Tripodis Constructions Pty Ltd v Bayside CC [2013] VCAT 752

Tripodis Constructions Pty Ltd v Bayside CC [2013] VCAT 752 - VCAT 2013 case summary — Zoe

[23]

This is an application for review of Council's failure to determine Planning Permit Application No. 2011/733/1 within the prescribed time for a proposal to construct a medium density residential development comprising four (4) double storey dwellings at 31 Bayview Crescent, Black Rock. The land is zoned Residential 1 with a Vegetation Protection Overlay (VPO3) and Design and Development Overlay (DDO1) applying to the site.
Council had provided the Tribunal with the outcomes of its planning report where Council considered the planning permit application and determined to not support the application for the following reasons:
- The proposed front setback does not respect the objectives of Standard B6 Street Setback as the development will disrupt the existing streetscape rhythm.
- The proposed first floor side and rear setbacks do not comply with the requirements of Standard B17 and present an unreasonably dominant built form to the adjoining properties.
- The proposal presents as an overdevelopment of the site and does not provide sufficient areas for landscaping in accordance with Clause 55.03-8 of the Bayside Planning Scheme and does not respect the existing character of the streetscape.
- The proposed development unreasonably overshadows the secluded private open space areas of the proposed dwellings.
- The location of garage 4 will impact upon an existing drainage asset along the rear property boundary.
- The location of the car spaces for dwelling 4 do not allow vehicles to conveniently exit the site in a forward direction.
In presenting Council's position, Mr Kane submitted that whilst the site may be an appropriate candidate for some form of infill medium density housing development, it is the intensity of development proposed that is not supported by planning policy under the Bayside Planning Scheme. He submitted the site is located outside of the Residential Opportunity Area identified in the Strategic Land Use Framework Plan under Clause 21.02 and hence the proposal did not enjoy the high level of policy support for a form of medium density development as intensive as that proposed in this case.
Mr Kane also reiterated that the proposal is subject to the caveat that neighbourhood character and amenity will be respected. The design, siting and scale of the proposed development is at odds with the neighbourhood character of the area. He stated that existing character of residential development in the area is modest in scale, well-spaced and not visually dominant. He sought to reinforce these concerns by describing the failure of the development to comply with the street setback requirements of Schedule to the Residential 1 Zone relating to ResCode Standard B6 (Clause 55.03-1 Street Setback Objective) which should be 9 metres to the wall of the front dwelling and which is proposed to be 7.8 metres and 7 metres for the upper level building frame and roof line from the street boundary.
Mr Kane also argued that the scale and bulk of the built form of the proposal accentuated the lack of opportunities for substantial landscaping which would be inconsistent with the elements contributing to the preferred neighbourhood character of the location.
The respondents/objectors expressed similar concerns to those of Council but also expressed additional concerns regarding impacts of the high density form represented by the proposal compared to what occurs in the locality and on the "backyard-scape" of the area from the loss of open rear areas with the double storey built form in the rear of the site.
In contrast, Mr O'Farrell submitted that the development represents a medium density development that is consistent with policy relating to housing provision and diversity, urban consolidation and efficient use of infrastructure. He submitted that planning policy was supported by the proposal because the design was respectful of neighbourhood character, achieves a high level of compliance with the provisions of ResCode and represented a contemporary design suited to the location of the site close to the Black Rock coastal environment. He submitted the design provided an excellent level of residential amenity with close proximity to a range of community facilities in the locality and had no significant off-site amenity impacts.
Based on the material identified by the parties, the issues to be decided are:
- Is there policy support for the proposal?
- Is the proposed development respectful of the neighbourhood character of the area?
- Does the proposed development create unacceptable amenity impacts?
I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Bayside Planning Scheme, and having inspected the site and locality, I will direct that a permit be issued subject to conditions.
I find the site suitable for increased density of development due to its location in reasonable proximity to public transport, shops and other facilities and the local and state policy support for increased diversity of dwellings. The design, although contemporary, is one I find respectful of neighbourhood character of the area. It does not set out to replicate the form of residential built form in the neighbourhood and is not considered to dominate the streetscape.
I do not consider that amenity will be detrimentally impacted. The development has appropriate setback separation from adjoining properties and complies with amenity objectives of ResCode including overlooking and overshadowing.
My reasons are set out below.

