VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1861/2018
Permit Application no. WH/2017/1781	
CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.      	

APPLICANT	Xiaoyang Tian 	
RESPONSIBLE AUTHORITY	Whitehorse City Council	
respondents	Nathan Bachmann, Ron & Veronica Bachmann, Domenico & Chris Barca, Paul, Irene & Melanie Matulin, Nicole Macissac	
SUBJECT LAND	4 Alimar Court
BURWOOD  VIC 3125	
WHERE HELD	Melbourne 	
BEFORE	Laurie Hewet, Senior Member 	
HEARING TYPE	Hearing	
DATE OF HEARING	25 March 2019	
DATE OF ORDER	19 June 2019 	
citation	Tian v Whitehorse CC [2019] VCAT 906	

Order
Amend permit application 
1	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

•	Prepared by:	Jesse Ant Architects 	
•	Drawing numbers:	TP00 to TP16 inclusive All Rev. C	
•	Dated:	05-02-2019	
    
No permit granted
2	In application P1861/2018 the decision of the responsible authority is affirmed.
3	In planning permit application WH/2017/781 no permit is granted.

Laurie Hewet
Senior Member			

Appearances
For Applicant  	Mr J Joyner, town planner
Mr Joyner called expert evidence from:
•	Mr Tony Avaridis, landscape architect.	
For Responsible Authority  	Mr D Song, town planner	
For objectors	Mr N Bachman, Ron & Veronica Bachman, Nicole Macisaac appeared on their own behalf	

Information
Description of proposal	Construction of four, three storey dwellings (two storeys above a basement which protrudes in part above ground level).
All vegetation on the site is proposed to be removed.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Whitehorse Planning Scheme 	
Zone and overlays	Clause 32.08 – General Residential Zone (GRZ3)
Clause 42.03 – Significant Landscape Overlay (SLO9)	
Permit requirements

	Clause 32.08-6:  A permit is required to construct two or more dwellings on a lot.  A development must meet the requirements of Clause 55.  
Clause 42.03-2:  A permit is required to remove, destroy or lop a tree.    	
Land description	The site is located on the north – east corner of a court bowl (Alimar Court).  The site has an irregular configuration with a curved frontage of about 12.1m, a south boundary dimension of 33.3m, a northern boundary dimension of 43.03m and an area 1,239 square metres.
The site rises from the road frontage by 1.84m for a distance of about 10m, and then a further 3.36m towards the north – east (rear) corner of the site. 
A single storey dwelling currently occupies the site.  The site is vegetated with 17 trees assessed by an arborist’s report.  The vegetation comprises predominantly exotic species or weed species.   	

Reasons
What is this proceeding about?
1	This is an application to review the decision of the Responsible Authority to refuse permission for the construction of four dwellings and the removal of vegetation at 4 Alimar Court, Burwood.  The Responsible Authority issued a Notice of Refusal to Grant a Permit on six grounds that raise policy, character, built form (bulk, scale) and Clause 55 non-compliances.  
2	In broad terms it is the Council’s assessment of this proposal that its scale and bulk is excessive for a site located in a residential court bowl location and on a site where the planning scheme encourages development to be respectful of a preferred character that emphasises the retention of a ‘classic garden suburban character’ of modest dwellings in formal garden settings.    
3	There are objectors to this application.  They broadly support the Council’s grounds of refusal but also raise additional amenity considerations. 
4	Having considered the submissions and the evidence and having inspected the site and surrounding neighbourhood, I have concluded the issues to be decided in this case can be categorised as follows:
•	Is the proposal respectful of the preferred character of the neighbourhood?
•	Does the proposal contribute to unacceptable amenity impacts?
5	This proposal does not achieve an acceptable response to the preferred character of this neighbourhood.  In this location and on this site, the planning scheme calls for development that achieves a comfortable fit in its neighbourhood context.   This proposal adopts a height, scale and form that will lead to a development that is not consistent with the outcomes encouraged by the planning scheme.  
6	My reasons are set out below.
Is the proposal respectful of the preferred character of the neighbourhood?
The site’s physical and strategic context
7	The review site forms part of an established residential area comprising predominantly double and single storey dwellings, including medium density housing which typically adopt a townhouse or villa unit typology.  The site is reasonably well located in terms of its proximity to services and facilities normally associated with this suburban locality. 

