VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P2563/2018
Permit Application no. PL17/028017	

APPLICANT	Pin Li	
responsible authority	Manningham City Council	
Referral Authority	Vic Roads - Metropolitan South East Region	
SUBJECT LAND	769 - 771 Doncaster Road, DONCASTER  	
WHERE HELD	Melbourne	
BEFORE	Jane Tait Member	
HEARING TYPE	Hearing	
DATE OF HEARING	20 May 2019	
DATE OF ORDER	21 June 2019	
CITATION	Li v Manningham CC [2019] VCAT 899	

Order
1	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and 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:	Jesse Ant Architects	
•	Drawing numbers:	Project 17055, TP03-TP14 	
•	Dated:	11 May 2019	

2	In application P2563/2018 the decision of the responsible authority is set aside.
3	In planning permit application PL17/028017 a permit is granted and directed to be issued for the land at 769 and 771 Doncaster Road, Doncaster in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Development of twelve three storey dwellings and alter access to a Road Zone Category 1.
Jane Tait 
Member			

Appearances
For Pin Lin 	Mr Ashley Thompson, town planner, Clause 1 Planning	
For Manningham City Council 	Mr Jack Chiodo, town planner	
For Vic Roads 	No appearance 	

Information
Description of proposal	To construct twelve, three storey town houses.  The site layout includes two modules of six attached dwellings located in the eastern and western half of the site.  These dwellings are separated by a central north/south driveway that connects to Thiele Street.  
The ground floor of Dwellings 1-4 includes a living room and bathroom and Dwellings 7-10 also contain a study.  Dwellings 6 and 12 propose a bedroom and bathroom at this level whilst Dwellings 5 and 11 have no habitable rooms.  
The first floors of the dwellings contain a kitchen, dining room, bedroom and bathroom with the exception of Dwellings 6 and 12 that include living areas only.  Each dwelling has a balcony with access from the living room.
The second floor contains two bedrooms and bathroom.  Dwelling 6 also includes a study.  
Each dwelling has a double garage with access from the central driveway.
The dwellings propose a maximum height of 10 metres and site coverage of 52.9%. 
The removal of the existing crossover for 771 Doncaster Road.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Manningham Planning Scheme	
Zone and overlays	Residential Growth Zone Schedule 2 (RGZ2)
Design and Development Overlay Schedule 8 (DDO8)	
Permit requirements	Clause 32.07-5 – Construct two or more dwellings on a lot
Clause 43.02-2 – To construct a building or carry out works 
Clause 52.29 – To alter access to a Road Zone Category 1 	
Land description	The site is located on the north-east corner of Doncaster Road and Thiele Street, Doncaster.  It consists of two lots that have total frontage of 36.38 metres, depth of 45.35 metres and site area of 1717.5 square metres.  A 2.44 metre wide drainage and sewerage easement is located along the north boundary.
The western site (769 Doncaster Road) contains a single storey brick detached house that is set back 10.7 metres from the frontage.  The dwelling is used as a medical centre and there is a car park in the northern setback that is accessed from Thiele Street.  
The eastern site (771 Doncaster Road) contains a single storey brick dwelling that is set back 8.6 metres from the frontage.  
The site has a fall of approximately 2 metres from the north-east to south-west across the site.  
There are no significant trees on the site.
The surrounding area contains a mixture of three and four storey apartments, town houses and detached dwellings. 	
Tribunal inspection	Unaccompanied inspection was conducted on 11 June 2019	

Reasons
What is this proceeding about?
1	Pin Lin (the ‘Applicant’) seeks to review a decision of Manningham City Council (the ‘Council’) to refuse to grant a permit for the construction of twelve, three storey dwellings and alter access to a Road Zone Category 1 at 769 and 771 Doncaster Road, Doncaster.
2	Council refused the application on grounds relating to neighbourhood character, built form siting and massing, the landscape response, amenity impacts to neighbouring properties and future residents and other design related matters.
3	The applicant prepared amended plans in response to Council’s grounds of refusal and these were circulated in accordance with PNPE2.  There being no objection, I gave leave for the applicants to replace the plans with the substituted plan and these now form the plans on which I have made my assessment. 
4	The substituted plans include deletion of the basement car park and creation of the central driveway.  This result in altered front and side setbacks, re-arrangement of the pedestrian entries from Thiele Street, reconfiguration of the internal layouts, inclusion of first floor balconies and altered external façades.
5	While Council does not oppose the substituted plans they have raised three additional grounds relating to layout of the car parking, waste collection and environmental sustainability.
6	The applicant argues the development is a good design response that gives effect to the relevant policies of the Manningham Planning Scheme.  It says the development responds to the evolving neighbourhood character and design responses in the DDO8.
What are the key issues?
7	Based on the submissions, my site inspection and expert evidence presented, I find the key issues for our determination are:
•	Does the proposal respond to its zoning and policy context?
•	Does the development adequately address the preferred neighbourhood character?
•	Is the landscape response appropriate?
•	Will the development have unreasonable amenity impacts on neighbouring properties?
•	Does the development provide an adequate level of internal amenity for future residents?
•	Is the parking layout satisfactory?
8	Having regard to the matters that I must consider in the Scheme, I find the layout, scale, design and parking arrangements for this development are acceptable and consistent with the preferred neighbourhood character.  My reasons follow.
Does the proposal respond to its zoning and policy context?
Zone
9	The review site is within a RGZ2.  Some of the purposes 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. 
•	To encourage a scale of development that provides a transition between areas of more intensive use and development and other residential areas. 
•	To ensure residential development achieves design objectives specified in a schedule to this zone.
