VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1964/2018
Permit Application no. P17/2290	

APPLICANT	May Tuyet Tong	
responsible authority	Mornington Peninsula Shire Council	
SUBJECT LAND	70 Swans Way
CAPEL SOUND VIC  3200	
WHERE HELD	Melbourne	
BEFORE	Peter Gaschk, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	18 April 2019	
DATE OF ORDER	24 June 2019	
CITATION	Tong v Mornington Peninsula SC [2019] VCAT 943	

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:	MODARC 	
•	Drawing numbers:	TP1, TP1A, TP3 – TP9 (incl.), all Revision C	
•	Dated:	February 2019	
2	In application P1964/2018 the decision of the responsible authority is set aside.
3	In planning permit application P17/2290 a permit is granted and directed to be issued for the land at 70 Swans Way, Capel Sound, in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of three double storey dwellings on a lot in a General Residential Zone, Schedule 1 

Peter Gaschk
Member			

Appearances
For applicant	Mr David De Giovanni, Planning Consultant, David De Giovanni Town Planning	
For responsible authority	Mr Gerard Gilfedder, Town Planner, Currie Brown (Australia)	

Information
Description of proposal	Construct three double storey dwellings on a lot.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mornington Peninsula Shire Planning Scheme (the Scheme)	
Zone and overlays	General Residential Zone, Schedule 1 (GRZ1)
No overlays apply	
Permit requirements	Clause 32.08-6: To construct two or more dwellings on a lot	
Relevant scheme policies and provisions	Clauses 11.01-1S, 11.03-5S, 12.05-1S, 15, 16, 21.04, 21.06, 21.07, 22.13, 32.08, 52.06, 55, 65, 71.02.	
Land description	70 Swans Way, Capel Sound (the review site) is located on the northern side of Swans Way, 20m east of Vale Street.  The site has a frontage of 18.2m, depth of 52.9m and overall area of approximately 888sqm.
The lot is relatively flat with two unconstructed crossovers to Swans Way.  It contains a single storey weatherboard dwelling with some mature trees and lower scale vegetation to the front and rear.
Land adjoining the western boundary includes two side by side, double storey dwellings (72 Swans Way).  To the eastern boundary is a single storey dwelling (68 Swans Way). Opposite the site to the south includes a single storey dwelling (97 Swans Way) and four dwellings in a u-shaped configuration (99 Swans Way).  To the north (rear boundary) is a single storey dwelling (73 Broadway).
The site is located within an established residential area.  The area is evolving from its historical ‘holiday home’ character, to a more contemporary styled, permanent residential setting, with newer single and double storey housing and some medium density housing emerging.  
The site is located 200m from public bus route 787 (Truemans Road).  Passive parkland and active recreational reserves are located within comfortable walking distance to the south. Capel Sound Foreshore is located some 650m to the north with the Tootgarook Primary School to the north west.  Rosebud and Rye Activity Centres are located some 3km and 3.3km from the site.	
Tribunal inspection	Undertaken on 22 April 2019.	