8	State and local planning policy seeks to achieve the following outcomes in relation to the development in established residential areas:
•	Encourage residential consolidation of established urban areas;
•	Encourage the design of energy efficient buildings;
•	Ensure that development respects existing or preferred neighbourhood character;
•	Ensure that development improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing;
•	Achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community;
•	Encourage the provision of housing to accommodate future housing needs;
•	Ensure existing and future residents enjoy access to acceptable standards of amenity; 
•	Protect existing trees and ensure the creation of an appropriate landscape setting for development including opportunities for the planting canopy trees;
9	Local policy establishes a hierarchical approach to the achievement of the above policy outcomes and for the accommodation of increased population and the provision of increased diversity in housing stock.  In this respect the municipality is divided into three distinct areas within which different levels of change in built form are contemplated.  The review site is in a Natural Change Area the objectives of which are: 
•	Support increased housing choice by allowing for a diversity of dwelling types, sizes and tenures.
•	Ensure new development contributes to the preferred neighbourhood character of the precinct.
•	Encourage new development applications to include landscape guidelines that show how the retention of existing vegetation where possible will be achieved, at the outset of the design process.
10	In Natural Change Areas low and medium density housing in the form of detached houses, semi-detached dwellings, townhouses, row or terrace houses, units or townhouses are encouraged.  New medium density developments in Natural Change Areas are encouraged to contribute to the preferred neighbourhood character for the location.  

11	Substantial change areas and minimal change areas comprise the other components of the hierarchy.
12	There is general agreement in this case between the parties that the review site is suitable for some form of medium density housing because of its area and configuration, the zoning of the land (GRZ3) and the site’s general locational attributes.  
13	The dispute in this case centres primarily around the proposal’s built form and the extent to which it is acceptable to the character of the neighbourhood in a natural change area.  
14	I address this matter below.  
The existing and preferred character of the neighbourhood.
15	The character of the site’s immediate neighbourhood is strongly influenced by its location in a court and at the end of the court bowl.  The court comprises eight dwellings (including two dwellings at the entrance to the court which have a frontage to Pearce Street).  The dwellings in the court are single storey with double storey elements associated with the topography of the area with land typically rising above street level especially around the bowl of the court.  The dwellings in the court are sited within established and well-maintained gardens.  
16	The review site forms part of a neighbourhood that has been included in a Garden Suburban Precinct (GS4).  The preferred character statement for GS4 relevant to the review site is: 
The area will retain its classic garden suburban characteristics of modest, pitched roof dwellings in formal garden settings. The defined pattern of regular front setbacks and side setbacks from both side boundaries will be maintained, allowing sufficient space for planting and growth of new vegetation. Low or open style front fences will provide a sense of openness along the streetscape, and allow views into front gardens
17	The applicant submits that the design of the proposal responds in an acceptable manner to the objectives of the natural change area and the preferred character of GS4 because: 
•	The proposal is three storeys but there is no provision of the planning scheme that constrains development to a height of less than three storeys.  Unlike the Neighbourhood Residential Zone, the GRZ3 establishes a maximum height of 11.0m and three storeys.  
•	The attached ground level built form is acceptable in the context that the proposal adopts a townhouse typology which is a form of development recognised in local policy as being acceptable in a natural change area. This form of development is increasingly common in this neighbourhood.
•	The amended plans have introduced separations between dwellings at the upper level.
•	There is no on-boundary construction and the presentation to the open space reserve to the east is recessive and articulated.  
•	The proposed site excavation has the benefit of restricting the proposal’s height so that it presents as a standard tow storey development if constructed at natural ground level. 
•	The orientation of the driveway allows its visual presentation to the street to be relatively confined.  
•	Ample opportunity for effective landscaping is available on site.  
•	The proposal will largely present as a single dwelling in the streetscape.
•	The proposal demonstrates substantial compliance with the standards and objectives of Clause 55. 
Findings
18	I acknowledge the applicant’s submission about the provisions of the planning scheme allowing for three storey development in the GRZ3 and the lack of specificity in the planning scheme in terms of encouraging development at heights less than three storeys.
19	I also acknowledge and agree with the applicant’s submissions that recent amendments to the planning scheme are intended at least in part, to increase certainty about the height, scale and form of development considered to be acceptable in particular zones.  
20	Notwithstanding this however, the purpose of the GRZ is to encourage development that respects the neighbourhood character of the area, and to encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.  The neighbourhood character objective of Clause 55 is to ensure that the design of a development respects the existing neighbourhood character or contributes to a preferred neighbourhood character.  The site’s inclusion in a natural change area establishes the strategic context in which the acceptability of a proposal’s respect for character needs to be considered. 
21	The judgement to be exercised about a proposal’s acceptability is inevitably a contextual judgement.  While a development of three storeys can be legitimately considered on all sites in the GRZ, the acceptability of the proposal at that height will be informed by the site’s strategic context.  For example, whether the site is included in a substantial change area, natural change area or minimal change area , the judgement about an acceptable outcome is likely to be very different in each area.  
22	The site’s physical context is also relevant.  Factors such as the site’s area and configuration, topography, vegetation cover, existence of sensitive interfaces, proximity to services and facilities, will also inform the judgement about the proposal’s acceptability.   
23	Having regard to these matters I have reached the conclusion that an acceptable design for this site is one which demonstrates that it ‘fits in’ by respecting the scale and form of surrounding development in the neighbourhood context.  Such an outcome would be consistent with the objectives of both the natural change area and the preferred character of the neighbourhood, and therefore the purpose of the GRZ3.
24	My findings on this point does not mean that a development should be expected to mimic or replicate existing development patterns in a neighbourhood. Nor should my findings be interpreted to mean that this site does not have the potential to contribute to housing diversity and settlement policies. 
25	My findings relate specifically to the design of this proposal which I have concluded is unacceptable in this neighbourhood context because the proposal’s three storey height and the continuous built form at ground level is uncharacteristic of and unprecedented in Alimar Court which, as I have described previously comprises predominantly low scale dwellings set within established and well-maintained gardens.  
26	The proposal’s south elevation provides an indication of the height, scale and form which I have found to be unacceptable in this neighbourhood context in a natural change area.  

