VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1548/2018
Permit Application no. GE/DP-31785/2018	
CATCHWORDS	
Section 82 of the Planning & Environment Act 1987; Glen Eira Planning Scheme; Neighbourhood Residential Zone Schedule 1; Minimal Change Area; Construction of two dwellings; Overshadowing; Daylight to Windows; Fence; Front Setback; Bin Location; Access to South Road; Landscaping and Hard Surfacing; Energy Efficiency; Solar Panels; Garden Area; Site Coverage; Permeability; Neighbourhood  Character; Vehicle Sight Lines; Side and Rear Setbacks.	

APPLICANT	Plamen Mirtchev	
responsible authority	Glen Eira City Council	
RESPONDENTs	Architectural Matters
Vic Roads - Metropolitan South East Region	
SUBJECT LAND	679 South Road
BENTLEIGH EAST  VIC  3165	
WHERE HELD	Melbourne	
BEFORE	Alison Slattery, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	5 January 2019 and 15 February 2019	
DATE OF ORDER	18 April 2019	
CITATION	Mirtchev v Glen Eira CC [2019] VCAT 590	

Order
Permit granted
1	In application P548/2018 the decision of the responsible authority is affirmed. 
2	In planning permit application GE/DP-31785/2018 a permit is granted and directed to be issued for the land at 679 South Road, Bentleigh East in accordance with the endorsed plans and the conditions set out in the Notice of Decision to Grant a Permit dated 19 July 2018.  The permit allows:
•	Construction of two double storey dwellings; and
•	Alteration of access to a road in a Road Zone.

Alison Slattery
Member			

Appearances
For Plamen Mirtchev 	Plamen and Mariya Mirtchev, in person	
For responsible authority	Phoebe Hanna, town planner	
For VicRoads	No appearance 	
For respondent	Riccardo Romano, town planner	

Information
Description of proposal	Construction of two double storey dwellings in a side by side arrangement, with vehicular access to be taken from two crossovers to South Road in conjunction with a turning area to the frontage of the site.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Glen Eira Panning Scheme 	
Zone and overlays	Neighbourhood Residential Zone Schedule 1 (NRZ1)	
Permit requirements	Clause 32.09-6 construction of two or more dwellings on a lot
Clause 52.29-2 alteration of access to a road in a Road Zone	
Relevant scheme policies and provisions	Clauses 9, 11, 16, 21.04, 22.08, 52.06, 52.29, 55 and 65	
Land description	The land is located on the northern side of South Road, around 170 metres to the east of the intersection with East Boundary Road, Bentleigh East.  The site is rectangular in shape and has a frontage of 15.39 metres and a depth of 38.1 metres for an overall area of approximately 586 square metres.  The land includes a fall (1.25 metres) from the north/east to the south/west.  There is a covenant attached to the site regarding quarrying, which the proposed development will not breach.  No easements are located on the site.
The subject site includes a single storey weatherboard dwelling with outbuildings typical to a dwelling of this size and era.  The site includes a crossover to the eastern portion of the South Road frontage. 
The character of this part of Bentleigh East is informed by a suburban vernacular with large dwellings and some multi unit developments.  Newer infill development of multi units is evident, with contemporary architecture readily apparent in the streetscape.  The well trafficked nature of South Road has resulted in robust built form and high front fences in some cases. 
The immediate area is informed by dwellings varying in scale from 1-2 storeys and includes older stock of single dwellings and newer infill development is generally two to three storey in scale.  
The area has good access to transport (buses and trains) and daily shopping facilities in Moorabbin.	
Tribunal inspection	The tribunal undertook an accompanied inspection of 677 South Road, and an unaccompanied inspection of the review site and the surrounds after the hearing 	

Reasons
What is this proceeding about?
1	Architectural Matters applied to the Glen Eira City Council for a permit to develop the land at 679 South Road, Bentleigh East for the construction of two double storey dwellings in a side by side configuration with two crossovers to South Road.   
2	Council issued a Notice of Decision to Grant the Permit on 19 July 2018.  The decision was based on Council’s view that the design shows proper regard to the character of the neighbourhood and results in reasonable amenity impacts.  Council contends that this development complies with the objectives of ResCode regarding to built form, amenity and character and meets the objectives of local policy.  Council put that it was satisfied with the vehicle access arrangements.  
