VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1245/2023
Permit Application no.P/2023/6116 	
CATCHWORDS	
Section 77 Planning and Environment Act 1987 (Vic); Neighbourhood Residential Zone Schedule 4; Neighbourhood character; Three dwellings on a lot; Density; Landscaping; Car parking.	

Applicant	Planning Vision Pty Ltd	

Responsible Authority	Knox City Council	
RespondentS	Lyn Lanham & Rick Lanham	
	Shirley Pettitt & Robyn Gilmour	

SUBJECT LAND	6 Tara Court
WANTIRNA VIC 3152	

HEARING TYPE	Hearing	

DATE OF HEARING	2 May 2024	

DATE OF ORDER	20 May 2024	

CITATION	Planning Vision Pty Ltd v Knox CC [2024] VCAT 470	

Order
Amend name
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) the statement of grounds of Shirley Pettittf & Robyn Gilmour is amended by changing the name of ‘Shirley Pettittf’ to:
Shirley Pettitt 
Amend permit application 
2	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:	SiteLine Building Design & Planning	
•	Drawing numbers:	TP02 to TP09, all Revision C	
•	Dated:	14 March 2024	

No permit granted
3	In application P1245/2023 the decision of the responsible authority is affirmed.
4	In planning permit application P/2023/6116 no permit is granted.

Joel Templar
Member			

Appearances
For Planning Vision Pty Ltd	Spiro Neofitou, town planner of Planning Vision Pty Ltd.	
For Knox City Council	John Klarica, town planner of Calibre Planning.	
For Lyn Lanham & Rick Lanham	Lyn Lanham, in person.	
For Shirley Pettitt & Robyn Gilmour	Shirley Pettitt, in person.	

Information
Description of proposal	Construction of three double storey dwellings on a lot.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Knox Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 4	
Permit requirements	Clause 32.09-7 – to construct two or more dwellings on a lot.	
Land description	The review site is located on the north-west corner of Tara Court and Rachelle Drive. It is irregular in shape with a frontage of 14.33 metres to Rachelle Drive, a secondary frontage of 31.85 metres to Tara Court, a splay to the corner and an overall area of 722 square metres. The site is occupied by a detached single storey brick dwelling, set back 11.1 metres from the street frontage. Vehicle access is via a crossover from Tara Court adjacent to the western boundary. The site has a topographic fall of approximately 1.8 metres from the south-west to the north-east (front). 	
Tribunal inspection	15 May 2024	

  Reasons
What is this proceeding about?
1	This proceeding concerns the review by the applicant of the council’s decision to refuse to grant a permit for the construction of three double storey dwellings on the review site.
2	The council refused the proposal based on a number of grounds but primarily relating to it being an inappropriate fit with the neighbourhood character, as well as various non compliances with a number of clause 55 objectives and standards.
3	These reasons were expanded upon at the hearing, despite the fact that the applicant for review sought, and was granted, leave to substitute a new set of plans to be the application plans. The key issues raised by the Council related to the extent of built form across the site, inadequate setbacks including front setback to Rachelle Drive, the attached nature of the ground floor of the proposal and the lack of separation at the upper floor level. The Council also submitted that the landscaping proposal by Mr Thomson, while in itself was acceptable, was constrained by the extent and layout of the built form including the three driveways proposed to the Tara Court frontage.
4	As part of the permit application process, the proposal was advertised to adjoining and nearby owners and occupiers. A total of seven objections was received and two of those objectors are a party to this proceeding, attended the hearing and made submissions to the Tribunal. These respondents echoed the Council’s concerns and also raise matters relating to traffic and car parking impacts on the surrounding area.
5	There was no dispute between the parties that the review site is suitable for some form of more intense development than what presently exists.
6	The applicant essentially refuted all of the concerns that were raised by the council and the respondents, and cited a number of other examples throughout the municipality as well as more intense development along Wantirna Road and within visible distance of the review site to justify the extent of change between the proposal and the surrounding area.
7	However, I have found that the proposal will not be an acceptable insertion into its context. I explore my reasons below.
built form and landscaping 
8	Aside from the traffic and car parking matters raised by the respondent, the central dispute amongst the parties related to the acceptability of the built form in this physical and strategic planning context, and whether the landscaping proposed would assist in integrating the proposal into the surrounding area.
9	The applicant submitted that the proposal maintains a front setback that is consistent with what is found in the broader area, including the smaller setbacks generally found opposite the review site. It was also submitted that the dwellings are articulated at first floor, with the first floors being recessed from corresponding ground floor elements, separation between respective first floor areas and differentiating materials.
10	In response to the council’s criticisms of non-compliance with Standard B28 of clause 55.05-4, the applicant said that the purpose of the variation of that standard to require more secluded private open space (SPOS) than the default, is to provide additional area for landscaping. It said that any shortfall is minimally below the requirement and is of no material impact, especially when considering the extent of landscaping proposed in Mr Thomson’s plan. On this basis, the applicant said the relevant objective is met.
11	The applicant accepted that there is only a small degree of medium density in the immediately surrounding area but that in the broader area, there are similar developments, such as in Selkirk Avenue to the north, which is the same neighbourhood character area under policy.
12	Further, the applicant said that the higher density developments along Wantirna Road adjacent to Tara Court properties are also readily visible.
13	The applicant also relied on a number of previous Tribunal decisions where it said the circumstances were similar enough to be applicable in this case. While some of the principles from those cases might be relevant, there are clearly distinguishable facts in those cases when compared with this one. 
14	It is not a new stance of the Tribunal to give little weight to other cases that are of limited or no relevance given the merits of each case are usually almost always different. It is for these reasons that I have not listed all of the decisions referred to or the parts of those decisions that the applicant referred to during the hearing.
15	The review site is located in the Neighbourhood Residential Zone Schedule 4. The emphasis in the zone purpose relates to respecting existing or preferred neighbourhood character as relevant in this case, rather than encouraging diversity and growth as it is in the General Residential Zone.
16	Clause 21.03 (Environment and landscape values) makes reference to maintaining and strengthening Knox’s green and leafy image and its identifiable landscape character and value by retaining trees and planting new vegetation to enhance natural values.
17	Clause 21.01-2 includes a scaled approach to urban consolidation objectives. This clause seeks to facilitate housing growth within the local living and activity areas with Knox Neighbourhood and Bush Suburban areas identified as having different roles to the others.
18	The review site is located within the Knox Neighbourhood area.
19	Knox Neighbourhood Areas covers a significant proportion of the residentially zoned land within the municipality. The alignment of Dorset Road in Boronia, which is much further east of the review site, provides a delineation between Knox Neighbourhood and Bush Suburban areas in the municipality, although there are a limited number of Bush suburban areas west of Dorset Road as depicted in the map below.

