VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1923/2018
Permit Application no. P18/0317	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme, General Residential Zone, Vegetation Protection Overlay, Design and Development Overlay; proposed two side-by-side double storey dwellings; design response to policies and neighbourhood character.	

APPLICANT	Tony and Josephine Conto	
responsible authority	Mornington Peninsula Shire Council	
SUBJECT LAND	15 Swansea Grove, Mornington	
WHERE HELD	Melbourne	
BEFORE	Christina Fong, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	26 March 2019   	
DATE OF ORDER	12 April 2019	
CITATION	Conto v Mornington Peninsula SC [2019] VCAT 532	

Order
1	In application P1923/2018 the decision of the responsible authority is set aside.
2	In planning permit application P18/0317 a permit is granted and directed to be issued for the land at 15 Swansea Grove, Mornington in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Development of two double storey dwellings and associated removal of trees.

Christina Fong
Member			

Appearances
For applicant	Daniel Bowden, town planner, Song Bowden Planning	
For responsible authority	Angus McGuckian, town planner, Journeyman Planning	

Information
Description of proposal	Construction of two side-by-side double storey dwellings and associated removal of trees requiring a permit pursuant to the Vegetation Protection Overlay.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	General Residential Zone (GRZ 1), Vegetation Protection Overlay (VPO 1), and Design and Development Overlay (DDO 1).	
Permit requirements	Clauses 32.08-6 for construction of two or more dwellings; 42.02-2 for removal of trees requiring a permit to be removed; and 43.02-2 for buildings and works for a site in the design and Development Overlay.	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 21.02, 21.03, 21.04, 21.06, 21.07, 22.13, 55, 52.06 and 65.1.   	
Land description	The land is located on the south west side of Swansea Grove, a loop road off Strachans Road, Mornington. It is regular in shape, with a frontage of 15.24 metres, a depth of 38.86 metres, and a site area of 592 square metres. It contains a single storey brick veneer house. Adjoining the land to the east and south are also single storey single dwellings.  The single dwelling to the north at No. 17 is two storeys. Single storey and single dwellings are the predominant mode of residential development in Swansea Grove. However, medium density developments are present in the street, including a four single storey units at 21-23 Swansea Grove, two side-by-side single storey dwellings at the north-south leg of Swansea Grove (Nos. 1 and 3), and another dual occupancy at the corner of Swansea Grove and Strachans Road (80 Strachans Road and 1A Swansea Grove).	
Tribunal inspection	31 March 2019, not accompanied by the parties.   	