27	I disagree with the applicant’s submission that the proposal would have only a limited visual presence when viewed from the public domain.   When approaching the site from the south along the court, the front two dwellings and their full three storey height will be viewed from about the midpoint of the court, over the front setback of the dwelling to the south.  The balance of the development will become increasingly visible when viewed from vantage points in the court bowl.  
28	The proposal’s visual prominence is exacerbated by the expanse of hard paving in front of the dwellings along the southern portion of the site.  Limited opportunity for landscaping is available toward the site’s frontage to the court bowl and along the paving.   
29	For these reasons I have concluded the proposal is too dominant and too different in scale, height and form from that of the existing dwellings in this court.  The extent of change brought about by this proposal is not an acceptable outcome having regard to the preferred character of the area and the objectives of the natural change area. 
Does the proposal contribute to unacceptable amenity impacts?
30	The Council and the objectors raise concerns about the proposal’s visual bulk impacts on neighbouring properties.  The objectors also raise concerns about loss of visual privacy and the proposal’s impact on vegetation located on neighbouring properties.  
31	The proposal exhibits compliance with the relevant standards and objectives of Clause 55 in relation to overlooking, overshadowing and loss of daylight.  The proposal does not give rise to unacceptable amenity impacts in relation to each of these matters. 
32	In relation to visual bulk the proposal has abuttals with four neighbouring properties.  The most sensitive of these abuttals are to the north (secluded private open space of the dwelling at 17 McCubbin Street and the secluded private open space of the townhouse at 4/15 McCubbin Street) and to the south (rear secluded private open space of the dwelling at 5 Alimar Court).
33	The proposal will be viewed from each of these neighbouring dwellings, however the visibility of a proposed building is rarely enough to establish that a proposal contributes to unacceptable visual bulk. 
34	In this case, the proposal provides generous setbacks of up to 5.0m at ground level and up to 6.1m at first floor from the northern boundary.  These setbacks are generously more than those required by Clause 55 standard B17 relating to side and rear setbacks.  Landscaping opportunities are available within those setbacks abutting the northern neighbours. 
35	The proposal is setback up to 9.25m from the southern boundary with the setback being occupied by the driveway and landscaping.  This setback is also significantly more than that required by standard B17.  
36	Having regard to the above I am satisfied that the proposal achieves the relevant objective of Clause 55.04-1 which is to …ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings 
Conclusion
37	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.  

Laurie Hewet
Senior Member