Victorian civil and administrative tribunal

Site context and neighbourhood character

5. 
   The site is located within the GRZ2. At the date of hearing, the purposes of the GRZ2 included implementing neighbourhood character policy and adopted neighbourhood character guidelines as well as providing a diversity of housing types and moderate housing growth in locations offering good access to services and transport.
   
6. 
   On 27 March 2017, Amendment VC110 to the Scheme was gazetted. Among other things, it modified the purposes of the GRZ. The parties were invited to make written submissions to the Tribunal addressing any implications of the amendment relating to this application. I have considered the submissions filed on behalf of the applicant on 13 April 2017. On 2 May 2017, Council confirmed that it considered the applicant’s submissions to be satisfactory in addressing any implications arising from Amendment VC110 and did not have any further comment.
   
7. 
   I consider that the amendment to the purposes of the GRZ is relevant for the purposes of this application³. The amended GRZ includes within its purposes:
   

To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.

8. 
   These purposes now require a respect for neighbourhood character rather than the more robust requirement to implement neighbourhood character policy and guidelines. The previous reference to ‘moderate’ housing growth has been removed, now providing general encouragement for housing growth, not restricted to moderate growth.
   
9. 
   As noted in the written submissions of Mr Skinner on behalf of the applicant, I am still required to consider local policy and the neighbourhood character of the area. However, the amendment of the GRZ purposes has lessened both the emphasis on neighbourhood character and on limiting increases in new dwellings.
   
10. 
    The site is proximate to both the Brandon Park major activity centre and the Wheelers Hill neighbourhood activity centre and is reasonably well sited with respect to public transport (bus routes), primary and secondary schools and public open space (400 metres from Brentwood Reserve).
    
11. 
    The street has a relatively intact streetscape with original housing stock and limited subdivision in the immediate vicinity. The street is characterised by single detached dwellings set back from the street with driveways and carports/garages on side boundaries.
    
12. 
    However, within this setting, the landscape contribution to the preferred ‘garden city character’ differs greatly, with many properties having little or no planting of trees or lawn in their front setbacks.
    
13. 
    Although a Vegetation Protection Overlay (VPO) has been applied to the land to the north of Ferntree Gully Road and the east of Darnley Grove, the VPO does not apply to the subject site.
    

local planning policy

14. 
    Clause 21.03-5 details the core value of the ‘Garden City Character’ held by Council. The garden city vision aims to maintain and enhance the established canopy treed environment throughout the municipality, continuing its significance in defining the City of Monash.
    
15. 
    Council’s Residential Development and Character Policy recognises the challenge of increasing housing diversity while maintaining the garden character of Monash:
    

The Garden City Character, as identified in the Municipal Strategic Statement, is a core value held by the community and Council as a significant and important consideration in all land use and development decisions in most residential areas. ⁴

16. 
    Clause 22.01-3 includes a number of policies relevant to this proposal, in relation to building setbacks, maintenance of Garden City Character, vehicle crossovers, built form and scale of development, fences, landscaping, private open space and walls adjacent to side boundaries.
    
17. 
    With respect to the subject site specifically, the desired future character statement for Residential Character Type ‘E’ provides as follows:
    

Dwellings will be designed to sympathetically integrate with any existing native trees and shrubs on, or adjacent to, the development site and relate in form and siting to the topography of the Character Type. Architecture of contemporary excellence that is energy efficient and sustainable will be encouraged. Building scale, height and bulk will be generally similar within neighbourhoods. Large scale contrasts between buildings will be discouraged except where existing trees and shrubs soften the junction between buildings or where there is a gradated change in scale.

Setbacks will be varied in many neighbourhoods but will be consistent within individual streets and will be sufficiently generous to enable the development of significant native tree canopy and vegetation. The main unifying element will be the canopy of native trees in both the public and private domain. Most gardens will be open to the street with no walls or fences, allowing the soft naturalistic qualities of most neighbourhoods to be retained. Large walls and fences will be discouraged except where they are already a visually dominant streetscape element.

The soft quality of the street that is derived in part from the nature strips will be maintained by ensuring that there is only one single crossover per lot frontage.

18. 
    I agree with the submissions of the applicant that Area ‘E’ has been applied to a large swathe of land within Monash, including areas covered by a VPO and areas not suitable for medium density development. The description of desired future character with Area ‘E’ is a fairly general one and allows for a consideration of the characteristics of the particular neighbourhoods and streetscapes in which a development is proposed.
    