3	The review applicant, Mr Mirtchev, disagrees with Council and asserts that the design has not taken into account the constraints of the site and is not site responsive, nor responsive to the neighbourhood character of the area.  He argued that the two storey form imposed unreasonable impacts on his properties at 677 (A&B) South Road by way of overshadowing, poor daylight to existing windows, insufficient side and rear setbacks, impacts on the fence, insufficient front setback, poor bin location, inappropriate access to South Road, insufficient landscaping and excessive hard surfacing, unreasonable impacts on his energy efficiency due to shading of solar panels, inadequate garden area, site coverage and permeability, and poor vehicle site lines.  He submitted that the proposal does not respond well to the standards of ResCode and nor does it meet the objectives of ResCode.  It was his contention that the state and local policies do not lend support to the proposed development.  
4	It was put that the proposed development on the review site has not been held to the same standards as the development of the site at 677 South Road.  Whilst consistency in decision making is always a desired outcome, it is not the case that the circumstances surrounding the decision at 677 South Road are the same as those on front of the Tribunal here.  There has been some time since the refusal at 677 South Road (2012) and there has been significant change in geographical circumstances and planning scheme requirements.  As such, whilst the Tribunal must still take in to account the context of the site, including recent approvals and refusals, I must also apply the planning scheme as it stands today, and take into account the changed context of the area.
What are the key issues?
5	The key issues for determination are:
a.	Is the proposal consistent with the planning policy framework of the Glen Eira Planning Scheme?
b.	Does the development achieve a satisfactory level of compliance with Clause 55 (ResCode)?
6	Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions with regard to the applicable policies and provisions of the Glen Eira Planning Scheme, I have decided to affirm the Council’s decision.  My reasons follow.
Is the proposal consistent with the planning policy framework of the Glen Eira Planning Scheme?
7	The Glen Eira Planning Scheme includes a Local Planning Policy Framework that identifies where medium density housing should occur within the municipality.  Clause 21.04 of the scheme seeks to encourage new development which, amongst other things, provides a contextual approach that responds to the character of existing residential areas whilst targeting development towards Neighbourhood centres.  
8	The review site is noted as being located within the Character Area 15 East Bentleigh, South of Centre Road and has the following description at Clause 22.08-2:
Character Type: 1940s garden suburban with modern overbuilding (infill development) 
This area has a 1940s base with a range of modern infill creating a mixed character. 
Buildings are generally single storey. 
Many original dwellings remain and these are generally cream brick with pitched tiled roofs. 
Gardens are well established with low to medium scale planting. Front fences are generally low, allowing views to buildings and gardens from the street. 
The grid layout and flat topography is quite distinct in this area due to wide, open streets and lack of heavy vegetation cover. 
9	Clause 22.08 identifies the site as being located in a Minimal Change Area.  It is envisaged that the bulk of development would occur within those areas located within the Housing Diversity Areas with a more tempered progression of change occurring in the Minimal Change Areas.  Land in this area is expected to accommodate minimal changes in density.  The policy points to this area sustaining low level change, only in appropriate circumstances to accommodate limited increases in dwelling stock.  
10	I am satisfied that the site can accommodate an increase in density from one to two dwellings.  I say this having regard to several factors including the generous size of the site, being 586 square metres, the limited constraints of the site, the access to services, the capacity of the area to accommodate change, and the emerging residential character of South Road.  The site has moderate access to public transport by way of buses on South Road with trains available to the CBD from Moorabbin Station to the west.  In addition, the site is well served through shopping and community facilities at Moorabbin to the west with Southland SC also within reasonable proximity.  Due to these characteristics, the site is one where the construction of two dwellings is appropriate.  
11	In this context the proposed development responds well to state policy at Clause 16.01-2 in addressing the need for urban consolidation in locating low density development in areas identified as having moderate access to shopping and community facilities along with public transport.  I find the increase in the number of dwellings from 1 to 2 is modest.  
