VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1710/2022
Permit Application no.WH/2008/3/C 	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Whitehorse Planning Scheme; 
Two dwellings: Neighbourhood character & on-site amenity – NRZ5; SLO9	

Applicant	Qing Luo	

Responsible Authority	Whitehorse City Council	

SUBJECT LAND	936 Canterbury Road
BOX HILL SOUTH VIC 3011	

HEARING TYPE	Hearing	

DATE OF HEARING	23 June 2023	

DATE OF ORDER	23 August 2023	

CITATION	Luo v Whitehorse CC [2023] VCAT 965	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Arkon Project Management (Architectural Plans)
Green Change Solutions (Landscape Plan)	
•	Drawing numbers:	TP02 to TP05: all VCAT Issue (Architectural Plans)
L01, Version 1B (Landscape Plan)	
•	Dated:	May 2023 (Architectural Plans)
27.04.23 (Landscape Plan)	
Permit amended
2	In application P1710/2022 the decision of the responsible authority is set aside.
3	Planning permit WH/2008/3/C is amended and an amended permit is directed to be issued for the land at 936 Canterbury Road, Box Hill South VIC 3011 in accordance with the endorsed plans and the conditions set out in Appendix A.  The amended permit allows:
•	Construction of a two (2) storey building containing two (2) apartments and one double storey dwelling to the rear, and alteration of access to a road in a Transport Zone 2.

Tracy Watson
Member			

APPEARANCES
For Applicant	Chris Mackenzie, planning lawyer.  	
For Responsible Authority	David Song, town planner.
	
INFORMATION
Description of Proposal	It is proposed to construct two dwellings in the front portion of the subject site.  	
Nature of Proceeding	Application under Section 77 of the Planning and Environment Act 1987 - to review the refusal to grant an amendment to the permit.  	
Planning Scheme	Whitehorse.	
Zone and Overlays	Clause 32.09 – Neighbourhood Residential Zone, Schedule 5 (NRZ5).
Clause 42.03 – Significant Landscape Overlay, Schedule 9 (SLO9).
Clause 45.01 – Public Acquisition Overlay, Schedule 4 (PAO4).  The PAO4 applies to the front part of the site.	
Permit Requirements	Clause 32.09-6 – Construct two or more dwellings on a lot.
Clause 52.29-2 – Alter access to a road in a Transport Zone 2.
There are no permit triggers under the SLO9.	
Relevant Scheme policies and provisions	Includes Clauses 15, 16, 21.04, 21.05, 21.06, 22.03, 22.04, 22.10, 32.09, 42.03, 52.06, 55, 65 and 71.02.	
Land Description	The subject site is a rectangular shaped allotment located on the southern side of Canterbury Road, with a frontage of 16.51 metres and a depth of 45.72 metres, yielding a site area of 755m2.  The subject site is currently developed with a single storey dwelling in the front part of the site and a double storey dwelling at the rear.  	
Tribunal Inspection	An unaccompanied site inspection was undertaken on 21 July 2023.	