Reasons
What is this proceeding about?
1	This is a proceeding brought by the permit applicant against council’s decision to refuse the application to develop the land for two double storey side-by-side dwellings and associated removal of vegetation. The grounds of refusal relate to the proposal failing to satisfy relevant planning policies, being inconsistent with Mornington’s Localised Planning Statement (July 2014) specifically to accommodate moderate and low levels of housing growth; the proposed side-by-side configuration not characteristic of the neighbourhood; the first floor being visually dominant; the tandem parking arrangement not enabling easy and convenient use of on-site parking; and the proposal not aligning with council’s Housing and Settlement Strategy, which is contrary to section 60 (1A)(g) of the Planning and Environment Act 1987.
2	Council officer in fact supported the proposal and recommended the permit to issue. This recommendation was not accepted by council.
What are the key issues?
3	The key issue of the review is whether the design of the development and the associated removal of trees achieve the neighbourhood character objectives of the site.
Preliminary matter
4	At the commencement of the hearing, Mr. Bowden raised the issue of whether Council’s Housing and Settlement Strategy would be given weight in the proceeding. 
5	Council’s Housing and Settlement Strategy 2017 has been adopted by council and council has prepared an amendment to the planning scheme to implement this strategy.  The recommendation of this strategy, amongst others, is to rezone the majority of residentially zoned land in the municipality to the Neighbourhood Residential Zone (NRZ). For the site, it is proposed to be in the NRZ1, where the minimum lot area is 300 square metres per dwelling and maximum height of two storeys and 9 metres.
6	Council has prepared an amendment to the planning scheme (Amendment C219) to implement this strategy and has sought the Minister’s authorisation to exhibit the amendment, in February 2018. This authorisation has yet to be given. Amendment C219 has been a ground of refusal for a number of planning applications for medium density development in Mornington, many of which have made their ways to the Tribunal.
7	Consistent with numerous decisions of the Tribunal, including mine, this amendment is at a very early stage of the process, since it has yet to be authorised. I have commented on the issue previously and elsewhere, that it should be given consideration pursuant to section 60(1A)(g) of the Planning and Environment Act 1987, but not as a determining factor, as it cannot prevail over current zoning and policies in the planning scheme. I also commented that the Housing and Settlement Strategy reflects council’s current thinking of how residential development should proceed in the municipality. The amendment is subject to changes during the amendment process, depending on submissions, a likely panel hearing and final decision. For this matter, the amendment can only be given limited weight.
design response to zoning, current policies and existing character
8	Council’s concern with the proposal is that its design does not align with its planning policies and does not represent an appropriate response to the existing neighbourhood character. To council, the policy position of residential development is to protect existing character or give precedence to a defined preferred future character over housing consolidation.
9	Mr. McGuckian, on behalf of council, acknowledges that the site is within the broader Mornington township, and that it can be argued that the proposal enjoys policy support for further residential intensification and contribution to a variety of dwellings. However, he also argued that the design response is inappropriate. He urges the Tribunal not to consider the Mornington Peninsula as other parts of metropolitan Melbourne, which forms the basis of ResCode, but to consider the need to balance between the coastal character of the area and accommodate a moderate level of change.
10	Council’s view is that the design has not taken this approach to ensure a low scale urban character of the township, and that it does not reflect the scale and bulk of buildings in this part of Mornington. Design deficiencies it identified are:
Two storey form not a predominant characteristic of the area despite some examples. All existing medium density development in the immediate area are single storeys. The proposal, by being two storeys does not comply with the 6 metre height of the General Requirement of the Design and Development Overlay (DDO1) that affects the site;
Side-by-side configuration: Although there are examples of side-by-side development in the area, they are usually occurring at corner sites.
A large contemporary built form: This is more characteristic of a standard suburban character but not found in Swansea Grove. The proposed flat roofs are also not characteristic of the area, which typically has pitched roof.
Two crossovers: Two crossovers are uncharacteristic of the area. The two crossovers proposed take up to 39.3% of the frontage of the site, which is close to the 40% maximum recommended by standard B14 of ResCode.
Building bulk: the proposal seems to have a similar level of bulk and scale to the adjoining dwelling at No. 17 Swansea Grove, except that that two storey house has the characteristic pitched roof and its first floor recessed from the front.
Intensity of development: the proposal is for two dwellings of four bedrooms on a small lot with a single garage each. Coupled with the side-by-side configuration and tandem car parking, the design introduces a lot more bulk compared to a battle-axe dual occupancies in the area.
Extent of built form: The extent of built form across and down the lot is greater than the existing character found in Swansea Grove. The side setbacks, with only a small 1.14 metre off only one boundary, do not contribute to the sense of space and is not respectful of the rhythm of dwelling spacing in the area.
Landscape: landscaping is limited, due to two crossovers and two driveways in the front and side setback areas.
Removal of trees: The proposal will result in loss of trees which would have deleterious impacts on trees in adjoining sites. This is not in keeping with the protection of trees objectives of the VPO that affects the site.