10	Schedule 2 relates to residential areas along main roads.  There are no variations to Clause 55. 
Design and Development Overlay 8 (DDO8)
11	The site is within a Design and Development Overlay Schedule 8 (DDO8).  The design objectives are to increase residential densities and provide a range of housing types around activity centres and main roads.  The overlay encourages three storey apartment style developments where the minimum lot size can be achieved.  Some of the objectives are to encourage contemporary design, articulated built forms, spacing between developments, landscaping around buildings, stepping back of built form to the adjoining precincts and garages to complement the design of the building.
Planning Policy Framework (PPF)
12	The strategic intent of the PPF is to encourage in-fill development that responds appropriately to the context and character of the neighbourhood.  Clause 11.01-1S of the scheme directs infill development to areas that are well serviced, close to activity centres and along existing transport routes.  
13	The site is located approximately 175 metres from Doncaster Hill Major Activity Centre.  Doncaster Road is well serviced by a number of bus routes and Westfield Doncaster Shopping Centre is located approximately 700 metres to the west.  Doncaster Primary School is located 300 metres to the west and Schrammes Reserve is located 270 metres to the north-west.  
14	Clause 16.01-2R also encourages a diversity of housing choice and a sustainable city by locating development in and around major activity centres and areas with good access to public transport.  Clause 16.01-3S also reinforces the need for housing diversity to meet changing household needs whilst also encouraging well-designed medium density development that respects neighbourhood character, makes better use of existing infrastructure and improves energy efficiency of housing.
Local Planning Policy Framework
15	Clause 21.03 states there is a challenge to transform Doncaster Road’s identity into a tree lined boulevard by enhancing and improving the streetscape.  Clause 21.04 identifies the site is within a Preferred Medium and High Density Housing Area.
16	In accordance with Clause 21.05-1, the site is located within Precinct 2 – Residential Areas Surrounding Activity Centres and Along Main Roads.  This area anticipates a substantial level of change and is the focus for higher density development.  
17	Precinct 2 states development should provide for contemporary architecture, achieve high design standards, visual interest and contribution to the streetscape.  It also seeks to minimise amenity impacts, provide a graduated built form from side and rear boundaries, use varied, durable materials, integrate car parking and incorporate landscape treatment into the overall development.
18	Precinct 2 contains three sub-precincts that stipulate different height, scale and built form outcomes.  The subject site is located within the Main Road Sub-Precinct that is affected by the DDO8.  This precinct is designed to accommodate apartment style developments with minimum lot areas of 1800 square metres. It also encourages the height and form of buildings to be stepped down to complement the interface with the adjoining sub-precincts.  
Policy Findings  
19	Council acknowledges the site is within an area where substantial change is expected due to its proximity to the Doncaster Hill Major Activity Centre and various facilities and services.    
20	The subject site is located in a RGZ that contains purposes to provide for increased densities up to an including four stories.  It also encourages a diversity of housing types that offer good access to services, public transport and activity centres.
21	Clause 21.05 also anticipates a substantial level of change and has earmarked this main road a focus for higher density development.  This includes apartment style developments.  The objectives of the RGZ and LPPF are reiterated in the DDO8 that seek to increase residential densities and to provide for a range of housing types along main roads.
22	It is clear the subject site is located within a preferred area for substantial change as the RGZ is designed to do the ‘heavy lifting’ in terms of increased residential densities.  The LPPF also designates this as a preferred area for change and this is what is achieved in this proposal.
23	In summary, I find there is support in the planning scheme for the extent of development proposed (i.e. two dwellings to twelve dwellings).  The RGZ, PPF, local policy and DDO8 anticipate a substantial level of change along this section of Doncaster Road that includes three and four storey buildings.  I am satisfied construction of twelve, three storey townhouses appropriately respond to this policy context.
Does the development adequately address the preferred neighbourhood character?
What is the physical character of this neighbourhood?
24	This area has experienced significant change over the past five to ten years with the development of three and four storey apartment buildings and town houses along Doncaster Road and abutting streets.  This reflects the strategic support for higher density housing along main roads and hinterland sites.  
25	The area also contains original housing stock that is mainly single storey brick veneer dwellings with established front and rear gardens.  This includes the two dwellings on the subject site.
26	Doncaster Road is one of the key main roads in the municipality that contains two lanes of traffic and an additional bus lane in either direction.  The road has a central median strip that contains canopy trees.  I agree with Council this planting evokes a boulevard character in the streetscape.  
27	The abutting properties include three to four storey apartments to the north at 2-6 Thiele Street.  This site is within a General Residential Zone and Sub-Precinct B in accordance with Clause 21.05.  This precinct encourages a lower scale of development to the subject site that is within the Main Road Sub-Precinct.  
28	The building contains 50 apartments and was approved at the direction of the Tribunal in January 2013.  The layout includes two levels of basement car parking with access to Thiele Street.  There are nine dwellings (three dwellings per level) that face the subject site.  These dwellings are set back a minimum of 2.58 metres from the south boundary and have courtyards and screened balconies that face the subject site. 
29	On the south-west corner of Doncaster Road and Thiele Street, opposite the subject site, is a four storey apartment building at 765-767 Doncaster Road.  This development was approved by Council in 2008 and includes 38 apartments.  The building is set back 3.1 metres from Doncaster Road and approximately 3 metres from Thiele Street.  
30	Further west is a three storey townhouse building at 763 Doncaster Road that was approved by Council in December 2017.   The four dwellings include ground level garages with access from a wide driveway near the side boundary. 
31	To the east is a single storey brick dwelling at 773 Doncaster Road.  The dwelling is set back a minimum of 5.85 metres from the frontage and 1.85 metres from the common boundary.  The secluded private open space is within the northern setback.  
