VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P302/2023
Permit Application no.PLN22/0167 	
CATCHWORDS	
Two storey dwelling to rear of existing dwelling, accessway, car parking convenience, amenity, insufficient landscaping, reduced open space provision    	

Applicant	Nick Gedeon	

Responsible Authority	Greater Dandenong City Council	

SUBJECT LAND	6 Lantana Court
DANDENONG NORTH 	

HEARING TYPE	Hearing	

DATE OF HEARING	11 August 2023	

DATE OF ORDER	24 August 2023	

CITATION	Gedeon v Greater Dandenong CC [2023] VCAT 968	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Blueprint	
•	Drawing numbers:	TP01, TP02, TP03, TP04, TP05, TP06, TP07, TP08, TP09	
•	Dated:	16.06.23	
2	In application P302/2023 the decision of the responsible authority is affirmed.
3	In planning permit application PLN22/0167 no permit is granted.

K Birtwistle
Member			

Appearances
For Nick Gedeon	J Joiner, planning consultant of Joiner Planning	
For Greater Dandenong City Council	Z Ryan, town planner	

Information
Description of proposal	Construction of a two storey dwelling at the rear of an existing single storey dwelling.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Greater Dandenong Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone – Schedule 1 (NRZ1)	
Permit requirements	Clause 32.09-6 – Construction of a dwelling if there is one dwelling existing on the lot 	
Land description	The site is located on the west side of Lantana Court, Dandenong North. It has an area of 597 square metres and is developed with a single storey dwelling and vehicle accessway along its southern boundary.	
Tribunal inspection	Unaccompanied subsequent to the hearing   	

