VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P2350/2018
Permit Application no. D/66/2018	
CATCHWORDS	
Section 77 Planning and Environment Act 1987; Darebin Planning Scheme; Mixed Use Zone; Design and Development Overlay Schedule 17; Internal Amenity; Equitable Development.     	

APPLICANT	Harun Ozturk	
responsible authority	Darebin City Council	
Referral Authority	VicRoads	
SUBJECT LAND	648 Plenty Road, Preston	
WHERE HELD	Melbourne	
BEFORE	Joel Templar, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	28 May 2019	
DATE OF ORDER	21 June 2019	
CITATION	Ozturk v Darebin CC [2019] VCAT 883	

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:	Property Designs.	
•	Drawing numbers:	TP00 to TP13 inclusive.	
•	Dated:	10 April 2019.	

No permit granted
2	In application P2350/2018 the decision of the responsible authority is affirmed.
3	In planning permit application D/66/2018 no permit is granted.

Joel Templar 
Member			

Appearances
For Harun Ozturk	Mr Chris McKenzie, solicitor of Planning Appeals Pty Ltd.	
For Darebin City Council	Ms Louise Lunn, town planner of Louise Lunn Planning.	
For VicRoads	No appearance.	

Information
Description of proposal	The proposal is to construct a three storey mixed use development, comprising a shop at ground floor and seven dwellings to the rear and across the other two levels above. The dwellings are to be arranged such that two front Plenty Road, with two facing the rear laneway and the remaining three in between. A ground level garage is proposed and accessed from the rear laneway providing a total of five car parking spaces. An existing crossover to Plenty Road is 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	Darebin Planning Scheme	
Zone and overlays	Mixed Use Zone
Design and Development Overlay Schedule 17
Development Contributions Plan Overlay Schedule 1	
Permit requirements	Clause 32.04-6 – to construct two or more dwellings on a lot.
Clause 43.02-2 – to construct a building or construct or carry out works.
Clause 52.06-3 – to reduce the number of car parking spaces required under clause 52.06-5.
Clause 52.29 – to create or alter access to a road in a Road Zone Category 1.	
Land description	The review site is regular in shape with a frontage to plenty Road of 12.22 metres, a length of 30.572 metres and a total site area of approximately 441m². The site has access to a 3.05 metre wide laneway to the rear which runs between Rene Street to the north and Madeline Street to the South.	
Tribunal inspection	7 June 2019	