[24]

My assessment of the proposal is informed by both an analysis of the characteristics of the site and the policy directions contained in the Bayside Planning Scheme relating to the site, its locality and the form of development proposed.
The site is relatively regular in shape with a site area of approximately 988m2. The existing dwelling, although large in size does not create any impediments in its own right from being demolished. The land has a gentle slope and is not encumbered by easements.
The site is located within an established residential area with all infrastructure services available. It is located approximately 660 metres walking distance from the Black Rock Village which is the nearest large Neighbourhood Activity Centre. The site is located closer to smaller neighbourhood centres located in Bluff Road, which appear to relate to small groupings of shops or even individual commercial establishments.
The site is not considered at risk from coastal hazards given its proximity within 500 metres of the shores of Port Phillip Bay due to the height of the land above sea level.
There is vegetation on the site, however the proposal to remove this vegetation does not trigger the application of the Vegetation Protection Overlay due to no native vegetation being proposed to be removed.
Likewise, the site is affected by the Design and Development Overlay relating to building heights in coastal areas, however, the building height of the proposed development does not trigger the application of the overlay. It is noted that the focus of the DDO1 relates to coastal issues associated with the relationship between built form and the coastal areas of Port Phillip Bay.
Given the above, it is clear that the site has the attributes that make it a suitable candidate for medium density development. I note that this is a fact not disputed by Council, Ms O'Bryan or Mr de la Coeur who put to me that some form of medium density development was possible on the site but that the intensity of the development proposed was of concern. They suggested that an alternative form of development of a lesser intensity such as two double storey dwellings towards the front of the site with a single storey dwelling to the rear would be more appropriate and hence the proposal before me should not be permitted.
From a policy perspective, the site is located in the Residential 1 Zone where the use and development of land for residential purposes is supported through provision for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households and to encourage residential development that respects neighbourhood character. I also note that the zone requires consideration of relevant state and local planning policy.
With respect to state planning policy, the emphasis is on encouraging and supporting residential development that is well designed, makes efficient use of infrastructure and facilitates and contributes to provision of housing that adds to the variety of dwellings to the community.
With respect to local planning policy, the emphasis is consistent with the desire to provide residential development which can accommodate population growth and changing demographics within Bayside City Council. Strategies to achieve this outcome include ensuring the provision of a diversity of housing and dwellings that will enable people to live in Bayside throughout their lives. Medium density housing is a form of land use that is entirely consistent with the zone provisions. It is also a form of development that implements the state and local policy. It is a desirable form of development.
Local planning policy under the Bayside Planning Scheme seeks to direct new medium density housing to Residential Opportunity Areas particularly those with good access to public transport routes (Clause 21.03 - Settlement and Housing). Further refining this policy are objectives under Clause 21.06-1.1 - Residential Areas that look to achieve design outcomes that improve the image of land use and makes a positive contribution to the character of residential areas as well as to a sense of place and maintains, strengthens and enhances local character.
Relevant strategies under this Clause to support these objectives include:
- Ensuring development contributes to the relevant preferred future neighbourhood character.
- Redevelopment (as proposed in this case with the demolition of the existing dwelling) outside of Residential Opportunity Areas not significantly eroding the prevailing scale and density of housing.
- Medium density housing is designed to be site responsive and respectful of surroundings.
With respect to the proposal before me, I accept Mr Kane's proposition that the site is not located in an area where medium density housing is specifically encouraged under the MSS. The site is located outside the Residential Opportunity Areas identified in the Strategic Land Use Framework Plan under Clause 21.02. However, this does not mean that medium density housing is prohibited or discouraged in areas outside of these designated change areas. It is clear to me that what is promoted by the local planning policy framework is the expectation that within Residential Opportunity Areas medium density housing is expected and significant change to the character of residential areas within these identified areas is also expected as a result.
For those areas outside of the Residential Opportunity Areas, medium density housing remains possible but is encouraged to be designed to contribute towards and be respectful of neighbourhood character.
Regarding the site and its locality it is evident that medium density housing already exists in this neighbourhood. The development on the adjoining land to the east at No. 33 Bayview Crescent is an example. Medium density housing can and should be accommodated in most residential areas provided it is appropriately designed and respectful of the character of its surroundings.
While planning policy and the purpose of the zone support medium density housing, they also encourage development that is well designed, responsive to site constraints and is respectful of the neighbourhood character. It is in this light that I now turn to the issue of neighbourhood character.