32	Development on the south side of Doncaster Road includes single storey dwellings, a retirement village and three storey townhouses at 734 and 736 Doncaster Road.
33	Other developments recently approved by Council but not yet constructed include four storey apartments at 775 -779 Doncaster Road containing 37 apartments (20 metres to the east).  Three to four storey apartments were approved in January 2018 at 785 Doncaster Road (160 metres east). 
What is the preferred neighbourhood character?
34	A permit is required to construct a building or carry out works in a DDO8.  Buildings and works must be constructed in accordance with the requirements of this overlay.  
35	Section 2.0 contains a range of recommended height and setbacks for the Main Road Sub-Precinct that are outlined in Table 1 including:
•	A maximum mandatory height of 10 metres that cannot be varied with a permit; and
•	A discretionary frontage setback of 6 metres or the setback recommended in clause 55.03-1, whichever is the lesser.  Side street setbacks are in accordance with Clause 55.03-1.
36	Other design requirements include a maximum site coverage of 60%, visual interest through articulation, glazing and materials, minimisation of buildings on boundaries, stepping buildings down with the slope, ensuring third floor levels do not exceed 75% of the floor area of the lower levels and integrating design features such as porches within the overall building design.  These require a site responsive outcome to provide a well-articulated built form that will not have an adverse impact on neighbours, the streetscape and wider neighbourhood.  
Issues in Dispute
The Front Setbacks
37	Dwellings 6 and 12 are proposed to be set back a minimum of 4.9 metres from Doncaster Road.  The dwellings encroach into the recommended 6 metre setback at three points along the frontage. Council argues these setbacks fail to respect the preferred neighbourhood character outlined in the DDO8.   
38	I find the frontage setbacks to Doncaster Road satisfactory for the following reasons:
•	There is only a minor incursion into the setback at three points along the frontage.  These include at the:
o	ground floor entry of Dwelling 6 by 1.1 metres
o	garage of Dwelling 12 by 0.55 metres
o	south-east corner ground floor bedroom and first floor living area of Dwelling 12 by 0.9 metres.  
•	The setbacks are staggered across the frontage and increase to 7.1 metres at ground floor level due to the configuration of Doncaster Road.  This staggering effect provides visual interest along the façades of the dwellings. 
•	This section contains buildings with a range of frontage setbacks.  The apartments to the west at 765-767 Doncaster Road are set back approximately 3 metres from Doncaster Road and the dwelling to the east is set back 6.7 metres. The proposed setbacks provide a transition between the reduced setbacks to the west to the larger set back to the east.
•	There is a large break in the built form in the centre of the site (i.e. 6.4 metres) due to the provision of the central driveway.  
•	There is sufficient space in the frontage for the planting of seven canopy trees.  This has been shown on the landscape plan.
39	Dwellings 1-5 are proposed to be set back a minimum of 3 metres from Thiele Street but the nibs to the framing elements of the first floor balconies extend into the 3 metre setback recommended in Clause 55.03-1 (Standard B6 – Street Setback) by approximately 300mm.  
40	Council argues the incursion of these nibs reduces landscaping opportunities in the frontage.  It says the individual access points and pathways limit landscaping opportunities within this setback and further exacerbate bulk issues.  
41	I am not persuaded by Council’s arguments and find the incursion of the nibs in the frontage setback minor.  I am satisfied the landscape plan shows planting in the Theile Street frontage will not be substantially reduced.  This plan shows the planting of seven canopy trees and low level shrubs in the western setback.  This planting will filter views of the ground and first floor of the dwellings in the streetscape.  
42	I am satisfied the setback is satisfactory for a corner location and it meets the objectives of Standard B6.  This setback is consistent with the side setbacks of the apartments nearby, including those opposite at 765-767 Doncaster Road.  The frontage setback also provides a suitable transition to the larger setback to the apartments to the north at 2-6 Theile Street. This building is set back approximately 6 metres from the frontage. 
The Building Massing
43	The DDO8 has a design objective to ensure new development is well articulated and upper storey elements are not unduly bulky or visually intrusive.  
44	Council argues a townhouse development containing two modules is inappropriate as it leads to issues relating to character and amenity.  It says it is an overdevelopment of the site as the layout pushes the built form out to the perimeter.  It argues this response results in reduced setbacks, insufficient space for landscaping and excessive hard surface areas throughout the site.  It submits this site is more suitable for an apartment development with a basement car park which would remove the need for extensive driveways and excessive built form closer to side boundaries.  
45	Council also argues the development fails to provide a graduated building line to adjoining properties and there is minimal recessing of the upper levels.  
46	I am satisfied the scale and massing of the townhouses is an acceptable response that responds to the preferred neighbourhood character for the following reasons:
•	The second floor is set back from the ground and first floor in the east and west elevation by approximately one to two metres.  The plans show the second floor west elevation is setback 4.75 metres to 5.5 metres from Theile Street.  This variation in setbacks steps the built form away from the frontage and is consistent with upper levels of the apartments to the north and west. 
•	The design includes a range of materials such as metal cladding, render, face brickwork and timber look cladding. This will provide visual interest in all elevations.
•	The townhouses are stepped down with the slope.  This response breaks up the vertical form of the dwellings along all elevations.  The ground floor level is close to natural ground level and avoids the need for excessive cut or fill and retaining walls/fencing dominating the frontage. 
•	The use of design features such as the framing elements around the balconies and the curved balconies for Dwelling 6 and Dwelling 12 provide further articulation of the built form.
•	There are no walls on boundaries.  There is enough space in the side and rear setbacks for landscaping (minimum of 3 metres) to filter views of the built form from all aspects.    
