VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P547/2018
Permit Application no. P577/2017	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Brimank Planning Scheme; Residential Growth Zone – Schedule 1 (RGZ1); Multi-dwelling development; Eight (8) dwellings; Building design; Preferred character; Landscaping; Internal amenity; Integrated decision-making.	

APPLICANT	Canterlever Construction Pty Ltd	
responsible authority	Brimbank City Council	
RESPONDENT	Paul Michielin, James & Rose Ellen Hanna, Silvano Mazzuggia	
SUBJECT LAND	1 Wood Street  DEER PARK   VIC   3023	
WHERE HELD	Melbourne	
BEFORE	Sarah McDonald, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	8 August 2018	
DATE OF ORDER	11 April 2019	
CITATION	Canterlever Construction Pty Ltd v Brimbank CC [2019] VCAT 535	

Order
Amend permit application 
1	Pursuant to section 127 and 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:	Dream Design & Drafting	
•	Job reference:	17-22	
•	Drawing numbers:	1 – 6	
•	Dated:	August 2018	
No permit granted
1	In application P547/2018 the decision of the responsible authority is affirmed.
2	In planning permit application P577/2017 no permit is granted.

Sarah McDonald
Member			

Appearances
For Canterlever Construction Pty Ltd as the applicant	Mark Stanojevic, town planner,
ASK Planning Services P/L.	
For Brimbank City Council as the responsible authority	Ms Sophie Loddo, town planner,
Acorn Planning.	
For Paul Michielin	Paul Michielin, in person.	
For James & Rose Ellen Hanna	Christopher Mullan, town planner.	
For Silvano Mazzuggia	Silvano Mazzuggia, in person.	

Information
Description of proposal	It is proposed to construct eight dwellings on the subject land.
The dwellings are an attached townhouse typology, arranged in a row in two buildings down the length of the land.  Unit 1 faces Wood Street and units 2–8 face a shared pedestrian access path that extends along the western side boundary.  A shared driveway extends along the eastern side boundary.  A pedestrian path between units 4 and 5 connects the pedestrian access and driveway approximately mid-way along the length of the land.
Units 1, 4, 5, and 8 are two storeys high and units 2, 3, 6 and 7 are three storeys high.
Each of the dwellings has two bedrooms.  Units 1–7 comprise a ‘reverse living’ format, with living areas at first floor level and their private open space provided as a balcony.  Unit 8 is a traditional format, with living areas and secluded private open space provided at ground floor and bedrooms at first floor.
Each unit has a garage providing a single car parking space accessed from the shared driveway.
The front setback area is an unfenced garden. notionally forming a front garden to unit 1.  The rear setback area is the ground level private open space of unit 8.
The two-storey dwellings have hipped roofs and the three-storey dwellings have flat roofs.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Brimbank Planning Scheme	
Zone and overlays	Residential Growth Zone – Schedule 1 (RGZ1)
Development Contributions Plan Overlay – Schedule 2 (DCPO2)	
Permit requirements	Clause 32.07-5: To construct two or more dwellings on a lot in the RGZ1.	
Key scheme policies and provisions	Clauses 11, 15, 16, 21.01, 21.02, 21.07, 32.07, 45.06, 52.06, 55, 65, and 71.	
Land description	The subject land is located on the southern side of Wood Street, approximately 50m to the west of its intersection with Station Street.
The land comprises two lots and is irregular in shape with a curvilinear southern boundary.  It has a combined frontage to Wood Street of 16.76 metres, and side boundaries of 48.77 metres along the eastern side and 61.9 metres along the western side.  It is 1004 square metres in area.
A single storey detached house and associated carport/garage occupy the land.
Figure 1:  Site context

The surrounding area to the west of Station Street is generally residential in nature, while the land on the eastern side of Station Street is industrial.  The residential area is predominantly characterised by single-storey detached houses, with occasional villa units and two-storey townhouses.	
Land description
(continued)	A single storey detached house occupies the property adjoining to the west (3 Wood Street).  Along its eastern boundary the subject land adjoins a site occupied by a multi-dwelling development that comprises a two-storey townhouse facing Wood Street (1A Wood Street) and four two-storey townhouses facing Station Street (15-21 Station Street).
A telephone exchange is located on the opposite side of Wood Street, on the northern corner of Station Street.	
Tribunal inspection	An unaccompanied inspection of the subject land and surrounding area was undertaken after the hearing.	
Cases referred to	Bullion Constructions Pty Ltd v Brimbank CC [2017] VCAT 2097	

