VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1639/2022
Permit Application no.M/2021/824 	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Maroondah Planning Scheme; 
Six dwellings: Neighbourhood character (built form & landscaping), NRZ3, SLO3	

Applicant	259 Dorset Pty Ltd	

Responsible Authority	Maroondah City Council	
Respondent	Christopher O'Sullivan	
Referral Authority	Head Transport for Victoria (Department of Transport)	

SUBJECT LAND	259-261 Dorset Road
CROYDON VIC 3136	

HEARING TYPE	Hearing	

DATEs OF HEARING	29 & 30 June 2023	

DATE OF ORDER	25 October 2023	

CITATION	Dorset Pty Ltd v Maroondah CC [2023] VCAT 1186	

Order
No permit granted
1	In application P1639/2022 the decision of the responsible authority is affirmed.
2	In planning permit application M/2021/824 no permit is granted.

Tracy Watson
Member			

APPEARANCES
For Applicant	Tamara Orrlov, town planner.  Ms Orrlov called expert evidence from Robert Thomson, landscape architect.	
For Responsible Authority	Irene Plakidis, town planner.	
For Joint Respondent	Christopher O’Sullivan.	
For Referral Authority	No appearance.	
INFORMATION
Description of Proposal	It is proposed to develop four, double storey dwellings, and two, single storey dwellings on the subject site, which requires associated vegetation removal.	
Nature of Proceeding	Application under Section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning Scheme	Maroondah.	
Zone and Overlay	Clause 32.09 – Neighbourhood Residential Zone, Schedule 3 (NRZ3).  
Clause 42.03 – Significant Landscape Overlay, Schedule 3 (SLO3).
Dorset Road is in a Transport Zone 2 (TRZ2).	
Permit Requirements	Clause 32.09-6 – Construct two or more dwellings on a lot. 
Clause 42.03-2 – Vegetation removal.
Clause 52.29-2 – Create or alter access to a road in a TRZ2.	
Relevant Scheme, policies and provisions	Includes Clauses 11, 13, 15, 16, 18, 19, 21.02, 21.06, 21.07, 22.02, 22.15, 32.09, 42.03, 52.06, 52.29, 53.18, 55, 65 and 71.02.	
Land Description	The subject site is located on the eastern side of Dorset Road, and is currently developed with a single dwelling.  The subject site has a rectangular shape with a frontage of 36.58 metres and a depth of 45.72 metres, yielding a site area of 1,672m2.  The subject site is located in an established residential area.	
Tribunal Inspection	15 August 2023.	