11	Council’s view is not shared by Mr. Bowden, who identifies the character of the area as one of a variety of dwelling styles and types with no one style evidence. He also observes a consistent subdivision pattern in the area, that car parking locations varied often as dominant feature of the streetscape, and that private open space is generally at the rear of dwelling. His review of development in the area tells him that there is a range of medium density examples in the area and that there is compelling support for development as it responds to the township character, environmental constraints of the area and according to policies in the planning scheme.
12	As for council’s criticism that a side-by-side configuration is not a feature of the neighbourhood, he said that this is simply incorrect. He notes that there is no preferred character identified for the area, and there is no variation to ResCode standards in the schedule to the General Residential Zone. 
13	Mr. Bowden cites council officer’s assessment, which is to support the application, in the area of neighbourhood character, which said:
Although the proposal does not strictly comply with minimum lot size of the HSS, the development is considered to adequately address the existing character in terms of siting, built form, visual obtrusion, streetscape rhythm and tree landscape areas and therefore provides an appropriate design response.
14	As for design features, he identified the following positive features:
•	Two dwellings centrally located to re-enforce the identified feature of front and rear setbacks;
•	No common property;
•	The side-by-side design response reinforces the sense of space at the rear of the site, and the ability to achieve large areas of open space with generous setbacks to reinforce the rear yard character of this location;
•	The staggered nature of front setback is respectful of the variation that exists on adjoining lots;
•	The narrow profile of upper level and articulated upper floor ensure the upper level sits comfortably in the streetscape;
•	The single garages are recessed with limited pedestrian paths to maximum landscaping;
•	The two crossovers can be achieved without disrupting council assets;
•	A high level of compliance with ResCode; and
•	The appearance of the development is modern contemporary. The flat roof is consistent with the surrounding mixed character.
15	My inspection of the site and area confirms the established residential nature of the area, and the still prevalence of single dwellings. As pointed out by Mr. Bowden, there are medium density developments, include side-by-side ones in Swansea Grove and nearby streets, such as Pine Avenue, Strachans Road, and Mitchell Street. Examples of side-by-side in Swansea Grove are at Nos.1 and 3. The development at No. 3 is constructed from boundary to boundary. The development at No. 1 is constructed from one boundary but not the other. Both developments are single storeys.
16	I agree with both parties that it is the existing neighbourhood character that the design should respond to. In that regard, given the mixed nature of building styles, an emerging trend of replacement development, and in the absence of identified preferred character, I see no need to confine the development to a tandem arrangement or adopting design features such as pitched roofs.
17	The design of the development is for an attached pair, with construction on one side boundary and set off the other (1.4 metres). If the land is in an area typified by single building rhythm with one deeper side setback such as 3 metres, I would support council’s position that this-side-by-side configuration would not be enough to respect the building rhythm of an area. This is not the case. The side-by-side configured medium density development seems to be an emerging trend, with the most recently constructed development in that mode.
18	In short, I find the proposal worthy of support on several counts:
•	The side-by-side arrangement in line with recent developments, examples of which can be found in the same street, although they are both single storeys;
•	First floors of both dwellings generally recessed from the ground floors;
•	Construction is not boundary-to-boundary, albeit the setback from one boundary is limited at 1.14 metres. Further, the alignment of the driveways is slightly curved to allow some additional landscaping along the driveways and avoid a ‘gun barrel’ effect; and
•	The first floor building massing are centrally located and staggered that it gives the impression of a single building, re-enforcing the single building rhythm that is still character of the area.
19	The only modification I seek, which has more to do with interface with adjoining dwellings, is the extent of the first floor opposite neighbours’ backyards in order to achieve gradual change of scale between the development and these backyards.
20	I will be requiring bedroom 3 of Unit 1 to be removed. This bedroom represents a two storey building mass opposite the northern courtyard of the house at No. 13 Swansea Grove. The limited side setback of 1.14 metres from the common boundary with No. 13 is a pedestrian path which is also relied on to provide space for various utilitarian structures, offers negligible opportunity for landscaping. No. 13 should not have to rely on the trees and shrubberies within its property to screen or soften the development.
21	Despite the modification sought, there should be enough floor area left on this floor to provide a third bedroom.
Are there any other issues?
22	Apart from the issue of design response to neighbourhood character, there is no other substantive issues, such as car parking and amenity impact, which meet the requirements of clause 52.06 for parking and 55.04 for amenity impact.
23	As for the removal of trees from the land, for which a permit is triggered under the Vegetation Protection Overlay that affects the site, an arboricultural report was submitted with the application. This report assessed these trees to be of low retention value, a proposition accepted by council. It also assessed several trees in adjoining properties close to the boundary, for which there will be permit conditions for their protection and as recommended in the arborist’s report.
What conditions are appropriate?
24	Council’s submitted without prejudice permit conditions were the basis of discussion. I have adopted all the standard conditions and have imposed additional ones as discussed in these reasons, and the condition to provide tree protection for trees in adjoining lot close to the common boundary.
Conclusion
25	For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions as set out in the Appendix.

