The application before me, while far less intensive than that in Albioli, is located in the LDRZ. I consider that there are different amenity expectations in the LDRZ than in the GRZ.
Clause 32.03 includes the following two purposes:
[2]
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
[3]
To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.
[4]
The uses which do not require a planning permit are few, and are uses consistent with the purpose of low density residential development. Most of those that are included contain conditions that serve to minimise the impact in both size and amenity of those uses. For example, Animal keeping does not require a planning permit when limited to 2 animals, Dwelling and Dependent person's unit do not require a planning permit when limited to one on the lot, Medical centre does not require a planning permit when less than 250 square metres and accessible to a Road zone. A permit cannot be granted to subdivide land in the LDRZ to lots of less than 2000 square metres.
In Donnan v Swan Hill RCC[13], the Tribunal considered the purpose of providing for low-density residential development and stated as follows:
That purpose, as the Tribunal observed in _Filiposki_1 "clearly establishes the area as being first and foremost about living with all the amenity characteristics that flow from that".
Of the decisions referred to above, both Carrafa and Lunder involved proposals for child care centres in a LDRZ for which permits were ultimately granted. In Carrafa, cited with approval in Lunder, the Tribunal said:
I can see no reason why the benefits to the community as a whole of locating child care centers in residential areas ought to be limited to residential areas zoned Residential 1 and excluded from residential areas zoned Low Density Residential.
I agree with the Council and the objectors to the extent that in the Low Density Residential zone, larger than conventional lot sizes will inevitably influence and define the character and amenity of a locality and the appropriateness of a child care center use must be assessed in terms of its impact on that amenity and character. My view in this respect is consistent with another of the Tribunal's consistent and long held principles that the appropriateness of a site's location is paramount in determining whether or not a permit ought to be granted. [My underlining]
In-principle, it would be wrong for me to conclude that this site is not suited for a child care centre simply because of its Low Density Residential zoning. Conversely, simply because a permit may be granted, this does not imply that a permit should or will be granted.2
Rather, in deciding whether to grant a permit, an acceptable outcome must still be achieved with consideration to the state and local policy frameworks, the purpose and decision guidelines of the zone and Clause 65.
[5]
13. The proposal's acceptability in this this particular location will also be informed by the site's broader context and features of the proposal itself including its effects on the amenity of neighbours living nearby.
[6]
[1] From Filiposki v Murrindindi SC[2009] VCAT 2667 at paragraph 37 cited with approval in Filiposki v Murrindindi SC No. 3[2013] VCAT 475.
[7]
[2] See Clauses 31.02 and 65 of all Victorian Planning Schemes.
[8]
I agree with the proposition that there is an expectation of a high level of amenity in the LDRZ. The words 'low density residential' bring with them a vision of large land sizes with single dwellings, significant setbacks and quiet streets. While this does not mean that a permit cannot be granted for use and development other than single dwellings, the specific site context must be considered as well as the effect of the proposal on the amenity of neighbours living nearby.
In the matter before me, I consider that a combination of the design and site layout together with the use of the land for Group accommodation renders the proposal unacceptable on this site, located in a Court in the LDRZ at the edge of the urban growth boundary.
[9]
The driveway as proposed commences from West Street close to the southern boundary of the site and is long and meandering, avoiding the main copse of vegetation as well as the large pine tree located centrally in the land.
It has been designed as such to avoid vegetation removal and because there was objection to the initial plans which involved access to the site from Candlebark Court. In order to access the Group accommodation located on the eastern side of the building and land, and to avoid tree removal, the driveway must be both long and meandering. As a result, it appears on the plans as a significant, rather than secondary, aspect of the proposal.
Similarly, the car parking, rather than being tucked in to the side of a building or located away from public view, takes on an element of significance as it is located adjacent to Candlebark Court, at the end of the driveway.
The retention of the pine tree in the centre of the site and the resulting long, meandering driveway form two significant constraints on design of a building on this site. As a result of those two constraints, and the requirement for car parking for the rental accommodation, the building is proposed to be located within 7 metres of the eastern boundary of the site and closer to the southern boundary than may otherwise have been the case.
It is also elevated relative to the other lots in the Court because of the significant slope of the land.