  Reasons
What is this proceeding about?
1	Nick Gedeon (the ‘applicant’) proposes to develop a two storey dwelling to the rear of the existing dwelling at 6 Lantana Court, Dandenong North. In January 2023, Greater Dandenong City Council (the ‘council’) determined to refuse to grant a planning permit for the proposed development. The applicant has requested the Tribunal to review Council’s decision.
2	Council refused the proposal on the following grounds:
•	The proposal fails to meet the relevant built form objectives of Clause 21.05-1 Urban design, character, streetscapes and landscapes.
•	The proposal fails to appropriately respond to the purposes of Clause 32.08 Neighbourhood Residential Zone and the design objectives of Schedule 1 as it fails to provide a response that respects the valued characteristics of the neighbourhood including scale, built form, setbacks private open space and high quality landscaping.
•	The proposed development fails to satisfy Clause 22.09-3.1 in relation to the General Design Principles concerning:
o	Landscaping;
o	Car parking;
o	Setbacks, front boundary and width;
o	Private open space;
o	Bulk and built form;
o	Site design;
o	Domestic services normal to a dwelling and building services; and
o	Internal amenity.
•	The proposed development fails to satisfy Clause 22.09-3.4 in relation to the specific Limited Change Area Design Principles concerning:
o	Landscaping;
o	Car parking; and
o	Bulk and built form.
•	The proposal fails to meet the following objectives and standards of Clause 55 of the Greater Dandenong Planning Scheme, specifically:
o	Clause 55.02-1: Standard B1 – Neighbourhood character;
o	Clause 55.03-5: Standard B10 – Energy efficiency;
o	Clause 55.03-8: Standard B13 – Landscaping ;
o	Clause 55.03-10: Standard B15 – Parking location;
o	Clause 55.04-1: Standard B17 – Side and rear setbacks ;
o	Clause 55.05-4: Standard B28 – Private open space; and
o	Clause 55.06-1: Standard B31 – Design detail.
•	The proposal fails to meet the following Design Standard of Clause 52.06:
o	Design Standard 1 Accessways; and
o	Design Standard 2 Car Parking Spaces.
•	The proposal fails to meet the decision guidelines of Clause 65.
3	Prior to the commencement of the hearing, the applicant circulated amended plans in accordance with the Tribunal Practice Note PNPE9.  Despite the amended plans, Council continues to maintain its opposition to the proposal. There being no objection, I allowed the amended plans to be substituted and these now form those on which my decision is reached.
4	The applicant says the development is site responsive, provides appropriate boundary setbacks and maintains the existing neighbourhood character by retaining the existing dwelling.
5	I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Greater Dandenong Planning Scheme (the ‘scheme’), I have decided to affirm the decision of the responsible authority and direct that no permit issue.
6	My detailed reasons follow.
background 
7	A previous application to construct a two storey dwelling to the rear of the existing dwelling was refused by the Tribunal in Zielinski v Greater Dandenong CC [2006] VCAT 1905. In that matter, the Tribunal said:
[13]	In my view, this application regrettably fails to provide existing or new residents with reasonable amenity standards or with a design which responds to the site.  It is sufficient for me to summarise the problems which I have with this design:
•	removal of all vegetation at the rear to make way for the new dwelling site. 
•	narrow gun barrel drive as small as 2.7m in width.
•	no opportunities for driveway landscaping.
•	all cars needing to drive past within about 0.7m of four existing habitable room windows.
•	reliance on reversing down a 25m long driveway for all vehicular movements including through a relatively narrow gap next to the existing dwelling.
•	angled tandem arrangement which protrudes onto the grassed private open space of another unit less than one metre from two habitable room windows.
•	effective boundary to boundary development on all sides other than the front.
•	very high site coverage, especially on the ‘back half’ of the land.
•	little or no opportunity for planting of screening or canopy trees.
•	all of the private open space for Dwelling 1 being under cover of an existing roofed pergola.
•	substantial paved areas.
•	a bulky and dominating aspect when viewed from the rear.
•	very poor pedestrian access to Unit 2 across a driveway and a tandem space.
•	front entrance way of Unit 2 protruding into the drive.
[14]. 	This is a design which proposes two dwellings on a site of about 600m2.  However, by virtue of the decision to retain the front dwelling, the developable land parcel is only just over 200m2 and this must accommodate the new dwelling, all the car parking, the new accessways, and the private open space for the second dwelling.
[15]	In my view, the designer has failed to achieve an acceptable outcome meaning that the occupants of the existing dwelling will be hemmed in; the occupants of the new dwelling will have poor external amenity; the occupants of both dwellings will have cars and the accessway way as the dominating aspect from internal living areas; and the residents at the rear will have a bulky intrusion set very close to the mutual boundary.
8	And further;