REASONS
What is this proceeding about?
1	The permit applicant has lodged an application with the Tribunal to review the Whitehorse City Council’s decision to refuse to grant an amendment to existing planning permit no. WH/2008/3.  The existing planning permission allows the construction of a double storey dwelling to the rear of the existing single storey dwelling.  The double storey dwelling has been constructed, and the amendment is sought to allow for the replacement of the existing single storey dwelling with a new double storey building to accommodate a dwelling on each level.
2	The key reasons that the Council decided to refuse the amendment relate to concerns regarding the neighbourhood character and on-site amenity implications of the proposed amendment to the permit.  The Council argued that the proposed amendment of the permit does not result in an acceptable planning outcome
3	The Tribunal must decide whether the permit should be amended and, if so, what conditions are necessary.  Having considered all the submissions, with regards to the applicable policies and provisions of the Whitehorse Planning Scheme, I have decided to set aside the decision of the Responsible Authority.  My reasons follow.
Does the proposed amendment of the permit result in an acceptable planning outcome?
4	The Council was concerned that the development of the proposed double storey building at the front of the subject site is contrary to the neighbourhood character aspirations for this area, which does not include the active encouragement of apartments (unlike in the Substantial Change Areas).  Consequently, the Council submitted that the proposed building does not respect the preferred neighbourhood character of this area, including the landscaping outcomes sought by the NRZ5.
5	The subject site is located within a Limited Change Area and within a Garden Suburban 3 Precinct under Clauses 21.06 and 22.03 of the planning scheme.  Within this policy context, the Council said that new housing in the form of units or townhouses is the preferred form of medium density housing.  The planning scheme identifies Limited Change Areas as representing the lowest degree of housing growth (refer to Clause 21.06-1), but, nevertheless, it does anticipate some limited medium density development in these areas (refer to Clause 21.06-3).
6	In addition, Clause 22.03-4 of the planning scheme identifies that new housing development in Limited Change Areas will predominantly comprise either detached dwellings or semi-detached dwellings, and encourages a limit of two dwellings per lot.  However, Clause 22.03-4 of the planning scheme also includes a strategy to, “Provide some diversity of dwelling sizes and tenures, including affordable housing, where feasible.”  I consider that the proposed, modestly sized, two-bedroom dwellings in an apartment layout meets the housing diversity aims of the planning scheme.  I find that the key determinative factor in this case is whether the proposed built form and landscaping outcomes achieve the desired neighbourhood character outcomes.  In other words, the proposed housing typology does not, in and of itself, result in an unacceptable planning outcome. 
7	The preferred character for the Garden Suburban 3 Precinct under Clause 22.03-5 of the planning scheme is:
The area will retain its classic garden dominated characteristics with low scale dwellings set in generous garden settings. Wide front and side setbacks from at least one side boundary allow views between dwellings, and low or open style front fences will continue to contribute to the spacious character of the area. The landscape settings will be enhanced through the planting and growth of new vegetation, including large shrubs and tall canopy trees.
Properties abutting or situated close to Gardiner’s Creek will contain substantial vegetation, and development will be sited so that the overall visibility of buildings is minimised when viewed from the creek corridor.
Areas with good access to trams and Wattle Park shopping centre will accommodate more dwellings, including well designed medium density housing, with slightly more compact siting than the remaining residential areas, but with space for large trees and gardens.
8	This preferred character is supported by the NRZ5 provisions which contains additional decision guidelines, and local variations to Standards B6, B8, B9, B13, B18, B28 and B32 of Clause 55.
9	Importantly, in this case, the proposed building is largely sited in the location of the existing dwelling and utilises the existing side vehicle accessway and rear carport area.  This maintains the sense of space and the garden setting of the existing front dwelling, as the new replacement building provides a generous 9 metres front setback, 1.493 metres side setback to the east, and a minimum 4.2 metres side setback to the western boundary.  The proposal also essentially maintains the amount of open space available for landscaping, being the front garden area (where two canopy trees will be planted), either side of the driveway and the secluded private open space area located to the east of the carport (where one canopy tree will be planted).  Put another way, the proposed amendment does not negatively impact the landscaping outcome, and I do not think it is necessary for any additional canopy tree planting to be provided.  
10	Moreover, the new building is limited to two storeys (that is, it is ‘low-scale’), and will not read as an apartment building, but rather it will create the visual impression of being a new single dwelling.  I do not consider that there is anything about the siting, scale, form, or design detail of the proposed building that is inconsistent with the outcomes sought for the Garden Suburban 3 Precinct.  
11	Furthermore, the new building is located in an area which includes more robust built forms and front fencing by virtue of its main road location on Canterbury Road.  This includes the immediate side abuttals which comprise two, two storey high townhouses under construction to the east, and a two storey high building which accommodates eight apartments to the west.  In other words, the proposed building is not at odds with the existing character of the area.
12	The Council argued that the proposal does not comply with Standards B28 and B29, and that therefore an acceptable level of on-site amenity is not provided for the proposed dwellings.  The Council also submitted that the functionality of the carparking arrangements is unclear, however, Mr Mackenzie satisfactorily clarified this during the hearing.
13	As this is an apartment proposal, it is Standard B43 which applies to the provision of private open space, rather than Standard B28.  This is confirmed by the Tribunal decision referred to in the applicant’s submission (D’Amico v Glen Eira CC [2021] VCAT 25).
14	It is proposed to provide Dwelling 1 with a 46m2 rear secluded private open space area with dimensions of 5 metres, and in part a 4.2 metres depth, along with a 149m2 front garden area which will also provide a partially secluded environment by way of a combination of fencing and hedging.  The proposed secluded private open space for Dwelling 3 is in the form of a 36m2 roof terrace (measuring 6 metres by 6 metres).  The private open space areas for both new dwellings exceeds the quantitative requirements of the applicable Standard B43, and I am therefore satisfied that the associated objective at Clause 55.07-9 of the planning scheme is met.
15	I am satisfied that an appropriate level of solar access to the proposed roof terrace has been achieved through the changes made in the amended plans, which has decreased the roof overhang of this terrace from 3 metres to 1.5 metres, thus providing an area of 4.5 metres in depth which is clear to the sky.  I do not think that it is warranted to require this overhang to be further reduced.  Additionally, the combination of the two ground level open space areas provided for proposed Dwelling 1 ensures that overall the level of solar access provided is acceptable.
16	In summary, I am satisfied that the proposed development is an acceptable planning outcome and meets all of the Clause 55 objectives.