[10]
The building has been designed to respond to the constraints but a choice has also been made to face the Dwelling towards West Street and the Group accommodation towards the Court.
This results in the Group accommodation component of the development being focussed entirely internally onto the Court. The proposal, as it faces east towards the Court bowl and other properties within Candlebark Court, is of a row of four, double storey attached townhouses with a continuous front deck. This is a form more regularly found in inner city or suburban Melbourne rather than in a LDRZ.
The deck and entire ground and first floor sits above natural ground level and will be visible from the surrounding properties.
Conversely, the Dwelling form along the west elevation will be located down the slope from West Street and be generally obscured from view, as it sits behind the mature pine tree. Additionally, it will be viewed as only a single storey dwelling with pitched roof, given that the entirety of the ground floor (comprising the garage, store room and laundry) sits below natural ground level.
I do agree that there are many positive aspects to the proposal including the following:
[11]
A site coverage of 10.6%
2. Maximum site cuts of approximately 1 metre.
[12]
The fact that it will not be visually prominent within the West Street streetscape and will maintain the visual amenity of the general area and the ridgelines.
[13]
Retention of existing vegetation.
This proposal is of a similar footprint and built form to the existing dwelling at 5 West Street (lot 4) and involves a driveway form and retaining walls similar to that of the original lot within the subdivision, 7 Candlebark Court (lot 13). These similarities are relevant - these properties form part of the existing character of the area. However, the fact that there is a bulky building with a large footprint as well as a long meandering driveway in close proximity is not representative of the entire area.
The large built form in this case is a consequence of the house and four double-storey units being developed in one building, as is the form and length of the driveway, the access from West Street rather than Candlebark Court and the need for a dedicated car parking area separate to the building.
The difference in use between Dwelling and Group accommodation has an effect on the design and built form of the building and results in a built form which is jarring as compared with the mainly single Dwellings on large lots in the LDRZ.
This building is set down the slope and below the ridgeline. It will, however, be a prominent building within the Court where it will be viewed mainly along its eastern façade where it will be perceived in its townhouse form rather than as a single Dwelling. It is also proposed to be located only 7 metres from the southern boundary, which abuts lot 2 of the subdivision and is currently undeveloped. This is not a significant setback on a 4000 square metre lot.
Although some large trees are proposed to be planted along the eastern and southern boundary with hedging a few metres in front of the decking of the Group accommodation, this planting will serve to soften rather than obscure the built form. The NCO1 is also an area where open style fencing is preferred with a maximum height of 1.2 metres. Again, this creates an environment where buildings within this area are visible to their neighbours.
While it meets a number of the decision guidelines of the NCO1, the other new buildings within the Court - with their low profile, flat roof forms and construction within the slope - reflect a less intrusive form that is complementary and responsive to the landscape and topography and more consistent with the objectives of the NCO1. Additionally, in terms of the emerging neighbourhood character of the Court, these dwellings are establishing a character which is at odds with the large and prominent dwelling at 5 West Street.
[14]
The choice of orientation - having the Group accommodation use and car parking directed towards the sensitive north and east interfaces of the Court - will have a direct effect on the amenity of the other residents of Candlebark Court as it focusses the intensity of the accommodation internally on the Court.
A significant element of rural living is the existence of large lots and low or no fencing. The issues of overlooking and overshadowing that apply in inner city and suburban areas are not present, as houses are located a fair distance from each other.
However, the lack of or low fencing results in a situation where there is no real 'secluded' private open space and there is the potential for visibility into other people's properties. This is an aspect of life in a rural residential zone or LDRZ. However, where there are single dwellings on large lots in an area such as a Court, there is an expectation that you will know your neighbours who live in that dwelling and respect their privacy even though you can see into their properties.
The Group accommodation use will have a greater impact than one Dwelling not necessarily because of the number of people (given that the same or similar amount of people could be residing in one or two Dwellings on the lot) but because of the changeover of people, the different people each week, the more intensive use that can be expected on the weekends and the way in which the building will be used by those visiting for a short stay.
