commencement of development construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure are to be submitted and approved to the satisfaction of the Responsible Authority.

Water Sensitive Urban Design principles (WSUD) are to be incorporated into the drainage design to the satisfaction of the responsible authority, which may include but not be limited to the following components or a combination thereof: * On-site stormwater detention and rainwater tanks. * Soil percolation * Stormwater harvesting and Re-use of stormwater for garden watering, toilet flushing, etc * On-site 'bio-treatment' to reduce dissolved contaminants and suspended solids.

Vehicle crossing shall be constructed to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority.

All disused vehicle crossings shall be removed and the area reinstated to kerb and channel and landscaped to the satisfaction of the Responsible Authority.

Before the dwellings are occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

1. Constructed to the satisfaction of the Responsible Authority. 2. Properly formed to such levels that they can be used in accordance with the plans.

1. Surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority.

1. Drained and maintained to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

1. Where the development involves work on or access to Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit shall at all times take adequate precautions to maintain works to the highest public safety standards.

Precautions are to include, appropriate signage to AS 1743 road works signing code of practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings sufficient to ensure public safety.

All relevant permits are to be obtained from Council for works within the existing road reserves in addition to the planning permit.

1. All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.

2. Mailboxes shall be provided to the proposed dwelling to the satisfaction of the Responsible Authority and Australia Post.

3. Lighting shall be provided within the development, and must not cause adverse impact on adjoining land, all to the satisfaction of the Responsible Authority.

4. All plumbing work, sewer pipes etc. (except for spouting and stormwater pipes) associated with the new dwelling shall be concealed from general view.

1. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following applies:-

• The development is not commenced within two (2) years of the date of this permit; and
  • The development is not completed within four (4) years of the date 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.