[17]	I find the car parking and access arrangements are particularly inadequate and bordering on the inoperable. I note that the permit applicant conceded that the “vehicle access arrangements are to a certain extent inconvenient”, but I find them to be unsafe and potentially unusable. To require a tight reverse turn at the curve of a very narrow drive trespassing over landscaped areas and then to proceed backwards for over 25 metres past habitable room windows is one of the reasons some basic amenity standards were introduced a generation ago.
Planning and policy framework
9	It is incontestable that since the decision in Zielinski, there have been a number of changes to the planning policy framework and planning provisions that apply to the land. Most notably, Amendment C182 (Part 1) which was gazetted on 21 December 2017, sought to strengthen and improve built form, amenity and landscaping outcomes throughout Greater Dandenong to achieve high quality design outcomes. Amongst other things, this amendment relevantly made changes to clause 22.09 (Residential Development and Neighbourhood Character) including the introduction of key policy directions that are in dispute in this proceeding; and modified the table of varied clause 54 and 55 standards. The zoning of the land has also altered.
Zoning
10	The land is zoned NRZ1 and in addition to implementing the Municipal Planning Strategy and the Planning Policy Framework, the zone purpose seeks to recognise areas of predominantly single and double storey residential development and to manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
11	The proposal satisfies the minimum garden area of Clause 32.09-4 and the proposed building does not exceed 9 metres or two storeys satisfying clause 32.09-10 specifies a maximum building height of 9 metres and two storeys. 
12	A permit is required to construct two or more dwellings on a lot and the objectives of clause 55 must be met and standards should be met. Schedule 1 to the NRZ applies to Neighbourhood Residential Areas and the neighbourhood character objectives are:
•	To ensure the scale, built form and setbacks of residential development responds to the existing site circumstances by respecting the valued characteristics of the neighbourhood including the predominant built form, façade street patterns and appropriate separation between dwellings.
•	To provide appropriate front, side and rear setbacks, garden areas and private open space to allow for substantial high quality landscaping, including canopy trees to protect the amenity and outlook of adjoining properties and contribute to the landscape character.
•	To maximise the opportunities to create high quality landscaping through minimal paving and the use of permeable ground surfaces.
•	To ensure vehicle accessways and storage facilities do not visually dominate the streetscape.
•	To ensure that residential development achieves high quality useable private open space outcomes for future residents, including the provision of ground level secluded private open space at the side or rear of each dwelling.
13	Clause 4.0 to the schedule varies a number of clause 55 standards including:
•	landscaping (Standard B13) by requiring 70% of ground level front setback, and side and rear setbacks, planted with substantial landscaping and canopy trees, 
•	site coverage (standard B8) to be a maximum of 50%; 
•	permeability (Standard B9) minimum of 40% instead of the 20% default,  
•	side and rear setbacks (standard B17) by requiring that a building wall opposite an area of secluded private open space or a window to a living room of an existing dwelling should be set back a minimum of 2 metres. All other buildings should be set back a minimum of 1 metre, plus 0.3 metres for every metre of height over 3.6 metres up to 6.9 metres.
•	private open space (Standard B28) by requiring in this matter, an area of 60 square metres of ground level, private open space, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with a minimum area of 40 square metres and a minimum dimension of 5 metres and convenient access from a living room; or
•	front fence height (standard B32) by requiring, in this matter, a maximum 1.2 metre height.
14	An application is required to be accompanied by a landscape plan. Decision guidelines are also specified, relevantly referring to whether the development respects the neighbourhood character of the area.
Planning scheme policies
15	The parties referred extensively to various planning scheme policies for housing, urban design and neighbourhood character. These include clause 22.09 which is Council’s residential development and neighbourhood character policy. Objectives of this policy include to:
•	guide the location and design of different types of residential development while respecting the valued characteristics and identified future character of residential neighbourhoods.
•	ensure that new residential development is consistent with the identified future character and preferred built form envisaged for the three Future Change Areas.
•	facilitate high quality, well designed residential development and on-site landscaping.
•	ensure that residential development uses innovative, responsive and functional siting and design solutions that:
o	achieve high quality internal amenity and private open space outcomes for future residents;
o	demonstrate responsiveness to the site, adjoining interfaces, streetscape and landscape context; and
o	respect the amenity of adjoining residents and the reasonable development potential of adjoining properties.
16	The site is located within the ‘lowest’ of three designated types of ‘Future change areas’, namely a ‘limited’ change area as distinct from ‘substantial’ and ‘incremental’ change areas.