The orientation of the Group accommodation towards the east has flow on effects to residential amenity. It means that the decks provided to each unit face east. They are likely to be used by guests primarily in the evening where noise will travel towards the other properties within the Court. Similarly, despite the proposed planting of hedges to 1.5 metres in height a few metres in front of the deck areas and trees along the boundary, the visibility to other properties within the Court from the deck areas is likely to be high. Additionally, the noise and presence of cars coming and going will have a far greater effect on the neighbours within the Court due to the location of the guest car parking along the northern boundary, than if it were provided elsewhere on the property.
The other property owners within the Court have relied on the zoning of the land and the neighbourhood character policy and overlay, to locate within an area with a 'spacious, open, country town feel' and a 'semi-rural quality due to the spacious dwelling settings and frequent large native and occasional exotic trees'.
The proposed use, together with the design which focusses the use on the Court, detracts from the spacious dwelling setting and the maintenance of rural lifestyle and residential amenity, which is a focus of local policy.
[15]
On the basis of the reasons above, I find that this is a proposal for the construction of a building to be used for a Dwelling and Group Accommodation.
I also find that the proposal is not an acceptable use and development for this site and have affirmed the Council's decision to refuse to grant a permit for the proposal.
[16]
[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[17]
[2] During the hearing, the respondents sought to rely on a further ground relating to drainage and stormwater and the provisions of the ESO1 and ESO2. No parties were given prior notice of this ground and it was not a matter that was dealt with in Council's submission or that of the applicant. In the period leading up to the hearing, the respondents had filed an initial statement of grounds, additional respondents had filed a further statement of grounds and notice had been given to the Tribunal and parties that the respondents were posing a question of law in this matter. Given this context, the respondents had ample opportunity to provide notice of this additional ground prior to the hearing and it would not be fair to the other parties if I were to hear submissions on a new ground where no prior notice had been given. I therefore declined to hear submissions on the additional ground.
[8] The Minister for Planning has recently appointed a committee to consider the relevance and meaning of many of the land use terms currently included in clause 74 of the Scheme and provide recommendations to the Minister for amendments to some of the terms. On 27 February 2018, the Land Use Terms Advisory Committee Discussion Paper was released. The purpose of the discussion paper is to inform written submissions to the committee.
[23]
The Committee, at this stage, do not appear to be seeking to amend the definition of Dwelling in any significant manner. It has accepted the proposition that the definition of dwelling provides that it is a building used as a self-contained residence and that residence means a place where people live or reside either permanently or for a considerable period of time.
[24]
However, due to the 'residence' aspect of the Dwelling definition they have noted the inherent contradiction within the definition of Group accommodation due to its use of the word 'dwelling'. The Committee, at page 17 of the discussion paper, is seeking submissions as to whether the definition of Group accommodation should be changed to -
[25]
Land, in one ownership, containing a number of self-contained buildings used to accommodate persons away from their normal place of residence.
[26]
I note that a similar suggestion was made by Deputy President Gibson in Armato in 2007 where she noted, at footnote 6, that the definition would make more sense if the word 'dwellings' was replaced by 'buildings' or 'houses'.
[10] As noted earlier, I do not consider the potential use of the laundry facilities as an integral connection to the Dwelling. This access could be closed off internally without any impact on the Group accommodation use or characterisation.
The proposed units each contain all of the physical elements within the definition of Dwelling. The definition of Group accommodation refers to land containing 'a number of dwellings'. The Respondents urged me to consider that because of this reference to dwellings within the definition and the fact that each unit includes the physical elements of a dwelling, I should find that each unit is a Dwelling pursuant to the Scheme and that the proposal is prohibited because the LDRZ does not allow more than two dwellings on a lot.
However, these are land use definitions and each provide an important explanation of the type of use included within the term, in addition to the physical context. The Dwelling definition requires the building to be 'used as a self-contained residence'. Conversely, the Group accommodation definition requires the 'dwellings' to be used to 'accommodate persons away from their normal place of residence'.
Many Tribunal decisions have grappled with the difficulty of a definition including elements of both use and development.[3]
A more recent decision of Deputy President Gibson in Stuckey v Yarra Ranges SC [2014] VCAT 295 dealt specifically with an application for both Dwelling and Group Accommodation, although in that case the accommodation component was to be housed in three buildings separate to the main residence. I agree with the explanation in Stuckey that 'there are two components to the definition of the land use term of dwelling - a use component and a development component'.[4] As noted above and also in Stuckey, the key aspect of the use component is the self-contained nature of the residence whereas the development component is described by the requirement to include the facilities listed in the definition.