12	South Road is suburban in nature, with older dwellings being slowly replaced with larger single dwellings with the immediate area including examples of dual occupancy style development.  This results in a character that displays a robust level of change.  The level of change in South Road appears to correlate with the policy expectations for the area, but is enlivened by the robust feel of the well trafficked nature of South Road.  The bulk, massing and scale in the immediate area is similarly experiencing change, with two storey and multi-unit development already evident.  Additionally, siting of dwellings on lots is varied with some dwellings that include garages built to side boundaries.  Newer infill development is generally located close to boundaries and includes pitched roof forms.
13	I am satisfied that the proposal represents an appropriate response to the exiting character of the area and the objectives and policy in Clause 22.08-3 Minimal Change Area Policy.  I say this for the following reasons:
•	Sufficient space has been provided for adequate planting of appropriate vegetation.  The landscape plan submitted with the application shows five Capital Pears (maximum height 8 metres) and an Euky Dwarf (maximum height 6 metres) to the frontage of the site.  This canopy tree planting is reinforced with understorey planting to either side of the two driveways.  There are additional locations elsewhere within the site, including to the private open space of dwellings to the rear where canopy trees are provided (2x Capital Pear and 2x Euky Dwarf).  This proposed provision of vegetation serves to place the dwellings within a landscaping theme that is in keeping with the character of the area. 
•	Vegetation on adjoining properties can be appropriately protected.
•	The site coverage at 52.61% whilst non-compliant with the schedule to the zone and that expected within policy is reasonable and will respond to the needs of future residents.  There are areas of first floor from cantilevered over ground level that increase the site coverage at ground level only is less than 50%.  I am satisfied that reasonable recreational uses can be made of the open spaces, and that the cantilever elements at the upper level will serve to provide articulation and interest in form without unreasonably impacting on the amenity of adjoining properties through visual bulk.  I am satisfied that this level of site coverage responds appropriately to the emerging and the prevailing site coverage in the area.
•	The increased density to two dwellings is reasonable for the site and responds to the emerging built form typology of infill development. 
•	The development includes diversity in that contemporary dwellings with four bedrooms are proposed in an area where these are not the dominant style of accommodation.
•	The scale at two storeys is consistent with the scale of existing larger dwellings and newer infill development in the area.  At a maximum of 7.539 metres, the height of the development is reasonably minimised.
•	The built form has been appropriately set back from boundaries including at ground: between 1.2 and 4.0 metres to the west, between 1.2 and 5.2 metres to the east and between 5.77 and 6.27 metres to the rear (north).  Generous setbacks are provided at first floor: between 1.8 and 2.77 metres to the east and west, and between 7.27 and 7.695 metres to the rear (north).  These setbacks not only meet the B17 standard, but go beyond, minimising impacts of visual bulk on sensitive interfaces and limiting imposition into the open space spine.  The extent of built form down the lot maximises the opportunities of development on the land without unduly impacting on the amenity of the adjoining properties by way of visual bulk, shading or intrusion in to private open spaces.  
•	The front setbacks vary from between 7.75 and 11.531 metres at ground level to between 9.25 and 11.2 metres at the upper level.  The front setback both complies with Standard B6 of Clause 55 (ResCode) [average of 7.6m and 7.9 metres= 7.75m] and reflects the character of the area.  There is no statutory requirement that dictates matching the garage setbacks to the dwellings to the west at 677 South Road.
•	The review site is located proximate, but not close to the Moorabbin commercial centre and is appropriately developed with two dwellings, rather than at a higher density such that can be appreciated closer to the commercial centre 
•	There is no interface with existing residential development in Housing Diversity Areas.
•	There is no impact on places of environmental or heritage significance
•	One wall on boundary is proposed at a length of 6.57 metres and an average height of 3.078 metres.  This extent of wall on boundary is minimal and will not have an impact on habitable room windows or secluded private open space (the walkway opposite the garage has a width of 1.2 metres and is considered a utilitarian walkway rather than usable recreation area).  
•	The varying materiality between ground and first floors (brickwork at ground and render and timber palings at first) creates an impression of articulation.  This serves to minimise the appearance of sheer walls.  
•	The use of a pitched roof to the serves to reference the prevailing built form typology in the area.
