VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST / vcat reference No. P478/2016
Permit Application no.TPA/44572
CATCHWORDS
Monash Planning Scheme; Application under Section 82 of Planning and Environment Act 1987 to review a decision to grant a permit; General Residential Zone; Proposal for two 2-storey dwellings; Repeat appeal; Neighbourhood character; Car parking and access; Landscaping opportunities; Private open space.
APPLICANT / Margaret Giulieri and Others
responsible authority / Monash City Council
RESPONDENT / Jean-Paul Fabrice Ho Fi
SUBJECT LAND / 12 Sage Street, Oakleigh East
WHERE HELD / Melbourne
BEFORE / Mary-Anne Taranto, Member
HEARING TYPE / Hearing
DATE OF HEARING / 21 October 2016
DATE OF ORDER / 23 December 2016
CITATION / Giulieri v Monash CC [2016] VCAT 2188

Order

1  Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by changing the name of the permit applicant and owner of the land to:

(a)  Jean-Paul Fabrice Ho Fi

2  In application P478/2016 the decision of the responsible authority is set aside.

3  In planning permit application no. TPA/44572 no permit is granted.

Mary-Anne Taranto
Member

Appearances

For Margaret Giulleri and Others / Ms Rosemary Bourke
For Monash City Council / Mr Gerard Gilfedder
For Jean-Paul Fabrice Ho Fi / Mr Aidan Foote

Information

Description of Proposal / Construction of two double storey three bedroom dwellings, each with a single garage and tandem parking. A common driveway is proposed on the south side of the site.
Nature of Proceeding / Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.
Zone and Overlays / §  General Residential Zone – Schedule 2 (GRZ2)
Permit Requirements / §  Clause 32.08-4 – Construction of two or more dwellings on a lot in the GRZ.
Relevant Scheme policies and provisions / Clauses 10, 11, 15, 16, 18, 21, 22.01, 22.04, 22.05, 52.06, 55 and 65.
Land Description / Located on the east side of Sage Street, this 715sqm rectangular site has a frontage of 17.5m and depth of 58.4m.
A row of Betula Pendula (Silver birch trees) and Magnolia species have been planted along the eastern and southern boundaries respectively.
A more detailed description of the site and surrounds can be found in the decision of Member Dawson in Foote v Monash CC (Correction) [2015] VCAT 386.
Tribunal Inspection / I undertook an unaccompanied inspection of the site and surrounds on 9 December 2016.
Cases Referred to / Foote v Monash CC (Correction) [2015] VCAT 386.

Reasons[1]

What is this proceeding about?

1  This is a repeat appeal for the construction of two double storey dwellings on a mid-block site of 715sqm in Oakleigh East. In the previous case for two dwellings which involved the retention of the existing single storey weatherboard dwelling at the front of the site, Member Dawson affirmed the Council’s decision to refuse a permit.

2  A key difference between the earlier proposal and the one now before me is the removal of the existing dwelling and double carport at the front of the site and their replacement with a new 2-storey dwelling with a garage at the rear.

3  This latest review, in a joint application made by neighbours who objected to the permit application, has been prompted by the Council’s decision to grant a permit. Through Ms Bourke, the daughter of Mr Ken Giulieri (who lives next door at No. 14 Sage Street to the south), the applicants say that this latest proposal is not greatly different from the earlier one, actually increases the footprint of Unit 2 at the rear and fails to properly address the concerns raised by Member Dawson in a meaningful way. This proposal is also said to present new issues in relation to the 2-storey presentation of Unit 1 upon the streetscape as well as necessitating on-street parking and traffic issues due to the tandem car parking arrangement.

4  The Council submits that the changes to the proposal have satisfied the concerns raised by Member Dawson in the previous case that led to the refusal of a permit.

5  Unsurprisingly, Mr Foote, the former owner of the land who represented the current owner and respondent in this proceeding, supports the Council’s submissions.