Reasons
What is this proceeding about?
1	The State of Victoria, and in particular Metropolitan Melbourne, has experienced significant population growth in recent times. The result of which has been a greater need to house the increasing population. A significant way in which this need has sought to address this issue has been through the development of more compact dwellings in close proximity to services and facilities. 
2	Perhaps the biggest tension in dealing with this change has been a balance between providing for population growth whilst respecting neighbourhood character. 
3	One of the more emerging issues has been the need to strike a balance between accommodating this population growth whilst also providing acceptable levels of internal amenity for future occupants of such developments. 
4	This proceeding is brought by Harun Ozturk which seeks to review a decision of Darebin City Council to refuse to grant a permit for the development of the land for a shop, seven dwellings and reduction of car parking requirements at 648 Plenty Road, Preston. 
5	The Council refused the application on numerous grounds. These related to:
•	The proposal is contrary to relevant local and state planning policy;
•	inconsistency with the objectives of the Design and Development Overlay Schedule 17 (DDO17) including the proposal’s impact on the ability for the adjoining site to the north to achieve equitable development outcomes; 
•	the review site does not meet the minimum frontage width specified in the DDO17;
•	excessive building height;
•	inconsistency with setbacks sought under the DDO17;
•	matters relating to the number of entries across the frontage;
•	design detail;
•	extent of screening throughout the development; 
•	inconsistency with a number of clause 55 requirements; and 
•	inadequate car parking and bicycle facilities.
6	At the hearing, the key issues identified by the Council to which it made submissions related to the internal amenity of dwellings 3, 4, and 5, whether the proposal would compromise the ability of the adjoining site to the north to achieve equitable development outcomes and whether the facade treatment is acceptable. A number of other issues were also raised by the Council including waste collection, car parking provision and design, internal layout issues and the ability for dwellings to provide access for people with disability or mobility issues.
7	The applicant submitted that the proposal will provide acceptable internal amenity for all the dwellings having regard to the site’s context and the relevant provisions and policies of the Darebin Planning Scheme. It was also submitted that the proposal will not compromise the equitable development ability of the adjoining site and its submissions on this point, in part, relied upon a current planning permit application proposed for that site. The applicant also submitted that the proposed facade design is acceptable as an active frontage is achieved through the design response and design detailing to the facade. The applicant also addressed the issues raised by Council and submitted that such matters either did not warrant refusal of the proposal or could be addressed via conditions.
8	There was no dispute that the review site is suitable for some form of higher density development. This proceeding turns on the specific design response and its acceptability to the relevant provisions and policies of the scheme, particularly the DDO17.
9	Having regard to the matters that I must consider in the Scheme, I find the site is suitable for some form of higher density development. However, the internal amenity of the dwellings will be compromised to an extent that I find is unacceptable. My reasons follow.
Has the right balance been struck between internal amenity AND EQUITABLE DEVELOPMENT?
10	I find that the simple answer to this question is, no.
11	The applicant submitted that the policy assumption within the Scheme, including in the DDO17, is that mid-lot dwellings may not provide an appropriate balance of amenity and development opportunity and that such an outcome is inevitable to some degree as contemplated by the DDO17.
12	One of the issues in dispute related to the interpretation of one of the ‘General building envelope requirements’ for building setbacks sought under the DDO17, at clause 2.1-3 and the phrase ‘increasing side setbacks’:
•	Dwellings should be orientated towards front and rear boundaries where possible, in order to provide a high level of unobstructed daylight access. On deeper sites over 45 metres, buildings should be separated, mid-lot, to create an internal courtyard. Upper levels should be set back to allow good daylight access to dwellings at lower levels, and create a quality primary outlook for the dwellings facing the internal courtyard. Where orientation to side boundaries cannot be avoided, increasing side setbacks should be provided to enable a high level of daylight access. (My emphasis)
•	Where light courts are proposed, their footprint should be usable for secluded private open spaces, and their bounding walls at upper levels are to be set back gradually to provide a wider light court and good quality solar access to lower levels. Overall, development should be designed and sited so that adjacent lots can be developed in a similar manner, creating a cumulative development pattern that has consistent street edge condition, mid-lot separation of built form, and/or light court locations and side setbacks as described in this schedule.
13	The Council submitted that this phrase is to be interpreted as providing greater side setbacks to side facing dwellings in order to provide acceptable levels of daylight and internal amenity.
14	The Applicant submitted that this phrase referred to the need for side setbacks to increase with each level ascending, in order to ensure each level above a dwelling was setback from the wall below. The result of which would be that no dwelling would have a sheer wall above it.
15	I find that this phrase refers to both positions put by each of the parties. This is primarily because of the following extract of the same clause, which immediately follows that to which I have referred to and extracted above:
•	Where light courts are proposed, their footprint should be usable for secluded private open spaces, and their bounding walls at upper levels are to be set back gradually to provide a wider light court and good quality solar access to lower levels. Overall, development should be designed and sited so that adjacent lots can be developed in a similar manner, creating a cumulative development pattern that has consistent street edge condition, mid-lot separation of built form, and/or light court locations and side setbacks as described in this schedule.
16	The DDO17 seeks to achieve a holistic outcome with respect to on-site amenity, by ensuring side setbacks are individually adequate, as well as ensuring upper levels do not unacceptably impact on the amenity of levels below.