[28]

He also acknowledged that a site is not rendered completely unsuitable for medium density development, because it is not within one of these preferred locations.
For Mr Kane the issue is what contribution can the site make towards achieving urban consolidation. Council's view is that it considers the built form design of the proposal is too intense.
Likewise, the view of Ms O'Bryan was that the proposal is inconsistent with the character of the area by virtue of its scale, form and bulk. She submitted that because the site falls outside of the designated areas for growth, policy dictates that neighbourhood character is of primary importance and carries more weight in areas where modest growth is anticipated by planning policy.
Both Mr Kane and Ms O'Bryan drew my attention to Clause 22.06 relating to neighbourhood character statements and preferred future character based on precincts identified from the Bayside City Council Neighbourhood Character Review. The site is located within Precinct E4 which covers the area between Bluff Road in the east to Port Phillip Bay in the west and from the Black Rock Village in the south to south of Bay Road, Sandringham in the north. Precinct E4 includes a description of the precinct, its valued characteristics and a preferred future character statement. These are supported by guidelines to facilitate design responses to the character elements and objectives for the precinct.
Both Mr Kane and Ms O'Bryan described in detail the prevailing character elements of the locality. I note however, that there is some variation between the elements of character that they described with those outlined within the precinct guidelines and under Clause 22.06-4 for Precinct E4. The most notable difference includes the idea of "backyard-scape" and the presence of open rear areas that contribute to the open, low density character of the area. Mr Kane made reference to the idea of new infill development generally consisting of single storey dwellings erected in the rear yards.
The guidelines for Precinct E4 identifies the following valued character elements:
- A mix of dwelling stock consisting of single dwellings from various eras.
- Buildings are articulated and detailed with materials consisting of a mix of weatherboard, all types of brick and render.
- Front setbacks varying from 5 to 8 metres.
- Side setbacks with 1 metre on one side with 3-4 metres including garages and driveways to the boundary with newer development often setback 1 metre on one side and built to the boundary on the other.
- Approximately 30-50% double storey dwellings, with more frequent two storey in the south and mostly double storey along Beach Road.
- A mix of front fencing with low and high structure and some with solid materials and some with gardens and no front fence.
- Topography is gently sloping.
- Street trees are often native in intermittent avenues.
- A mix of concrete upstanding and bluestone kerbs with wide nature strips.
- A grid pattern form of subdivision with crescents to the bluff.
The preferred future character statement for Precinct E4 states:

[30]

