[2005] VCAT 1426

1 The Applicant is to advise the Registrar, the Responsible Authority and all other parties in writing within 14 days of the date of this interim decision as to whether the Applicant intends to lodge amended plans in accordance with the opportunity and leave hereby given.

2 Within twenty eight days from the date of this interim decision the applicant must complete any modified plans ("the completion date").

3 Within fourteen days of the "completion date", the applicant shall file with the Tribunal and serve on the respondents fully detailed plans drawn to a scale of 1:100 showing any and all modifications, together with a report detailing each and all of the modifications and explaining how they respond to the issues identified by the Tribunal

4 The date by which the applicant must complete service in accordance with the foregoing direction is the "the circulation date".

5 The applicant shall, in lieu of formal proof of service, file with the Tribunal within seven days of the 'circulation date', a report of the steps taken to notify the respondent parties of the proposed modifications as set out in paragraph 2, together with a copy of the form of letter and any other document sent with it.

6 Within 21 days from the circulation date, all respondent parties who object to the applicant's modified plans, including the Responsible Authority, shall file a submission confined to the consideration of the modifications proposed and any consequential amendments, advising of their views with respect to the adequacy of the modified plans in addressing the issues identified by the Tribunal.

7 The Tribunal will then review all of the material and make its formal determination.

8 Any party is at liberty to apply to the Tribunal to have the hearing reconvened after appropriate notice.

Mr J McDill, town planner of City Consulting Pty Ltd

1 This is an application to review the decision of the Responsible Authority to grant a permit for the construction of five two storey dwellings at 20 Thomas Mitchell Drive, Wodonga. The application is made on the following grounds:

1. The proposal is not consistent with the character of the local area.

2. The proposal is not sufficiently responsive to the site conditions and context.

3. The proposal does not achieve sufficient compliance with the Wodonga Planning Scheme.

4. The proposal will result in significant amenity impacts for adjacent properties.

2 It is proposed to construct five, double storey, two bedroom dwellings ranging in floor area from 144 m2 to 166 m2.

3 The proposal presents as a single dwelling to the street frontage with the four remaining dwellings sited in a linear fashion down the length of the site. Vehicular access to each of the dwellings is proposed via a driveway located along the western boundary, with single space garages proposed to each dwelling. The driveway connects with the Thomas Mitchell Drive service road.

4 Private open space is proposed along the eastern boundary, with these generally having an area of about 42 m2.

5 The ground floor of each dwelling comprises family, meal and kitchen facilities, with each dwelling providing two bedrooms at the upper level.

6 At ground floor level the dwellings present as a continuous built form over a distance of some 55 metres. At the upper level, the dwellings are separated by the width of the single garages. The proposal adopts a repetitious, contemporary architectural form incorporating low profile skillion roof forms with north facing clerestory windows.

7 The review site is located on the north side of the street and has a frontage of 20.5 m and a variable depth of between 59.5 m and 68.6 m, with an area of 1178 m2.

8 The site is currently vacant. A single storey dwelling occupied the site until recently but has now been demolished. Vegetation on the site comprises a mix of native and exotic species. A palm tree located near the street frontage is proposed to be retained but I note that a substantial oak tree located near the site's eastern boundary has very recently been removed.

9 The review site is located approximately 200 m to the east of the Thomas Mitchell Drive/ High Street roundabout which forms the entrance to the main commercial area of Wodonga. The site enjoys excellent access to the full range of services and facilities available within the commercial area.

10 Immediately to the north (rear), the review site abuts a vacant lot which is in common ownership with the property abutting to the west. Detached dwellings abut the review site to the east and west with both dwellings having extensive areas of open space to the rear.

11 From a neighbourhood character perspective, the review site is located within an area which is perhaps best described as mixed. The predominant built form is typified by modest Edwardian and Federation era dwellings, often located on relatively large sites and interspersed with more recent infill, medium density housing developments.

12 Thomas Mitchell Drive is a main road (zoned Road Zone category 2) and becomes the Murray Valley Highway. The road provides access to Wodonga's central activity centre and currently carries daily traffic volumes of 9000 vehicles. The road is undergoing significant widening works to better accommodate increasing traffic volumes associated with residential development on the eastern periphery of the city.

13 The proposal before me in this matter represents the second attempt by the permit applicants to obtain a permit for a medium density housing development on this site. A previous application which was also supported by the Council proposed to retain the single storey dwelling which previously occupied the site and to construct four, two storey town houses to the rear.

14 Objectors sought a review of the Council's decision to grant a permit (Application for Review No. P2025/2004) and the Application was heard by Senior Member Baird in November, 2004. The Tribunal set aside the Council's decision and directed that no permit issue. In arriving at this decision Senior Member Baird concluded that the proposal was a poor response to the site context and the neighbourhood character which comprises open rear yards or modest single storey forms (outbuildings and more recent single storey units) in the rear yards. The Tribunal concluded as follows;

The two storey scale of development proposed deep into the lot would introduce a foreign element. Although the height may only appear to be a small increment above the existing ridgelines of older dwellings, the massing associated with the four dwellings and the extent of sheer two storey walls is very different. In my view, it is beyond an increment that would sit comfortably within the neighbourhood even in the policy context that I have described. Moreover, there would be limited opportunities for screen planting around the site given the limited setbacks to the rear and along the common boundary and the size of the private open spaces associated with the four rear units.....