Reasons
What is this proceeding about?
1	Canterlever Construction Pty Ltd (applicant) is seeking a planning permit to develop the property at 1 Wood Street, Deer Park, (subject land) for eight (8) dwellings (proposal), comprising four two-storey and four three-storey units.
2	The original permit application proposed seven three-storey dwellings and one two-storey dwelling (original proposal).  The Brimbank City Council (responsible authority) received 46 objections to the application.  It refused to grant a planning permit for the original proposal on grounds relating to, in summary:
•	inconsistency with the Residential design provisions at clause 21.07-3 of the Brimbank Planning Scheme (planning scheme) regarding the proposal’s scale, proportion, and design;
•	failure to satisfy the objectives, requirements, and decision guidelines of the Residential Growth Zone (RGZ) at clause 32.07, regarding neighbourhood character and amenity for future occupants;
•	failure to satisfy the car parking requirements at clause 52.06;
•	failure to satisfy various objectives and requirements of clause 55;
•	detrimental visual impact on the streetscape and outlook from adjoining dwellings;
•	inconsistency with the decision guidelines at clause 65.
3	The applicant is seeking this review of the responsible authority’s decision.
4	The respondents, Mr Michielin, Mr and Ms Hann, and Ms Mazzuggia, are owners/occupiers of nearby properties who objected to the planning permit application.  They oppose the proposal on grounds relating to building height, bulk and design, neighbourhood character, internal amenity, traffic and car parking, public transport, access to shops, and waste collection.
5	Eleven other people who objected to the permit application have filed statements of grounds opposing the proposal, their objections echo those of the respondents.  While they are not parties to this proceeding I have had regard to their statements of grounds.

