VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST / vcat reference No. P1749/2016
Permit Application no. TPA/44716
CATCHWORDS
Section 77 Planning and Environment Act 1987; Monash Planning Scheme; General Residential Zone; Vegetation Protection Overlay; Two dwellings; Neighbourhood character; Landscaping; Visual bulk.
APPLICANT / Miroslav Zelezny
responsible authority / Monash City Council
RESPONDENT / Arthur Skipitaris
SUBJECT LAND / 47 Hilton Street, Mount Waverley
WHERE HELD / Melbourne
BEFORE / Bill Sibonis, Member
HEARING TYPE / Hearing
DATE OF HEARING / 9 May, 2017
date of interim order / 9 May, 2017
DATE OF ORDER / 7 July, 2017
CITATION / Zelezny v Monash CC [2017] VCAT 920

Order

1  Pursuant to section 127 Victorian Civil and Administrative Tribunal Act 1998, the application is amended by changing the description of the proposal to:

Development of two double-storey dwellings with associated car parking and landscaping.

2  In application P1749/2016 the decision of the responsible authority is affirmed.

3  In planning permit application TPA/44716 no permit is granted.

Bill Sibonis
Member

Appearances

For M Zelezny / Ms R Gray, Town Planner of ARG Planning.
For Monash City Council / Mr D De Giovanni, Town Planner.
Mr A Skipitaris / In person.

Information

Description of proposal / The construction of two, two-storey dwellings.
Nature of proceeding / Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.
Planning scheme / Monash Planning Scheme
Zone and overlays / General Residential Zone – Schedule 2, Monash Residential Areas (GRZ2).
Vegetation Protection Overlay – Schedule 1, Tree Protection Area (VPO1).
Permit requirements / Cl. 32.08-4 (the construction of two or more dwellings on a lot in GRZ2).
Key scheme policies and provisions / Cl.15.01, 16.01, 21, 22.01, 32.08, 55 and 65.
Land description / The review site is located on the west side of Hilton Street in Mount Waverley. It has a frontage of 17.98 metres, a depth of 42.23 metres and an area of 759 square metres. It is occupied by a single-storey weatherboard dwelling. The properties to the south and west support large, contemporary two-storey dwellings. To the north is a single-storey dwelling. On the opposite side of the street are a two-storey dwelling and single-storey two-dwelling (‘dual occupancy’) developments.
Tribunal inspection / An inspection was undertaken after the hearing.

Reasons[1]

What is this proceeding about?

1  The Monash City Council has refused a permit for the construction of two, two-storey dwellings and the removal of vegetation on land at 47 Hilton Street in Mount Waverley. The grounds of refusal address matters of landscaping, tree removal and vehicle access. This is an application to the Tribunal for a review of the Council’s decision. Mr Skipitaris owns and occupies the adjoining property to the south. He opposes the grant of a permit on the basis that the development will not be in keeping with the character of the area and it will have an unacceptable impact on the amenity of his property.

2  Based on the submissions, the key considerations in this proceeding may be expressed as follows:

·  Will the development contribute to the preferred neighbourhood character?

·  Will the development have any unacceptable impacts on the amenity of adjoining properties?

3  The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered the submissions, with regard to the relevant policies and provisions of the Monash Planning Scheme (‘the Planning Scheme’), assisted by my inspection, I have determined to affirm the Council’s decision. My reasons follow.

will the development contribute to the preferred neighbourhood character?

4  A purpose of the GRZ2 is to encourage development that respects the neighbourhood character of the area. The objective of clause 55.02-1 is to ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character; and to ensure that development responds to the features of the site and the surrounding area.

5  Pursuant to clause 22.01, Residential Development and Character Policy, the review site and its surrounds are included within Residential Character Type ‘C’. The desired future character for this area is:

Desired future character statement

The neighbourhood character of this area will develop within a pleasant leafy framework of well-planted front gardens and large canopy trees.