15 The Tribunal was also critical of the off site amenity impacts associated with the proposal, in particular the visual impact of the sheer two storey walls located adjacent to the rear open space of the property to the east, the visual impact of the two storey wall setback 1.77 m from the rear boundary, and the massing of the building as it presented to the rear open space of the dwelling to the west. In short, the Tribunal concluded that the proposal had not responded appropriately to its sensitive residential interfaces. A series of internal amenity considerations were also identified which, while not sufficient in their own right to warrant a refusal, contributed to the Tribunal's conclusion that the proposal represented "a development which is too tightly squeezed onto this relatively narrow lot".

16 The review site is zoned Residential 1 under the Wodonga Planning Scheme. The purpose of the zone is;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

17 A permit is required to construct two or more dwellings on a lot pursuant to clause 32.01-4. A development must meet the requirements of Clause 55 and decision guidelines requires consideration to be given as appropriate to the State and Local Planning Policy Frameworks and the objectives, standards and decision guidelines of Clause 55.

18 No overlay controls apply to the land.

19 With respect to the State Planning Policy Framework (SPPF) Clauses 14 and 16 are relevant. These clauses encourage the consolidation of urban development within existing urban areas and the encouragement of higher residential densities in locations with access to physical and community infrastructure. Medium density developments within established areas are also required to be respectful of the character of those areas. The provision of a diversity of housing styles is also encouraged through the development of well designed medium density housing which is intended to improve housing choice, make better use of existing infrastructure and improve energy efficiency of housing.

20 The Local Planning Policy Framework (LPPF) is intended to give effect to the SPPF on a local level and identifies long term directions about land use and development in the municipality. The relevant local policy framework encourages the ongoing development of Wodonga as a major regional centre and in particular the consolidation and redevelopment of central Wodonga. Strong encouragement is also given to urban consolidation objectives and the better utilisation of under developed residential land in close proximity to the central activity centre and on sites served by public transport. The policy framework makes specific reference to the need for contemporary and innovative design and high quality urban design outcomes for infill residential developments.

21 The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. I inspected the subject site and its locality unaccompanied by the parties following the hearing.

22 The starting point for my consideration of this application is to establish the extent to which the application responds to the findings of the Tribunal in the earlier case.

23 The principles for determining repeat appeals have been established by a long line of Tribunal decisions and I think they are conveniently outlined in K & B Reichert v City of Banyule & Ors, (1996/38819) in which the Tribunal commented as follows;

The appeal before the Tribunal is in many ways a "repeat appeal". While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier. During the hearing, I asked and received responses about what it is that is different in the circumstances of the present appeal to those prevailing at the time at which the very similar development was refused by the Tribunal. It seemed to me that the factors which might justify a departure from an earlier determination could include:

• changes in the circumstances of the land and its surrounds;

• changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

24 I agree with the above propositions. There was no dispute between the parties that subsequent to the last Application for Review, there have been no changes in the circumstances of the land and its surrounds, nor in the planning policy and/or in the interpretation of the facts or law relevant to the Tribunal's consideration. It is clear therefore that a significant change in the application itself ought to be demonstrated in order to warrant a departure from the Tribunal's earlier findings.

25 Prior to addressing the detailed design aspects of the current proposal which, in my view are the critical issues in this matter, it is appropriate that I record my findings that I consider the review site is suitable for a medium density housing development of some form. The site is zoned Residential 1 and the purpose of the zone is to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households. The site is very well located in terms of its proximity to Wodonga's central commercial area and the all the services and facilities available within this expanding regional city. The applicable policy framework provides broad support for increased residential densities in this locality. The site is not affected by a heritage overlay or other planning scheme provision which may impose a constraint on the form and scale of a development. The site is flat, it has a frontage to a main road, it has a regular configuration and with an area of 1158 m2 is a relatively large site.

26 Each of these findings are consistent with those of Senior Member Baird in the earlier Application for Review.

27 Notwithstanding the above, the review site does have sensitive interfaces with adjoining residential properties to which a design for a medium density housing development is required to respond. I think the appropriateness of the design's response to the site's sensitive interfaces was the critical issue in the earlier Application for Review, and it remains the critical issue in this matter.

28 It was the submission of Mr Shatford for the Council and Mr Gillespie for the permit applicant that the current proposal had been prepared in direct response to the Tribunal's earlier criticisms. The following changes have been incorporated into the design;

i

The existing dwelling has been demolished and is proposed to be replaced with a new, two storey dwelling.

ii

The rear dwelling has been reconfigured to increase the upper level setback from the rear boundary.

iii

All of the upper level decks have been removed.

iv

The eastern elevation has been amended to recess the upper levels from the ground floor footprint and to create a more articulated response.