In considering these character elements and the preferred future character statement there is a degree of variability as to the appropriateness with regards to how they are applicable to the site and its immediate surrounds.
Apart from the first two sentences in the preferred future character statement relating to diverse dwelling styles within informal coastal garden settings with large trees and a lightness of structures, materials and finishes in the streetscape, the remainder relates very much to coastal settings related to those parts of Precinct E4 associated with the Port Phillip Bay environment.
With regards to the valued character elements, I note that those elements relevant to the character of the site and its surrounds are respectfully considered by the design of the proposal.
The proposal consists of a design that includes a level of articulation and mix of detailed materials and finishes with layered upper levels and mix of rendered brickwork and timber features. Front setbacks ranging from 5 to 8 metres is respected with a proposed 7 to 7.8 metre setback from the street. Side boundary setbacks of 1 metre on one side to 3-4 metres on the other with garages and driveways on the boundary are respected with limited boundary construction proposed and which is associated with the single level garages for Dwellings 1 and 4 only[4]. Gardens typically small with coastal natives and shrubs. The design of the proposed development includes landscaping across the frontage and to the north-east and rear boundaries of the site as well as in parts along the driveway on the western boundary of the site.
Having regard to the above, I find that the design of the proposal does reflect the characteristics listed in the guidelines for Precinct E4.
Clause 22.06-3 also includes policy to aid the exercise of discretion in decision making with provision for using the characteristics of the immediate vicinity of a site to determine a preferred future character that is different from that applying to the remainder of the precinct within which the site is located. This opens the scope for the character of the immediate surrounds to assist in assessing how well the proposal's design contributes and respects the neighbourhood character around the site.
It includes the matter of streetscape character, built form dominance and also allows scope to consider the issue of "backyard-scape" and how that element contributes to neighbourhood character, particularly with respect to density and whether the proposal will detrimentally affect the elements of neighbourhood character.

[31]

With regards to streetscape, the immediate vicinity is a mix of both single and two storey residential development. To the east of the site is a single storey, three unit development with the front unit setback approximately 6 metres from the street, while to the west is a large, single two storey dwelling that is built almost across the frontage and setback approximately 9.4 metres from the street. On the site is a large, single two storey dwelling with an additional attic level in the roof space, setback approximately 7.3 metres from the street.
Across these three sites the height of built form ranges from approximately 5.3 metres for the front unit to the east at No. 33 Bayview Crescent to approximately 9.5 metres for the existing dwelling on the site at No. 31 and approximately 7.9 metres for the dwelling to the west at No. 29 Bayview Crescent.
Across the street are two single storey dwellings with generous setbacks at around 7.7 and 8 metres from the street frontage.
Given this existing built form height and setback arrangement, the existing character is mixed with the presence of both large and small built forms facing the street with relatively generous setbacks for single dwellings and less so for medium density development.
The proposal includes a two storey Dwelling 1 located between 7 and 7.8 metres from the street with a height of approximately 7.5 metres to the top of the roof ridge. Dwelling 1 presents to the street as a single dwelling with the other three dwellings following behind and the driveway running along the western boundary.
I consider that these design elements do not result in a significant erosion of scale of development prevailing in the character of the locality. Hence, I am comfortable that the proposal will not result in domination of the streetscape character of this part of Bayview Crescent. Along this part of the streetscape, single and two storey development is present, some of which is pronounced in terms of design and size while others are less so. Compared to what exists on the site, I consider the design is respectful of the scale of built form character found in the area and is somewhat less bulky and dominant on the streetscape of the area.
I also note that there was some criticism over the design of the proposed development along the length of the site presenting as an overly bulky and continuous built form with poor regard to the prevailing scale of development in the area. I note the plans show a break at the first floor levels of approximately 4 metres between Dwellings 1 and 2 and approximately 2.5 metres between Dwelling 2 and Dwellings 3 & 4. At ground level, although attached, the area where built form is continuous is associated with garages only. At the upper levels where greater visibility would be expected, the breaks between dwellings is considered sufficient to maintain a scale of built form that is not overly bulky and does not represent a continuous built form that would be at odds with the scale of the surrounding area.

[32]

