Victorian Civil and Administrative Tribunal|2005-04-27

Zoran Ileievski v Brimbank CC [2005] VCAT 776 (27 April 2005)

6 dwellings; overdevelopment; policy support; traffic and parking.

1. Before the development commences amended plans must be submitted to the responsible authority for its approval. Such plans are to be drawn to scale with dimensions and three copies are to be provided. When approved such plans will be endorsed as evidence of their approval and will be the endorsed plans for this permit. The plans are to be generally in accordance with the plans submitted to Council on 30 March 2005 and noted as Revision B but modified to show:

a. alteration of the driveway and redesign of current dwelling 6 to enable egress from this garage without undertaking repetitive manoeuvres;

b. reduction in the number of dwellings to 5 with current dwelling 6 remaining as a single dwelling;

c. dwelling 3 and 4 as double storey dwellings with single garages, tandem spaces, larger secluded open spaces and screening of balconies/windows overlooking 34 Forrest Street;

d. relocation of the lighting columns from within the footpath along the side of the laneway to within the edge of the garden;

e. provision of a 2 metre wide landscape buffer between current dwelling 6 and new buildings;

f. provision of screening measures on the first floor west elevation living room windows of dwellings facing 4 Sydney Street to a minimum height of 1.7 metres above finished floor level;

g. provision of a letter box for each dwelling on the Forrest Street frontage;

h. schedule of materials, colours and finishes; and

i. landscape plans in accordance with the requirements of Condition 3.

2. The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. A landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must generally in accordance with the concept planting shown on Plan A1 and must show:

a. details of surface finished of pathways and driveways;

b. a planting schedule of all proposed trees, shrubs and ground covers, including botanical names common names, pot sizes, sizes at maturity, and quantities of each plant; and

c. landscaping and planting within all open areas of the site.

All species selected must be to the satisfaction of the Responsible Authority.

4. A cash bond for $3,000 plus a non refundable 5% service charge (Total amount = $3,150), shall be lodged with the Responsible Authority prior to the collection of endorsed plans to ensure the completion and establishment of landscaped areas. This cash bond will only be refunded after a 13 week establishment period beginning when the Responsible Authority is satisfied with the completed landscaping works, provided that the landscape is being maintained to the satisfaction of the Responsible Authority.

5. Before the use/occupation of the development starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.

6. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

7. Construction of any new crossovers modification to existing crossovers requires Council permit and approval.

8. Any redundant crossovers must be removed and kerbs and channels reinstated to the satisfaction of Council.

9. Before the use or occupation of the development starts, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

a. constructed to the satisfaction of the Responsible Authority;

b. properly formed to such levels that they can be used in accordance with the plans;

c. surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority; and

d. drained and maintained to the satisfaction of the Responsible Authority.

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

10. All impervious areas are to be drained to internal underground drainage and connected to a point of discharge nominated by Council's Engineering Services section.

11. The pavement area is to be edged by concrete kerb between the pavement and abutting properties.

12. An on-site stormwater drainage retention system must be installed on the subject land to the satisfaction of the Responsible Authority.

13. The dividing wall between dwellings shall be constructed to limit noise transmission to 45STC (Sound Transmission Class) in accordance with Part F (5) of the Building Code of Australia.

14. Provision must be made for suitable structures for receiving mail and newspapers. Such areas shall be kept clean and tidy. The structures shall include separate provision for each unit to receive papers.

15. All service metres must be located in the front of the unit in a location easily accessible to the various authorities.

16. All pipes, fixtures, fittings and vents servicing any building on the site except for downpipes must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

17. The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.

18. During the construction phase of the development, the following conditions shall be met:

a. only clean rainwater shall be discharged to the stormwater drainage system;

b. stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises, enters the stormwater drainage system;

c. vehicle borne materials shall not accumulate on the roads abutting the site;

d. all machinery and equipment must be cleaned Of required) on site and not on adjacent footpaths or roads;

e. all litter (including items such as cement bags, food packaging and plastic stripping) must be disposed of responsibly; and

d. all site operations shall comply with the Environmental Protection (Residential Noise) Regulations 1997.

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

a. the development is not started within two years of the date of this permit; or

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

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

Ms. Lorraine Stupak, Planning Consultant. She called Mr. Don Robertson, traffic engineer, as a witness.

1 This is a review of a refusal of the Brimbank City Council to grant a permit for the development of land for six dwellings at 36 Forrest Street, Albion.