29 Mr McDill, who appeared for the applicants for review, submitted that the changes amounted to a "tinkering" with the original design and failed to respond in any meaningful way to the Tribunal's earlier criticisms. It was Mr McDill's submission that the Tribunal had raised fundamental concerns about the appropriateness of double storey development extending deep into the site. He further submitted that the applicant's response to those concerns has been to increase the articulation in the design but that this is not sufficient and the proposal's design response to its residential interfaces remains unsatisfactory.

30 In my view the current proposal has gone some way toward addressing the Tribunal's earlier criticisms, but there remain particular aspects of the design which are of concern.

31 I am satisfied that the redesign of the rear unit involving a significantly increased setback from the northern boundary is an improvement in the interface with the property to the rear and that interface is now acceptable. I am also satisfied that the changes to the eastern elevation which involve the deletion of upper level decks (especially those on the rear dwellings) and the stepping and recessing of the building footprint is also an improvement on the sheer two storey wall presentation of the original. The private open space provision in the current proposal is also superior to that of the original, in that each area is now reasonably proportioned, oriented and configured and will adequately meet the needs of residents.

32 The demolition of the dwelling on the land and its replacement with a new, two storey dwelling is also consistent with the Tribunal's earlier recommendations. The presentation of this new dwelling to the streetscape is satisfactory.

33 Notwithstanding the above, my principal concerns with the current proposal can be summarised as follows:

a

The proposal presents as a continuous and repetitious built form extending through the depth of the site. The plans provide insufficient detail to assess the extent to which the use of materials and colours would be successful in introducing articulation and interest.

b

A landscaping plan has not been provided and I have reservations as to whether sufficient area has been provided around the periphery of the site, especially along the western boundary, to provide any effective landscaping which would filter or soften the visual impact of the two storey built form toward the rear of the site.

c

Issues of overlooking from upper level habitable room windows have not been adequately resolved primarily as a consequence of the incorrect application of standard B22 of Clause 55. As I indicated at the hearing the Council's submission that the proposal satisfies this standard is incorrect. As a consequence there are upper level, habitable room windows facing east and west which contribute to excessive overlooking. The objective of Clause 55.04-6 to limit views into private open space is not achieved. My concerns in this respect are compounded by inaccuracies in the plans in relation to window locations and style. The windows shown in the elevations do not correspond with that shown on the floor plans and it is almost impossible to establish what is actually proposed. It is of some concern that the Council had not previously resolved this issue as part of its assessment of the application.

d

The location of habitable room windows, especially at the upper level has not maximised the site's northern orientation and as a consequence the energy efficiency objectives of Clause 55.03-5 have not been achieved. While I acknowledge that north facing clerestory windows have been included, and that is a positive feature, it is difficult to understand why stair wells for four of the five dwellings have been located on the north side of the building at the expense of habitable rooms.

34 Having regard to the above, I am not prepared to direct the issue of a permit for the proposal in its current form. I have given consideration to facilitating a redesign by way of permit conditions but I consider that any redesign needed to address my concerns may require a re-thinking by the designers, with the opportunity being given for the Responsible Authority and objectors to consider and further comment on the redesign

35 On this basis I believe that the appropriate course is to prepare suitable directions to provide the applicant with the opportunity to prepare amended plans. If the Applicant elects not to take up the opportunity to submit amended plans I will set aside the Council's decision and direct that no permit issue.

36 I do not intend to be prescriptive in terms of identifying the changes which need to be made to bring this proposal to an acceptable standard, and to address the concerns identified by me above. The rationalisation of the client's needs with the achievement of an acceptable planning outcome is part of the challenge which needs to be faced by the designer. There are of course a number of design techniques which are commonly employed to deal with interface issues in contexts such as this and I do not intend to specify which technique or combination of techniques ought to be applied here. It would be my expectation however, that in taking up the opportunity to redesign, consideration could be given to the following:

•

A more sophisticated use of colours and materials to improve the articulation of the buildings. I acknowledge that this maybe the applicant's intent but it is not reflected in the plans presented to me and more detailed documentation is required to demonstrate how this articulation is to be achieved. I note that there is a condition on the Notice of Decision requiring such information to be submitted but in my view it is information which in this case, ought to form part of the documentation needed to substantiate the merits of the proposal.

•

A detailed and documented landscaping plan ought to be submitted. Again there is a condition on the Notice of Decision requiring a plan to be submitted but, given the nature of the sensitive interfaces and the important role landscaping can play in softening the visual impact of a development, detailed consideration of the acceptability of the landscape treatment ought to form part of the initial assessment of the application.

•

My concerns about the inadequate provision for landscaping along the driveway needs to be specifically addressed in the landscaping plan. This may require garages to be further setback (perhaps by as little as 0.5 to 1.0 m) from the western boundary to increase landscaping opportunities at critical points.

•

The window locations and types shown on the floor plans need to reconciled with the elevations.

•

The opportunity exists to relocate upper level habitable room windows in all dwellings to the north as a means of improving solar access to those rooms and limiting overlooking opportunities to the east and west. It would be appropriate to locate highlight, slot or screened windows (or a combination) in the east and west elevations to provide articulation of the building in those elevations, but standard B22 and the associated objective must be applied correctly.

•

Greater thought needs to be given to improving solar access to habitable rooms by for example relocating stair wells to the south.