17	Clause 22.09-3 notes that a particular designation of change does not imply support for the maximum building envelope, density or height on every site within the given Future change area in every instance. 
18	Clause 22.09-3 provides general design principles that all residential development should provide including:
•	substantial, high quality on-site landscaping, including screen planting and canopy trees along ground level front and side and rear boundaries.
•	substantial, high quality landscaping along vehicular accessways.
•	the planting of at least one substantial canopy tree to each front setback and ground level secluded private open space area.
•	landscaping to soften the appearance of the built form when viewed from the street and to respect the amenity of adjoining properties.
•	canopy trees should be planted in well proportioned setbacks/private open space that are sufficient to accommodate their future growth to maturity. 
•	appropriate side setbacks between buildings to enable screen planting where required, and at least one generous side setback to enable the retention of trees and/or the planting and future growth of trees to maturity.
•	good quality, useable private open space for each dwelling directly accessible from the main living area.
•	private open space should be positioned to maximise solar access.
•	preserve the amenity of adjoining dwellings through responsive site design that considers the privacy, solar access and outlook of adjoining properties
•	ensure that building height, massing and articulation responds sensitively to existing residential interfaces, site circumstances, setbacks and streetscape and reduces the need for screening.
•	provide sufficient setbacks (including the location of basements) to ensure the retention of existing trees and to accommodate the future growth of new trees.
•	ensure that dwelling layouts have connectivity between the main living area and private open space.
•	ensure that balconies and habitable room windows are designed and located to reduce the need for excessive screening.
19	The general design guidelines further state that the development of new dwellings to the rear of existing retained dwellings is discouraged where the siting of the retained dwelling would not enable an acceptable future site layout for either the proposed or future dwelling; or the retention of the existing dwelling detracts from the identified future character.
20	The land is zoned NRZ1, as it is within a Limited Change Area pursuant to clause 22.09-3.4. The scheme notes that the future character of limited change areas will evolve over time to contain a relatively limited number of well designed and site responsive detached and infill residential developments that respect the existing neighbourhood character. Residential development will be a mix of one and two storey dwellings, with main living areas and private open space at ground level. Generous landscaping is sought to make a significant contribution to the future character of these areas. Residential development will give particular consideration to providing appropriate setbacks and private open space areas and high quality landscaping, including the planting of canopy trees, to protect the amenity of adjoining dwellings and to contribute to the landscape character.
21	It is policy to assess all residential developments in the Limited Change Area against the following design principles:
•	the maximum building height is up to two storeys, including ground level.
•	development should incorporate substantial landscaping to create a landscaped character, particularly canopy trees in front and rear gardens; and to protect the outlook of adjoining properties.
•	garages and car parking areas should be located behind buildings, generally hidden from view or recessed so as to not dominate the streetscape.
•	development should ensure that the built form respects the scale of existing prevailing built form character, provides separation between dwellings at the upper level; retains spines of open space at the rear of properties to maximise landscaping opportunities and protect private secluded open space; positions more intense and higher elements of built form towards the front and centre of a site, transitioning to single storey elements to the rear of the lot.
22	The policy says that the rearmost dwelling on a lot should be single storey to ensure the identified future character of the area and the amenity of adjoining properties is respected by maximising landscaping opportunities and protecting the amenity of adjoining private secluded open space.
23	Two storey dwellings to the rear of a lot may be considered where:
•	the visual impact of the building bulk does not adversely affect the identified future character of the area;
•	overlooking and/or overshadowing does not adversely affect the amenity of neighbouring properties;
•	the building bulk does not adversely affect the planting and future growth of canopy trees to maturity;
•	sufficient side and rear boundary landscaping can be provided to screen adjoining properties; and
•	upper storey components are well recessed from adjoining sensitive interfaces.
tribunal findings
24	The proposal seeks to retain the existing dwelling on the land (shown as comprising two bedrooms), provide an open car space for this dwelling at its rear, and construct a new two storey dwelling at the rear, with two car parking spaces, one being in tandem. The proposal is shown below in Figure 1.