Architecture, including new buildings and extensions, will, in the majority of cases, be secondary in visual significance to the landscape of the Character Type from the street. However, in neighbourhoods that currently have a large proportion of two storey houses, the architecture will gradually become more dominant, although it will always be buffered from the street by a well planted front garden that will ensure the soft leafy nature of the street will be perpetuated.

Setbacks will be generous and consistent within individual streets.

Building heights will vary between neighbourhoods. Those neighbourhoods where the diverse topography and well developed mature tree canopy provide a framework within which redevelopment can occur will have a larger proportion of two storey houses. In the lower, less wooded areas, buildings will be mainly low rise unless existing vegetation or a gradation in height softens the scale contrasts between buildings.

The built-form will be visually unified by well-planted front gardens that contain large trees and shrubs and street tree planting. Neighbourhoods that are influenced by the naturalistic landscape of the creek valleys or on highpoints and ridges will have a predominance of native trees in both the public and private realm. Trees within lots to be redeveloped will be retained wherever possible in order to maintain the established leafy character.

Streets which have a majority of gardens currently lacking fences will continue to do so. Walls and fences in other streets will be low to allow plants in the front garden to be visible from the street. Colours and materials will be sympathetic to the architecture of the house.

The soft quality of streets derived from the nature strips will be protected by ensuring that each lot frontage has only one single crossover. Landscape elements such as remnant indigenous vegetation and the large old coniferous wind-rows will be retained until horticulturally unstable.

The character of existing public open spaces within the Character Type, particularly those naturalistic corridors such as Damper Creek and Valley Reserve, will be protected by ensuring that buildings directly adjacent to such areas are set back and buffered with planting that complements that within the public open space.

6  Detailed policy statements addressing a number of design and siting elements are provided in clause 22.01. The Council’s two key neighbourhood character concerns are the provision of two driveways and a pathway in the front setback area, and the opportunities for landscaping throughout the site. The grounds relating to the removal of vegetation (trees) were not pursued as permits allowing the removal of established trees on the review site and on the adjoining land to the north and west have been issued by the Council. Copies of these permits were provided to the Tribunal.

7  The Council’s submission is that the proposed provision of two driveways and a pedestrian pathway in the front setback area of the development unacceptably restricts the opportunity for planting within this space. It was submitted that the outcome is inconsistent with the preferred future character and with policy that seeks to enhance the municipality’s Garden City Character. Clause 22.01-3 includes policy that the Garden City Character be maintained by providing front garden space in which upper canopy trees can develop.

8  There is clear policy in the Planning Scheme addressing vehicle crossings. This is detailed at clause 22.01-3 and is as follows:

Vehicle crossings and location of garages, car ports and car spaces

§  The Garden City Character of residential areas be retained by discouraging car parking and accessways that have a significant impact on or cause fragmentation of the streetscape.

§  The number of vehicle crossings be minimised to maintain existing kerb side parking and green spaces in both front setback areas and in naturestrips.

§  Hardening of the streetscape through the provision of additional crossovers is discouraged.

§  Landscaping in the front setback areas of properties is to be maintained by minimising the number of crossovers provided on larger multi unit sites and placing vehicle parking to the rear on sites accommodating small to medium multi developments.

§  Garages, carports and associated visitor spaces be designed so that they do not dominate or visually disrupt the streetscape.

9  Under this policy, the provision of an additional vehicle crossing is discouraged as it has the effect of reducing ‘green spaces’ in both front setback areas of dwellings and in the adjacent naturestrip. The ‘hardening’ of the streetscape through additional crossovers is also discouraged.

10  This is not a neighbourhood or streetscape where multiple crossovers per lot are a characteristic. On the contrary, single vehicle crossovers and associated driveways predominate. Consequential to this is the provision of well-proportioned gardens within front setback areas which contribute to the Garden City Character referred to in policy. While it is true that there are two developments proximate to the review site which each display two crossovers, these older style ‘dual occupancies’ do not characterise the neighbourhood. They are anomalies in an environment where single crossovers and driveways prevail.