The Knox Housing Framework Plan. Site Location annotated.

20	The Knox Housing Strategy 2015 (a reference document at clause 21.06 and 22.07) seeks to balance changing housing needs and protecting character, by adopting a scaled approach to residential development, which directs specific types of housing to areas with good access to a range services and infrastructure and away from areas with special local character and significant environmental values. 
21	Knox neighbourhood areas have a preferred character as follows:
Knox Neighbourhood Areas represent the majority of Knox’s residential areas and have a sense of spaciousness within the public and private realm. These areas will continue to be low-scale neighbourhoods, characterised by detached dwellings with large backyards which contribute to the area’s green and leafy character.
22	The requirement to respect neighbourhood character is a principal consideration in this case as drawn from policy, and in defining the preferred neighbourhood character, Clause 22.07 provides the relevant direction as to how a development should be assessed. 
23	In this instance council’s view is that the proposal does not meet the Neighbourhood Character (Clause 22.07) policy objectives. The relevant objectives at clause 22.07-2 are: 
To facilitate development that is responsive to the unifying 'green and leafy' character of Knox. 
To facilitate development that is responsive to the desired future character of the area. 
To support sustainable urban growth by directing housing to preferred locations. 
To support a range of housing types and forms to meet the needs of the existing and future community. 
To support more intensive development in areas where there is access to frequent and reliable public transport services, shopping, employment and community facilities. 
To facilitate the design and scale of new development makes a positive contribution to the area’s built form.
24	Following on from these, policy guidance is provided for Knox Neighbourhood Areas at clause 22.07-4: 
Knox Neighbourhood areas have the characteristics that many people value about living in Knox – a sense of open space, fresh air, trees and large backyards. In this sense, they are ‘typical Knox’ and represent the majority of Knox’s residential areas. Some areas have access to bus services, but in many locations the car is the main way of getting around.
25	The Preferred Future Character is that this area will: 
•	Continue to be low-scale neighbourhoods, characterised by detached houses and dual occupancies; with some villa unit developments on larger blocks. 
•	Retain their green and leafy identity and character through the retention of front and back yards, and the establishment of a garden setting that includes canopy trees. 
26	Under clause 22.07-4, Knox Neighbourhood areas, the following Design objectives apply:
•	To retain and enhance the streetscape by the planting of appropriate trees on private land.
•	To avoid the dominance of buildings from the street.
•	To avoid the loss of front and rear garden space.
•	To avoid the dominance of car storage facilities from the street.
•	To retain large backyards for landscaping and open space.
•	To require buildings to reflect the prevailing scale of buildings in the street.
27	It is evident to me that within the preferred character sought for Knox neighbourhood areas, there is a degree of reflecting the existing character rather than strictly a new and vastly different character being sought. This is not inconsistent with the purpose of the NRZ4. This was also not disputed at the hearing by the parties.
28	The surrounding area is a residential area that comprises very modest dwellings on moderate sized suburban lots.
29	Vegetation character is mixed but is relatively modest in general. There are some limited locations in the area that have some more substantial clusters of vegetation both within private property and in the road reserves, as well as the reserves abutting the review site to the north-west and west. However, overall, vegetation and canopy trees are relatively modest contributors to the overall character of the area.
30	Built form comprises low-set, single storey dwellings likely constructed in the 1970s or 1980s when these parts of Melbourne were first made available for suburban residential development. There are some variations to the modest single storey character, however these examples are quite limited in the broader area.
31	The higher density residential development further to the west along Wantirna Road, whilst visible, is not overtly evident in the surrounding area, even when viewed from within Tara Court. These developments are double storey towards Tara Court. 
32	Furthermore, the development referred to by the applicant in Selkirk Avenue is quite some distance away from the review site and there is no direct access to this street from the estate within which the review site sits – access to this area is via Wantirna Road only, and it is beyond the Healesville Freeway reserve to the north. Refer to the map below.