47	The DDO8 recommends the floor area of the upper level of a three storey building should not exceed 75% of the lower levels, unless it can be demonstrated that there is sufficient architectural interest to reduce the appearance of visual bulk and minimise continuous sheer wall presentation.  
48	This development indicates the second floor area constitutes 66% of the floor area of the lower levels.  This figure satisfies the DDO8 built form requirement and demonstrates the development has responded to the overlay design guidelines to minimise the continuous sheer wall presentation.
The Design Detail
49	Council argues the development does not achieve a high design standard or makes a positive contribution to the streetscape.  It says the framing elements of the balconies, that extend the full width of the west elevation, are an imposing design feature in the facade.  It says the protruding balconies, in conjunction with the repetitive building elements, reduced setbacks and plain upper levels result in a bulky and inappropriate presentation in both streets and adjoining properties.
50	I am not persuaded by these arguments and find the balcony framing elements assist in articulating the townhouses in the streetscape.  They are similar to the fenestration of the balconies of the apartments at 2-6 Theile Street and consistent with the evolving contemporary character of building in the Main Road Sub-Precinct.
The Car Parking Layout 
51	The design objectives of the DDO8 are to ensure the design of carports and garages complement the design of the building.
52	Council submits the development fails to integrate car parking into the design of the building with garages dominating the internal elevations at ground floor level.  It says the internal elevations consist entirely of garage openings and there is minimal ability for landscaping to soften their appearance and add to the amenity internal to the site.
53	I acknowledge there will be a row of twelve garages facing the internal driveway.  However, I find the car parking will not be an obtrusive element of the design as:
•	The landscape plan incorporates a low fence across the southern end of the driveway and 1.6 metres hedge planting in front of the fence.  This will provide a visual screen to Doncaster Road.
•	The garages are incorporated into the design of the townhouses and are not facing the street frontage.  
•	There will be limited views of the driveway at an oblique angle in Doncaster Road as it will also be screened by the seven canopy trees and fencing along the frontage.  
•	The landscape plan shows the inclusion of climbing plants on wires across the driveway. This will provide visual interest along the length of the internal driveway.
•	There are three small landscape pockets adjacent to garages for Dwellings 7, 9 and 11 that provide some visual relief of the paving in the centre of the site.  
•	There is only one vehicle entrance to the site from Theile Street.  The driveway near the northern boundary is approximately 17 metres long and the rear garden beds on either side soften the extent of paving when viewed from this street.  This response is in accordance with the preferred layout in the DDO8 that recommends only one vehicle crossover to maximise on-street parking.  
Is the landscaping response appropriate?
54	The DDO8 has the following design objectives for landscaping:
•	To create a boulevard effect along Doncaster Road and Manningham Road by planting trees within the front setback that are consistent with the street trees. 
•	To encourage landscaping around buildings to enhance separation between buildings and soften built form.
55	The overlay recommends a three storey building should include at least three canopy trees within the front setback which have a spreading crown and are capable of growing to a height of 8 metres at maturity.  It also recommends that landscaping opportunities be provided along side boundaries to assist in breaking up the length of continuous built form and/or soften the appearance of the built form. 
56	Council argues the landscaping treatment is compromised by the building setbacks and extent of hard surfacing.  It says landscaping is generally limited to the site boundaries.
57	The applicant relies on the landscape evidence of Mr Patrick.  His plan shows the development of a small front garden with a 1.2 metre high front fence for Dwelling 1- Dwelling 5. These gardens are proposed to contain a Maple (7 metres at maturity) and hedging to provide some privacy to the entries of the dwellings.  
58	The landscape plan shows the planting of seven canopy trees along Doncaster Road that includes four Blackwoods (12 metres at maturity) and three Crepe Myrtles (6 metres at maturity) and understorey planting.  A 1.8 metre high brick pier and steel picket fence is proposed along Doncaster Road that is to be set back 1 metre from the frontage.  Hedging is proposed in this set back.   
59	Landscaping along the eastern boundary includes a Lilly Pilly hedge and low garden beds.  I find this planting will provide a sense of address for the entries of Dwellings 7- 11.  It is also proposed to plant three Blackwoods and hedging along the north (rear) boundary and retain a Melaleuca adjacent to the driveway.
60	I am satisfied the landscaping response prepared by Mr Patrick will enhance the preferred landscape character of this area for the following reasons:
•	The height and density of planting in the Doncaster Road frontage meets the DDO8 requirement. This will enhance the boulevard effect envisaged for this road.
•	The planting will provide a sense of address for the dwellings facing Theile Street and pedestrian walkway along the east boundary.
•	The absence of the basement allows deep soil planting along the periphery of the site that can accommodate the 17 canopy trees proposed to be planted throughout the site.  The volume of canopy trees is similar or greater than nearby apartment developments located to the north and west of the site.  
•	Landscaping is proposed over the central driveway in the form of creepers on a wire that extends across its width.
61	There is an existing Melaleuca growing along the north boundary adjacent to the car park.  This tree currently provides some screening between the car park and the apartments at 2-6 Theile Street.  
62	The landscape plan currently shows the removal of this tree.  However, Mr Patrick advised that it could be retained.  
63	Whilst it is generally desirable to retain existing canopy trees, I consider removal and replacement with three Blackwoods and screen landscaping is the better option. This will provide consistency in the landscaping treatment along the north boundary and provide a canopy tree presence near the Theile Street vehicle entrance.
Will the development have unreasonable amenity impacts on neighbouring properties?