Reasons
What is this proceeding about?
1	This is an application by May Tuyet Tong (the Applicant) under s77 of the Planning and Environment Act 1987 (the Act), for a review of the Mornington Peninsula Shire’s (the council) Refusal to Grant a Planning Permit for the construction of three dwellings at 70 Swans Way, Capel Sound.
2	The dwellings have a contemporary, modern styling, using a range of colours and building materials including brick, render and skillion style metal deck roof.  All dwellings are double storey form with an overall height of 7.3m.  The attached dwellings are arranged in a tandem format down the length of the site, with Dwelling 1 fronting Swans Way (set back 7.7m).  This dwelling will have a separate driveway along the western boundary to access a double car garage located on the boundary.  Dwellings 2 and 3 are located behind the front dwelling and will be accessed by a new driveway proposed along the eastern boundary.  Each of these dwellings includes a double car garage accessed from this driveway, with the garage to the rear dwelling located on the eastern boundary.
3	The proposed development will have an overall building site coverage of 42%, permeable area of 40.3% and minimum garden area of 36.4%.  Ground level secluded private open space (SPOS) is provided to each dwelling.  First floors are separated between all dwellings.  Rear setbacks allow for the retention of two mature canopy trees.
4	At the hearing the applicant sought to substitute amended plans prepared by MODARC, dated February 2019.  The plans had been circulated to parties in accordance with the Tribunal’s Practice Note.  Council did not oppose the substitution of these plans.  I substituted these plans as reflected in my order above and the hearing proceeded on the basis of the amended plans.  
5	The council submits the proposed development is not consistent with the policy framework for the Capel Sound township and is not respectful of neighbourhood character.  The council says ‘the primary issue with the proposal is that the design response of three dwellings is too intensive for the location resulting in a design response out of keeping with the surrounding neighbourhood character.’  Its grounds of refusal refer to specific concerns around neighbourhood character, design detail and landscaping.  
6	The applicant disagrees with council’s assessment and says: 
•	This is not a tight proposal.
•	High ResCode compliance is achieved on what is a generous sized allotment that is well positioned to achieve 20-minute neighbourhood principles.
•	The layout responds to the emerging character of larger single dwellings and medium density housing.
•	SPOS, side setbacks and site coverage are generally in excess of those listed at clause 55.
•	This development contributes to housing diversity in a location where policy advocates change.
what are the key issues?
7	I consider the key issues within this review are focused on planning policy setting, neighbourhood character and amenity/design response. 
8	I have had the benefit of viewing photographs, aerials, maps and diagrams that form part of the submissions from the parties.  I have also been assisted by my inspection of the review site and surrounding area.
9	I must decide whether the proposal will produce an acceptable and reasonable planning outcome, having regard to the relevant Scheme policies, objectives and provisions that apply to the review site.  
10	I consider the key issues in this proceeding can be expressed as:
•	Is the proposal acceptable in its strategic and physical context?
•	Is the proposal respectful of neighbourhood character?
•	Will the proposal result in unreasonable amenity impacts?
11	Having considered the submissions and material from the parties, applicable local policies and provisions of the Scheme, I have determined to set aside the council’s decision and direct a permit issue with conditions as outlined in Appendix A to this decision.  
12	I find the proposal is consistent with existing planning policy, respects neighbourhood character and achieves a satisfactory level of amenity on and off the site.  My reasons follow.
Is the proposal acceptable in its strategic and physical context?
Zoning
13	It is important in my assessment of this proposal that the GRZ1 purposes seek to encourage a diversity of housing types and housing growth, particularly in locations offering good access to services and transport. In addition, the zone encourages development that respects neighbourhood character.  