19. 
    Amendment C125 proposes to introduce the Monash Housing Strategy 2014 as a reference document within the planning scheme and provides direction for where growth should occur within Monash and where the garden character should be protected and enhanced. It recognises the key issue for Monash as the management of residential growth while preserving the valued character. Amendment C125 is an amendment adopted by Council and not yet approved by the Minister for Planning⁵.
    
20. 
    The subject site, and most of the municipality’s residential areas, is proposed to be included in the ‘Garden City Suburbs’ area 8, envisioned for incremental change. Variations to the GRZ schedules have been proposed to reflect the content of the housing strategy.
    
21. 
    Given that the amendment has not yet been introduced into the Monash Planning Scheme and is still subject to change, both parties prepared their submissions on the basis of the current planning controls applying to the site. The parties did agree, however, that with respect to the amendment, the measurable standards within the proposed GRZ schedule applicable to the subject site have been met.
    

what is the effect of the proposal on the streetscape and does the proposal respect the neighbourhood character?

22. 
    Council’s grounds of refusal include inconsistency with policy with regard to built form and scale of development as well as adverse impact on streetscape and character. Although this is an area still predominantly comprised of original single storey dwelling stock, housing growth is supported in the GRZ. Further, the subject site is particularly appropriate for medium density development, located within reasonable access to activity centres, schools, public transport and open space.
    
23. 
    The proposal is for two double storey dwellings, set back between 8.6 and 9.8 metres from Darnley Grove, utilising the north-south orientation to provide north facing rear private open space. Although the dwellings each have their own entry and their own single garage, the built form has been designed to read as one dwelling within the streetscape.
    
24. 
    In an area characterised by single storey dwellings, any change in built form will differ from the neighbourhood character. The proposed change to two double storey dwellings on a lot, while different, is not disrespectful of neighbourhood character or inconsistent with the zoning or modest housing growth anticipated for this area.
    
25. 
    The proposal satisfies many of the local policy and Area ‘E’ requirements as follows:
    
    • 
      The proposed dwelling setbacks are in excess of the GRZ2 requirements and are consistent with the neighbouring dwellings and the streetscape.
      
    • 
      The front gardens will be open to the street with no walls or fences.
      
    • 
      The proposed planting within the front setback includes Lophostemon trees to complement the street planting, as per the policy that the main unifying element of Area ‘E’ to be the canopy of native trees in both the public and private domain.
      
    • 
      The existing street tree will be retained and protected.
      
    • 
      New vegetation and landscape treatments will be provided, enhancing the Garden Character within Darnley Grove.
      
    • 
      The pitched roof form and the building materials are respectful of and complementary to the existing dwelling stock on each side of the subject site and within the street.
      
    • 
      A setback is provided to the eastern boundary to maintain the spacing and rhythm of existing built form.
      
    • 
      The design of the dwellings to be read as one dwelling within the streetscape is respectful of the existing housing stock.
      
    • 
      The garages do not project forward of the dwellings.
      
    • 
      The side by side configuration allows for north facing secluded open space to be provided at the rear of the dwellings which is accessed from the living areas and is useable and sufficient for the recreational needs of residents as well as providing space for canopy tree planting and screen planting along the rear boundary.
      
    • 
      The policy of limiting the scale and bulk of double storey dwellings at the rear of properties adjacent to single storey dwellings is satisfied by the setbacks provided from the rear boundary to the dwellings, being 7 metres at ground level and between 10 and 11.7 metres at first floor. Both the ground and first floor have also been articulated and set back along the western boundary to the rear of dwelling 1 in order to reduce the impact on the private open space of the residents of 13 Darnley Grove.
      
26. 
    Council policy has not been satisfied with regard to the vehicle crossings for the proposal. Due to the side by side configuration, an additional vehicle crossing will be required on Darnley Grove. The preference for only one crossover per lot is included in the general policy at clause 22.01 and also the specific desired character for Area ‘E’.
    