Visual Bulk 
64	Council submits the development fails to limit amenity impacts on neighbouring properties.  It considers the nominal setbacks to the east boundary at all levels, insufficient landscape opportunities along the north and east boundaries and lack of articulation in the east elevation as problematic.  
65	Council considers the east elevation will cause visual bulk impacts on the dwelling at 773 Doncaster Road due to its length (27 metres) and minimal setbacks (2.7 metres).  It says there are insufficient breaks to prevent the wall being read as a continuous length of building.  It submits the framing elements of the balconies are bulky elements that add to the bulk of the building.
66	I am not persuaded by Council’s arguments and find the height and setback of the east elevation of Dwellings 7 -12 will not result in unreasonable visual bulk impacts on the adjoining dwelling for the following reasons:
•	The building heights and setbacks meet the minimum setbacks of Clause 55.04-1 (Standard B17 – Side and Rear Setbacks).
•	The second floor is set back 4.95 metres to 5.5 metres and steps the built form back away from the adjoining dwelling.
•	The building is facing the side elevation of an adjoining dwelling that is set back approximately 1.95 metres to 4.3 metres from the common boundary.  Therefore the wall is not facing the primary secluded open space of this dwelling that is located in the northern setback.
•	There is currently dense screen landscaping (Conifer Hedge) growing along the front, side boundary of the adjoining dwelling.  This will filter some of the views of the built form.
•	Screen planting (Lily Pilly – 4 metres high) is proposed along the east boundary that will further filter views of the built form.
67	The applicant argues the adjoining property is likely to be developed in the foreseeable future as it is located adjacent to a development site at 775-775 Doncaster Road. A planning permit has recently been issued by Council for four storey apartment building with similar setbacks to those proposed on the subject site.  Whilst this may occur in the future, I must assess the application based on existing conditions. 
68	Council submits the development will have visual impacts on the adjoining apartments to the north at 2-6 Theile Street.  This development includes nine apartments that face the subject site that have balconies and windows in the south elevation.  This building is set back approximately 2 metres to 4.5 metres from the common boundary.
69	I find the setbacks of the north elevation are generous and will not result in unreasonable visual bulk impacts on these apartments.  I have come to this conclusion as the ground and first floor of Dwelling 1 are set back 6.4 metres from the north boundary and Dwelling 7 is set back 4 metres.  The second floor is set back 7.7 metres and 5 metres respectively.
70	These setbacks are significantly greater than the adjoining apartments and there is enough space for canopy tree planting that is shown on the landscape plan.  
Overlooking 
71	Council is concerned about potential overlooking from east elevation windows into 773 Doncaster Road.  It says the development fails to meet the Clause 55.04-6 (Standard B22 – Overlooking).  
72	The east elevation contains obscure glass to first floor habitable room windows and screening to the balcony of Dwelling 7 and Dwelling 9.  The second floor windows contain clear glass.  
73	I agree there is potential for views into the rear yard and habitable room windows of 773 Doncaster Road.  I am satisfied that Condition 1 (b) of the Draft Conditions that requires additional screening of these windows in accordance with Standard B22 will address this concern.
Does the development provide an adequate level of internal amenity for future residents?
Issues in Dispute
The Entry/Sense of Address
74	Council submits the development the entry arrangement provides a poor level of amenity for residents.  It argues the location of the entries of Dwellings 7- 12 facing a shared walkway in the eastern setback fails to provide sufficient delineation and sense of address for the dwellings.  It says there is a lack of ‘signposting’ of the entries as there is only a nib wall between each townhouse.  
75	I do not share Council’s concerns.  The eastern setback proposes a minimum width of 3 metres and the landscape plan shows the planting of a small garden adjacent to each entry.  The main entry to the walkway also includes an arbor in the south-east corner of the site which will act as a signpost for visitors and residents of these townhouses in Doncaster Road.   
76	The landscape plan also indicates the use of different coloured paving at the entry to further differentiate each dwelling.   Mr Patrick also recommended the inclusion of bollard lighting along the walkway to increase the visibility of the entrances.
77	Council also considers the ground floor studies fail to provide passive surveillance of the walkway and they are unlikely to be used due to their small size. I acknowledge the ground floor study facing the walkway is narrow (i.e. 1.7 metres wide).  However, it is a useable area for this purpose and it contains a window that can provide surveillance of the walkway and an outlook to the landscaping.
The Secluded Open Space 
78	Each dwelling has a first floor balcony with access from the living room (12.2 square metres and 17 square metres).  Council acknowledges the amount of open space complies with Clause 55.05-4 (Standard B28 – Private Open Space) but argues this is inadequate as a sole source of open space for a three bedroom townhouse.  It is also concerned that some of these balconies are constrained by screening which reduces their useability and amenity.
79	I am satisfied the size of the balconies is adequate for the proposed level of accommodation.  I have come to this conclusion as the amount of open space is in excess of the minimum standard recommended in Standard B28 (i.e. 8 square metres) and is directly accessible to the living areas.  The layout will ensure most of the balconies will receive adequate access to sunlight and only two of the twelve require screening.  This screening is in the form of louvres with a return that will maintain an outlook whilst preventing downward overlooking.
80	As this site is located in a Substantial Change area that encourages dwelling diversity of housing types along this main road, there is policy support for dwellings with this type of open space.  The site is also within walking distance of parkland such as Schramms Reserve that is located 270 metres to the north-west. 
81	Council submits that only two of the twelve dwellings are provided with a northern aspect and only one dwelling with northern secluded private open space.  Due to the orientation of the site, the townhouses have either an easterly or westerly aspect for habitable room windows and balconies.  This will allow some sunlight access through part of the day.  
82	Council highlights Dwelling 8 and Dwelling 10 have balconies that overlook the central driveway.  It argues these balconies will have a poor outlook due to overshadowing from their adjacent dwellings to the north and west.