The following explanation of the Group accommodation use, as opposed to Dwelling use, is provided in Stuckey:[5]
The definition of group accommodation refers to land, in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence. The use of the word "dwellings" in this context refers to a type of development or built form, not to use of the land as a dwelling. This is one of the situations, which I referred to earlier, where the planning scheme blurs the distinction between "dwelling" as a land use and "dwelling" as a particular type of building. Clearly, use of the term "dwelling" in the definition of group accommodation should not be confused with the definition of the land use term of "dwelling". In land use terms, a dwelling must be used as a self-contained residence and residence means a place where people live or reside either permanently or for a considerable period of time. This is the antithesis of the requirement in the definition of group accommodation that the dwellings are used to accommodate persons away from their normal place of residence.
In the definition of group accommodation, the reference to dwellings is therefore a reference to a type of building. In my view, the type of building, which would be a dwelling for the purpose of the definition of group accommodation, would be a building that includes the type of facilities included in the definition of dwelling, namely a kitchen sink; food preparation facilities; a bath or shower; and a closet pan and wash basin, and contains sleeping and other facilities, which are necessary in order to accommodate persons away from their normal place of residence. Such a building is likely to be a dwelling as that term is used in the definition of group accommodation, although each case will involve a finding on its own facts and circumstances. If there are a number of such dwellings on land in one ownership, which are used to accommodate persons away from their normal place of residence, then the use of the land must be characterised as group accommodation. It does not matter that the land may also be used for the purpose of a dwelling. Land may be used for more than one purpose, such as for a dwelling and for group accommodation.
In the present situation, I find that the proposal includes a Dwelling and Group accommodation comprising four units. While the Group accommodation is contained within the same building as the Dwelling, it provides independent rental accommodation which is not accessed through the Dwelling but through a separate entry. Each unit is self-contained, has its own entry off the hallway and does not form part of the Dwelling. Although access is available to the laundry facilities within the Dwelling, this does not detract from the self-containment of the units. I accept that the units are not proposed to be used as residences but for short term holiday accommodation and therefore do not fit within the use component of the Dwelling definition. In comparison, the Dwelling component of the building is intended to be used to permanently house the owners of the land.
Ms Patterson, on behalf of the Respondents, submitted, by reference to the decision of Maroondah City Council v Fletcher & Anor,[6] that the way in which the Tribunal has interpreted the definition of Dwelling and separated it into a use and development component goes beyond statutory interpretation and becomes interpolation, which is beyond the power of the Tribunal.
I disagree with this proposition as, although a number of Tribunal decisions note that the definition is unclear,[7] both the use and development component are included within the definition and the decisions seek to make sense of that within the entirety of the planning scheme, rather than ignore either of those components and seek to find an alternative meaning. In circumstances where the use is being characterised and land use terms are being considered, the use is the essential element to consider. To ignore the use and focus only on the built form removes any difference between a Dwelling and Group accommodation and renders the land use term meaningless.
I note that there is currently a request for submissions as to whether the definition of Group accommodation should be changed to remove the word 'dwelling' and replace it with 'self-contained buildings'.[8] If this were to occur, it may be that the proposed use could not be considered Group accommodation. However, as it currently stands, I find that the use proposed on the land is for one Dwelling and Group accommodation comprising four units.
Ms Patterson made a further submission that this application ought to be distinguished from Stuckey as the zoning in this case prohibits more than two Dwellings on a lot. Again, it is important to reiterate that the LDRZ clearly enables a permit to be granted for the use of Group accommodation on this land. If Group accommodation (containing a number of dwellings used to accommodate persons away from their normal place of residence) was not permitted, it would be listed as a prohibited use. Further, if there was a limit as to how many people or buildings could be permitted on land in the LDRZ or permitted for the purpose of Group accommodation, this could and would have been listed as a condition next to the use within the table of uses, as it is with the Bed and breakfast use.