6  The key issues for consideration in this case are whether the current proposal has responded satisfactorily to the deficiencies identified with the earlier proposal and whether it is now acceptable in its own right. In my consideration of this proposal’s acceptability, the following issues are particularly relevant:

·  Neighbourhood character including the siting of the development, its scale, design detailing and visual impacts in the streetscape and backyard realm;

·  Landscaping opportunities;

·  Car parking and access arrangements; and

·  Open space adequacy.

7  My task now is to decide whether a permit should be granted and, if so, what conditions should be applied. Assisted by my inspection, I have decided that a permit should not be granted. My detailed reasons follow.

What principles apply when considering repeat appeals?

8  It is generally well understood that an applicant can make repeated applications for a permit and seek to have them reviewed.[2] In doing so, there a number of accepted principles which I have considered and which are relevant to the assessment of what is commonly termed ‘repeat appeals’. I do not intend to recite them here in full but these principles include that the Tribunal is not bound by precedent, earlier decisions should not be reversed unless a change in circumstances warrants a different view and a new application must be considered de novo.

9  A detailed discussion of these principles can be found inSprut Pty Ltd v Stonnington CC [2012] VCAT 1675 (Sprut) and Zinc Melbourne Pty Ltd v Banyule CC [2013] VCAT 2111 (Zinc).[3]

10  In the recent Supreme Court decision of Zumpano v Banyule City Council [2016] VSC 420, His Honour Justice Garde affirmed and elaborated on these principles which I have considered and adopt for the purposes of my assessment that follows.[4]

11  Importantly, I find that:

·  the earlier decision is relevant to my assessment of this latest proposal and is to be given considerable weight. It is therefore appropriate that I consider it;

·  this proposal has some correcting features that seek to respond to earlier shortcomings identified by Member Dawson but these features do not go far enough to bring about an acceptable outcome;

·  nor would this proposal when assessed as a whole, produce an acceptable planning outcome with consideration to the planning and physical contexts.

12  Before turning to the Tribunal’s earlier findings and whether I should depart from it, I summarise relevant changes in circumstances. These changes relate to:

i  the circumstances of the land and its surrounds;

ii  planning policy;

iii  the interpretation of the facts or law relevant to the Tribunal’s consideration; and

iv  significant changes in the application itself.

What has changed since the earlier decision?

13  The parties agree that aside from changes to the application itself, little has changed since the earlier decision.

14  More particularly I record that in relation to the circumstances of the land and its surrounds, no substantial physical changes of any substance that might bear upon this proposal have occurred. I note however that two double storey dwellings at No. 1 Sage Street which were under construction at the time of the earlier decision have now been completed.[5]

15  In respect of planning policy, some amendments to the State and local planning policies in the Monash planning scheme have been made. These are however immaterial to the issues in this proceeding. In relation to local policies for example, Amendment C113[6], introduced environmental sustainable policies in the Municipal Strategic Statement and a new policy at Clause 22.13, the latter which does not apply to developments for two dwellings or less.

16  I otherwise note that relevant local policies seek to:

·  Ensure that appropriate accommodation is available in Monash for all residents in light of demographic trends, such as an ageing population and the desire to age in place; (Clause 21.04)

·  manage the tension between the provision of greater housing diversity and maintenance of existing neighbourhood character (Clause 21.02);

·  encourage higher housing densities near transport hubs and activity centres such as Glen Waverley Principal Activity Centre and Oakleigh Major Activity Centre; (Clauses 21.02-4, 21.04 and 22.01)

·  encourage medium rise residential development within the Clayton, Brandon Park and Mt Waverley Activity Centres; (Clause 22.01

·  retain and enhance the neighbourhood character of residential areas by directing medium and high rise residential development to these higher order centres; (Clause 21.04)

·  provide for low rise residential development in other areas; (Clause 21.04)

·  maintain, enhance and extend the ‘Garden City Character’ of Monash by encouraging the use of street trees and the retention and planting of substantial trees within front gardens, open space areas, along boundaries adjacent to neighbouring open space and between buildings; (Clauses 21.02, 21.04, 22.01 and 22.05).