6	Before the hearing, the applicant circulated amended plans of the proposal and sought an amendment to the permit application to substitute the amended plans for the permit application plans.  It is on these plans that this decision is based.
7	The applicant submits that the responsible authority’s decision should be set aside and that a permit should be issued.  They say, in summary, that:
•	The proposal results in an acceptable outcome and the planning scheme does not require a perfect or ideal outcome.
•	The proposal is in line with policy expectations for the area, will make a positive contribution to the streetscape, and will satisfy the ResCode requirements and the standards of the RGZ1.
•	Deer Park is one of the few areas in the municipality where Council is encouraging intensification.
•	Intensification necessarily means that existing neighbourhood character must change, and that change has been reasonably managed.
8	Despite the amendments to the plans the responsible authority and the respondents maintain their position that the permit should be refused.
9	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  In doing so I must decide whether the proposal provides acceptable outcomes.
10	The key issues to be determined are whether the proposal provides acceptable outcomes in relation to:
•	building design;
•	landscaping;
•	internal amenity of the proposed dwellings;
•	traffic and car parking; and
•	integrated decision-making and net community benefit.
11	Having considered the submissions, statements of grounds, having had regard to the relevant policies and provisions of the planning scheme, and having undertaken an inspection of the subject land and surrounding area, I have decided to affirm the decision of the Responsible Authority to refuse to grant a planning permit.  My reasons follow.
What are my findings?
There is strategic policy support for housing intensification in this location.
Relevant planning policies and provisions
12	State and regional planning policies encourage the intensification of housing in existing urban areas close to jobs and services, and increasing housing supply and diversity.  These include the policies and strategies relating to settlement (clause 11), built environment and heritage (clause 15), and housing (clause 16) of the planning scheme.
13	The local planning policy framework relating to key land use issues (clause 21.02) recognises that population growth is expected to be contained within infill medium and higher density developments in activity centres, the General Residential Zone and the RGZ.  
14	The objectives and strategies of the local housing policy (clause 21.07) include accommodating appropriate residential growth in identified locations and encouraging higher densities within the RGZ.
15	The purposes of the RGZ (clause 32.07) include:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To provide housing at increased densities in buildings up to and including four storey buildings.
To encourage a diversity of housing types in locations offering good access to services and transport including activity centres and town centres.
Findings
16	I am satisfied that the subject land is an area in which housing intensification and diversification is supported, being within an existing urban area that offers good access to services and transport.  It is in proximity to retail and commercial services at Deer Park Village Major Activity Centre (to the north) and Derrimut Village (to the south), as well as open space and recreation facilities, and the Deer Park West Primary School.  It is also within the Principal Public Transport Network (PPTN), being close to the Deer Park railway station and bus routes along Station Street.
17	Rather, my reasons for refusing this application relate to matters of building design, landscaping, the internal amenity of the proposed dwellings, and integrated decision-making and net community benefit.
The building design is not acceptable.
Relevant planning policies and provisions
18	The Planning Policy Framework (PPF) includes various policy objectives and strategies that support development that responds to its context and neighbourhood character.  These include the building design objective (clause 15.01-2S) which seeks ‘to achieve building design outcomes that contribute positively to the local context and enhance the public realm’.  Supporting strategies include minimising the detrimental impact of development on neighbouring properties, the public realm and the natural environment, and ensuring the form, scale, and appearance of development enhances the function and amenity of the public realm.
19	The local residential design strategic statement (clause 21.07-3) states that the preferred character for RGZ areas ‘will consist of high quality design that responds to surrounding housing development in terms of appropriate buildings setbacks, colours and finishes, design detail, and landscape setting’.
20	The associated residential design objectives include ‘to promote development that is well designed, innovative and responds to its location and context’ and ‘to facilitate the development of attractive, safe, high amenity neighbourhoods that have a strong sense of identity and neighbourhood character’.  The strategies that support these objectives include, among other things:
•	Encourage new development to incorporate high quality urban design, architectural detail and use of robust materials.
•	Ensure new development respects neighbourhood character.
•	Ensure new development integrates with is surrounding environment and does not detract from the rhythm of the streetscape in terms of building design, height, massing, location of garages and setbacks.
21	The policy guidance that support these objectives includes that ‘new development should provide for significant landscaping opportunities within front and side setbacks and between dwellings’.
22	The neighbourhood character objectives (clause 55.02-1) seek to ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character, and to ensure that development responds to the features of the site and the surrounding area.
Findings
23	In the context of the RGZ1 where substantial change and more intensive development is supported and the purposes of the zone not seeking to protect or respect neighbourhood character, it is to be expected that the form and scale of buildings will be different from the low scale detached housing that currently dominates the character of this area.  However, the relevant planning policies do seek a preferred character that consists of ‘high quality design that responds to surrounding housing development’ and seek ‘to promote development that is well designed, innovative and responds to its location and context’.  It is in relation to these that I find that the proposed building design is not acceptable for the following reasons.
24	I find that the detailed design of the proposal does not reflect high quality and innovative design due to the limited variations in building setbacks, particularly along the western elevation, and the poor articulation of the side elevations.  The poor articulation is due to the limited materials palette and limited window fenestration resulting from an over-reliance on narrow horizontal windows.  While units 2, 3, 6 and 7 do include some walls with substantial setbacks from the side boundaries at the first floor level, any variations in the building setbacks is negated by the 1.7 metre high privacy screens around the balconies located within these setbacks.  I find that the resultant overall appearance of the building will present an unacceptably harsh interface to the adjoining residential properties.
25	While the overall building height and setbacks are generally compliant with the requirements under clause 55, I find that the proposal will have an unacceptable building mass and resultant visual impact when viewed from adjoining properties and oblique views from the street.  I find that this is not reflective of high quality and innovative design.  The unacceptable building mass is due to the limited variations in building setbacks and poor articulation, as discussed above, combined with the extent of the double and triple storey form down the length of the land.  While a break is provided in the built form between units 4 and 5, I am not satisfied that this break is sufficient to provide meaningful relief in the apparent building mass.  Furthermore, the minimal width and function of the break as a pedestrian access is insufficient to allow for any landscaping to screen or filter views of the building to minimise it mass and visual impact.  While the plans and landscaping plan show a tree to be planted between the break between units 4 and 5, adjacent to the driveway, I am not satisfied that a tree with a spreading canopy can be accommodated in this area due to the balcony of unit 4 that cantilevers over this area.
26	While three-storey development is possible within the RGZ1, I find that the detailed design of the third storey elements of units 2, 3, 6 and 7 does not reflect high quality or innovative design.  The third storey elements are poorly articulated, due to the singular material palette combined with the limited window fenestration, and poorly resolved as part of the overall architecture.  The flat roof form and use of a different building material to that of the first and second storeys results in the third storey elements having a boxy appearance that does not form a coherent, integrated design with the remainder of the buildings.  I find that this accentuates the third storey elements and makes them more prominent.  The prominent appearance of the third storeys of units 2 and 3 is further accentuated by their cantilever over the lower storeys and driveway along their eastern side.
27	I am not satisfied that the proposed landscaping along the side boundaries, particularly the western side setback, is sufficient to filter views to the proposal from the adjoining properties and oblique views from Wood Street to temper the visual impact of the building.  My specific findings on the acceptability of the landscaping are discussed separately at paragraphs 32–39.
28	I find that the extent of the proposal’s reliance on highlight windows and screens to windows and balconies to avoid overlooking does not reflect high quality, innovative or site responsive design.  The reliance on highlight windows and screens to limit overlooking is a product of the ‘reverse living’ design adopted for units 1–7, from which the outlook is to the secluded private open spaces of adjoining properties.  While highlight and screen windows are legitimate methods for avoiding overlooking under the requirements of standard B22 (clause 55.04-6), I am not satisfied that the extent to which this proposal relies on screening and highlight windows rather than using architectural features or building design to avoid overlooking in the first instance is reflective of high quality design.
29	I also find that the excessive use of highlight windows and screens will not provide an acceptable level of daylight or internal amenity for the dwellings.  For example, all but the living room windows of units 3–7 are narrow horizontal highlight or screened windows, and the outlook of the living room windows is to a screened balcony, while the living rooms to units 1 and 2 are highlight windows.
30	I find that the excessive use of highlight and screened windows, as well as balconies, also results in poor passive surveillance of the communal areas, particularly the pedestrian access path along the western setback area.  This is inconsistent with the safety objective (clause 55.03-7), which seeks to ensure the layout of development provides for the safety and security of residents and property, and associated standard B12, which includes that developments should be designed to provide good lighting, visibility and surveillance of car parks and internal accessways.  I find that the poor passive surveillance is not reflective of high quality and site responsive design.
31	While individually some of these design issues may be able to be resolved through amendments to the plans, I find that the combination of these design issues result in the overall building design being unacceptable.  Furthermore, I find that the range of design issues to be resolved are too numerous to reasonably be able to be addressed through permit conditions requiring amendments to the plans.
The proposed landscaping is not acceptable.
Relevant planning policies and provisions
32	The policy guidance that support the residential design objectives at clause 21.07-3 includes that ‘new development should provide for significant landscaping opportunities within front and side setbacks and between dwellings’.
33	The local variation (clause 1.0 of the RGZ1 schedule) to standard B13 of the landscaping objectives (clause 55.03-8) requires, among other things, that ‘where new building bulk visually impacts on adjoining dwellings, a landscape vertical screen should be provided’.
34	The responsible authority advises that the exact requirements for vertical screens has not been specified, to allow for site by site consideration and flexibility, but that a vertical screen is planting that ‘grows up rather than out’.  The photographic images of vertical screens provided by the responsible authority include examples of a row of standard trees, a row of narrow trees with fastigiated limbs, and a framework overgrown with a creeping plant.
35	The decision guidelines at clause 4.0 of the RGZ1 schedule require me to consider ‘the extent to which landscaping softens the appearance of the proposed development and assists in the transition to existing development’.