•	Private open space areas are practical and useable with reasonable depth and dimensions.  The spaces have good access to living areas, are located with excellent access to northern light and include secluded private open spaces of 45.08 square metres for dwelling 1 and 48.32 square metres from dwelling 2.
•	The site design is reasonable in that there is relatively easy access both for vehicles and pedestrians, subject to conditions requiring appropriate sight lines being provided. 
•	Appropriate provision of car parking is provided with two car parking spaces provided per dwelling.  I have not been persuaded that the vehicle access is unreasonable.  In this position I am assuaged by the referral comments from both Councils Engineering Assets team and VicRoads, neither of whom raised concerns with the access arrangements.
14	I am persuaded that the development is positioned on the site so as to respond to the predominant siting and scale characteristics of the area in allowing adequate spacing for the planting of larger trees that contribute to the canopy of the site and the area.  I find that the scale of the development represents a good transition to the one to two storey surrounding built form, and note there is adequate spacing to the rear of the proposed development to accommodate the planting of canopy trees to complement the planting to the frontage.  To this end, I am satisfied that the proposed development responds wells to the local policy that seeks to ensure built form responds to the outcomes sought for the area within Clause 22.08.
Does the development achieve a satisfactory level of compliance with Clause 55 (ResCode)?
15	Several areas of ResCode compliance were included as grounds of review for Mr Mirtchev.  These include neighbourhood character, overshadowing, poor daylight to existing windows, insufficient side and rear setbacks, impacts on the fence, insufficient front setback, poor bin location, inappropriate access to South Road, insufficient landscaping and excessive hard surfacing, unreasonable impacts on energy efficiency due to shading of solar panels, inadequate garden area, site coverage and permeability. 
16	I am satisfied that the proposed development responds well to Clause 55 (ResCode).  I say this for the following reasons:
•	The proposal responds well to the state and local planning policy as noted previously.
•	The built form reflects the emerging typology in that the roof is pitched and contemporary in nature.  Windows and door proportions match those found in the streetscape, and the proposed materials of timber cladding, render and brick, are readily found in the area in older and more contemporary forms.  The development is sited to respond to the front, side and rear setbacks found in the area, and will have a limited first floor footprint in the backyardscape due to the thoughtful setbacks to the rear.  
•	The front setback is proposed at a minimum of 7.75 metres, with stepping of up to 11.53 metres.  This meets Standard B6 which requires a setback of 7.75 metres (average of 7.6 and 7.9 metres).  This setback provides interest and articulation through the setbacks and steps the development back where it adjoins other properties in order to minimise the visual bulk impacts on adjoining properties.  I do not accept that the development needs to replicate that at 677 South Road.  
•	The maximum height of the proposed development is 7.539metres.  This reflects the prevailing built form character of the area 
•	The site coverage is 52.61% which does not comply with the schedule to the zone.  As noted previously, I am satisfied that this level of site coverage is reasonable and will not impact unreasonably on the amenity of adjoining properties and is in character with the emerging site coverage in the area.  
•	The permeability is 39%
•	A permit condition requires plans to be submitted demonstrating compliance with the 30% garden area requirements.  Such plans were provided in the hearing to the extent that I am satisfied that this permit condition can be readily met.
•	The proposal will allow for the planting of canopy trees (front and rear) and lower order vegetation to most elevations around the dwellings.    
•	Dwelling entries are highly visible
•	Infrastructure is readily available with the area having been well established for residential development over many decades.  As noted previously I am satisfied that the planting regime as shown on the landscape plan submitted with the application responds well to the character of the area and will serve to place the development in a treed setting.  
•	The site is not located in an area that is specified as being susceptible to flooding by Melbourne Water.  
•	Cross ventilation is possible.  North facing windows are provided to living areas with further east and west facing windows provided.  Clothes lines are provided for each dwelling reducing the reliance on clothes dryers.   