17  The Residential Development and Character Policy at Clause 22.01 continues to apply as it did previously and the site is within the neighbourhood character precinct ‘Residential Character Type B’. The preferred future character includes the following statements:

The neighbourhood character of this area will, as it develops, retain its modest and unassuming character by ensuring that multi housing developments, including dual occupancies, are appropriate in scale and form to existing dwellings.

The built-form will be unified by a general consistency in building setback. New dwellings will address the street and complement the scale and form of adjacent buildings. Redevelopments will be single storey unless there is a gradated change in height or on-site trees and large shrubs to soften the transition between buildings.

Sympathetically designed buildings will be encouraged. …

Front fences will be low, allowing shrubs and other plants in the front garden to soften the edge between development and street. Fences will complement the architecture of the building in design, colour and materials.

Gardens will be well planted with, in the majority of cases, both native and exotic plants to create a visually permeable buffer between the house and street. Existing mature vegetation within properties will be retained and additional tree planting within lots and within the public domain will be encouraged to provide an upper canopy and back drop to the buildings.

The ‘soft’ quality of the street that is derived partially from the nature strips and tree planting within them will be maintained by ensuring that there is only one single cross over per lot frontage. … [Tribunal underlining]

18  The permissions required under the Monash planning scheme have not changed. That is a permit is required under the GRZ2 for multi-dwellings and Schedule 2 sets out varied Clause 55 (ResCode) standards in relation to streets setbacks (7.6m minimum), private open space (total 75sqm and one secluded area of 35sqm with a minimum width of 5m) and front fence height (maximum 1.2m preferred).

19  There are no matters raised by the parties or which I am otherwise aware that have changed since the earlier decision that would have any material bearing on the interpretation of the facts or law relevant to the Tribunal’s consideration in this case.

20  The last matter concerns significant changes in the application itself.

21  I have already mentioned that a key feature of this proposal that differs from the earlier one is the replacement of the existing single storey weatherboard dwelling with a new 2-storey three bedroom dwelling constructed in brick, with render and colorbond cladding to upper level walls. The existing double carport and gravel parking area is also to be removed and a single garage with a tandem space provided at the rear.

22  Other features of this proposal that distinguish it from the earlier one include:

·  The upper level setback of Unit 2 from the south boundary increased by 1.18m to 3.82m;

·  The upper level setback of Unit 2 from the east boundary increased between 0.7m and 0.96m to achieve setbacks of between 4.15m and 4.87m;

·  The upper level setback of Unit 2 from the north boundary reduced by 1.1m to 1.86m;

·  Unit 2’s garage reduced in length by placing storage externally along the rear boundary;

·  A lengthening of the reversing bay for vehicles of Unit 2;

·  The proposed use of render and colorbond cladding to upper level walls instead of the previously proposed painted weatherboards;

·  The ground floor footprint of Unit 2 (east-west) increased in width by approximately 1m in its northern half;

·  Introduction of a small recess on the east side of the laundry of Unit 2 at ground level;

·  Total private open space provision increased to 82.6sqm from 75sqm for Unit 2;

·  Secluded private open space for Unit 1 reconfigured and the reduced;

·  Unit 1’s setback to its front wall reduced to 8.025m from 9.19m.

23  I now turn to whether this proposal has responded to the issues identified in the earlier one.

Has this latest proposal responded satisfactorily to the shortcomings identified in the earlier proceeding?

24  In essence, the key issues identified by Member Dawson that led him to refuse a permit related to the proposal’s streetscape impacts, the dominance of the double storey form of Unit 2 in the backyard setting with consequential offsite amenity impacts, carpark layout and access concerns, the adequacy of private open space and insufficient landscaping opportunities throughout the site.

25  More particularly, the shortcomings found to exist with the earlier proposal are as follows:

·  The streetscape impacts the double carport in front of the existing dwelling which together with gravel driveway areas would not allow an acceptable landscape response;

·  The existing dwelling and easement along the east boundary are constraints, leaving only limited space at the rear. The proposed boundary to boundary siting of the rear double storey unit and its setbacks from the south boundary building would be too dominant for the limited space available and would compromise the backyard amenity of No. 14 Sage Street;