14	It is also significant in my findings that Schedule 1 to the zone does not vary any clause 55 provisions and the site is not affected by any Overlay that would direct specific design outcomes for new housing.  The council accepts the proposal satisfies specific garden area and height requirements sought in the zone schedule.  The council’s grounds of refusal originally included the proposal failed to satisfy the minimum garden area requirements of clause 32.08-4.  At the hearing it conceded the substituted plans satisfied this zone requirement and no longer contested this matter.
Planning Policy Framework (PPF)
15	Clause 11.03-5S establishes consideration of the Mornington Peninsula Localised Planning Statement (the Statement).  This is a fundamental planning policy statement in the Scheme that seeks to protect and enhance the unique environmental setting of the Peninsula.  The Statement notes that ‘the townships of the Mornington Peninsula are expected to accommodate at most moderate and generally low levels of housing growth.’  
16	State planning policies described in the PPF also seek to encourage urban consolidation and in-fill of new residential development in areas that are well serviced by infrastructure and community facilities (clauses 11.01-1S and 11.02-1S).  I consider the location of the review site is consistent with the objectives of these clauses.  
17	State policies also seek to locate new development where convenient access is available to public transport options, commercial, business and employment opportunities (clause 16.01-1S).  Neighbourhood character and urban design are also important matters at clauses 15.01-1S, 15.01-2S and 15.01.5S.  I deal with these matters below.
Local Policy and Planning Strategies
18	Local policy at clause 21.04 (The Mornington Peninsula Strategic Framework Plan) seeks to provide a framework for ‘balanced development and sustainable land use on the Peninsula.’  
19	Clause 21.06 (Strategic Framework and the Peninsula’s Settlement Pattern) identifies Capel Sound as part of the Township Area adjoining Rosebud.  One of the local activity centres located within close proximity to the review site is identified within clauses 21.06 and 21.07 as Rosebud West (now Capel Sound).  
20	Clause 21.07-1 (Housing and Integrated Local Area Planning) also seeks to ensure that new housing address the demand for greater housing diversity, compatible with other local planning objectives.  The assessment of new development under clause 21.07-1 is also to have regard to the following matters:
•	The function of each township.
•	Existing and projected population characteristics.
•	Environmental capacity and principles of best practice environmental management.
•	The available and accessibility of services and infrastructure.
•	The capacity of local infrastructure systems and roadways.
21	Importantly, clause 21.07 also encourages the use of Design and Development Overlays to help identify an appropriate level of residential density consistent with maintaining the character and environmental values of specific areas.  I note the review site is not affected by any overlay.
Amendment C219
22	In addition to relevant character and urban design provisions contained in clause 55, the council’s grounds of refusal seek to rely on the proposed planning provisions outlined in Amendment C219 (AmC219) as these would apply to the proposed development.    
23	AmC219 has been prepared by council to implement its adopted Housing Settlement Strategy 2017 (HSS 2017) in the Scheme.  AmC219 seeks to introduce new planning provisions through new local policy, residential zonings and overlay controls into its Scheme.
24	The council adopted AmC219 on 16 February 2018.  The amendment was forwarded to the Department of Environment, Water, Land and Planning (DEWLP), where it currently awaits authorization from the Minister for Planning (the Minister).  
25	AmC219 would rezone the review site and surrounding land to a Neighbourhood Residential Zone, Schedule 2.  The schedule to the proposed zone introduces a minimum subdivision lot size, effectively creating a dwelling density control equivalent to one dwelling per 450sqm of site area.  
26	The council confirmed at the hearing that it has been requested to provide further information to DEWLP before AmC219 can be progressed to formal exhibition under the Planning and Environment Act 1987.  As I expressed to the parties at the hearing, I do not consider AmC219 is ‘seriously entertained,’ as the Minister has not authorized its progress.  I agree with and endorse various Tribunal findings on this matter that little weight can be given to AmC219 due to its current undetermined status.  
