1. Dwelling 1 is set back 3.6 metre from Guest Road and dwelling 2 and 3 are set back 3 metres, with porches located 2 metres from the frontage of the site.

1. The site is located in the General Residential Zone, Schedule 3 (GRZ3) and covered by a Special Building Overlay (SBO). A permit is required under both the zone and overlay for construction of the dwellings. The application was referred to Melbourne Water. Melbourne Water had no objection to the proposal but specified conditions that must be included in any permit to issue. The council's concerns are not related to the requirements of the SBO.
2. The GRZ3 relates to Garden City Suburbs and includes variations to several standards of clause 55 of the Scheme. These were introduced into the Scheme as part of Amendment C125 Part 2 and include minimum street setbacks of at least 7.6 metres, maximum site coverage of 50% and a minimum of 75 square metres of private open space per dwelling. The application meets all of these requirements.
3. The GRZ3 and state and local policy support medium density development in this location and it is not disputed that this site is appropriate for such development.
4. With respect to neighbourhood character, the council's policies at clause 21.04 and 22.01 provide detailed explanation of what is sought to be achieved in terms of residential development throughout the municipality.
5. In clause 21.04, the Residential Development Framework Map includes the subject site within the boundary of what is termed 'Category 2 - Accessible Areas' which are areas identified for future development potential. However, the council submits that the site should be assessed as being included within Category 8 - Garden City Suburbs. It refers to a note included in the map that states 'Category boundaries to be determined through Planning Scheme amendment process' and submits that, although initially areas zoned GRZ3 were proposed to be accessible areas, the council now considers the GRZ2 zoned land to be accessible areas and GRZ3 zoned land to be within the garden city suburbs. This rationale, however, is not clear from the Scheme policies and controls and the council will need to determine how to rectify this in future, in order to ensure that the Scheme itself provides the correct information. In this case, the development of three dwellings is a non-contentious outcome within both the garden city suburbs and accessible areas, and it is not necessary for the Tribunal to make a determination about which category applies.
6. In clause 22.01, the subject site is included in the 'Garden City Suburbs Southern Area'. The preferred character for this area is described as follows:

Modest dwellings with simple pitched rooflines and articulated facades will continue the prevailing development themes. On larger sites, low rise apartment development may be appropriate, provided the development is sited within generous open space, is well landscaped, retains the 'open landscape character' of the garden suburban setting and tapers down in scale closer to the boundaries of the site.

While the housing mix within this area will continue to evolve to meet the changing needs of the community, new development will complement the scale and siting of the original housing within the area. In doing so, it will enhance the generous spacious, open, landscaped character of the area.

This character area will be notable for its spacious garden settings, tall canopy trees, consistency in front setbacks and the maintenance of setbacks from at least one boundary and from the rear of the site. New dwellings will address the street and upper levels will be recessed and/or articulated to minimise the impression of building scale.

Front fences will be low to enable vegetation to be visible from the street, allow clear views of buildings and give the street an open quality. Fencing will complement the architecture of the building in design, colour and materials.

Existing mature trees and shrubs within properties should be retained and additional tree planting proposed to gradually create a tree canopy in the private domain, including at the rear of properties.

This will create a visually permeable buffer between the house and street. The soft quality of the street that is derived from the wide nature strips and street tree planting will be maintained by ensuring that there is only one crossover per lot frontage.

Expanses of blank, or continuous, walls will be avoided, particularly when adjacent to public parks or creating the appearance of a continuous building mass. The character of existing public open space within the area will be protected by ensuring that buildings directly adjacent are set back and buffered with planting that complements that within the public open space.

Sympathetically designed architecture is encouraged in preference to imitations of historic styles.