17	The Council was critical of the review site not meeting the desired lot frontage width minimum of 15 metres and said that this contributes to the poor amenity outcome of the proposal and compromises equitable development potential of the adjoining site. 
18	The Applicant submitted that the review site is not a small site and that the lot still has a “workable” lot width despite being less than the preferred minimum width of 15 metres.
19	The principles of equitable development do not necessarily require that equal outcomes be achieved between sites. However, in this instance, the DDO17 actively encourages lot consolidation in order to achieve high quality outcomes for higher density developments along this corridor.
20	The DDO17 also seeks that lots have a minimum width of 15 metres. It also sets out that where this is not the case, exemplary design outcomes are sought and maximum height allowable under the control may not be achievable.
21	Neither lot consolidation nor the minimum frontage width sought under the DDO17 are mandatory. Therefore, the proposal is not prohibited and can be considered. 
22	The Council submitted that the DDO17 seeks to have dwellings orientated to the front and rear of sites, although this is not a requirement, rather, a preferred outcome. However, orientating dwellings to the sides, particularly on a site as narrow as this, has design challenges.
23	In this case, it is primarily the issue of outlook from the living/kitchen areas of dwellings 3, 4 and 5 that are of primary concern. Also of concern, but perhaps to a lesser extent, is the outlook from the living areas of dwellings 6 and 7.
24	The Applicant submitted that dwellings 3, 4 and 5 all have benefits of being side facing dwellings, including diversity in dwelling types a suitable range of households, having dual aspect which provides cross-ventilation, protection from noise generated from Plenty Road and the provision of separate roof terraces to each of those dwellings. It was also submitted that suitable on site amenity is achieved through daylight access and outlook from the upper level roof terraces.
25	However, I find that the lack of a consolidated site and its lot frontage width not meeting the desired width under the DDO17 are factors, combined with the level of development sought on this site, that have contributed to the unacceptable outcome of this proposal. I find that the proposal does not achieve an acceptable level of internal, or on site, amenity for future occupants of dwellings 3, 4 and 5.
26	The key reason for this is that whilst the kitchen/living areas of these dwellings have dual aspect/window outlook, they have poor outlook. Both aspects of these dwellings are towards screening at 1.7 metres high and which is at a relatively short distance from each of the respective windows. Although there are balconies on the northern side of these living areas, these are relatively shallow in width and small in area, with dimensions of approximately 5 metres by 2 metres. 
27	I find that this poor outlook does not provide for an acceptable level of amenity to these living areas given the restricted outlook, particularly considering these are the only living areas of these dwellings. Further, with the DDO17 in place, there are expectations of greater intensity of development on the adjoining site, as the DDO17 encourages dwellings to front either the front or rear of sites (not to the side boundaries), with walls on boundaries for 100% of the site length.
28	There are also roof terraces proposed to each of dwellings 3, 4 and 5 however, these are two levels above the sole living areas and are not directly accessible from those living areas. Whilst these provide another area of secluded private open space (SPOS), the separation of them from the living areas does not integrated amenity in order to address my concerns.
29	In order for these dwellings to maintain the level of amenity proposed to these areas, despite the fact that I find the amenity as proposed is unacceptable, is, I find, partly reliant on what occurs on the adjoining site to the north.
30	In support of its submissions, and to counter the Council’s submissions, the Applicant relied upon the planning permit application for the redevelopment of the adjoining site to the north. The Applicant said this proposal has been designed to take into account the proposal before me and would not compromise the amenity of dwellings 3, 4 and 5. This proposal includes walls adjacent to dwellings 3, 4 and 5 that would extend approximately 6-7 metres in height, whereas the finished floor levels of the dwellings/balconies of dwellings 3, 4 and 5 are approximately 2-3 metres above NGL. This, coupled with the 2 metre width of the balconies, would have a significant and unacceptable impact on the amenity of these dwellings. Such an outcome would likely require any proposal to the north to respond accordingly. This may compromise the achievement of the DDO17 outcomes on that site by requiring any future development to be setback from the common boundary in order to allow acceptable amenity outcomes for dwellings 3, 4 and 5.
31	Dwellings 6 and 7 suffer a similar fate, although perhaps not to the same extent as dwellings 3, 4 and 5 and for slightly different reasons. However, I find that the use of slatted screening to the outer edge of the balconies (over which the only living areas of these dwellings have any prospect of outlook) will not provide an acceptable level of internal or on site amenity for these dwellings. Whilst the screening meets the requirements of clause 55.04-6 (Overlooking objective) to protect the amenity of the property on the opposite side of the laneway to the east, it has done so at the cost of internal amenity for these dwellings. 
32	Whilst potentially this issue could be addressed via conditions, this was not explored during the hearing. In any case, I have decided the proposal is unacceptable with respect to the internal amenity of other dwellings. However, there are any number of design solutions that could provide for better and mutually beneficial outcomes to the dwellings on the review site and opposite, that I find have not been achieved in this case.
33	It strikes me that the proposal is seeking to yield too much from a site that has particular physical and Scheme constraints which, although not insurmountable or prohibitive, have not been overcome through an acceptable design response.
Is the built form treatment to the front acceptable?
34	The Council submitted that it was generally satisfied with the building treatment of the facade fronting Plenty Road. However, it took issue with the number of doorways proposed across the frontage and submitted that such an outcome would provide a confusing interface with poor legibility and the purposes of the entrances would be indistinguishable.
35	Three doorways are proposed. One to the shop, one for dwelling/studio 1 and one common doorway for the remaining dwellings.