11  Clause 20.02 sets out the operation of the Planning Scheme’s Local Planning Policies. It states:

A Local Planning Policy (LPP) is a policy statement of intent or expectation. It states what the responsible authority will do in specified circumstances or the responsible authority’s expectation of what should happen. The LPP gives the responsible authority an opportunity to state its view of a planning issue and its intentions for an area. An LPP provides guidance to decision making on a day to day basis. It can help the community to understand how the responsible authority will consider a proposal. The consistent application of policy over time should achieve a desired outcome.

12  Departure from policies contained within the Planning Scheme without sufficient justification can incrementally erode the ability to achieve the expressed desired outcome. In the context of the policy at clause 22.01 and the character of the neighbourhood, I have not been persuaded that the provision of two crossovers and driveways is justified in this instance. Perpetuating what has occurred in the other two developments is contrary to the clearly expressed policy. Importantly, the Council has included the policy in the Planning Scheme. It is not within an extraneous document, which would, arguably, carry less weight. The implementation of policy is the first-stated purpose of the GRZ2. Policies contained within the Planning Scheme should be given meaningful expression.

13  A proper assessment must have regard to all relevant policies and a balancing of the policies needs to be undertaken in order to achieve an acceptable outcome. Key policies in this case are those addressing the provision of increased residential densities and dwelling diversity,[2] and those addressing neighbourhood character.[3] These policies are not mutually exclusive. Having regard to its dimensions, proportions and site area, the land can accommodate two dwellings and include a single vehicle crossover and driveway, as demonstrated by other developments in the neighbourhood, including within Hilton Street itself.[4] An increased density can be achieved whilst complying with the policy. Having regard to policy, the characteristics of the site, and to the context, the provision of two crossovers is not justified.

14  The secluded private open space area of Dwelling 1 has dimensions, proportions and overall area which allow for the planting of appropriate canopy vegetation without compromising the useability of the space.

15  The courtyard of Dwelling 2 is more constrained. For the greater part, its width is in the order of 3.0 metres. Although a wider section is provided in the north-western corner, it is proposed to construct a roofed ‘alfresco’ area in this location, limiting the opportunity for the provision of canopy vegetation. The applicant suggested that the ‘alfresco’ area could be deleted to achieve an unobstructed space with a minimum dimension of 5.0 metres. I consider this would represent an acceptable outcome. With this modification, the dimensions and area of the courtyard would be acceptable and would allow for planting of canopy vegetation.

16  The provision of the two crossovers and driveways is the key failing of the proposal. It represents a non-compliance with policy that is contrary to the desired outcomes in respect of the preferred neighbourhood character and the provision of garden spaces within front setback areas. The two driveways (one of which is in part double-width) and the pedestrian path limit planting opportunities. It also reduces the grassed naturestrip, further eroding the soft quality of the streetscape identified in the statement of desired future character. I accept the Council’s submissions that this is an unacceptable design response in this neighbourhood. The development will not satisfactorily contribute to the preferred (desired) future character such as to warrant approval.

will the development have an unacceptable impact on the amenity of adjoining properties?

17  The shadows that will be cast by the proposed development onto the adjoining secluded private open space areas during the equinox (22 September) comply with standard B21 at clause 55.04-5. The extent of overshadowing is acceptable.

18  With the exception of Bedroom 1 of Dwelling 1 and the ‘gallery’ of Dwelling 2, the upper level south-facing windows are all associated with non-habitable rooms. Notwithstanding, they are shown to be fitted either fully or partially with obscure glazing.

19  Bedroom 1 of Dwelling 1 has two east-facing windows with an outlook to the street. These windows are clear-glazed and will not allow for overlooking of neighbouring secluded private open space or habitable room windows. The south-facing window of this room will have a sill height of 1.7 metres and overlooking, therefore, will not be possible. Given the existence of the two other windows to provide an outlook for occupants, the provision of this high-sill window will not compromise the amenity of this room.

20  The gallery is a habitable space as it appears to function as a first floor living area. It has two south-facing windows. Both are shown to be in the form of awning windows fitted fully with obscure glazing. As mentioned below, a different form of screening to achieve a balance between neighbours’ privacy and the internal amenity of the dwelling’s occupants is required.