83	I find the amenity of these balconies is satisfactory as they are not enclosed by screening and setback a minimum of 4.9 metres from the western module.  This will allow daylight access into the living areas and some sunlight access throughout part of the day.
The Internal Layout
84	Council is concerned that the room dimensions and size of the living areas compromise the internal amenity of the dwellings.  It says there is minimal space left for practical living and dining areas for Dwelling 5 and Dwellings 7- 11 due to the location of the circulation space at the entry of the balcony, around the kitchen bench and bedroom/bathroom entries.  
85	Council argues these spaces fail to achieve a reasonable level of functionality for a townhouse development and do not provide an adequate level of internal amenity for future residents.  Council referred me to the findings in Xia v Manningham CC [2019] VCAT 158.  The Tribunal found that whilst there are no requirements in the Scheme relating to town house development, a living room must have some reasonable functionality to provide an acceptable level of internal amenity for future occupants.
86	Whilst I agree with the Tribunal in this respect, there are some significant differences in the layout of the dwellings before me.  I am satisfied the open plan layout of the first floor provides adequate space for circulation and it will provide a reasonable level of internal amenity for occupants.  
87	I also find the amenity of these dwellings satisfactory as there are generous sized bedrooms, en-suites for each bedroom, open space in excess of Clause 55 minimum requirements and some windows and balconies that are not encumbered by screening.  
Is the parking layout satisfactory?
Accessway Layout
88	Council argues the development does not provide an appropriate car parking and access arrangement.  It says the layout fails to comply with the Design Standards at Clause 52.06 (Car Parking) as the 6.1 metre wide passing bay is located partially over the road reserve.  
89	I agree that the location of the passing bay partially over the nature-strip is unacceptable as it should be located within the site.  Condition 1 (k) of the Draft Conditions addresses this concern by requiring it to be relocated wholly within the site.  This condition also requires a reduction in the floor area of Dwelling 1 to maintain the proposed landscape buffer.  I find a small reduction in landscaping in the north-west corner of the site can be accommodated as landscaping is proposed either side of the driveway and further east along the north boundary to soften the expanse of paving.  
90	The driveway layout includes a 90 degree blind turn.  Council is concerned there is no visibility for on-coming traffic when a vehicle turns into the single width accessway.  I find this issue is addressed in Condition 1.12 of the Draft Conditions that requires the placement of a convex mirror or similar visibility system at the turn on the accessway.  
91	The applicant has provided swept path diagrams for a B85 vehicle for cars entering or exiting each garage.  I am satisfied these diagrams demonstrate there is adequate space within the driveway for vehicle manoeuvrability.
Waste Management 
92	The plans show the provision of a communal waste refuge area in the northern setback adjacent to the driveway.  Council argues no evidence has been provided regarding the suitability of the size of the waste storage or whether a waste truck can reasonably change direction within the site to egress in a forward manner.  
93	Council states that waste must be collected privately from within the site.  The applicant says that an updated Waste Management Plan has been prepared that recommends five 660 litre bins are required on site that will be collected by private contractor.  Swept path diagrams have been prepared for the truck that demonstrates a vehicle can enter the site and turn and exit in a forward direction in the driveway.  
94	The applicant provided an indicative plan that shows that when a waste truck is parked to empty the bins, it will partially block the accesway.  He provided an alternative layout that relocates the bins further east to ensure the truck does not encroach over the accessway which results in a reduction in landscaping along the north boundary opposite Dwelling 7.
95	I find further amendments to the plans unnecessary as the development accommodates only twelve townhouses and the chance of resident vehicle being blocked by the waste truck will be low.  It is preferable to retain landscaping in the northern setback adjacent to Dwelling 7 to filter views to the north.
Other Matters
Environmentally Sustainable Design 
96	In accordance with Clause 22.12-4, a development of ten or more dwellings requires submission of a Sustainability Management Plan (SMP) and Green Travel Plan (GTP).
97	Council submits whilst a SMP was submitted with the original proposal, revised SMP has not been provided for the amended plans.  It says that it is unclear where the development has, or can meet, the ESD requirements of the local policy.  It says however, the original GTP can still be considered relevant given the broad nature of the report.
98	The applicant has undertaken a BESS assessment including NatHERS rating on a typical apartment.  A STORM assessment has also been undertaken that includes collection and reuse of water from all roof top areas.
99	The applicant submits that it is confident the townhouses will meet best practice ESD expectations of Clause 22.14.  
100	Based on the initial information supplied by the applicant, I am satisfied that Condition 4 of the Draft Conditions that requires a SMP can be met.
What conditions are appropriate?
101	Other conditions were discussed at the hearing that includes additional planting, the amount of the landscape bond and tree protection.  
102	Any changes to the permit conditions contained in Appendix A of this order reflect those discussions plus further consideration by the Tribunal.
Conclusion
103	For the reasons given above, the decision of the Responsible Authority is set aside.  A permit is granted subject to conditions. 