36	In support of its submissions, the Council relied upon clause 55.02-5 (Integration with the street objective). 
37	The Design objectives of DDO17 also seek high quality urban design outcomes activation of building frontages, high quality pedestrian amenity and improvement of visual amenity of built form along Plenty Road.
38	I find that this design outcome on such a narrow frontage could create an outcome that is not consistent with what the Scheme seeks to achieve in this location. Whilst the DDO17 also seeks variation and visual interest to building facades, I find that this proposal goes too far, and I agree with the Council that this creates a confusing and overly busy frontage treatment. A more consolidated approach to the arrangement of the layout and entries is required to result in a high quality streetscape and pedestrian environment. This is demonstrative of a proposal that I find is not overly well resolved and inconsistent with the DDO17.
is the proposed Car parking acceptable?
39	The Council raised concerns with respect to the provision of car parking. It said that although the proposal was only one car parking space short of what it said was acceptable, an additional space should be provided so that six of the seven dwellings are provided with at least one car parking space. 
40	The Council also submitted that the review site is extremely well located to public transport options, activity centres, some of which are within walkable distance.
41	Clause 52.06 of the Scheme (Car Parking) requires a total of eight car parking spaces to be provided on site with one of those being required for the shop use. A total of five car parking spaces is provided on site (allocated to dwellings 3 to 6) and so a reduction of the car parking requirements by three spaces is sought pursuant to clause 52.06-3 of the Scheme.
42	The Council submitted that it was satisfied that no car parking was provided for the shop but that 6 of the 7 dwellings should be provided with one space.
43	Clause 52.06 of the Scheme includes the following purpose:
•	To support sustainable transport alternatives to the motor car.
44	The decision guidelines of clause 52.06 include the availability of public transport in the locality.
45	The objectives of clause 22.12, Environmentally Sustainable Development policy, also include a preference for walking, cycling, public transport in order of preference and the minimisation of car dependency. 
46	The route 86 tram and route 555 bus run along Plenty Road and bus route 567 runs along Tyler Street, approximately 100 metres to the north, including stops within a similar distance. Regent train station is also approximately 1.2 kilometres walking distance to the west.
47	I find that the three space reduction is acceptable. The review site, as submitted by the Council, is very well located to various modes of public transport and activity centres. I also find that providing dwellings with no car parking also serves to provide dwelling diversity and potentially affordability. Such an outcome meets Council’s own policy objectives at clause 22.12, particularly given the locational attributes of the site which mean that future residents could meet most of their needs by walking or public transport.
48	The studio dwellings are also relatively modest in size and could perform a dual function of providing a dwelling and home occupation space, given their location at the front of the site. This could reduce the need for commuting and reliance on private vehicle trips which is encouraged by the Scheme.
49	For these reasons, I find that the car parking reduction sought is acceptable.
Are there any Other issues?
Accessibility 
50	The Council raised concerns with respect to the inconvenience caused to occupants of dwellings 6 and 7 having their only access to their garages via the vehicle accessway. There are no stairs or a lift within each garage providing direct access to the respective dwellings.
51	Although perhaps not ideal, I am not persuaded that this is unacceptable. The garage area only serves a total of five car parking spaces within which a low volume of vehicle movements would be expected. This is due to the nature of the use to which the garages are associated (dwellings) and given the abundance of public transport options available in the surrounding area that would likely reduce car usage. I am therefore not persuaded that this outcome results in any unacceptable inconvenience or safety issues.
52	It was also submitted that the proposal does not meet the relevant requirements of clause 55.05-1 (Accessibility objective) as none of the dwellings had been designed such that they could be suitable for people with limited mobility, given the living areas and bedrooms of all dwellings are proposed above ground floor level and only accessible via stairs, with no lift provided.
53	I agree with the Council that this is a matter that has been overlooked and not adequately addressed through this proposal. I see no reason why a lift should not be incorporated into a proposal such as this to provide options for people with limited mobility. It seems to me that this is another factor that demonstrates the proposal is not well resolved and appears to have prioritised dwelling yield over requirements of the Scheme. 
Other issues
54	Other issues raised with the proposal include waste collection, bin storage (for dwellings 1 and 2), dwelling storage location (above-bonnet for dwellings 3 to 7) and provision (none for dwellings 1 and 2), the foyer layout with integrated bicycle parking, shadow diagrams not showing off-site impacts and the section diagram not updated for the amended proposal.
55	As I have decided that a permit is not to issue for other reasons, I do not go into these matters in great detail. However, I make the following brief comments. 
56	Waste collection issues would need further clarification, as it is unclear whether a waste collection vehicle could enter the site based on the height of vehicle proposed and whether adequate turning area is available within the laneway. The laneway appears rather narrow with limited turning space. I acknowledge the waste management plan submitted with the permit application shows swept path diagrams but these appear to be very marginal with respect to clearances.
57	Whilst above bonnet storage may not be ideal, I find that this is acceptable. However, having no storage for some of the apartments is not and does not meet the relevant requirements of clause 55. All apartments should be provided with storage.
58	I am not concerned with the foyer/entry area and its integration with bicycle parking. This seems to be a logical place to locate bicycle parking and does not strike me as creating any conflicts or an unusable space for either purpose.
59	Any future proposal will need to address accuracy of plan information, including shadow diagrams.

Conclusion
60	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Joel Templar 
Member