In terms of density, the issue of "backyard-scape" was raised by the objectors with Ms O'Bryan, Mr Sinclair, Ms Morris and the evidence of Mr de la Coeur presenting the view that the development of four double storey dwellings along the length of the site would be a first for the street. The proposal for two storey built form in the backyard area was also considered to be an exception rather than the norm for the locality (apart from an exception at No. 27 Bayview Crescent[5]). Two elements are linked with the issue of "backyard-scape"; one relates to density and the other to the loss of open backyard space and with the proposed two storey form, the loss of open sky view across backyard areas in an east-west orientation.
Mr de la Coeur presented detailed evidence concerning the density of development both existing and proposed with a view that the proposal exceeded what he considered an acceptable density for dwellings per square metre of land area. Mr O'Farrell in his submission posed the viewpoint that density, based on numerical metrics is not a relevant planning consideration.
I accept that the provisions of ResCode under Clause 55 of the Bayside Planning Scheme places the consideration of the density issue for medium density residential development under a performance based assessment process which includes an assessment of neighbourhood character and resulting design response.
The assessment of medium density residential development is a performance based process where the use of numerical density provisions is not the driver of how an assessment is conducted or in making decisions. I find myself in agreement with the position of Mr O'Farrell in this regard and accept that the provisions of ResCode provide for how the density of a proposed medium density residential development such as what is before me is to be assessed by, including setbacks, site coverage, permeability coverage, open space provision, building heights etc....
Regarding the loss of "backyard-scape", I accept that backyard amenity does contribute to neighbourhood character, through both the openness of large backyard areas and the vegetated feel contributed by garden plantings. However, I consider that this proposal will not result in the complete loss of an open view across backyards nor will it result in the catastrophic disconnect of an open backyard corridor of properties in Bayview Crescent and Middleton Avenue. It will not significantly interrupt the open backyard character evident in the area and given, as suggested by Mr Sinclair that this is a first for this form of development (four double storey dwellings along the length of the lot), will not result in a significant erosion of the density and scale of the area including the "backyard-scape" of the locality.

[34]

In terms of amenity the proposed development achieves reasonable compliance with the provisions of ResCode including the side and rear boundary setbacks, prevention of overlooking and provision of satisfactory private open space. I am also satisfied that sufficient areas have been set aside for landscaping given the extent of setback from the street and opportunities for planting adjacent to sensitive boundaries around the site.
The main issues relating to amenity were raised by Ms O'Bryan and Mr Laska relating to overshadowing, particularly over the private open space of the existing unit development at No. 33 Bayview Crescent and poor internal amenity associated with the extent of screening of habitable room windows for Dwellings 3 and 4.
With respect to overshadowing, both Ms O'Bryan and Mr Laska submitted that the proposed development will result in additional overshadowing of the private open space areas of Units 1 and 2 at No. 33 Bayview Crescent. Accordingly, they submitted that the proposal does not comply with Standard B21 of Clause 55 (ResCode) and should not be supported.
In contrast, the evidence of Mr Hollerich was that the consideration of overshadowing from the proposed development should be looked at in relation to the shadows cast by the existing dwelling on the site. He referred me to the overshadowing plans which indicate that at 3.00pm, the majority of overshadowing to Units 1 and 2 to the east (at No. 33 Bayview Crescent) is caused either by the existing dwelling on the site or the existing boundary fence.
Included in the submission from Mr Laska was a Google map image showing the shadows created by the existing dwelling on the site at 3.00pm which clearly showed that the majority of shadow impacts on the private open space areas of Units 1 and 2 already exist and are created by the existing conditions on the site.
The overshadowing plans show that there will be minimal additional overshadowing caused by the proposed development over the private open space of Units 1 and 2 at 3.00pm. Ms O'Bryan submitted the extent would be in the order of an additional 5m2 for Unit 1 and 3m2 for Unit 2.
Standard B21 under Clause 55.04-5 - Overshadowing open space objective requires that where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40m2 it should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September. If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced. It is clear that this standard will not be achieved because the existing conditions prevent compliance at present.
The objective for this standard is to ensure buildings do not significantly overshadow existing secluded private open space. In assessing whether this objective can be satisfied the decision guidelines for this objective require consideration of matters including existing sunlight penetration to the secluded private open space of the existing dwelling, the time of day that sunlight will be available to the secluded private open space of the existing dwelling and the effect of a reduction in sunlight on the existing use of the existing secluded private open space.
I find that the impacts of overshadowing on the private open space of Units 1 and 2 at No. 33 Bayview Crescent will not be significantly increased by the proposed development. The existing conditions, created by the existing dwelling on the site already generate the majority of impacts from overshadowing on the Units to the east. The level of additional impact from overshadowing created by the proposed development is therefore minimal. Accordingly, I do not consider that the proposal will result in the ability to continue to use the existing private open space areas of Units 1 and 2 to be significantly diminished.
With respect to poor internal amenity created by the extent of habitable room window screening on Dwellings 3 and 4 to prevent overlooking into adjoining properties, I am satisfied this will not result in significant impacts to solar access to the future occupants of these dwellings. The use of window screening or obscure glazing as a means of managing overlooking is legitimately envisaged under Standard B22 under Clause 55.04-6 and is considered appropriate. These windows, whether constructed with a 1.7 metre high sill height or obscure glass will continue to have sufficient solar access into the first floor rooms of Dwellings 3 and 4 and will not suffer from lack of access to light.
I am also satisfied that overlooking of private open space areas will not be an issue either to or from the existing dwelling to the west at No. 29 Bayview Crescent. This is due to the proposed design including its access driveway along the western boundary of the site and providing the private open space areas for the proposed dwellings away from this dwelling to the north, west or south.