Physical Context
27	I consider this proposal seeks to address the council’s strategic assessment that some modest growth and residential development is expected for Capel Sound.  As I have expressed in other decisions where this matter has arisen, I do not accept that three dwellings on this particular land parcel is inappropriate merely as it would not meet the 450sqm density control proposed through AmC219.  In this regard I find the applicant’s submission more compelling, that ‘the absence of any overlays, coupled with the proximity of the review site midway between two Activity Centres reinforces this is an opportunity site.’
28	The review site is also located within an established residential zoned area, that I noted from my inspection, is undergoing some level of change and renewal.  It is transforming from an area that the applicant correctly describes as ‘original beach shacks,’ into more contemporary and permanent accommodation.  This includes larger single dwellings suited to modern family needs and medium density housing development.  This is ably demonstrated by developments adjoining and directly opposite the review site at 72 and 99 Swans Way.
29	I also note the findings of other Tribunals and consider the characteristic and locality of this area functions as a hinterland that ‘is part of a band of existing housing linking Rosebud and Tootgarook’.  In this physical and policy setting described above, I find the review site is able to accommodate a modest increase in residential density of three dwellings as proposed.
Is the proposal respectful of neighbourhood character?
30	Capel Sound does not have an adopted Neighbourhood Character Study within its Scheme that would help guide new residential development outcomes.  The proposal must therefore be assessed against existing and emerging neighbourhood character, as expressed by the planning scheme and observed in existing built form and design outcomes emerging within the area.
31	I have already commented above that this area of Capel Sound is changing and demonstrating an emerging contemporary and more modern form and character.  My inspection of the area confirmed this changing character includes:
•	Emerging and more pronounced two storey form including on-boundary construction.
•	Dual crossovers to the site frontage and driveways along the length of lots.
•	Built form extending into lots and across frontages.
•	Contemporary architectural detailing and use of more modern materials and roof forms.
32	In this existing and emerging character, I find the proposed design response results in a complementary and consistent built form on the review site.  This includes:
•	Use of two crossovers and driveway along the length of the lot.
•	Retention of nature strip trees and associated shrubs that maintains the informal appearance and character of the street, including retention of two mature canopy trees to the rear of the site.
•	Two storey height with angled skillion roof form to the street.
•	Tandem/linear layout with a single dwelling fronting the street.
•	Recessed double car garage for Dwelling 1 that is narrower than the dwelling entry as it presents to the street.
•	High level of built form articulation to Dwelling 1 as it presents to the street.
33	Based on my assessment of the design response and inspection of the area, I find the proposal is respectful of existing and emerging neighbourhood character. 
Will the proposal result in unreasonable amenity impacts?
34	The council submits the design response falls short in a number of clause 55 provisions and will result in an unacceptable impact on amenity, including:
•	Daylight and solar energy (clause 55.03-5)
•	Landscape character of the area (clause 55.03-8)
•	Walls on boundaries (clause 55.04-2)
•	Solar access to open space areas
•	Design detail (clause 55.06-1)
Daylight and solar energy
35	The council submits the design response does not utilise opportunities to maximise access to northern light, thereby resulting in poor internal amenity for future occupants.
36	I am satisfied amended plans have appropriately addressed this matter.  Dwelling 1 benefits from large east facing living and kitchen windows, large west facing windows and north facing windows adjoining the internal stairs.  Dwelling 2 also has large east and west facing windows, with an additional north facing hi-light window added to the dining room area.  Dwelling 3 has excellent north facing living and dining areas with large expanses of window form offering access to natural light.  I consider these treatments off-set the east-west orientation of Dwellings 1 and 2 and is an appropriate layout that satisfies the objective of the clause.