Figure 1: extract of ground floor plan with indicative landscape planting
25	A recurrent policy theme within the planning scheme is to respect and improve residential environments, with a particular focus on high quality design, and providing substantial planting throughout sites including the provision of canopy trees. The policy framework, neighbourhood character objectives set out in Schedule 1 to the NRZ and its varied clause 55 requirements express council’s aspirations for development that achieves high design quality, substantial landscaping throughout sites and high levels of on-site and off-site amenity. 
26	With respect to the design principle which seeks rear-most dwellings to be single storey, I agree with submissions for the applicant that policy should not be applied as though it is mandatory. However, I accept that the policy sets out five considerations which are designed to assist decision makers in the exercise of discretion in deciding whether to depart from this particular policy. These are that:
•	the visual impact of the building bulk should not adversely affect the identified future character of the area;
•	overlooking and/or overshadowing should not adversely affect the amenity of neighbouring properties;
•	the building bulk should not adversely affect the planting and future growth of canopy trees to maturity;
•	sufficient side and rear boundary landscaping should be provided to screen adjoining properties; and 
•	upper storey components should be well recessed from adjoining sensitive interfaces.
27	I do not agree with criticism that the council has adopted a fixed position that the rearmost dwelling must be single storey. I agree with their position that the particular design response does not satisfy the policy objectives nor varied Clause 55 Standard’s, all of which are intended to result in high quality design with substantial landscaping and high levels of on and off site amenity. 
28	The replacement of the existing garage in the rear yard with two storey built form would, in the context of a relatively open and spacious back yard character, bring about a significant degree of change to this back yard setting. Having considered both the existing character and the preferred character expressed for this area, I find that the proposal would have an uncharacteristic and unreasonably bulky and intrusive impact from the neighbouring secluded private open space (spos), arising from the proposed boundary setbacks and inability to establish meaningful screen planting. There is no opportunity for canopy planting along the northern and southern boundary interfaces within the review site to soften the appearance of the upper storey element. 
29	This outcome arises because of the desire to retain the existing dwelling on the land, which results in the new two storey development being squeezed into the rear third of the site. This position is consistent with the decision in Zielinski. The design provides:
•	minimal (arguably no) ability to provide landscape planting along the driveway or adjacent the southern side boundary or between the vehicle accessway and the retained Dwelling1.
•	no ability to introduce significant canopy vegetation along the northern side boundary with a gap of only one metre between proposed Dwelling 2 and the side boundary fence.
•	no ability to provide significant canopy planting adjacent the entry to Dwelling 2 with the paved car parking areas and accessway to both dwellings dominating this space.
•	compromised car parking arrangements for both dwellings. While I accept that the Planning Scheme does not require that cars be capable of exiting the site in a forwards direction, the proposed carpark space for retained Dwelling 1 is constrained. In the absence of swept paths for this space, I have concerns that cars occupying this space will be capable of safely reversing from this space (particularly where a car is parked in the tandem space for Dwelling 2), and then reversing around a tight corner to reverse down a long accessway. This is a similar concern as expressed in Zelinski. 
30	With respect to the existing dwelling, the plans do not show alterations to the existing dwelling. This means that four windows to the living room of the existing dwelling which abut the accessway do not meet Standard B15 of clause 55.03-10. The applicant suggests that these windows could be modified to meet the Standard via conditions on any permit issued. I do not consider that this will result in an acceptable outcome from an internal amenity perspective. These windows provide one of the few light sources to the combined kitchen/living room. 
31	The retention of the existing dwelling means that there are also amenity issues that arise for the existing retained dwelling.  It is not provided with north facing spos. Its spos is accessible via the laundry and a narrow deck accessed from sliding doors off the kitchen area. The spos has an area of approximately 31.5 square metres, less than the varied private open space standard (Standard B28) which requires spos at the side or rear of the dwelling with a minimum area of 40 square metres and convenient access from a living room. I do not consider that this provides suitably accessible spos of a size necessary to provide for the reasonable recreation needs of future occupants.
32	Dwelling 2 has a ground level setback to the rear boundary of between 3 and 5 metres (3.85 metres to the upper level). To the northern side boundary Dwelling 2 is set back 0.9 metres at ground level and 4.07 metres to the upper level. This setback to the northern side boundary does not meet the varied Standard B17 (Side and Rear Setbacks) which requires a building wall opposite an area of spos be set back a minimum of 2 metres. 
33	This non-compliance with the varied standard is evidence that the proposal does not respect the preferred neighbourhood character and does not limit the impact on the amenity of the existing dwelling to the north.
34	More broadly, I am not persuaded that the design suitably responds to the design principles of clause 22.09-3 or the objectives of Schedule 1 to the NRZ for the following reasons:  
•	The design does not provide opportunities for substantial, high quality on-site landscaping, including screen planting and canopy trees along ground level side boundaries.
•	The design does not provide opportunities for substantial, high quality landscaping along the vehicular accessway.
•	Where canopy tree planting is proposed (principally within the front setback), I do not consider that it is located in areas which would allow the landscaping to soften the appearance of the built form to respect the amenity of adjoining properties’ spos.
•	The design does not provide appropriate side setbacks to enable screen planting. The presentation of the proposed two storey dwelling and the relationship of this dwelling to neighbouring spos to the north would present with unacceptable levels of visual bulk.
•	The design does not provide good quality, appropriately sized, useable spos for Dwelling 1 which is directly accessible from the main living area. This dwelling has limited connectivity between the main living area and its spos.
•	The design does not limit the need for upper level screening of habitable room windows in Dwelling 2. The internal daylight to and amenity of the proposed dwelling would be unacceptable as a result.
•	The siting and design of Dwelling 2’s front entry is poorly conceived and would not meet the dwelling entry objective of clause 55.05-2. Pedestrian entry will be partly obscured given its position relative to the tandem car parking space of Dwelling 2. 
35	The planning scheme at clause 71.02-2, notes that the consistent application of planning policy over time should achieve a desired outcome. Approval of this proposal in the form proposed would not lead to the desired outcomes of high quality design, amenity and substantial landscaping that the planning scheme seeks. The reduced side setbacks and spos and the consequent inability to provide for meaningful canopy vegetation means that the proposal will present with high levels of building bulk in a way that is not encouraged by the preferred neighbourhood character provisions of the planning scheme.
Conclusion
36	In conclusion and having regard to the requirements of Clauses 65 and 71.02, the decision of the responsible authority is affirmed.  No permit is to issue.

K Birtwistle
Member