[36]

Additional design issues relating to the poor sense of address for Dwelling 3 and access within the site associated with the length of the driveway and the availability of vehicle manoeuvring into and out of the site were raised by Ms O'Bryan.
In addition, she raised concerns over the potential impacts on adjoining vegetation from the proposal to excavate the site towards the northern end and the effects such excavation may have on roots systems.
Ms Morris and Mr Ayyuce raised issues over traffic and on-street parking congestion and safety associated with the site's location near Port Phillip Bay and the problems that potential for overflow parking from the proposed development adding to such congestion.
Mr de la Coeur also raised a detailed design issue concerning the lack of a laundry facility for Dwelling 4.
I am satisfied these issues are not threshold matters that warrant refusal of the proposal.
It is notoriously challenging to avoid the gun-barrel effect of driveways with medium density developments when the dwellings follow one side of the site and the driveway occupies the other side. However, in this case, I am satisfied that the provision of a small setback along the western boundary of the site for landscaping and the planting of some shrubs will assist in breaking up the driveway form and reduce the harshness of solid paved surfacing along the western side boundary of the site.
In relation to access and manoeuvrability, I note the evidence from Ms Dunstan which expressed the design of the driveway and vehicle access is appropriate and in accordance with the provisions of Clause 52.06-8, Clause 55.03-9 & 10 and AS 2890.1-2004. Similarly, with respect to on-street parking and traffic capacity of Bayview Crescent, Ms Dunstan's evidence showed that problems with congestion and traffic safety are not anticipated. I note that this evidence was not challenged in any meaningful way and accept her evidence.
Regarding the sense of address for Dwelling 3, I am not convinced that this represents a poor sense of address. The built form design with buildings arranged 'in-line' with each following one-another down the eastern side of the site and the provision of two dwellings at the rear results in the entry for Dwelling 3 tucked around the corner associated with the driveway access into its associated garage. This is a design feature that often occurs with dwellings designed 'around corners' and is not considered inappropriate.
On the contrary, with respect to the sense of address and identity for the entry to Dwelling 4, I am concerned that this is somewhat hidden from view either to a vehicle driving down the access driveway or to a pedestrian walking down the driveway and consider that it would be more appropriate to have this entry re-designed to enable a better sense of identity and visibility from the southern portion of the driveway and from the street. I have imposed a condition for this accordingly.
With regards to tree protection from site excavation I consider this can be conditioned to refer to appropriate tree protection zones for existing trees located on the adjoining land to the north and north-east[6] in accordance with AS 4970-2009 - Protection of Trees on Development Sites. The tree adjacent to the north-east boundary is located close to the proposed garage for Dwelling 4. Mr O'Farrell suggested the garage could be setback from the tree to ensure compliance with any relevant tree protection zone.
Finally, the amended plans failed to show a laundry for Dwelling 4, which can be conditioned to be included in amended plans for endorsement under the permit.

At a glance

Court

Decision date

Source

Judgment (83 paragraphs)

Tripodis Constructions Pty Ltd v Bayside CC [2013] VCAT 752 (16 May 2013)

Parties

Legislation Cited (1)