Landscape character
37	The design response enables the provision of the following landscape treatment throughout the site:
•	Retention of the nature strip canopy tree and associated shrubs to the street frontage.
•	Two medium sized canopy trees to the front of Dwelling 1 with understorey vegetation.
•	A medium sized canopy tree and understorey vegetation in the 2.0m wide landscape zone along the western boundary.
•	Larger shrubs in the 1.0m wide landscape zone along the eastern boundary.
•	Retention of two canopy trees in the rear setback to Dwelling 3.
38	I note the council’s draft conditions includes provision of at least one indigenous canopy tree within the front setback and one small tree capable of reaching a height of 5.0m within the rear private open space areas of each dwelling.  The applicant has not opposed this condition.  I am satisfied the implementation of the proposed landscape treatment described above and highlighted within the council’s draft permit conditions, will ensure the site’s landscaping respects the landscape character of the area as sought under clause 55.03-8. 
Walls on boundaries
39	The proposal includes two walls on boundaries associated with the garages to Dwellings 1 and 3 (west and east boundaries respectively).  These walls extend 6.4m on the western boundary and 7.0m on the eastern boundary.
40	There is some minor non-compliance with Standard B18 for the garage wall of Dwelling 1.  The wall height exceeds the 3.6m requirement by 5 centimetres.  Given the garage’s location is 0.9m from the adjacent dwelling at 72A Swans Way and will face onto a blank garage wall, I am satisfied the small height variation sought is acceptable and will not present any adverse amenity impacts. 
Solar access to open space areas
41	Shadow diagrams demonstrate the proposed design response satisfies Standard B21 in respect to shadowing of adjoining open space areas of properties at 72A and 68 Swans Way.  No shadows are cast to 73 Broadway.  
42	Dwelling 1 has a north facing open space area of 41.8sqm.  The first-floor footprint of Dwelling 2 located opposite a small section of this courtyard area does not satisfy Standard B29.  I consider the extent of upper level overhang of 2.0m is minor in the context of the 7.6m length of this courtyard.  I am satisfied the objective of the clause is met here.
43	Dwelling 2 has an open space courtyard of 51.7sqm and has a northerly aspect connected to the living area.  A small 3.9sqm section of the courtyard does not satisfy Standard B29.  This area is not directly accessed from the living area and will be landscaped.  I am satisfied this minor variation is acceptable and the objective is met here.
44	Dwelling 3 has an open space area of some 83.7sqm and comfortably satisfies the Standard and objective.
Design detail
45	The council says the design response results in a lack of recession and articulation of the built form, resulting in a ‘repetitious, bulky development’.  I do not agree with the council’s submission on this matter.  
46	The overall height of the development at 7.3m is well below the 11.0m/three storey height specified in the GRZ1.  Any perception of bulk to the street is further addressed by the proposed angled skillion roof form used throughout the development, combined with a 7.7m landscaped front setback, separated upper levels between the dwellings and various recessed built forms to each dwelling located along the respective side boundaries at ground level.  I am satisfied the objective under clause 55.06-1 has been satisfied.
What conditions are appropriate?
47	The parties discussed the draft permit conditions tabled by the council.  In accordance with my decision above I consider a number of the council’s condition 1 matters are either no longer required (minimum garden area) or unnecessary.  Others, such as those related to open space area solar access, are not appropriate.  I will therefore delete draft conditions 1(a), (c), (e), (f), (g), (i) and (j).  The remainder of the proposed conditions are appropriate.  I will renumber the draft permit accordingly to reflect the changes I have noted above.
Conclusion
48	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions contained in Appendix A attached to this decision.