1. Clause 22.01-3 includes several policy statements to meet the objectives of the residential development and character policy, which include -
   • To build upon the important contribution that landscaping makes to the garden city character of Monash.
   • To encourage new development to achieve architectural and urban design outcomes that positively contribute to neighbourhood character having particular regard to the applicable preferred future character statement for the area.
   • To encourage the provision of a variety of housing types to accommodate future housing needs and preferences.
2. Clause 22.05 is also of relevance to this application, being the council's tree conservation policy. Its objectives are:
   • To maintain, enhance and extend the Garden City Character throughout Monash by ensuring that new development and redevelopment is consistent with and contributes to the Garden City Character as set out in the Municipal Strategic Statement.
   • To promote the retention of mature trees and encourage the planting of new canopy trees with spreading crowns throughout Monash.

DOES THE DEVELOPMENT PROVIDE AN ACCEPTABLE RESPONSE TO ITS BUILT FORM AND POLICY CONTEXTS?

1. The council's refusal to grant a permit was based on the following grounds:
   • The proposal is inconsistent with the Residential Development Policy at Clauses 21.04 and 22.01 of the Monash Planning Scheme as it fails to achieve built form outcomes that positively contribute to the neighbourhood character having particular regard to the desired future character for the area.
   • The proposal does not adequately satisfy the objectives and design standards of Clause 55 of the Monash Planning Scheme with regard to neighbourhood character, site layout and building massing, amenity impacts, private open space provision and detailed design.
   • The proposed development is not consistent with the Monash Housing Strategy.
   • The proposed development is out of character with the existing development in the area in particular with regard to design detail, mass, bulk and scale.
   • The proposed development would have an adverse impact on the amenity of adjoining properties.
   • The proposed development is not appropriate for the locality in regards to its adverse impact on the streetscape and general neighbourhood character.
   • The proposed layout of the site does not provide adequate private open space areas for each dwelling.
2. The council's submissions, however, focussed primarily on the presentation of the three dwellings to Guest Street, the placement of secluded private open space along the North Road frontage and the fact that some of the secluded private open space for dwelling 2 was adjacent to the living area of dwelling 3. The council considers that:

The three dwellings, in the layout proposed, is an uncomfortable fit for this site. Fundamental to achieving an acceptable character response, is to first achieve a building footprint which will integrate with its surroundings.[3]

1. The council takes issue with the presence of three double-storey dwellings extending across two street frontages in attached double-storey form with minimal separation. It submits that the bulk of the building form facing Guest Street and the minimal separation at upper level is inconsistent with the preferred spacious, open, landscaped character of the area and the garden suburban setting.

1. In terms of the secluded private open space, the council submitted that:

Council considers that the staggered layout of the private open space areas at the site where the secluded private open space for Unit 1 would be adjacent to a main road and the secluded private open space of Unit 2 would be located immediately adjacent to the living room door of Unit 3, does not respond adequately to the provision of housing to 'accommodate future housing needs and preferences.' Additionally, the location of the secluded private open space area for Unit 1 to sit forward of the dwelling and adjacent to a main road does not adequately respond to the provision of suitable housing to accommodate housing needs and preferences. The noise and air pollution impacts to the overall amenity of Unit 1 are considered to be unacceptable. Monash residential character policy specifically states the objective to 'exclude the provision of secluded private open space within the street setback.'[4]