Findings
36	I find that the proposal does not provide significant landscaping opportunities or an acceptable landscaping response to soften the appearance of the proposed development and assist in the transition to existing development for the following reasons.
37	I am not satisfied that the areas available for planting or the proposed planting schedule along the western side setback provide for ‘significant landscaping opportunities’ or ‘vertical screen’ landscaping.  The ground floor level setback along this boundary is only 2 metres wide, with 0.5 metre wide garden beds on either side of the 1 metre wide pedestrian access path.  The proposed landscaping plan shows only low-level planting within these gardens, comprising grasses/accent plants up to 0.6 metres high and shrubs up to 1.4 metres high.  The 1.4 metre mature height of the proposed shrubs is lower than the boundary fence, and therefore will not form a vertical screen.
38	In relation to the weight to be given to the policy objectives and provisions relating to landscaping in the RGZ1 I agree with the findings of the Tribunal in Bullion Constructions Pty Ltd v Brimbank CC [2017] VCAT 2097 where at [26] Member Nelthorpe states:
	These requirements are supported by planning policy in the same way as the encouragement for more intensive housing is supported. Consequently, they carry a similar weight and provide guidance on the future character of the area zoned Residential Growth. In this context, I find that the proposal does not strike an appropriate balance between the objectives for more intensive residential development and the relatively modest landscaping requirements for individual developments.
39	I note that it may be possible that an amended landscape proposal could provide a vertical screen along the western interface consistent with the examples provided by the responsible authority.  However, in the absence of any such proposal I cannot be satisfied that an appropriate vertical landscaping screen can be achieved and that it will not raise new issues relating to potential amenity impacts on the adjoining property.
The proposal does not maximise solar access to the dwellings.
Relevant planning policies and provisions
40	State and local planning policies, for example those relating to energy and resource efficiency (clause 15.02-1S), housing diversity (clause 16.01-3S), and residential design (clause 21.07-3), support environmentally sustainable development and energy efficient housing.  The residential design strategies at clause 21.07-3 include ‘to ensure new development is orientated to achieve maximum passive solar access to living areas’.