Peter Gaschk
Member			

Appendix A – Permit Conditions

Permit Application No	P17/2290	
Land	70 Swans Way
CAPEL SOUND VIC  3200	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of three double storey dwellings on a lot in a General Residential Zone, Schedule 1	

Conditions
Amended plans
1	Before the developments starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans substituted by the Tribunal, prepared by MODARC, all Revision C, dated February 2019, but modified to show:
(a)	Elevations labelled north, south, east, or west, as appropriate.
(b)	All garage walls to comply with Standard B18 of Clause 55.04-2 (Walls on boundaries) where appropriate.
(c)	Obscure glazing to habitable room windows annotated, and notations demonstrating obscure glazing is fixed and no less than 1.7 metres above finished floor level in accordance with Standard B22 of Clause 55.04-6.
(d)	A landscaping plan prepared by a suitable landscape professional, that must show:
i	A planting schedule of all proposed trees and shrubs, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant. 
ii	A survey, including, botanical names of all existing trees to be retained or removed on the site including Tree Protection Zones for trees to be retained calculated in accordance with the Australian Standard AS4970-2009–Protection of Trees on Development Sites.
iii	A survey including botanical names, of all existing trees on neighbouring properties where the Tree Protection Zones of such trees calculated in accordance with AS4970-2009 fall within the subject site.
iv	The delineation of all garden beds, paving, grassed areas, retaining walls, fences and other landscape works;
v	The removal of the Box Elder in the front setback, with a replacement tree species being shown that is indigenous to the local area.
vi	The protection of the Coastal Tea Trees within the road reserve area.
vii	A range of plant types from ground covers to large shrubs and trees, in accordance with the relevant EVC (Ecological Vegetation Class) that exists on the site.
viii	The provision of 1 indigenous tree within the front setback of the property that will reach a minimum mature height of 10 metres and canopy spread of 5 metres at maturity and at least one small tree capable of reaching a height of 5 metres and canopy spread of 3 metres at maturity within the rear private open space of each dwelling with species chosen to be approved by the responsible authority.
ix	All trees provided at a minimum of 2 metres in height at time of planting, medium to large shrubs to be provided at a minimum pot size of 200mm;
x	No trees with a mature height over five (5) metres are to be planted over proposed or existing easements.
xi	The provision of notes regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements.
xii	The location of any tree protection measures including for street trees accurately drawn to scale and labelled.
Approved development not altered
2	The approved development, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the responsible authority.
Colours/Materials
3	The materials and colours of the exterior finish of the development must be in accordance with the endorsed plans unless with the further written consent of the responsible authority.
Finishes on a boundary
4	Prior to the initial occupation of the development, external finishes must be completed to a professional standard to the satisfaction of the responsible authority.
Driveway/Crossover
5	Vehicular crossings must be provided to the standards of the responsible authority prior to the initial occupation of the development.
6	Driveways must be provided to the land and surfaced to the satisfaction of the responsible authority.  They must be completed prior to the initial occupation of the development.
Landscaping
7	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the responsible authority.
8	Prior to the occupation of the development (or other time agreed to in writing by the responsible authority) the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.
9	The landscaping referred to in Condition 8 above must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.
10	Prior to the commencement of any building or works appropriate tree protection fencing must be erected in accordance with Australian Standard AS4970 – 2009 (Protection of trees on development sites).  The tree protection fencing must remain in place until the completion of any works hereby approved. 
11	Tree Protection Fencing is to be established around the street tree(s) prior to demolition and maintained until all works on site are complete:
(a)	The fencing is to be a 1.8-metre-high temporary fence constructed using steel or timber posts fixed in the ground or to a concrete pad, with the fence’s side panels to be constructed of cyclone mesh wire or similar strong metal mesh or netting.
(b)	The fencing is to encompass the entire nature strip to the inside edge of the existing/proposed crossovers.
12	Outdoor lighting must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.
Screening
13	Prior to the initial occupation of the development, all required privacy screening devices and fencing shown on the endorsed plans must be installed and completed to the satisfaction of the responsible authority.
Engineering conditions 
14	After the endorsement of Condition 1 plans and before any works associated with the development starts, engineering plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The plans must be drawn to scale with dimensions. 
The plans must show:
(a)	All areas of the development being drained by means of an underground drainage system to retain a post development 1 in 100-year storm event for the critical storm duration on the property and being based on a soil percolation test report prepared by an appropriately qualified geotechnical consultant.
(b)	All surface areas of private open spaces being drained by a minimum 100 mm diameter drainage pipe connected to the storm water system.
(c)	A drainage surcharge route within the development to avoid inundation of any dwellings.
(d)	Details, including levels, of the driveway and the common driveway within the site.
(e)	The design of all vehicle movements entering and exiting the property via the common driveway being in a forward direction.
(f)	Reinforced concrete vehicular crossings to Council standards, with any redundant vehicle crossings being removed and replaced with reinstated nature strip fronting the site.
(g)	Sight distance for vehicles and pedestrians not being unduly restricted at the exits from site by fencing or landscaping works.
15	Before any works associated with the development commences, drainage computations are required for the proposed drainage system, including consideration of any drainage catchment external to the development that may drain to the proposed drainage system.
16	Before the initial occupation of the development, drainage works associated with the development must be constructed in accordance with approved engineering plans, and to the satisfaction of the responsible authority.
17	Before the initial occupation of the development, vehicle crossings, areas set aside for the parking of vehicles and driveways as shown on the endorsed plans must be constructed in accordance with approved engineering plans, surfaced with reinforced concrete and drained to the satisfaction of the responsible authority.  Car spaces and driveways must be kept available for these purposes at all times.
Expiry
18	This permit will expire if one of the following circumstances applies:  
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit
19	In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

– End of conditions –