Jane Tait 
Member			

Appendix A – Permit Conditions

Permit Application No	PL17/028017	
Land	769 - 771 Doncaster Road,  DONCASTER  	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of twelve, three storey dwellings and altered access to a Road Zone Category 1	

Conditions
Amended Plans
1	Before the development starts, amended plans drawn to scale and dimensioned, must be submitted via email 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 generally in accordance with the decision plans (prepared by Jesse Ant Architects, project number 17055, dated 11 April 2019), but modified to show:
Built Form
a.	The provision of shelter over all dwelling entries;
b.	The east-facing, second floor habitable room windows of Dwellings 7 to 12 screened to limit overlooking to adjoining properties in accordance with Standard B22 of Clause 55.04-6 Overlooking of the Manningham Planning Scheme, or demonstration that overlooking treatment is not required in accordance with Standard B22;
c.	A contrasting variation to the colour finishes of the individual dwellings on the eastern and western elevation (internal and external);
d.	All south-facing habitable room windows of Dwellings 6 and 12 acoustically treated to limit vehicular noise impacts from Doncaster Road;
e.	All north-facing habitable room windows of Dwellings 1 and 7 provided with integrated external shading features to suitably limit solar impacts; 
f.	The location of any roof-mounted service equipment, with appropriate screening to limit visibility from outside of the subject land; 
g.	Provision of low bollard lighting along the pathway in the eastern setback;
h.	Different coloured paving in the pathway in the eastern setback at the entrance of Dwelling 7-11;
i.	Skylight above the second floor stairwells of Dwellings 1-4
Vehicle Access
j.	Details of the varied driveway surfacing (which must not be substantially plain grey concrete); 
k.	The required passing bay increased to 6.1 metres wide and relocated to be entirely within the site; 
l.	Convex mirrors or similar suitable visibility system provided at the turn of the accessway; 
m.	Driveway gradients in accordance with Design Standard 3 of Clause 52.06-9 of the Manningham Planning Scheme.
Management Plan Compliance
n.	Any change and plan notations required by the sustainability management plan required under Condition 4 of this permit; and
o.	Any change and plan notations required by the waste management plan required under Condition 5 of this permit.
Endorsed Plan
2	The layout of the site and the size of buildings and works shown on the approved plans must not be modified for any reason, without the written consent of the Responsible Authority.
Construction Management Plan
3	Before the development starts, a Construction Management Plan (CMP) must be submitted via email and approved by the responsible authority. When approved the plan will form part of the permit.  The Construction Management Plan is to be prepared in accordance with the template within Council’s Construction Management Plan Guidelines.  The CMP must address:
a.	Element A1: Public Safety, Amenity and Site Security;
b.	Element A2: Operating Hours, Noise and Vibration Controls;
c.	Element A3: Air Quality and Dust Management;
d.	Element A4: Stormwater and Sediment Control and Tree Protection (also as per the specific requirements of this permit);
e.	Element A5: Waste Minimisation and Litter Prevention; and
f.	Element A6: Traffic and Parking Management.
Council’s Works Code of Practice (June 2016) and Construction Management Plan Guideline (June 2016) are available on Council’s website.
Sustainability Management Plan
4	Before the development starts or the issue of a building permit for the development, whichever is the sooner, copies of a Sustainability Management Plan (SMP), prepared by a suitably qualified environmental engineer or equivalent must submitted via email and approved by the responsible authority.  The plan must demonstrate best practice in environmentally sustainable development from the design stage through to construction and operation using industry assessment tools.  When approved, the plan will form part of the permit. The recommendations of the plan must be incorporated into the design and layout of the development and must be implemented to the satisfaction of the responsible authority before the occupation of any dwelling.
Waste Management Plan
5	Before the development starts, a Waste Management Plan must be submitted via email and approved to the satisfaction of the responsible authority. When approved, the plan will form part of the permit. Private waste collection must occur on site and no private waste contractor bins can be left outside the development boundary at any time on any street. The plan must be generally in accordance with the submitted Waste Management Plans (WMP) prepared by Leigh Design, dated 17 April 2019.
Management Plan Compliance
6	The Management Plans approved under Conditions 3, 4, 5 and 6 of this permit must be implemented and complied with at all times to the satisfaction of the responsible authority, unless with the further written approval of the responsible authority.
7	Prior to the occupation of each building, written confirmation from the author of the approved Sustainability Management Plan, or a similarly qualified person or company, must be submitted to the responsible authority.  The report must confirm that the sustainable design features/initiatives specified in the Sustainability Management Plan have been satisfactorily implemented in accordance with the approved plans.

Landscape Plan
8	Before the development starts, a landscaping plan prepared by a landscape architect or person of approved competence must be submitted via email to the responsible authority for approval.  Such plan must be generally in accordance with the landscape plan (prepared by John Patrick Landscape Architects, job number 19-260, dated May 2019) and plan approved under Condition 1 of this permit, and must show:
a.	The new shrubs depicted along the northern and eastern boundaries to be Syqygium australe (or suitable alternative screening-type plant);
b.	Details of maintenance for the wisteria floribunda ‘Macrobotrys’ (or suitable alternative climber plan), including details of trimming/pruning to ensure adequate clearance for vehicles beneath;
c.	All screen-type planting to be installed at a minimum height of 0.5 metres; and
d.	Planting within 2 metres along the frontage from the edge of the driveway(s) and 2.5 metres along the driveway(s) from the frontage to be no greater than 0.9 metres in height at maturity.
e.	Climbers on the ground floor  north elevation masonry wall of Dwelling 1
The use of synthetic grass as a substitute for open lawn area within secluded private open space or a front setback will not be supported. Synthetic turf may be used in place of approved paving decking and/or other hardstand surfaces.
Landscape Bond
9	Before the review of development plans under Condition 1 of this permit, a $5,000 cash bond or bank guarantee must be lodged with the responsible authority to ensure the completion and maintenance of landscaped areas and such bond or bank guarantee will only be refunded or discharged after a period of 13 weeks from the completion of all works, provided the landscaped areas are being maintained to the satisfaction of the responsible authority. 
Completion
10	Before the occupation of the approved dwellings, landscaped areas must be fully planted and mulched or grassed generally in accordance with the approved plan and to the satisfaction of the responsible authority. 