Reasons
What is this proceeding about?
1	The application for review was lodged by the permit applicant against the Council’s Notice of Decision to Refuse to Grant a Permit which was issued in November 2022, on a number of grounds.  
2	In summary, the Council’s grounds of refusal primarily relate to neighbourhood character (including landscape character) and tree removal considerations.  The joint respondent agrees with the Council’s grounds of refusal, and also raises additional issues of concern.
3	An earlier development proposal on the subject site was previously considered and rejected by the Tribunal (in Zhu v Maroondah CC [2019] VCAT 23).  This previous proposal was a completely different scheme and involved the retention of the existing dwelling, construction of three, double storey dwellings in the southern portion of the subject site, and a new driveway located along the northern edge of the site.
4	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and the expert evidence, together with the applicable policies and provisions of the Maroondah Planning Scheme, I have decided to affirm the decision of the Responsible Authority.  My reasons follow.
Is the proposal respectful of neighbourhood character?
5	Because the proposal before me is an entirely different scheme to that considered in Zhu v Maroondah CC [2019] VCAT 23, some of the findings in this previous decision do not have a direct bearing on my deliberations.  For instance, many of the previous findings related to the three new double storey dwellings, specifically their vehicular and parking arrangements, on-site amenity and proximity to the existing, retained dwelling.  The previous Tribunal also made adverse findings against the proposed northern driveway.  Given the criticisms of the previous Tribunal regarding the earlier scheme, I think that a reasonable response was to essentially go back to the drawing board, and come up with an entirely new scheme.
6	The applicant relied, to some extent, on the previous Tribunal’s findings to support the extent of proposed tree removal, and landscaping response, under the new scheme before me.
7	The previous Tribunal did make positive findings in relation to the landscape plan, but this was predicated on the large size of the space available at the front of the site (including the retention of nine individual or groups of trees in this front garden area) and also in the backyard space behind the existing dwelling.  In addition, the endorsement of the previous Tribunal regarding the extent of tree removal was a holistic determination explicitly linked to the degree of tree retention within the subject site.
8	Given the very different nature of the scheme before me, it is difficult to draw any direct guidance from the previous Tribunal in relation to my decision about whether an acceptable balance between tree protection/ removal and new canopy tree planting is achieved having regard to the SLO3 landscape character objectives, which are:
To conserve the existing pattern of vegetation, landscape quality and ecosystems within the area and encourage the re-generation of vegetation.
To maintain a dense vegetation canopy that contributes to the environmental significance of the area.
To control or minimise the effect of future development upon natural features, particularly canopy trees and ridgelines.
To ensure that the development, use and management of land is compatible with the existing character and landscape protection of the area.
To maintain the overall scenic beauty of the municipality.
9	Similarly, I cannot draw any direct guidance from the previous Tribunal’s findings in regards to whether the proposed design response is respectful of neighbourhood character.  I do note, however, that the previous Tribunal, in paragraph 16, made the general observation that:
In the context of the NRZ3 and the SLO3, it is clear that while there is scope for modest housing growth, the emphasis in the planning scheme is clearly directed to landscape protection.
10	The applicant argued that the subject site’s main road location provides a different, more robust, interface as compared to that of the residential hinterland further eastwards of Dorset Road.  However, I do not think this justifies the more intensive proposed Dorset Road presentation, given that the existing character of land on the eastern side of Dorset Road is predominantly single dwellings sited within a vegetated setting, with no existing nearby medium density development on the eastern side of Dorset Road (aside from the modest two-dwelling corner developments).
11	This contrasts to the land on the western side of Dorset Road which features examples of older single storey and newer double storey medium density developments (including the nearby newer development on the north-western corner of Dorset Road and Jackson Street).  This more intensely developed character reflects the fact that the western side of Dorset Road is subject to a different suite of planning controls (being the General Residential Zone, Schedule 1; Significant Landscape Overlay, Schedule 4; and Neighbourhood Character Area No. 9).  In addition, land on the western side of Dorset Road is not identified as a Landscape Protection Area in the Strategic Framework Plan at Clause 21.02-2 or in the Residential Land Use Framework Plan at Clause 21.07-2 of the planning scheme.  Put another way, it is the relatively more sensitive character of the eastern side of Dorset Road, and its immediate hinterland further eastwards, that the proposal needs to respond to.  This applicable character area is more sensitive in terms of both the existing physical context, as well as the strategic/ policy context.
12	The appropriate degree of housing change in this more sensitive neighbourhood, as compared to other neighbourhoods, has been discussed in a previous Tribunal decision in Staples v Maroondah CC [2021] VCAT 57.  This decision relates to nearby land at no. 25 Alwyn Street, where the Tribunal at paragraph 35 said that, “the inclusion of land in the NRZ3 can be taken as representing minimal change.”  I similarly adopt this position that the subject site and surrounds on the eastern side of Dorset Road, and the areas to its east, such as along Alwyn Street, can be anticipated to accommodate some housing growth but at the lower, minimal change end of the spectrum.  The suitability of this area for a minimal degree of change is borne out by the existing physical conditions of the area.