41	The energy efficiency objectives at clause 55.03-5 seek ‘to achieve and protect energy efficient dwellings and residential buildings’ and ‘to ensure the orientation and layout of development reduce fossil fuel energy use and make appropriate use of daylight and solar energy’.  The associated standard B10 requires, among other things, that buildings should be oriented to make appropriate use of solar energy, living areas and private open space should be located on the north side of the development, if practicable, and developments should be designed so that solar access to north-facing windows is maximised.
Findings
42	I find that the proposal does not maximise northern orientation or solar access and is inconsistent with theses policies and provisions for the following reasons.
43	The side by side layout, attached form, and east-west orientation of dwellings 2–8, does not locate living areas and private open spaces on the north side of the development.
44	While the north-south orientation of the long axis of the subject land does limit the opportunities for maximising north-facing windows and private open spaces, I am not satisfied that the design response has sought to make the most of the opportunities that do exist.  For example, the north facing window to the living room of unit 1 is limited to a highlight window, the second storey layout of unit 5 results in a solid wall to the living room along the northern side, and the third storey layout of unit 6 results in a solid wall along the entirety of its northern side.
45	I find that the proposal does not make appropriate use of daylight and solar energy due to the heavy reliance on narrow horizontal windows along the eastern and western elevations.  These windows are either highlight windows or screened with louvres.  While some of these are bedrooms, many of the windows are to the open-plan kitchen and meals areas, and one is to the living room of unit 2.  Furthermore, the windows to the studies at the ground floor levels of units 2, 3, 6 and 7 are all highlight windows.
The proposal does not provide an acceptable balance between conflicting objectives in favour of net community benefit.
46	The principles of integrated decision-making (clause 71.02-3) include endeavouring to integrate the relevant planning policies and balancing conflicting objectives in favour of net community benefit and sustainable development.
47	While there is policy support for increased housing and intensification in this location, there is also policy support for development that responds to an area’s context and character and achieves high quality, innovative, and site responsive design outcomes.
48	I find that this proposal does not achieve an acceptable balance between these objectives.  Rather, the design response of this proposal prioritises maximising the opportunity for housing intensification and the scale of the development at the expense of acceptable design outcomes.
Are there any other issues?
49	While the responsible authority and respondents raise a range of other issues with the proposal, as I have found that the proposal is not acceptable for reasons relating to building design, landscaping, and internal amenity, and does not provide a balanced approach to the relevant policy objectives, it is not necessary for me to make findings on those other matters.  Any future proposal will necessarily be assessed on its merits.
Conclusion
50	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Sarah McDonald
Member