Map identifying the review site (covered by blue and white ‘pin’). Note Selkirk Avenue further to the north (top of the map).
33	On approach to the review site from Rachelle Drive from either direction, the existing presentation of built form is, in my view, even more modest than what is found in the general area by virtue of the relatively small dwelling, it being single storey in scale, and further set back from the Rachelle Drive frontage than many other dwellings nearby. 
34	During the hearing the applicant submitted that the setbacks on the eastern side of Rachelle Drive opposite the review site are much less than those on the western side. It is my assessment that these dwellings are typical of those found in the surrounding area, again being generally relatively modest, low set, single storey dwellings with modest landscaping.
35	Both the council and the applicant agreed that given the broad application of policy that applies in this case, that a contextual approach is required to the assessment of whether the proposal is an acceptable outcome. My view is that there is a strong weighting towards responding to the existing character, and that a proposal in this context needs to respond to what I have described as the relatively modest presentation of housing.
36	In this case, I find that the proposed development is not sufficiently respectful of the existing character such that I can support it.
37	Whilst the site area is over 700m² in area, the existing character and the way which this proposal has been designed, are too far apart.
38	The proposal is double storey, which is compliant with the maximum height under the zone, however, the combination of the double storey form, the attached nature at ground floor level and the minimal spacing of the upper floors between each of the dwellings, combined with the front setback being forward of the adjoining dwelling to the north result in a proposal that I find will not be an acceptable response to the preferred, and therefore also the existing, character.
39	Whilst being a corner site where there is an expectation of greater built form presentation, I find that the proposal will be too imposing on the modest nature of the surrounding area. Some separation at ground floor level and greater separation at first floor level between dwellings would be required for an acceptable outcome, along with lesser hard paving along the Tara Court frontage.
40	I accept that the landscaping proposal from Mr Thompson is largely an acceptable one and would be complementary to the proposed development, save for perhaps some minor changes particularly along the western boundary, it is imperative that the proposed development of itself in principle responds to the character of the surrounding built form, without placing such a high level of reliance upon landscaping.
41	This site is no one that is located so proximate to an activity centre, nor is zoned for greater density such that policy demands a vastly different character outcome. This is a more ‘hinterland’ residential location where I find a contextual response demands a more modest outcome. I note that the size of each of the three dwellings is already relatively limited. That is not to say that three dwellings could not be achieved on this site but a more contextual response demands lesser built form and this may impact the number of dwellings achievable.
42	For these reasons I find that the proposal will not be an acceptable response to the relevant policy in the planning scheme that seeks a proposal respond to its context and that it will not be an acceptable response and development insertion into the existing area.
traffic and car parking
43	Ms Pettitt raised concerns with the impact the proposal would have on on-street parking, including the loss of existing on-street parking in Tara Court due to the provision of two additional crossovers, and the cumulative impact this would have on available on-street parking in the surrounding area. 
44	It was also submitted that on-street parking has been an issue in this area for some time and the council had recently implemented four-hour parking restrictions along Rachelle Drive from the Mountain Highway to 21 Rachelle Drive, which is the property that adjoins the review site to the north. This is something I also observed on my site inspection.
45	Furthermore, submissions were made about the Tristaniopsis tree proposed between the driveways of units 1 and 2, and the possibility of falling debris from this tree dissuading occupants from parking in the respective driveways and further contributing to on-street parking congestion.
46	The additional two crossovers to Tara Court will obviously have some impact on the availability of on-street parking in Tara Court.
47	The proposal complies with the car parking provision and design standards required at clause 52.06 of the planning scheme. There was also no evidence or material provided to indicate that on-street parking in the surrounding area is at ‘saturation’ point. The implementation of four-hour parking restrictions in Rachelle Drive is perhaps an indicator of non-parking unassociated with the residential use of the area having some impact. However, on balance, I am not persuaded that this issue is of such a magnitude to be cause for not directing the granting of a permit at this point.
48	Furthermore, in relation to the Tristaniopsis planted between the driveways of units 1 and 2, Mr Thomson’s evidence was that this species has very little debris that drops and is therefore unlikely to dissuade future occupants from parking in respective driveways. I accept his evidence.
49	For these reasons, I do not find that there would be any traffic or car parking reasons to direct that no permit be granted.
Conclusion
50	For the reasons given above, the decision of the responsible authority is affirmed.  I direct that no permit be granted.

Joel Templar
Member