13	The need for a more tempered degree of change at the minimal end of the housing growth spectrum in this area (as compared to land on the west side of Dorset Road, and its hinterland) is also evidenced in other Tribunal decisions relating to land proximate to the subject site.  These decisions include one relating to the land immediately to the south of the subject site at no. 263 Dorset Road (McDonald v Maroondah CC [2022] VCAT 350), where the Tribunal at paragraph 33 identified the need for new development to appropriately respond to the existing ‘sense of space’ along Beryl Street.  I consider that this ‘sense of space’ is even more evident in the properties along the eastern side of Dorset Road, and includes a strong green corridor, rearyard spine, created by the rear gardens of both the Dorset Road properties and the Alwyn Street properties.  For instance, excluding the corner properties, the only new dwelling constructed in the rearyard spine (in the block between Dorset Road, Beryl Street, Alwyn Street and Lindisfarne Avenue) is at no. 245A Dorset Road.  This two-dwelling development (located towards the Lindisfarne Avenue corner) retains the existing front dwelling, and provides a new single storey dwelling in the rear of the site.
14	Whilst, the proposed design response has some positive attributes, I agree with the Council’s position that it needs to be further tempered in order to be appropriately respectful to this particular context.  In other words, I find that the built form intensity of this proposal exceeds what can reasonably be expected in this minimal change area.  The key deficiencies in the built form outcome and its intensity are set out below. 
15	The proposed ground level front setbacks to the two front dwellings is 9.0 metres to the building façades, excluding the proposed front porches.  On this basis, the applicant’s written submission was that the proposal complies with the required 9 metres street setback under Standard B6.  However, Standard B6 includes the following statement: “Porches, pergolas and verandahs that are less than 3.6 metres high and eaves may encroach not more than 2.5 metres into the setbacks of this standard.”  Both of the proposed front dwellings include large porches with a depth of 2.5 metres (excluding eaves), however each of these porches has a height of 4.5 to 4.7 metres.  This means that the proposed porches (by virtue of their height, and their eaves which protrude beyond the 2.5 metres porch width) do not comply with Standard B6 and inappropriately intrude into the required 9 metres front setback.
16	Because Standard B6 is not met, it is not automatically deemed that the Clause 55.03-1 street objective is met, and moreover, the associated Decision guidelines do apply.  I say this because the new provisions in the ‘head’ Clause 55 (introduced by VC243 on 22 September 2023) state that if a development meets Standard B6: “it is deemed to meet the objective for that standard”; and “the decision guidelines for that standard do not apply to the application.”  In this case, as Standard B6 is not met, these new provisions do not apply.
17	I consider that the key relevant Decision guideline is a consideration of the, “visual impact of the building[s] when viewed from the street and from adjoining properties.”  The applicant’s verbal submission included an acknowledgement that Standard B6 is not met, but that the porches only project forward for a limited part of the site’s overall frontage.  Conversely, I consider that the proposed front porch elements result in an unacceptable visual impact in their existing physical context.  This is because they are not a comfortable fit with the setback of the two adjoining buildings.  The building at no. 257 Dorset Road is setback 12.19 metres, and the building at no. 263 Dorset Road is setback 12.22 metres to its front verandah.  Further, the relationship to the building to the south has a particular sensitivity due to this property having individual heritage significance (with Heritage Overlay, Schedule 96 applying to it).  In addition, the quantum of the setbacks of the two adjoining properties are not anomalous front setbacks for the eastern side of Dorset Road in this neighbourhood.  
18	On this basis, I do not consider that the proposed design response meets the Clause 55.03-1 street setback objective, “To ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site.”  Whilst I acknowledge that the proposed porches could be redesigned by way of a permit condition, I think that as a starting point it is indicative of a proposed design response that results in visually dominant buildings, in the context of this neighbourhood, particularly in regards to their siting.  In other words, it is the threshold issue of neighbourhood character which is determinative in this case.  This requires a qualitative, judgement based decision.
19	The applicant submitted that the proposed design response includes building breaks which allow for the necessary landscaping outcome, as well as appropriately responding to the existing setback patterns of the neighbourhood. 
20	As already mentioned, by virtue of the subject site being located on the eastern side of Dorset Road (as compared to the western side of Dorset Road), it is specified as being within a Landscape Protection Area at Clauses 21.02-2 and 21.07-2 of the planning scheme.  In other words, this side of Dorset Road is identified as being of ‘special environmental quality.’  This is also reflected in the application of the SLO3 to this side of Dorset Road.  Some of the key applicable strategies at Clause 21.07-2 of the planning scheme are to:
Protect and enhance areas of special environmental quality by limiting the physical and visual intrusion of high density dwelling development.
Encourage variations in development that respects the sensitive visual and physical characteristics of different residential locations within Maroondah.
Ensure new residential development contributes to achieving the preferred neighbourhood character of the neighbourhood area.
Enhance areas of special environmental quality in Maroondah.
21	The Clause 22.02 local policy also applies, which includes objectives such as:
To identify and enhance areas of special neighbourhood character in Maroondah.
To ensure that new dwellings are sited and constructed in a manner that contributes to and enhances the preferred neighbourhood character of Maroondah.