27. 
    I accept the submissions of the applicant in this regard and apply the same reasoning as the Tribunal in Hartono v Monash CC⁶, where the Tribunal noted that the policy statements concerning single crossovers must be considered in the context of the totality of policies and controls that must be taken into account. The Tribunal further stated that ‘rigid application of this one policy would prohibit side by side medium density developments and would limit layouts to one dwelling behind the other with one driveway serving all dwellings’⁷. The Tribunal in that case was also considering an application for two double storey dwellings with north facing rear open space. Member Bennett’s comments in that regard are also relevant to this application:
    

28. 
    This site has a generous frontage of over 16 metres. Even allowing for two 3 metre crossovers, the proposal includes a front setback area of approximately 9 metres by 8 metres which will include canopy trees, shrubs and lawn planting. There has been additional space set aside within the frontage at the western and eastern boundaries for planting along the sides leading to the garages to further soften the built form and enhance the garden character. The single crossover policy is designed to preserve and support the key policy of maintaining and enhancing the Garden Character of Monash. The landscaping plan provided for this proposal has considered that policy and will be effective to enhance the landscaped character of this section of the subject site and the streetscape of Darnley Grove in the vicinity of the site. The provision of a second crossover does not compromise the ability to provide substantial planting on this site.⁸
    
29. 
    In addition to substantially complying with Council’s local policy, I find that the proposal meets all of the objectives and standards of clause 55 of the Scheme as well as the variations found in the schedule to the GRZ. Although Council submitted that there was non-compliance with standards B1 (neighbourhood character), B13 (landscaping) and B31 (design detail), it is clear from my analysis earlier with regard to these matters that I do not agree.
    

Street tree protection

30. 
    There was considerable discussion during the hearing about the protection and retention of the Lophostemon street tree in front of the subject site. Although mistakenly noted on the plans as being removed, the applicant confirmed its intention to retain the tree. There was some confusion about whether or not the proposed eastern crossover would be located within an acceptable distance from the required tree protection zone.
    
31. 
    It was agreed that the precise location of the eastern crossover could be determined in consultation with Council’s traffic engineer and horticultural officer to ensure the tree would not be affected, prior to plans being endorsed pursuant to the permit and commencement of development on the site.
    
32. 
    This has been reflected in the conditions.
    

Conclusion on the merits of the proposal

33. 
    For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.
    

reimbursement of the application and hearing fee

Process

34. 
    At the commencement of the hearing, Mr Skinner foreshadowed the applicant’s intention to apply for reimbursement of the application fee, and possibly the hearing fee, in this matter.
    
35. 
    Both parties agreed that written submissions following the hearing with respect to reimbursement of fees would be appropriate in this case.
    
36. 
    Following the hearing, I made orders setting out a process for submissions to be made for the reimbursement of fees under sections 115B and/or 115CA of the Victorian Civil and Administrative Tribunal Act 1998 [VCAT Act]. Submissions from both parties have been received and considered.
    

Section 115 of the VCAT Act

37. 
    Pursuant to section 115CA of the VCAT Act an applicant to the Tribunal under section 79 of the Planning and Environment Act 1987 is entitled to an order under section 115B that the responsible authority reimburse the applicant the whole of any fees paid by the applicant in the proceeding.
    
38. 
    Sub-section 115CA(3) provides that the presumption of reimbursement of the fee does not apply if the responsible authority satisfies the Tribunal that there was reasonable justification for the responsible authority to fail to grant the permit before the application to the Tribunal, having regard to:
    

(a) The nature and complexity of the permit application; and

(b) The conduct of the applicant in relation to the permit application; and

(c) Any other matter beyond the reasonable control of the responsible authority.

Assessment of the application for reimbursement

39. 
    Both parties have provided written submissions with respect to the matters to be considered pursuant to section 115CA(3).
    
40. 
    I find that the permit application in this case is routine and straightforward, rather than complex and there were no other matters beyond the reasonable control of Council. Without any further consideration, the presumption for reimbursement of fees would apply.
    
41. 
    However, the conduct of the applicant in relation to the permit application is a matter I must consider.
    
42. 
    The applicant has submitted as follows:
    

The Permit Applicant did NOT in any manner… cause any delays to the assessment and determination of the Application. In fact, the Permit Applicant was keen to keep the Application moving forward as evidenced by the public notice being erected on site only one (1) day after the Council direction.

43. 
    The relevant dates provided by the applicant are:
    
    • 
      9 June 2016 – planning permit application lodged.
      
    • 
      8 August 2016 – Council directed advertising.
      
    • 
      9 August 2016 – advertising sign erected on site.
      
    • 
      25 August 2016 – application for review lodged with the Tribunal on day 76.
      
44. 
    The Council’s submissions include additional information that was not provided by the applicant. Council provided a copy of an email sent to the applicant on 11 July 2016 confirming that no further information is required and that the application lodged is the same as a previous lapsed application. As such, the email confirmed that the same concerns remain with the proposal as per a further information letter provided in response to the previous application and dated 24 December 2015. The email concluded as follows:
    

Please note the proposal in its current form is unlikely to be supported by Council. Please advise if you would like to amend your proposal addressing Council’s concerns or if you would like to proceed to advertising of the application.