1. With respect to landscaping, the council submits that the location of the secluded private open space for dwelling 1 along North Road will reduce the available space for landscaping in that area and that the minimal setbacks of 2 to 3.6 metres at Guest Road will not provide adequate space for landscaping, when also considering the three crossovers required within that frontage.
2. I do not agree with the council's submissions, and find this proposal provides an acceptable response to both the Scheme and its site context. I consider that it is essential in this application to have regard to the nature of this site as a corner site and the design response that has allowed for the construction of three dwellings while also complying with all of the more restrictive variations to the clause 55 requirements that arise from the GRZ3.
3. The design of this proposal has taken into account the fact that vehicular access must be from Guest Road as it is highly unlikely that an additional crossover would be permitted on North Road, and that in order to meet the front setback requirement of 7.6 metres (this proposal has exceeded this requirement) that setback must be from North Road.
4. The design provides for 48.7% of garden area where 30% is required by the Scheme. I see this to be a response consistent with the garden city character sought to the council and the objectives of the tree conservation policy. Although there is a proportion of the North Road setback that will contain secluded private open space, this is set back 3 metres from the street frontage, which is sufficient space for planting of a large canopy tree and other landscaping. This area, together with the remaining area of the North Road frontage comprising approximately 80 square metres, is proposed to include three large canopy trees and several smaller trees, shrubs and grasses.
5. The council, rather than acknowledging the level of planting proposed and resulting contribution to the landscaped character that will ensue, shared concerns about the large size of the trees proposed. I am satisfied that the landscape architect would have chosen species that were appropriate to the location and would be able to thrive in that position and have not conditioned changes to the landscape plan that has been provided. Ultimately, if the council is concerned about a particular species chosen, it will require changes in order to ensure that the plans are to its satisfaction.
6. I find that the 3 metre setback to the secluded private open space for dwelling 1 and the planting proposed to be placed in front of it will enhance the garden city character and provide a buffer to the private open space. This differs from secluded private open space that is provided at the street frontage and enclosed by a high fence without landscaping in front. I also consider that the provision of north facing secluded private open space to dwelling 1 will provide increased amenity for the future residents of dwelling 1 without compromising neighbourhood and garden character policies. I do not share the council's concerns of noise and air pollution from North Road.
7. In terms of additional landscaping on the site, there are several canopy trees proposed along all boundaries of the site which will provide amenity for future residents as well as providing a landscaped buffer to the neighbouring residents. Again, due to the corner location of the site, the built form is predominantly adjacent to side setbacks of the neighbouring properties. In this case, both the south and east elevation of the proposal face less sensitive driveway areas on the neighbouring properties. In the south-east corner of the site, where the site is closest to the private open space of the adjoining properties, a large Blueberry Ash is proposed to be planted.
8. To the front of the site, facing Guest Road, planting is proposed in all locations where land is not required for crossovers or pathways. The planting in the North Road setback will also face the first 8 metres of Guest Road, and three Capital Pear trees as well as a Frangipani are proposed along the remainder of the Guest Road frontage together with other shrubs and grasses. The site faces the childcare centre on the other side of Guest Road which is constructed on an angle to face the corner of North and Guest Roads and essentially has a side frontage to Guest Road.
9. The site context, therefore, does not have any particularly sensitive interfaces and the proposal has been designed to respond positively to the requirements of the GRZ3 and the policy expectations of an open, garden character. In terms of the preferred character outlined in clause 22.01, this needs to be approached with the understanding that the site is a corner site facing North Road which will, by its nature, require some differential treatment.
10. Nevertheless, I find that the proposal maintains the open, spacious character expected and still provides a three dwelling medium density development in line with objectives seeking higher density within the GRZ while providing generous private open space and double-storey dwellings that fit comfortably within their site context, are well setback from neighbouring properties and will provide good internal amenity for future residents. I do not consider the location of the secluded private open space for dwelling 2 to be inferior from other townhouse developments or to be inadequate. In addition, the site is directly opposite a large expanse of public open space which can also be utilised by the future occupants of the dwellings.
11. I find that the proposal has considered the site context and the Scheme requirements and policy and has come up with a design that responds acceptably to both. As such, I consider that a permit should be granted.

1. In determining the conditions of permit, I have had regard to the draft conditions discussed at the hearing and the submissions of the parties as well as the matters arising from my reasons above.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• Construction of two or more dwellings on a lot in the General Residential Zone, Schedule 3; and
• Buildings and works in the Special Building Overlay.

1. Before the development starts, plans drawn to scale and dimensioned 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 generally in accordance with the plans submitted with the application but modified to show:

(a) All new vehicle crossings are to be no closer than 1.0 metre, measured at the kerb, to the edge of any power pole, drainage or service pit, or other services, unless otherwise approved by the relevant authority.

(b) The existing redundant crossing is to be removed and replaced with kerb and channel to the Council Standards.

