Ms Alison Tansley, town planner at the Maroondah City Council

Construction of three single storey dwellings in addition to the existing dwelling and associated tree removal

Application under Section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Neighbourhood Residential Zone - Schedule 3 ("NRZ3")

Significant Landscape Overlay - Schedule 3 (Wicklow Hills Ridge and Loughnan Warranwood Ridge Landscape Protection Area) ("SLO3")

The subject land is located on the east side of Humber Road, Croydon North, having a frontage of 18.29 metres, a depth of 82 metres and a site area of 1511m2. The site falls approximately 6.7 metres from front to rear and is subject to a 1.83 metre wide easement along the rear of the property.

The site presently contains a single storey weatherboard dwelling with a pitched roof, which is setback approximately 7 metres from Humber Road. The land also contains a cement shed to the rear and a chicken coop in the south east corner.

The site contains several large canopy trees as well as smaller vegetation. There is a street tree in front of the subject land.

The adjoining property to the north of the site (38 Humber Road) contains three single storey, brick veneer dwellings with pitched rooves. The common property driveway for this development adjoins the subject site, resulting in the dwellings being located between 4.6 and 8.6 metres from the common boundary.

The adjoining property to the south (34 Humber Road) contains a double storey brick veneer dwelling with a pitched roof, setback between 2.5 and 6 metres from the common boundary. Behind this dwelling, 34A Humber Road is a single storey brick dwelling with a pitched roof, which is setback 4.8 metres from the subject site.

Adjoining the eastern (rear) boundary of the subject land are two properties (39 and 41 Lyons Road), each containing a single storey weatherboard dwelling with a pitched roof setback over 20 metres from the subject land.

West of the site, on the opposite site of Humber Road, is a double storey brick veneer dwelling with an open, vegetated setback over 20 metres.

The Tribunal conducted an unaccompanied site inspection on 14 May 2015

1. Mr Waters seeks review of a decision to refuse to grant permit for the construction of three dwellings in addition to the existing dwelling and the associated removal of vegetation from the subject land.
2. The responsible authority refused the permit application on several grounds including the proposal not providing an appropriate increase in density for the NRZ3, the proposal not implementing and respecting the neighbourhood character policy for the area, the site coverage and design response limiting suitable landscaping contrary to the SLO3, and there being insufficient setbacks between the habitable room windows and the common accessway.
3. Ms Pomeroy and Ms Johns are local residents who objected to the proposal on grounds including the density being too high, the possible detrimental impact on specific trees on their individual properties, overlooking and traffic concerns.
4. The original proposal sought to construct four additional dwellings. Leave was granted at the outset of the hearing to amend the application to reduce this to three additional dwellings. The amended plans also made changes to setbacks, separation distances, private open space and landscaping. Whilst the amendments, most specifically the reduction in the number of dwellings, were considered by the Council to be an improvement, the Council considered that the proposal was still unacceptable.
5. The key issues that I need to consider are:

1. Is the proposal supported by planning policy and the purposes of the NRZ3? 2. Does the proposal respond appropriately to neighbourhood character and environmental considerations?

1. Is there an acceptable level of compliance with the provisions of ResCode? Will there be unreasonable off-site amenity impacts? 2. Will there be unacceptable traffic or parking impacts?
2. Many of these considerations overlap. As with all discretionary planning decisions, a balancing exercise needs to be undertaken between the matters that support a proposal and those that weigh against it in favour of net community benefit and sustainable development for the benefit of present and future generations[2].
3. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Maroondah Planning Scheme, I have decided to affirm the decision of the responsible authority, with the result that no permit will issue. My reasons follow.

IS THE PROPOSAL SUPPORTED BY POLICY INCLUDING THE PURPOSES OF THE NRZ3?