2 At the commencement of the hearing Ms. Stupak made application to substitute amended plans that had been served in accordance with Tribunal directions on the other parties as the plans accompanying the application. These were approved under Schedule 1 Clause 64 of the VCAT Act.

3 It was noted that Mr. De Bono, the only objector who made application be joined as a party, was not present at the hearing. It seems Mr. De Bono was the previous owner of the subject site who had unsuccessfully attempted to obtain permission for a multi dwelling development in the past.

4 The responsible authority refused the application on the following grounds:

1. The proposed development is not consistent with the City of Brimbank's strategic vision for residential development and in particular is not justified against the State and Local Planning Policy Frameworks including the Municipal Strategic Statement and Clause 22.01-6 (Medium Density Development).

2. The proposal will detract from the existing neighbourhood character as detailed in the Brimbank City Council Post Contract Cultural Heritage Study.

3. The proposal will have unreasonable amenity impacts on neighbouring properties particularly in relation to the bulk, scale, mass and general siting.

4. The private open space areas to Dwellings 1 and 2 are inadequate due to overshadowing or limited dimensions.

5. The access arrangements are considered inadequate due to the following:

i. Provision has not made on site car spaces for Dwelling 6 to have an effective turning area, enabling vehicles to enter/exit in a forward direction.

ii. Inadequate safety provisions for pedestrian access to the entrance for Dwellings 3, 4, 5 and 6.

iii. Inadequate landscaping buffering between the internal driveway and the entrance to Dwellings 3, 4, 5 and 6.

6. The proposal represents an overdevelopment of the site.

7. The proposed development does not satisfy the objectives, requirements and assessment guidelines as contained in Clauses 32.01 (Residential 1 Zone), 55 (Two more dwellings on a lot) and 65 (Decision Guidelines) of the Brimbank Planning Scheme.

5 The land has a frontage of 18.28 metres with a sideage to a 3 metre wide lane of 57.91 metres resulting in a site area of 1059 square metres. It is situated on the north side of Forrest Street just to the east of Sydney Street. Present occupation of the site is with a single storey weatherboard dwelling set back 18.8 metres from the frontage with various outbuildings within the site. It is within the old McKay Housing Estate. Apart from a 12 metre high eucalypt in the front setback no other significant vegetation exists. The site slopes slightly from north to south.

6 This site is well located in relation to the Sunshine activity centre, churches, primary schools, railway station and bus routes. It abuts a concrete carpark that is pertinent to double storey flats fronting 29 Ridley Street to the north. It has an arterial road and railway reservation to the south, a single storey weatherboard and two lots of flat developments across the lane at 2, 4 and 6 Sydney Street and to the east a single storey weatherboard dwelling set back 20.5 metres from the frontage. For the most part the rest of the surrounding area has a large quantity of flat and unit developments.

7 This was originally submitted as the development of the site for seven dwellings but the amended plans submitted on 30 March 2005 reduced that six dwellings. The amended plans also dealt with a number of concerns that were expressed in the officer report and the grounds of refusal.

8 The two dwellings abutting Forrest Street are both two storey dwellings with single garages and tandem parking spaces. Behind these are three two storey dwellings each with single garages and tandem spaces accessing the three metre lane and finally a single storey two bedroom dwelling on the northern end of the site with a single garage also accessing the lane. A one metre wide pedestrian accessway is contemplated on the edge of the lane as well as public lighting. Site coverage is estimated to be 46% and there is a maximum building height of 7.5 metres.

9 Two objections were received when the application was advertised. These related to amenity, safety and demolition of a heritage building.

10 The application was referred to internally and the drainage engineer while having no objection requested conditions be placed on any permit that may issue. The council's traffic engineers were critical on the design and the use of the lane as well as the lack of visitor parking and difficulty in access arrangements to a number of the garages to and from the lane.

11 The land is zoned Residential 1 and abuts a Road Zone Category 2 that abuts a Public Use zone being the railway line. A permit is required to build two or more dwellings on the allotment. No permit is required for demolition as there are no overlays. The application is subject to the relevant provisions of cls.55 and 65 as well as the State and Local Planning Policy Frameworks and Local Policies.

12 The MSS supports urban consolidation as does the State Policies including Melbourne 2030.

13 The written submissions, plans, photographs and other documentation tabled at the hearing as well as Mr. Robertson's written statement of evidence, are all retained on the Tribunal file. There is no doubt in my mind that the proposal has good policy support for both the State and Local level. The neighbourhood character is one in which while there are some remaining single dwellings being as it were relics of the McKay Housing Estate a significant number of allotments in the neighbourhood contain buildings of a multi unit nature. Many of these are two storey. Therefore there is nothing unusual in an application to provide two storey dwellings on this site.