(c) The location and design of any proposed electricity supply meter boxes. The electricity supply meter boxes must be located at or behind the setback alignment of buildings on the site. Alternatively, it must be set back a minimum of 3 metres from the front title boundary, no greater than 1.4 metres in height and must be adjacent to the side boundary fence.

(d) A Landscape Plan in accordance with condition 3 of this Permit.

(e) Removal of the existing gate from both the architectural and landscape plans.

All to the satisfaction of the Responsible Authority.

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

1. Before the commencement of buildings and works, a landscape plan prepared generally in accordance with the plan prepared by Species Landscape Architecture and dated April 2020, drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority prior to the commencement of any works. The plan must show the proposed landscape treatment of the site including:-

(a) the location of all existing trees and other vegetation to be retained on site

(b) provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development

(c) planting to soften the appearance of hard surface areas such as driveways and other paved areas

(d) a schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material

(f) the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site

(g) details of all proposed hard surface materials including pathways, patio or decked areas

When approved the plan will be endorsed and will then form part of the permit.

1. No building material, demolition material or earthworks shall be stored or stockpiled under the canopy line of any tree to be retained during the construction period of the development hereby permitted.

1. Before the occupation of the buildings allowed by this permit, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

1. All stormwater collected on the site from all hard surface areas must not be allowed to flow uncontrolled into adjoining properties or the road reserve.
2. The private on-site drainage system must prevent stormwater discharge from the/each driveway over the footpath and into the road reserve. The internal drainage system may include either:

(a) a trench grate (minimum internal width of 150 mm) located within the property boundary and not the back of footpath; and/or

(b) shaping the internal driveway so that stormwater is collected in grated pits within the property; and or

1. All stormwater collected on the site is to be detained on site to the predevelopment level of peak stormwater discharge. The design of any internal detention system is to be approved by Council's Engineering Department prior to drainage works commencing.
2. The nominated point of stormwater connection for the site is to the north-west corner of the property where the entire site's stormwater must be collected and free drained via a pipe to the Council pit in the nature strip to be constructed to Council Standards. Note: If the point of connection cannot be located then notify Council's Engineering Department immediately.

1. All new vehicle crossings must be a minimum of 3.0 metres in width and constructed in accordance with Council standards.
2. All vehicle crossings within 1.50 metres of an adjoining crossing shall be converted to a double crossing in accordance with Council standards.
3. All new vehicle crossings are to be no closer than 1.0 metre, measured at the kerb, to the edge of any power pole, drainage or service pit, or other services, unless otherwise approved by the relevant authority. Approval from affected service authorities is required as part of the vehicle crossing application process.
4. The existing redundant crossing is to be removed and replaced with kerb and channel to the Council Standards.
5. Any works within the road reserve must ensure the footpath and nature strip are to be reinstated to Council standards.

1. Provide a corner splay or area at least 50% clear of visual obstructions (or with a height of less than 1.2 metres), which may include adjacent landscaping areas with a height of less than 0.9 metres, extending at least 2.0 metres long x 2.5 metres deep (within the property) both sides or from the edge of each vehicle crossing to provide a clear view of pedestrians on the footpath of the frontage road.
2. The parking space in front of each garage is to have a minimum length of 5.4 metres from the property boundary.

1. Engineering permits must be obtained for new or altered vehicle crossings and new connections to kerb and channel and these works are to be inspected by Council's Engineering Department. A refundable security deposit of $1,500 is to be paid prior to the drainage works commencing.

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

1. This permit will expire in accordance with section 68 of the Planning and Environment Act 1987, if one of the following circumstances applies:

(a) The development has not started before two (2) years from the date of issue.

(b) The development is not completed before four (4) years from the date of issue.

In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months of the permit expiry date, where the development allowed by the permit has not yet started; or within 12 months of the permit expiry date, where the development has lawfully started before the permit expires.

[1] From www.nearmap.com.au, taken on 29 April 2021, and Google maps, February 2019.

[2] The submissions 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.

[3] In the council's written submissions at [7.3].

[4] In the council's written submission at [7.12].