1. The proposal takes the benefit of transitional provisions contained in clauses 32.09-3 and 32.09-8 of the Scheme, such that it is not subject to zone limitations regarding dwelling number and height. However, the proposal must still appropriately respond to the purposes of the NRZ3[3].
2. The State Planning Policy Framework requires development to, among other things, respond to its context in terms of urban character, natural features and surrounding landscape[4]. Architectural and urban design outcomes should contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties[5].
3. Local planning policy further encourages development that creates high quality urban places. Emphasis is placed upon the protection of existing urban and environmental quality, whilst also providing for increased residential opportunities in selected locations[6]. New dwellings are to be sited and constructed in a manner that contributes to and enhances the preferred neighbourhood character of the municipality[7].
4. Another tenet of planning policy is to provide for housing diversity within a range of housing types[8]. New housing should have access to services[9] and be located in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport[10].
5. The site is not located in an activity centre. Notwithstanding this, I consider that the site is located in reasonable proximity to a bus line as well as the North Croydon Village shops and the other facilities and services located on Maroondah Highway (just over 1km away). There are also facilities in the broader area that would be accessible to future residents, including the Croydon Railway Station and shops. As such, I consider that the proposal would meet the policy objective of providing diversity of housing in a location that offers reasonable access to services and transport.
6. Also, at 1511m2, the site is large and could comfortably accommodate more than the one dwelling it currently contains. The issue is therefore whether the particular proposal for an additional three dwellings is acceptable having regard to the relevant planning policies and controls that apply to the land.
7. I accept the reasoning of the Tribunal in Whitefeather Group Pty Ltd v Bayside City Council[11] and Beleria Pty Ltd v Glen Eira City Council[12] in analysing the meaning of the third zone purpose "to limit opportunities for increased residential development" as it applies to proposals that take the benefit of transitional provisions but are included in the NRZ.
8. This generally calls for an assessment of the proposal in the context of the surrounding area, having regard to matters such as the size of the subject land as against surrounding lots, the existing level of multi-unit development in the surrounding neighbourhood and the height of surrounding development.
9. In only proposing single storey development, the proposal pays regard to the predominantly single storey built form in the area. Further, since the dwellings will be located within cuts into the natural ground level, their resultant height relative to neighbouring properties will be reduced[13]
10. Contextually, the prevailing pattern of development is low-scale modest single storey dwellings with low-pitched roofs, with some double storeys. There are also a large number of multi-unit developments along Humber Road including the adjoining property to the north (3 units) and the adjoining neighbour to the south (2 units). The closest multi-unit development exceeding 3 lots is at 26 Humber Road, which is a four unit development. Further south along Humber Road are properties that contain 10 dwellings (8-10 Humber Road) and 6 dwellings (14 Humber Road).
11. The Council made a distinction between the southern and northern halves of Humber Road, with the southern half (relevant to this application) having experienced more intensive development than the northern.
12. In terms of built form, I consider that a distinction could also be made between the western and eastern sides of Humber Road, given the higher prevalence of single detached dwellings on the western side of the road. Along with the topography of the land and the generally larger setbacks, this results in generally more prominent built form on the western side of the road.
13. Given these variations in patterns of development, there is scope for some change within the general range of existing development, provided any such change respects neighbourhood character.
14. But for a few examples, the proposed density of development proposed on the subject land is higher than most of the properties in Humber Road; certainly, it is higher than the density in the immediate surrounds on both sides of Humber Road.
15. This of itself is not fatal to the proposal, however, it is a matter that weighs heavily against it in circumstances where a purpose of the zone is to limit opportunities for increased residential development.
16. This is exacerbated by the size of dwellings 3 and 4, providing 3 bedrooms and a double garage each, along with the joined form of dwellings 2 and 3. What results is a significant amount of area down the spine of the site being occupied by built form. This is an uncharacteristic pattern of development that has further potential to impact on the achievement of outcomes sought by the SLO for a spacious landscaped setting as discussed below.

DOES THE PROPOSAL SUFFICIENTLY RESPECT NEIGHBOURHOOD CHARACTER AND ENVIRONMENTAL CHARACTERISTICS?

1. These considerations are brought to the fore in the purposes of the NRZ3. The subject land is located in Neighbourhood Area 8 Warrien pursuant to clause 22.02-3 of the Scheme. The preferred future character includes ensuring buildings are set back from all boundaries a sufficient distance to allow substantial vegetation, particularly canopy trees, and encouraging continuity of bushland across property boundaries.
2. It is also policy that developments make provision for the planting of at least one canopy tree in the private open space to each dwelling[14]. The Council maintained that although this could be achieved, that the area devoted to landscaping on site would not adequately complement the surrounds that provide greater space for landscaping. It also emphasised the relatively narrow width of the landscape buffer along the driveway.
3. While a large area of the municipality is included in the SLO, I do not consider that it is appropriate to use this factor to discount the fact that the site contributes to recognised environmental qualities. Whilst the site might not exhibit the same extent of canopy coverage as other sites subject to the SLO3, development still needs to respect the identified environmental characteristics.
4. I consider that Humber Road generally has a very green, treed and spacious appearance and that in large part this is due to the canopy vegetation present in the area. However, this is not a site that is heavily vegetated with canopy trees or that contains a dense canopy. At the same time, this is not justification for allowing a proposal that would be inconsistent with the objective of ensuring that all new residential development contribute to the maintenance and enhancement of the canopy vegetation of Maroondah.
5. Relevant landscape character objectives of the SLO3 include:

1. conserving the existing pattern of vegetation, landscape quality and ecosystems within the area and encouraging the regeneration of vegetation; 2. maintaining a dense vegetation canopy that contributes to the environmental significance of the area;

1. maintaining the overall scenic beauty of the municipality; and

1. ensuring that the development of land is compatible with the existing character and landscape protection of the area.
2. The Applicant submitted that there were opportunities for planting around the subject land, including the ability to locate 7 canopy trees within the site layout. It submitted that the absence of planting opportunities between dwellings 2 and 3 should not be fatal to the proposal, particularly as an absence of planting within a site is indicative of many of the multi-unit developments along Humber Road. It also suggested that it is not realistic in any suburban neighbourhood to fully detach each dwelling and surround it with vegetation, and that this is not called for by the preferred character objectives for Area 8.
3. Whilst the private open space that is provided for each dwelling would be capable of being landscaped, I consider that more is required to meet the objectives of the SLO. In conjunction with the NRZ3, I find that the landscaping opportunities on the site should be more prominent and plentiful than that proposed.
4. I agree with the Council that the proposal provides insufficient open space to provide substantial new vegetation, particularly canopy trees, to enhance the canopy vegetation of the area to the extent envisaged for Neighbourhood Area 8. This is particularly the case given the limited side and rear setbacks and internal separation between the dwellings. It would also fail to provide an opportunity to encourage continuity of bushland across property boundaries in line with preferred future character objectives.
5. The Applicant suggested that a further modification could be made to dwelling 4 to remove bedroom 3 and convert the double garage to a single garage, which could provide a larger space for landscaping. Whilst this would be an improvement, I do not consider that such a change would go far enough to address the concerns that I hold regarding the above matters.

SHOULD PERMISSION BE GRANTED UNDER THE SLO3 FOR VEGETATION REMOVAL AND BUILDINGS AND WORKS?

1. A permit is required under this overlay since the site coverage exceeds the 40% trigger and one tree (the Silky Oak located near the rear of the existing dwelling) will require a permit for removal.
2. With respect to the Wicklow Hills Ridge and Loughnan Warranwood Ridge Landscape Protection Area, canopy trees are identified as being the main element of the urban character of Maroondah[15].
3. Mr Skinner submitted that the western side of Humber Road, with its rising slope and Hochkins Ridge Reserve to the rear of the neighbouring Neupath Road, makes a stronger contribution to the bushland character of the area than the eastern. He emphasised that the vegetation on the subject site was more of a garden character than a bushland character, and that lots surrounding the subject land on this side of Humber Road similarly did not provide a continuity of bushland.
4. From my site inspection, I consider that a large part of the vegetation contribution that is currently made by the subject land is due to the vegetation in the front setback and the street tree, none of which is proposed to be removed[16].
5. The Silky Oak was assessed by the arborist as being in a poor-fair condition and unlikely to make a long-term contribution to the area, irrespective of whether this development proceeded. The Council agreed that its removal would be acceptable, considering the low retention value of the tree. I agree.
6. The Respondents raised concerns regarding the possible impact of the development upon the two Candle-bark Gums located on the adjoining property to the north and the Oak located on the adjoining property to the south. The Council's Environmental Planner indicated that in their view, all trees would remain viable if the proposal was to proceed, subject to certain tree protection measures being implemented during construction. I would accept this in principle.
7. With respect to the buildings and works permission, I need to consider the impact of the proposed buildings and works on the landscape (due to height, bulk, colour and general appearance) and the extent to which the proposed buildings and works are designed to enhance or promote the landscape character objectives of the area[17].
8. In cutting into the slope of the site, the proposal seeks to minimise the height above natural ground level and visual impact of the buildings. This, along with their single storey, brick construction with pitched tiled rooves leads me to find that the appearance of the buildings themselves would be generally acceptable under the SLO if the spacious siting of the buildings had been addressed adequately.
9. Also, given the very limited extent to which the site coverage exceeds the 40% permit trigger, I would not have regarded this as consequential of itself.