45. 
    The applicant’s response to Council to proceed with advertising was provided on 25 July 2016.
    
46. 
    Council’s submissions appear to suggest that the direction for advertising occurred immediately following receipt of the email. However, the applicant submitted that the direction occurred on 8 August 2016 and was carried out on 9 August.
    
47. 
    I find that the conduct of the applicant in relation to the permit application provided a reasonable justification for the failure of Council to determine the application for permit prior to the application to the Tribunal.
    
48. 
    I make this finding based on the following reasons:
    
    • 
      On 11 July, the Council clearly stated its position with respect to the application and offered the applicant the option of amending the application or proceeding to advertising.
      
    • 
      The period of time that lapsed between Council’s email of 11 July and the applicant’s confirmation to proceed to advertising on 25 July, was a period of time in which the Council did not progress the application, in good faith.
      
    • 
      There was no undue delay by Council in its initial communication to the applicant or its later communication concerning advertising of the application.
      
    • 
      On the basis of the applicant’s submission, the statutory timeframe would have ended on 9 August. Instead of applying for review to the Tribunal on that date, the applicant erected public notice of the application. It then waited until the advertising period was completed before lodging its application for review.
      
    • 
      The applicant could not have expected a Council decision to be made immediately following the completion of advertising.
      
    • 
      Given the delay in the applicant confirming with Council that it wished to proceed with advertising of the application and the fact that it did choose to proceed with advertising, it was reasonable of Council to continue to process the application in the usual manner even though the final decision would be made outside the statutory timeframes.
      
    • 
      The application for review to the Tribunal was lodged immediately after completion of advertising. Council was not provided with a reasonable time in which to complete its consideration of the application following advertising.
      
49. 
    I find that the conduct of the applicant in requesting Council to proceed to advertising and then lodging the application so soon after completion of advertising and not providing reasonable time for Council to make a decision, is sufficient to reverse the presumption for reimbursement of fees in this matter.
    

Conclusion on the application for reimbursement of fees

50. 
    For the reasons given above, I decline to make an order for reimbursement of fees with respect to this application for review.
    

Judith Perlstein Member

Appendix A – Permit Conditions

Permit Application No	TPA/46114
Land	15 Darnley Grove WHEELERS HILL VIC 3150

What the permit allowS

In accordance with the endorsed plans: Construction of two double storey dwellings in the General Residential Zone, Schedule 2.

Conditions

1. 
   Before the development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. The submitted plans must clearly delineate and highlight any changes. When approved the plans will be endorsed and will then form part of the permit.
   

The plans must be generally in accordance with the amended plans circulated by the permit applicant prior to the VCAT hearing (prepared by Archimedium Australia Pty Ltd, numbered TP3 to TP6 inclusive, labelled Revision A “VCAT Submission” and dated Jan 17), but modified to show:

1. 
   The location and design of any proposed electricity supply meter boxes. The electricity supply meter boxes must be located at a distance from the street which is at or behind the setback alignment of buildings on the site or in compliance with Council’s “Guide to Electricity Supply Meter Boxes in Monash”.
   
2. 
   The location of gas and water metres.
   
3. 
   Provision of a corner splay at least 50% clear of visual obstructions (or with a height of less than 1.2 metres), which may include adjacent landscaping areas with a height of less than 0.9 metres, extending at least 2.0 metres long x 2.5 metres deep (within the property) on the east side of Unit 1’s crossing and the west side of Unit 2’s crossing to provide a clear view of pedestrians on the footpath of the frontage road.
   
4. 
   The existing (Unit 1) vehicle crossing fully reconstructed to a width of at least 3m by extending it to the east. The reconstructed crossing must align with the proposed driveway.
   
5. 
   Retention of the existing street tree.
   
6. 
   Removal of the notations “remove existing street tree” and “plant a new large canopy street tree”.
   
7. 
   Redesign and relocation of the eastern crossover and driveway as required to the satisfaction of Council to ensure that the existing street tree is protected.
   
8. 
   The louvered screen serving Unit 1’s rear west first floor bedroom window to have a minimum height of 1700mm above finished floor level and a maximum transparency of 25%.
   