14 In its grounds of refusal and its submission the responsible authority hung its hat on its Cultural Heritage Study that designated the HV McKay Estate of regional significance being a crucial part of the development of Sunshine in providing housing for its resident workforce. Most of the houses are set back within larger allotments.

15 While it may seem a shame that the majority of these houses have been replaced by more modern dwellings of a single or multi nature on these large sites, there is no Heritage Overlay to control demolition and redevelopment. A Ms. Stupak pointed out the council had this study for five years and has done nothing to incorporate it into the planning scheme or have it as a reference document in that time. It is not a seriously entertained planning document.

16 In my view the main issue here is to do with the proposed development itself. While this is a large site and the applicant started with seven dwellings and now is proposing six it nevertheless has a number of signs of overdevelopment. I note from aerial photographs that numbers 28 and 30 Forrest Street of a similar size to this allotment contain four dwellings each. To the north of No. 28 fronting Ridley Street on a much deeper block is a development of five dwellings. Many of the other multi dwelling developments surrounding the site are walk-up type flats and six packs of the 70's era. Dwellings 1 and 2 fronting Forrest Street have been well designed and have large useable open spaces. However, these together with their open space occupy some 45% of the length and subsequent area of the site. In the remaining 55% of the site the applicant proposes four dwellings, three two storey and one single storey with four garages, tandem car spaces and entry to the lane. It is this rear 55% that has all the indications of overdevelopment. The 31.9 metres of remaining length of the site is totally lined with buildings of one and two storey nature. This is exacerbated by the fact that it is proposed to place balconies on top of the three garages pertinent to the central double storey dwellings. These will require screening to a height of 1.7 metres and even though this may be of obscure glazing it nevertheless adds to the building bulk.

17 Because of this attempt to achieve too much on the site everything relating to these four rear units is of a minimum. The open spaces of dwellings 3, 4 and 5 are just over 25 square metres. The single garage of dwelling 6 abuts the rear boundary of the site and consequently imposes a difficult exit manoeuvre from the garage exacerbated by the fact that part of the dwelling has been extended across to the garage door therefore reducing the amount of manoeuvring room within the driveway.

18 The proposal fails because of this rear overdevelopment.

19 In relation to traffic and parking apart from the entry exit conditions to the driveway of dwelling 6 I accept Mr. Robertson's evidence. No expert evidence was lead on the council's behalf.

20 I accept that the amount of traffic using the lane can be catered for by its existing pavement that there is no need for a holding bay of the type normally envisaged entering the arterial road at its junction with Forrest Street, that there will not be any adverse conflict between the reversing movements to the garage of dwelling 1 and the lane traffic and that as happens in so many other situations particularly in the city area are the pedestrian and vehicle traffic using the lane, I cannot refuse it on a safety basis.

21 As discussed at the hearing I intend to reduce the number of dwellings by one retaining what is now dwelling 6 as a single storey dwelling and ensuring that its access has the full width of the garage to assist in reversing manoeuvres. This will move the front of dwelling 6 slightly to the south and in my view there then needs to be a landscape break of some 2 metres between this and the rest of the central development that can be two double storey dwellings each with single garages. Not only will this make the proposal more spacious but it will also allow for larger secluded private open space for the central two dwellings.

22 Any redesign must include amenity measures for any residence or yard areas where there is possibility of any unreasonable overlooking and adequate articulation of building forms.

23 It may be that the central dwellings could be set back slightly further from the lane to provide a more balanced design although this is entirely in the hands of the designer.

24 There is no reason why the two new double storey dwellings could not and should not be built partially over their garages. There is also no reason why there needs to be balconies over the garages. If this is to be the case the designer needs to ensure that there is a reduction in overshadowing of the private open space of dwelling 2 and good articulation. I intend issuing a permit subject to conditions. Should there be any further disputes between the parties in relation to the redesign then the applicant has the ability to come back for an urgent directions hearing and a declaration under s.149 of the Act.

25 This does not allow the responsible authority or the applicant to go over old ground that this Tribunal has already reviewed and determined.

Environmental Protection (Residential Noise) Regulations 1997

Zoran Ileievski v Brimbank CC [2005] VCAT 776

At a glance

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Decision date

Source

Judgment (43 paragraphs)

Zoran Ileievski v Brimbank CC [2005] VCAT 776 (27 April 2005)

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Legislation Cited (1)