Conclusion
17	For the reasons outlined above the decision of the Responsible Authority is set aside and an amended permit shall issue, which does not require any further changes to the substituted plans. 

Tracy Watson
Member			

Appendix A – Permit Conditions

Permit Application No	WH/2008/3/C	
Land	936 Canterbury Road
BOX HILL SOUTH VIC 3011	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of a two (2) storey building containing two (2) apartments and one double storey dwelling to the rear, and alteration of access to a road in a Transport Zone 2.	

Conditions
1	Before the development starts, or any trees or vegetation removed, amended plans must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:
a.	Deleted;
b.	A 300mm trellis with maximum transparency of 25% to be permanently fixed to the top of the east and south boundary fence, extending 5 metres from the junction of these two boundaries to the west, and 15 metres from the junction of these two boundaries to the north;
c.	Deleted;
d.	Deleted;
e.	Deleted;
f.	Notation on the plans that construction works for the driveway within 2.5 metres of the trunks of Trees 18 and 17 is to be constructed at or above grade;
g.	The proposed vehicular crossover to be constructed in accordance with VicRoads requirements in Conditions 8 and 9.
h.	A landscape plan in accordance with Condition 3.
All of the above must be to the satisfaction of the Responsible Authority.
Once approved the plans will be endorsed and will form part of the permit.
2	The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.
3	No building or works shall be commenced (and no trees or vegetation shall be removed) until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and endorsed by the Responsible Authority.  This plan when endorsed shall form part of this permit.  This plan shall show -
a.	A survey of all existing vegetation, abutting street trees, natural features and vegetation.
b.	Buildings, outbuildings and trees in neighbouring lots that would affect the landscape design.
c.	Planting within and around the perimeter of the site comprising trees and shrubs capable of:
-	providing a complete garden scheme,
-	softening the building bulk,
-	providing some upper canopy for landscape perspective,
-	minimising the potential of any overlooking between habitable rooms of adjacent dwellings.
d.	A schedule of the botanical name of all trees and shrubs proposed to be retained and those to be removed incorporating any relevant requirements of condition No. 1.
e.	The proposed design features such as paths, paving, lawn and mulch.
f.	A planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant.
Landscaping in accordance with this approved plan and schedule shall be completed before the building is occupied.
Once approved these plans become the endorsed plans of this permit.
4	The Applicant/Owner shall be responsible to meet all costs associated with reinstatement and/or alterations to Council or other Public Authority assets deemed necessary by such Authorities as a result of the development.  The Applicant/Owner shall be responsible to obtain an "Asset Protection Permit" from Council at least 7 days prior to the commencement of any works on the land and obtain prior specific written approval for any works involving the alteration of Council or other Public Authority assets.
5	The subject land must be drained to the satisfaction of the Responsible Authority.
6	The garden areas shown on the endorsed plan and schedule shall only be used as gardens and shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority.  Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.
7	Any works to be constructed over easements shall be undertaken only with the written permission of the relevant controlling authority, to the satisfaction of the Responsible Authority.
8	VicRoads Conditions
8.1	The proposed vehicular crossover on Canterbury Road shall be constructed at least 4.5 metres wide, as measured at the property boundary, to the satisfaction of the Responsible Authority.
8.2	The edges of the vehicular crossover shall be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions.
8.3	All car parking spaces must be designed to allow vehicles to drive forwards when both entering   and exiting the property, to the satisfaction of the Responsible Authority.
8.4	The developer must pay the full cost of all road works, drainage, service relocation, and any other associated costs.
9	This permit will expire if one of the following circumstances applies:
a)	the development is not commenced within two (2) years from the date of issue of this permit;
b)	the development is not completed within four (4) years from the date of issue 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.

This Permit has been amended as follows:

Date	Description of Amendment	
18/2/2010	Amendments to plans to include the following change(s):
-	Increase rear setback of Dwelling 2 to 1.6 metres
-	Change to windows for Dwelling 2
-	Re-instatement of the storage room for Dwelling 1
Deletion of Condition 1 c)	
[insert approval date]		

– End of conditions –