Christina Fong
Member			

Appendix A – Permit Conditions

Permit Application No	P18/0317 	
Land	15 Swansea Grove, Mornington	

What the permit allowS	
In accordance with the endorsed plans:
•	Development of two doubles storey dwellings and associated removal of trees.	

Amended plans 
1.	Before the developments starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans submitted on 10 July 2018 but modified to show:
(a)	Bedroom 3 of Unit 1 to be deleted.
(b)	The north east setback of the dwellings at first floor to be a minimum of 1.90 metres.
(c)	A notation that the side and rear boundary fencing, south west of the front building line, and its lattice extension to be a minimum of 1.7 metres above the finished floor level of the approved dwellings. 
(d)	A notation that all obscured glazing on the south east elevation to be a maximum of 25% transparency.
(e)	Finished floor level of the outdoor living areas.
(f)	Notation of the north-west setback of dwelling one garage to be no more than 200 millimetres. 
(g)	The internal fence between the secluded private open spaces (SPOS) to be a minimum of 1.8 metres in height above the finished floor level of dwelling one outdoor living area.
(h)	The provision of mailboxes and other site services in accordance with Standard B34 (Site services) of clause 55.06-4.
(i)	The installation of security lighting directly adjacent to each dwelling entry area.
(j)	A landscaping plan prepared by a suitable landscape professional, that must show:
(i).	A survey (including botanical names) of all existing vegetation to be retained and / or removed;
(ii).	Details of surface finishes of pathways and driveways;
(iii).	A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant (at least two canopy trees within the front setback area and one canopy tree within each SPOS area);
(iv).	Planting along the length of the shared driveway;
(v).	Planting must ensure adequate visual splays associated with the crossovers and driveways at the site’s front property boundary;
(vi).	Neighbouring vegetation within close proximity of the development to be marked with protection barriers; 
(vii).	All species selection must be to the satisfaction of the Responsible Authority. 
Layout not altered 
2.	The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority. 
Colours/Materials
3.	The materials and colours of the exterior finish of the development must be in accordance with the endorsed plans unless with the prior written consent of the Responsible Authority.
Finishes on a boundary
4.	Prior to the initial occupation of the development, the walls on the boundary of the adjoining properties must be cleaned and finished to a professional standard to the satisfaction of the Responsible Authority. 
Landscaping
5.	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.
6.	Prior to the occupation of the development (or other time agreed to in writing by the Responsible Authority) the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
7.	The landscaping referred to in the above condition must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.
8.	Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
Screening
9.	Prior to the initial occupation of the development, all required privacy screening devices and fencing shown on the endorsed plans must be installed and completed to the satisfaction of the Responsible Authority and maintained thereafter for the life of the building.
Engineering Plans
10.	After the endorsement of condition one plans and before any works associated with the development starts, engineering plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and may be emailed to devengadmin@mornpen.vic.gov.au in pdf format. 
The plans must show:
(a)	All areas of the development being drained by means of an underground drainage system to retain a post development one in 10-year storm event for the critical storm duration. Discharge from the site must be limited to an equivalent pre-development flow based on a one in two-year storm event for the critical storm duration and be connected to the existing underground drainage system within Swansea Grove via a 150-millimetre diameter PVC drainage pipe and construction of a junction pit over the existing pipe. 
(b)	All surface areas of private open spaces being drained by a minimum 100-millimetre diameter drainage pipe connected to the storm water system.
(c)	A drainage system on the site being designed to ensure storm water runoff exiting the site meets the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999).
(d)	A drainage surcharge route within the development to avoid inundation of any dwellings.
(e)	Details, including levels of the driveways within the site.
(f)	The reinforced concrete vehicle crossing being a minimum width of 3.0 metres at the property boundary.
(g)	Reinforced concrete vehicular crossings to Council standards, with any redundant crossing or vehicle laybacks being removed and replaced with kerb and channel, including reinstatement of the nature strip fronting the site.
(h)	Sight distance for vehicles and pedestrians not being unduly restricted at the exit from site by fencing or landscaping works.
11.	Before any works associated with the development commences, drainage computations are required for the proposed drainage system, including consideration of any drainage catchment external to the development that may drain to the proposed drainage system.
12.	Before the initial occupation of the development drainage works associated with the development must be constructed in accordance with approved engineering plans, and to the satisfaction of the Responsible Authority.
13.	Before the initial occupation of the development, vehicle crossings, areas set aside for the parking of vehicles and driveways as shown on the endorsed plans must be constructed in accordance with approved engineering plans, surfaced with reinforced concrete and drained to the satisfaction of the Responsible Authority.
Car spaces, access lanes and driveways must be kept available for these purposes at all times.
Expiry
14.	This permit will expire if the development is not completed within four years of the date of this permit.  
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

– End of conditions –