•	I am satisfied that the development complies with the Energy efficiency objective of ResCode Clause 55 as it relates to the solar panels of 677 South Road.  I am satisfied that the development appropriately protects the energy efficiency of 677 South Road both 677A and 677B.  Each dwelling on that site includes solar panels.  The site known as 677B (closest to the review site) includes one west facing panel, facing away from the review site, and the site at 677A South Road includes several east facing panels, facing the review site.  Taking into account the shading diagrams provided with the application, there will be no shading of the east facing solar panels on 22 September between 9.0am and 3.00pm.  The west facing panel may be shaded at 9.00am, but as at 10.00am on 22 September no shading will occur to this panel.  It is difficult to ascertain if indeed there will be any additional shading to the panel at 9.00am considering it is a west facing panel, and the roof on which it is located effects the amount of sunlight this solar panel might achieve.  In lieu of any details of current solar gain to this panel, I am minded to conclude that in the morning, the roof impedes access to direct sunlight to this west facing solar panel.  To that end, I am satisfied that the performance of the west facing solar panel will not be unreasonably reduced. 
•	One new garage wall is proposed to be located on the western boundary and as noted previously complies with the standard both form length and height.  This wall is not located opposite habitable rom windows and will not be opposite primary open space.    
•	Side and rear setbacks comply with the Standard 17 requirements and minimise impacts on sensitive interfaces.
•	Provision has been made for storage of at least 6 m3.  Bins can be stored in rear yards or the garages with mailboxes provided to the frontage.  I see no reason why the bins should not be stored in the rear yards.  It is a common occurrence, and one that is reasonably expected in a residential setting.  
•	The number and width of crossovers is minimised to two in keeping with the rhythm and character of the streetscape.  I am satisfied that the vehicular access is reasonable with a circular driveway/turning area proposed.  I see no need for a turning plate to be installed, despite submissions to the contrary.  I do not share the concerns with the extent of hard surfacing, in that the permeability of the site is good at 39% and the opportunities for planting of canopy trees to the frontage (6 in total) and understorey planting is good.  Again I am buoyed by the satisfaction iterated by Councils Traffic Engineer and VicRoads as to the access arrangements. 
•	Parking spaces have reasonable access to dwellings. The number of car parking spaces, at two per dwelling represents reasonable provision for dwellings of this size 
•	A ground level area able to be used as a bedroom is provided for the new dwellings providing opportunities for those of limited mobility.
•	Secluded private open spaces for dwellings are appropriately located north of dwellings and have access to northern light.  The open spaces are reasonable in size with good access from living areas. 
•	Overlooking is minimised with sill heights and screening at first floor to 1.7 metres above FFL where required.   
•	Shading of windows and private open space is minimised with the level of shade to the south and east falling within the reasonable limits as enshrined by Clause 55, Standard B21.
•	Windows of adjoining properties are properly protected and receive adequate light.  Despite the concerns raised that this development will not be set back at the same level as 677 South Road, the development complies with the Standard B19.  The wall in question provides a light court of 3 square metres with a minimum dimension of 1 metre.  The wall is set back between 3.464 and 3.943 metres from the habitable room windows of 677 South Road.  At a maximum height of 5.971 metres the wall needs a minimum setback of 2.9855 metres and complies with Standard B19.
•	There are no indications to alter the fence on the common boundary with 677 South Road.  However the conditions require that the fence is reduced in height at the frontage of the site to allow for appropriate vehicle sight lines.  I am satisfied that such changes to the fence to the frontage are appropriate and do not provide views into secluded private open spaces.  
•	I see no sources of noise that are located close to boundaries, such as mechanical devices.  Hot water systems are appropriately set back from adjoining proprieties. 
17	I am satisfied that the side and rear setbacks to the proposed dwelling are sufficient to the task of providing for the planting of canopy trees both to the frontage and rear, with lower order planting throughout the site.  The area is reasonably well vegetated and most sites, with some exceptions, include moderate planting around dwellings, into which the proposed development will fit well.  
18	I am satisfied that the proposed dwellings are reasonably articulated, sited and designed in a manner that is in keeping with the scale and typology of emerging built form in the neighbourhood.  In this way, I am satisfied that the objectives of Clause 55 have been satisfied.
Conclusion
19	For the reasons given above, the decision of the responsible authority is affirmed.  A permit is granted subject to conditions included in the Notice of Decision to Grant a Permit dated 19 July 2018.

Alison Slattery
Member