11	Privacy screens and obscure glazing as required in accordance with the approved plans must be installed prior to occupation of the building to the satisfaction of the responsible authority and maintained thereafter to the satisfaction of the responsible authority. The use of obscure film or spray fixed to transparent windows is not considered to be ‘obscure glazing’ or an appropriate response to screen overlooking. 
Maintenance
12	Buildings, paved areas, fencing, external lighting, sight screens, drainage and landscaping (including planting within integrated balcony planters) must be maintained to the satisfaction of the responsible authority.
Vegetation Retention 
13	All existing trees on adjoining properties within close proximity to the boundaries on the subject site, must be provided with a protective barrier on the subject land, erected a minimum of 1 metre from the site boundaries to assist in the preservation of such vegetation. Such barriers must be constructed before the works start on site and be maintained to the satisfaction of the responsible authority during construction. 
14	The owner must ensure that contractors/tradespersons who install services or work near the vegetation to be retained are made aware of the need to preserve the vegetation and to minimise impacts through appropriate work practices. 
Stormwater – On-site detention (OSD)
15	The owner must provide on-site storm water detention storage or other suitable system (which may include but is not limited to the re-use of stormwater using rainwater tanks), to limit the Permissible Site Discharge (PSD) to that applicable to the site coverage of 35 percent of hard surface or the pre-existing hard surface if it is greater than 35 percent. The PSD must meet the following requirements:
a.	Be designed for a 1 in 5 year storm; and
b.	Storage must be designed for 1 in 10 year storm.  
Construction Plan (OSD)
16	Before the development starts, a construction plan for the system required by Condition 15 of this permit must be submitted to and approved by the responsible authority. The system must be maintained by the Owner thereafter in accordance with the approved construction plan to the satisfaction of the responsible authority.
Drainage
17	Stormwater must not be discharged from the subject land other than by means of drainage to a legal point of discharge. The drainage system within the development must be designed and constructed to the requirements and satisfaction of the relevant Building Surveyor. A connection to Council maintained assets must not be constructed unless a Connection to Council Drain Permit is first obtained from the responsible authority. Any required outfall drainage works must be completed in accordance with an engineering construction plan approved by the responsible authority. 
18	The whole of the land, including landscaped and paved areas must be graded and drained to the satisfaction of the responsible authority, to prevent ponding and to minimise overland flows onto adjoining properties.
Vehicle Crossings and Accessways
19	Prior to occupation of the approved dwellings, any new or modified vehicular crossover must be constructed in accordance with the plans endorsed under Condition 1 of this permit to the satisfaction of the responsible authority. 
20	Redundant vehicle crossovers must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the responsible authority. 
21	Any gate/door system over the accessway must be installed and maintained, so as to facilitate secure access to the allocated parking areas by residents, visitors and a rubbish collection contractor, to the satisfaction of the responsible authority. 
VicRoads Condition 
22	Prior to the commencement of the use or occupation of the development, all disused or redundant vehicle crossings must be removed and the area reinstated to the satisfaction of the responsible authority and at no cost to VicRoads or the responsible authority.  
General Services 
23	All services, including water, electricity, gas, sewerage and telephone, must be installed underground and located to the satisfaction of the responsible authority.
24	All service pipes must be concealed and screened respectively to the satisfaction of the responsible authority.
25	Communal lighting must be connected to reticulated mains electricity and be operated by a time switch, movement sensors or a daylight sensor to the satisfaction of the responsible authority.
26	A centralised TV antenna system must be installed to each building and connections made to each dwelling to the satisfaction of the responsible authority.  No individual dish antennas may be installed on balconies, terraces, roofs or walls to the satisfaction of the responsible authority.
27	Any reverse cycle air-conditioning unit, hot water boosters or other service plant erected on the walls of the approved building must be appropriately designed and finished with screening if necessary to minimise general visual impacts from off the site to the satisfaction of the responsible authority. 
Rooftop Plant
28	All roof-top plant and services (including any hot water systems, but excluding solar panels) must be installed in appropriately screened areas, unless otherwise agreed in writing with the responsible authority.
29	Unless sufficiently screened by roof parapets, all solar panels and any associated safety railings must be located away from the outer edges of the roof section upon which they are installed, so as to minimise general visual impacts from off the site to the satisfaction of the responsible authority 
Services on Balconies and Terraces
30	Any air-conditioning unit installed on a balcony or terrace must stand at floor level and be positioned to minimise general visual impacts from off the site, and unless otherwise agreed in writing with the responsible authority, no air-conditioning unit may be erected on an external wall to the satisfaction of the responsible authority.
31	Any clothes-drying rack or line system located on a balcony or terrace must be lower than the balustrade of the balcony or terrace to minimise general visual impact from off the site to the satisfaction of the responsible authority.
Metering and Service Cabinets
32	All building services and metering located in the front setback, including fire services, gas, water and electricity, must installed in accordance with the approved plans and must be positioned in discrete manner and be screened using cabinets etc that integrated with the overall building design to the satisfaction of the responsible authority.
Fencing
33	Prior to the occupation of the approved dwellings, all fencing (whether new or retained) must be erected in good condition and be fit for screening purpose in accordance with the plans endorsed under Condition 1 of this permit to the satisfaction of the responsible authority. 
Permit Expiry
34	This permit will expire if one of the following circumstances applies:
a.	The development is not started within two (2) years of the date of the issue of this permit; or
b.	The development is not completed within four (4) years of the date of this permit.
The responsible authority may extend these times if a request is made in writing by the owner or occupier either before the permit expires or in accordance with Section 69 of the Planning and Environment Act 1987.
– End of conditions –