22	Under the Clause 22.02 local policy, the subject site is located within Neighbourhood Area 12 Ruskin Park, where the preferred future character will be achieved by:
Ensuring the development of complementary dwelling styles, derived from the horizontal form of existing housing stock in the older areas of the neighbourhood.
Encouraging the use of compatible materials, particularly in exclusively weatherboard areas.
Maintaining the current setback patterns, allowing space between buildings for gardens.
Ensuring the front setbacks are not dominated by car parking structures.
Ensuring the retention of existing vegetation, particularly canopy trees.
Encouraging low and open front fences where this predominates.
23	I consider that the predominant existing physical attribute of this immediate neighbourhood (that is, the area bounded by Dorset Road, Beryl Street, Alwyn Street and Lindisfarne Avenue) is one of low-scale single dwellings sited in a spacious treed setting, and featuring a prominent rearyard green spine.
24	In this spacious context, I find that the overall design response does not provide for the necessary degree of building breaks to create a comfortable fit.  This is evidenced by the minimal 1.2 metres side boundary setbacks of the two front dwellings facing Dorset Road.  The 1.2 metres side setback area of Dwelling 2 provides for no landscaping, while the 1.2 metres side setback area of Dwelling 1 is limited to a fence climbing plant (Small leaf clematis).  Further, the mid-site break provided by the proposed centrally located driveway, is inappropriately disrupted by the location of the visitor car space which is sited such that it projects forwards into the front garden area.  The landscaping response proposes Dwarf native rosemary hedging to a maximum height of 800mm in front of this car space.  Mr Thomson’s landscape plan has softened the visual appearance of this car space to the extent possible, nevertheless, I find that it will still be a visually intrusive, and visible element within the front garden area.
25	Overall, the 36.58 metres long site frontage provides for insufficient building breaks of 1.2 metres to the side boundaries and 7.0 metres in the front, mid-block section.  This results in an outcome which provides for a combined building breadth, of proposed Dwellings 1 and 2, which is unacceptably visual dominant in this neighbourhood.
26	I level the same criticism of the proposed design response in terms of its rear presentation.  The only building break within the northern and southern building spines is provided by a car space.  Whilst the ends of each of these car spaces includes a landscaping response, the car spaces themselves, obviously, cannot be landscaped.  Again, in this context, this provides for an insufficient building breaks through the length of the site.
27	I also note that the proposal does not meet the local variation to Standard B28 contained in the NRZ3 in regards to the two mid-block dwellings (being Dwellings 3 and 6).  Proposed Dwelling 3 has 62.7m2 of open space and proposed Dwelling 6 has 63m2 of open space, when the standard calls for a total amount of 80m2 for each dwelling.  I acknowledge that the associated objective to Standard B28 relates specifically to whether the dwellings provide for the reasonable recreation and service needs of future residents.  Nevertheless, this open space shortfall does serve to highlight my concern about the inadequacy of the mid-block building breaks.
28	The concept of limiting the rear buildings to a single storey scale is a positive one, however this is undermined by the proposed breadth of the rear forms.  Each of the proposed side setbacks is 1.5 metres, with a very minimal, 1.0 metre break, provided between proposed Dwellings 4 and 5.  Notwithstanding the landscaping of these spaces, this results in an overall presentation that is visually dominant due to its breadth, spanning the whole width of the rear of the subject site, aside from the three minimal breaks as described.  This results in building siting which does not adequately respect the existing rearyard spine of this neighbourhood.
29	I acknowledge that the proposed side and rear setbacks meet the local variation to Standard B17 contained in the NRZ3, and that therefore the associated objective at Clause 55.04-1 of the planning scheme is deemed to be met (as a consequence of the changes to the planning scheme implemented by Amendment VC243).  Notably this objective relates to the height and setback of a building from a boundary, and does not relate to the length of the proposed buildings (that is, the breadth of buildings).  It therefore remains open to me to determine, that from a neighbourhood character perspective, the breadth of the proposed buildings is unacceptable.
30	Mr Thomson has done what he can to soften these rear side spaces with landscaping but I find that, notwithstanding this landscaping response, the overall rear building siting is too intense for this particular neighbourhood.
31	The combined visual impact of the front, mid and rear building siting, leads me to conclude that the proposed design response does not meet the neighbourhood character objectives at Clause 55.02-1 of the planning scheme.  These objectives are:
To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
To ensure that development responds to the features of the site and the surrounding area.
32	Much of the hearing and submissions was dedicated to questions relating to the acceptability of the landscaping response and the extent of the proposed tree removal, along with the level of building encroachment into retained trees, having regard to the outcomes sought by the SLO3.
33	I have already concluded that the proposed design response is unacceptable in terms of the proposed intensity of the building siting, and that the Clause 55.02-1 objectives are not met for this reason.  Having made this finding, I must determine that the proposed design response does not result in an acceptable planning outcome.  This is because Clause 55 requires that the development must meet all of the Clause 55 objectives, as a mandatory requirement of the planning scheme.
34	As this threshold requirement has not been met, I do not find it necessary to make any findings in regards to the detail of the proposed tree removal, and the specifics of the landscaping response in terms of Standard B13 and the SLO3.
Conclusion
35	For the reasons explained above, the decision of the Responsible Authority is affirmed.  No permit is granted.

Tracy Watson
Member