9. 
   Light courts with a minimum dimension of one (1) metre clear to the sky, not including land on abutting lots, for the following windows:
   

• 
  Unit 1: west facing kitchen window
  
• 
  Unit 2: east facing windows serving kitchen and family room
  

2. 
   The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
   
3. 
   All common boundary fences are to be a minimum of 1.8 metres above the finished ground level to the satisfaction of the Responsible Authority. The fence heights must be measured above the highest point on the subject or adjoining site, within 3 metres of the fence line.
   
4. 
   The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
   
5. 
   Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
   

Tree Protection and Landscaping

6. 
   Before the development (including demolition and any site works) starts, a tree protection fence must be erected at a minimum setback of 2.8 metres from the trunk of the tree within the front nature strip to define a Tree Protection Zone. The fence must be constructed of wire or similar as per the relevant Australian Standards to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until construction is completed.
   
7. 
   A landscape plan generally in accordance with the plan dated February 2017 and prepared by Habitat Landscape and Environmental Design Consultants, drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority prior to the commencement of any works. The plan must show the proposed landscape treatment of the site including:-
   

• 
  the location of all existing trees and other vegetation to be retained on site;
  
• 
  provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development;
  
• 
  planting to soften the appearance of hard surface areas such as driveways and other paved areas;
  
• 
  a schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material;
  
• 
  the location and details of all fencing;
  
• 
  the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site;
  
• 
  details of all proposed hard surface materials including pathways, patio or decked areas.
  

Tree planting should be kept clear of the easement.

When approved the plan will be endorsed and will then form part of the permit.

8. 
   Before the occupation of the buildings allowed by this permit, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
   

Vehicle access and car parking

9. 
   Approval of the proposed crossings, and a permit for installation or modification of any vehicle crossing is required from Council’s Engineering Department.
   
10. 
    The proposed crossings are to be constructed in accordance with the City of Monash standards.
    

Engineering

11. 
    All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from each driveway onto the footpath. Such a system may include either:
    
    1. 
       a trench grate (150 mm minimum internal width) located within the property; and/or
       
    2. 
       shaping the driveway so that water is collected in a grated pit on the property; and/or
       
    3. 
       another Council approved equivalent.
       
12. 
    Stormwater discharge is to be detained on-site to the predevelopment level of peak stormwater discharge. Approval of any detention system is required from Council prior to works commencing.
    
13. 
    The nominated point of stormwater connection for the site is to the south west corner of the property where the entire site's stormwater drainage must be collected and free drained via a pipe to the 225mm Council drain to Council’s standards. (A new pit is to be constructed to Council Standards if a pit does not exist or is not a Council standard pit). Note: If the point of connection cannot be located then notify Council's Engineering Department immediately.
    
14. 
    Any new drainage work within the road reserve or connection in to a Council easement drain requires the approval of the Council's Engineering Division prior to the works commencing. A refundable security deposit of $500 is to be paid prior to the drainage works commencing.
    
15. 
    Engineering permits must be obtained for new or altered vehicle crossings and new connections to Council pits and these works are to be inspected by Council (telephone 9518 3555).
    
16. 
    Reductant vehicle crossings to be removed and reinstated with kerb and channel to the satisfaction of Council.
    

Time Limit

17. 
    This permit will expire in accordance with section 68 of the Planning and Environment Act 1987, if one of the following circumstances applies:
    

• 
  The development is not started before 2 years from the date of issue.
  
• 
  The development is not completed before 4 years from the date of issue.
  

In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months of the permit expiry date, where the development allowed by the permit has not yet started; or within 12 months of the permit expiry date, where the development has lawfully started before the permit expires.

– End of conditions –

1 Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

2 The submissions and evidence 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.

3 The transitional provisions at clause 32.08-14 of the amended GRZ confirm that the minimum garden area requirement of clause 32.08-4 and the maximum building height and number of storeys requirements of clause 32.08-9, as introduced by VC110, do not apply to this proceeding.

4 Clause 22.01-1, Monash Planning Scheme.

5 Following the gazettal of VC110, Council is currently considering the implications of the amendments to the planning scheme on the content of Amendment C125 and whether any amendments to C125 will be required to ensure that it can achieve its objectives.

6 [2014] VCAT 749 (20 June 2014).

7 Ibid, at [14].

8 I note that the ultimate location and width of the eastern crossover is dependent on the advice to be obtained with regard to retention of the existing street tree. My finding that the second crossover is acceptable on this site is not reliant on the precise location shown in the amended plans.

VCAT Reference No. P1745/2016

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