1. My site inspection provided informative. The North Western Residential Area of the Activity Centre and Nelson Street in particular is undergoing significant change. Diagonally opposite the review site is a complex of apartment buildings ranging in height up to seven storeys. Adjoining the site to its east is a three storey apartment complex (over a consolidated lot). Another three storey apartment building exists at No. 37 Nelson Street (on a single lot). This is clearly an area in which the Council housing policy, combined with the zoning and height controls, is achieving the desired intensification objectives.
2. The issue then is whether six two storey dwellings in a standard reverse living typology achieves the strategic objectives sought or is, in fact, an underdevelopment of the land. Having considered the submissions, and had the benefit of a site inspection, I am not satisfied that the proposal is consistent with the zoning of the land, the DDO that affects it and Clause 22.06. I say this for the following reasons.
3. Firstly, the Planning Scheme[6] provides express encouragement for lot consolidation. The larger the lot size, the greater the building height allowed. While the applicant says they are unable to consolidate the land with its neighbour to the west[7] "at this time", the applicant's advocate could not confirm if approaches had been made to the rear neighbouring landowner.
4. I accept the position of the applicant that the existence of an easement along the western property boundary would negate the benefit of consolidation with the land to the west as development is unlikely to be allowed across this easement. However, even had I been of a mind that lot consolidation is practically unlikely, I find that a two storey development on the land is an intensity that would be more likely expected in a traditional residential setting, not a RGZ with both express policy and planning control encouragement for greater height, and dwelling yield.
5. The DDO seeks to ensure that development throughout the Activity Centre should be higher and a more intense scale than its surrounding suburban context. A three storey apartment development with a greater dwelling yield on the site would be more consistent with the planning regime that applies to the land.
6. A 'live' planning permit already exists that demonstrates the achievement of this intent. This permit allows a three storey development that is setback 3 metres from Nelson Street, a minimum 3.8 metre rear setback, a minimum 1.6 metre western side setback (aside from Dwelling 1 at the front which is built to the boundary) and a minimum 2.7 metre setback from the eastern side boundary. It provides communal ground level landscaped setbacks and accommodates nine dwellings.
7. In contrast, the application before me proposes six dwellings (a 50% reduction in yield from that approved) in a two storey reverse living format. It proposes reduced side and rear setbacks from that approved in the apartment permit. It proposes minimal communal landscaped areas around the periphery of the site.
8. The reverse living typology, in this instance, is not what I consider to be innovative, exemplary or responsive to its planning setting. It is a design that is often seen in more suburban settings depending on its site context. I do not consider it to be a design response that clearly distinguishes its Activity Centre setting from the low-rise suburban surrounds as sought by Clause 22.06. It represents an underdevelopment of a site that enjoys explicit encouragement for high density development. I accept the view put to me by Council that underdevelopment of land represents just as poor a planning outcome as overdevelopment.
9. I similarly reject any assertion that a refusal of this proposal will sterilise it from redevelopment. The existing planning permit demonstrates an appropriate planning outcome for the site, even though no site consolidation is proposed. It provides a more intense (in terms of housing yield and height) built form outcome, in an apartment style typology.
10. Finally, even had I been persuaded to put aside the underdevelopment issue, I would still have found that the proposal provides an unreasonable outcome on the following grounds:
    • the extensive hard surface along the western elevation of the building, which results in the reduced capacity of the site to be landscaped along the gun barrel driveway;
    • the poor entry arrangement to the dwellings, as the entrance to most dwellings presents as a single door to the vehicle accessway with no glazing or adjacent windows;
    • poor presentation to the street, including a number of sheer two-storey walls along the visible elevations;
    • extensive use of screening techniques of the first-floor balconies restricting views of the common accessway and reducing the internal amenity of the dwellings; and
    • minimal opportunity to provide meaningful landscaping within the eastern side setback within the small service areas for each dwelling.

1. As the Council rightly stated, it is more common for the Tribunal and Council's to consider the vexed issue of overdevelopment of land. Less common is the issue of underdevelopment. In this instance, the hierarchy of planning policies and controls, from PPF, LPPF, zoning and overlays all ascribe a significant value to land within this important[8] Activity Centre. There is no lack of clarity about the intent of this area to do the 'heavy lifting' in providing increased housing density at a scale not seen in other residential settings within Maroondah. Development should optimise the full potential of sites and in this instance, reflect its location within a Central Activities Area. The proposal does not achieve this.
2. For the reasons explained above, the decision of the responsible authority is affirmed. No permit is to issue.

[1] 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.

[2] According to the Maroondah Housing Strategy 2016

[3] Planning permit M/2015/782 which was issued on 27 September 2016. The permit expiration has been extended with the development to commence before 27 September 2020.

[5] Maroondah Planning Scheme Amendment C74 Panel Report dated 4 April 2012, at p. 3.

[7] I was provided with no evidence that this was the case.

[8] At both a metropolitan and local level