IS THE RESPONSE TO RESCODE PROVISIONS ACCEPTABLE? WILL THERE BE UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. The proposal is generally acceptable in terms of the standards and objectives of ResCode but for the provisions dealing with neighbourhood character, landscaping and overlooking. The Respondents also held concerns regarding these matters.
2. Ms Johns, to the south, was concerned as to the view that she would have into the site from her property. There is no planning scheme provision that seeks to control views that existing residents might have into a proposed development. The more pertinent issue is to whether the built form will present acceptably and the interface will be treated appropriately. Although the proposal only comprises single storey dwellings, the combination of the intensity of the development, the slope and the continual built form down the spine of the site will result in the proposal having an unacceptable presentation for the context of this area, when viewed from Ms Johns property.
3. Ms Pomeroy, to the north, was concerned as to the views that residents of dwelling 2 would have into her property, especially her indoor and outdoor living spaces.
4. In applying the relevant objective in clause 55.04-6 of the Scheme to limit unreasonable overlooking, it is relevant for me to consider the existing extent of overlooking that occurs from the subject land into the secluded private open space and habitable room windows of the existing dwellings to the north and the south.
5. Due to the topography of the subject land and the adjoining properties, the height of the boundary fences (1.6 metres on the northern boundary and 1.8 metres on the southern boundary) and the location of existing development on the adjoining properties, it is currently possible to look into habitable room windows in both Ms Pomeroy's and Ms John's houses when standing on the natural ground level of the subject land.
6. The Applicant submitted that because the proposed dwellings were to be built into the slope, with the height of windows being approximately 600mm above the cut ground level that Standard B22 does not apply. Whilst this might be the case with respect to the Ms Johns' property, as the boundary fence measures 1.8 metres high, it is not the case regarding Ms Pomeroy's property, as that boundary fence only measures 1.6 metres.
7. As presently designed, I consider that overlooking would occur from the terrace of dwelling 2 towards Ms Pomeroy's property.
8. Whilst I recognise that the slope of the site will present an overlooking difficulty for any development of the subject land, this does not make it an acceptable situation and the objective of clause 55.04-6 of the Scheme still must be met.
9. I also recognise that any planting along the southern boundary may eventually grow to create a visual screen. However, this still leaves a period of time during which views into Ms Johns' property will not be acceptable.
10. This matter could have been addressed through permit conditions requiring screening and fence extensions. In any event, I have determined not to grant the permit for other reasons.

WILL THERE BE UNACCEPTABLE TRAFFIC OR PARKING IMPACTS?

1. Clause 52.06 of the Scheme requires the provision of one car parking space for a 2 bedroom dwelling and two car parking spaces for a three bedroom dwelling. Sufficient car parking spaces have been provided to meet this requirement.
2. The Respondents held concerns that the proposal would result in an increase in traffic and on-street parking. Following the reduction of the number of dwellings through the amended plans, the Council no longer held any concerns regarding car parking on the site.
3. When I inspected the site and surrounds, I too observed a relatively low level of traffic and on-street parking. This, along with the fact that the Council did not take issue with this aspect of the proposal, leads me to consider that the addition of the proposed dwellings would not have had an unacceptable detrimental impact upon the traffic or on-street car-parking situation in Humber Road, which appears to be consistent with that of a conventional suburban local road. Accordingly, I find this aspect of the proposal to be acceptable.

1. The NRZ3, SLO3 and the Council's local planning policy all emphasise the green, vegetated character of the area. Whilst the site presently makes a limited contribution to the canopy and bushland character of the area, this is not a reason to allow a development that would be inconsistent with the preferred character for this site to provide substantial areas of vegetation.
2. The combination of the level of increased residential development that is proposed, along with the failure of the proposal to meet the policy objectives of the NRZ3 and the character policy objectives of clause 22.02 of the Scheme results in the proposal being an unacceptable outcome for this site.
3. Accordingly, for the reasons given, the decision of the responsible authority will be affirmed. No permit is granted.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Whitefeather Group Pty Ltd v Bayside CC [2014] VCAT 1193

[4] Clause 15.01-1 and 15.01-5 of the Scheme.

[7] Clauses 21.06 and 22.02-3 of the Scheme.

[11] [2014] VCAT 1193

[12] [2015] VCAT 2

[13] The maximum building height of the dwellings above natural ground level ranges from approximately 4.3 metres to 4.765 metres.

[15] Paragraph 1.0 of Schedule 3 of Clause 42.03 of the Scheme.

[16] Although I note that there was some discussion regarding the pruning of a tree in the front setback