[2006] VCAT 171

The order of the Tribunal is that in relation to Application for Permit No. P60/05 for a 2 dwelling development at 13 Cypress Street, Heidelberg West, it is to be generally in accordance with the endorsed plans and subject to the following conditions:

1 Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority 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 drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted to Council on 23 December 2005 but modified to show:

a

Landscaping as required by Condition 2 of this permit;

b

Engineering plans showing a properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas.

c

Alteration of driveway at the garage of Unit 2 and opposite the turning area.

d

Extension of the reversing area north by 0.5 metres.

e

The private open space of Unit 1 extended to the east wall of Unit 2 then projecting to the north fence.

f

Deletion of the pathway in the front garden of Unit 1.

2 The development permitted by this permit must not be commenced until a satisfactory detailed landscaping plan is submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design and shall include:

a

details of planting within the front, along the driveway and rear/side setback areas of the site, plus the extent of paving within the rear yards of the dwelling;

b

a schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

c

location and details of paving, steps, fence design details and other landscape works including cut and fill.

An endorsed copy of the plan must form part of this permit.

3 The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.

4 The walls of the development on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

5 The development permitted by this permit must not be occupied until:

a

the parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority.

b

the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.

6 Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

7 Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

8 Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Council prior to occupation of the building. All vehicle crossing works are to be carried out with Council supervision under a Road Opening Permit which must be obtained prior to commencement of works.

9 This permit will expire if one of the following circumstances applies:

a

The development is not commenced within two years of the date of this permit;

b

The development is not completed within four years of the date of this permit.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

REVIEW OF A REFUSAL OF THE BANYULE CITY COUNCIL TO ISSUE A PERMIT FOR TWO DWELLINGS INCLUDING ONE DOUBLE STOREY DWELLING AT 13 CYPRESS TREET, HEIDELBERG WEST

1 At the commencement of the hearing amended plans were substituted as those accompanying the application in accordance with VCAT directions.

2 The subject site is on the west side of Cypress Street. It has an area of 660 square metres with a frontage of 16.15 metres. I am told it is relatively flat. It is within a built up area of predominantly 1950s dwellings that are mainly single storey. It is not far from the Northland Shopping Centre and is shown in the Council strategies as an area where medium density housing is to be encouraged.

3 The proposal is to build a double storey dwelling with three bedrooms including two upstairs with retreat area and ensuite and bathroom with the living areas downstairs at the front of the site. It is to have a double garage and a secluded private open space of approximately 59 square metres.

4 A second dwelling is to be located towards the rear boundary. It is to be a two bedroom single storey dwelling with a double garage and is to have approximately 71 square metres of secluded private open space. There is to be site coverage of 38% and a density of 1:330 square metres.

The amended plans relate to an internal reconfiguration of the ground floor and upper floor of Dwelling 1.

5 The planning provisions state that the proposal is within a Residential 1 zone for which a permit is required for two or more dwellings on a lot. The relevant State and Local planning policy frameworks including a new Clause 12 of the Scheme together with Clauses 55 and 65 applying to this application.

6 The Responsible Authority still lists Amendments C33 and C34 as part of its planning provisions, however these have been commented on, on many occasions, by this and other divisions of the Planning and Environment List. It also has a Neighbourhood Character Strategy at Clause 22.07 of the Scheme which lists this as being in Garden Suburban Precinct GS2.

7 The application was advertised and did not receive any objections. It was refused by the Responsible Authority officers under delegation and later an application for review was lodged.

8 Both parties spoke to written submissions. Plans, photographs and other documents were all tabled and these, together with the submissions, are contained in the Tribunal file.

9 The major issue here for the Responsible Authority is the double storey nature of the development. This is consistent with the stance this Council has taken over several years in spite of many Tribunal decisions indicating quite strongly that two storey houses are a normal form of development within urban areas and also VicCode 1, the Good Design Guide, ResCode's predecessors, and ResCode have no prohibition of two storey housing. In fact, the addition of one storey is seen as an acceptable step in streetscape terms. There is no doubt that the two storey dwelling complies with the majority of the standards of ResCode and certainly the objectives.

10 The Responsible Authority is concerned about the fact that the garages for both dwellings were attached to opposite boundaries of the site and therefore it appeared as if the proposal is to be built boundary to boundary. This, in my view, is quite a common situation with developments such as these. It does not create a major issue as landscaping and the fact that views can be seen through to the reversing area, etc. clearly show that this is not an attached development.

11 There is an issue of street setback and while the Responsible Authority stated that the minimum setback should be 9 metres, the setback in actual fact is 8.4 metres and when one bears in mind that the original dwelling was setback at 8.4 metres then, in my view, this setback performs quite well and is acceptable.

12 At the hearing I referred to the editorial comment in 20 VPR in relation to regulation versus performance which stated that the VPP's and ResCode call for a performance based approach rather than 'planning by numbers'. It is obvious that this message has not got through to many people in the planning profession and for that matter local government. ResCode provisions are but guidelines as were the Good Design Guide and VicCode 1 provisions. It seems to me that this editorial comment should be prescriptive reading for all those involved in the statutory planning process. The fact is a competent professional assessment of this proposal, done objectively without the pressure of Council non-statutory policies, would lead to it being adjudged as a reasonable development that with some tweaking should be allowed to proceed. That is the approach I have taken.

13 I discussed with the parties a number of alterations that I would make and have placed these in Condition 1 for further modifications of the design. Having said that, I am going to set aside the Responsible Authority's decision and grant a permit subject to conditions.