VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2437/2019
Permit Application no. MV/473/2018	
CATCHWORDS	
Section 82 Planning and Environment Act 1987; Moonee Valley Planning Scheme; General Residential Zone; Dual occupancy; Side-by-side arrangement; Neighbourhood Character; Amenity.	

APPLICANT	Suresh Bhaskaran and Salim Khan	
responsible authority	Moonee Valley City Council	
reFERRAL authority	Melbourne Water	
RESPONDENT	Jason Cintolo 	
SUBJECT LAND	18 Roberts Street
ESSENDON  VIC 3040	
WHERE HELD	Melbourne	
BEFORE	Megan Carew, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	14 June 2019	
DATE OF ORDER	8 July 2019	
CITATION	Bhaskaran v Moonee Valley CC [2019] VCAT 1026	
Order
1	In application P2437/2018 the decision of the responsible authority is varied. 
2	In planning permit application MV/473/2018 a permit is granted and directed to be issued for the land at 18 Roberts Street, Essendon in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
Construction of two dwellings in the General Residential Zone and a Special Building Overlay

Megan Carew
Member			
Appearances
For applicant	Ms Louise Hicks, Barrister, Direct Brief	
For responsible authority	Mr Grant Mitchell, Town Planner	
For referral authority	No appearance	
For respondents	Ms Tania Cincotta, Solicitor, Best Hooper	

Information
Description of proposal	To construct two contemporary styled double storey dwellings in a side-by-side configuration.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Moonee Valley Planning Scheme	
Zone and overlays	General Residential Zone- Schedule 1 [GRZ1]
Special Building Overlay (as to part) [SBO]	
Permit requirements	Clause 32.08-6 to constructed two dwellings on a lot in the GRZ1.
Clause 44.05-2 for buildings and works within the SBO.	
Relevant scheme policies and provisions	Clauses 11, 13, 15, 16, 18, 19, 21, 22.03, 32.08, 44.05, 52.06, 55, 65 and 71.02	
Land description	The review site is located on the eastern side of Roberts Street, south of Forrester Street. It has frontage to Roberts Street of 20.12m and an overall site area of 1011.83m2. There is a rear access/ right of way with a width of 7.6m. A two storey brick dwelling with double garage on the southern boundary presently occupies it.
The surrounding area is predominantly residential in nature. To the north is a single storey Californian bungalow style dwelling. To the south is a double storey dwelling with two crossovers and two garages.	
Tribunal inspection	I inspected the review site and its environs following the hearing. 	

Reasons
What is this proceeding about?
1	The applicants seek a review of Council’s decision to grant a permit for two very contemporary side-by-side dwellings on land at 18 Roberts Street, Essendon. They say that the proposed contemporary built form is visually dominant and fails to respect the neighbourhood character. They have specific concerns about the proposal to construct the garage wall on the northern boundary.
2	Council and the applicant submit that the proposal is an acceptable response to the site and its environs. Melbourne Water supported the proposal subject to standard conditions.
3	The key issues in this matter are:
•	Is the proposal respectful of the preferred future character of the area? 
•	Are there any significant amenity impacts to the adjoining property to the north?
4	I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented and with regard to the applicable policies and provisions of the Moonee Valley Planning Scheme, I have determined to grant a permit subject to conditions. My reasons follow.
Is the proposal respectful of the neighbourhood character?
5	Both planning policy and the purposes of the zone support the provision of medium density housing on a suitable site in this location. There is evidence of recent change in this area including a number of infill dwellings and medium density developments consistent with the area’s inclusion within an area designated for “slight to moderate” change.
6	However, the suitability of this site is subject to a design response that respects the preferred neighbourhood character. The respondents submit that the proposal is visually dominant and fails to respect the preferred neighbourhood character because of its contemporary design and boundary-to-boundary construction. 
7	The review site is located within the ‘Garden Suburban 6’ (GS6) precinct in Council’s neighbourhood character policy. The preferred character statement is:
New developments will contribute to the character of this area with established gardens, simple design details and consistent siting to ensure they do not dominate the streetscape.
Buildings will be articulated with recesses, porch areas, large windows and setbacks to complement the pattern of the traditional dwellings. The use of light finishes will maintain the existing palette of materials. Buildings will be located from the front boundary at a distance similar to those on adjoining properties, while consistent side setbacks will provide space for landscaping and planting. Low or permeable front fences will allow views of the vegetation in gardens from the street.
8	This streetscape is changing with both modern infill developments such as 16 and 22 Roberts Street and medium density housing at 17 and 23 Roberts Street. MS Hicks referred to an early decision of the Tribunal in Lardieri v Moonee Valley CC [2006] VCAT 145. This decision referred to the coherent nature of development in the area. 
9	Since that time I find that new development has occurred (including on that site) which reduces the coherency, although front setbacks and gardens make an ongoing contribution to the neighbourhood character. This was observed in the decision of Ristanovic v Moonee Valley CC [2013] VCAT 1921 relating to 17 Roberts Street. The Tribunal found that “this section of Roberts Street already has a wide diversity of age and style of dwellings, many of which are double storey, have front facing double garages and are quite visually prominent”.
10	From the streetscape, I find that the proposal is an acceptable response because:
•	The double storey height of the buildings is consistent with the scale of development (and the existing dwelling on the land).
•	The flat roof form is not unacceptable given the variety of roof forms within the street and the adjoining dwelling to the south.
•	The front setback is compliant with Standard B6 and will provide opportunity for a front garden setting similar to existing developments. 
•	The first floor is set back more than 13m from the frontage.
•	The narrowing of the accessways to meet the crossovers as required by Council will provide an opportunity for additional landscaping along the northern and southern boundaries.
•	The front fence is permeable and setback centrally to provide landscaping and is visually permeable. 
•	Buildings from a wide range of eras exist along the street. The contemporary design style adopts simple design details as encouraged in the preferred character statement and is well articulated. 
•	While the colour palette is not predominantly light as identified in the preferred character statement, it is similar to modern infill such as 16 and 22 Roberts Street. This is acceptable in a varied streetscape.
11	With specific regard to the two double garages, I am satisfied that the width of this block can accommodate these. The garages are well integrated with the dwelling design and will be recessive in the streetscape. It is not uncommon for garages to be constructed to the side boundaries, even on traditional homes. The applicants expressed concern about the location of the wall on the northern boundary in terms of streetscape presentation. I do not share these concerns because the garage is setback well behind the carport on the adjoining property that has a greater presence in the streetscape. 
12	The fact that the garages are double rather than single as seen in other developments makes them more prominent, but I find that they have been well integrated within the building form in this case and will not be dominant within the streetscape. New landscaping will also soften the appearance of the garages.
13	One of the positives of the side-by-side arrangement is that the backyard space is protected from development. I am satisfied that the building form throughout the site has responded to the private open spaces on the adjoining properties. The side elevations are well articulated.
Amenity considerations
14	The proposal places the northern garage 0.29m from the boundary for a length of 7.74m. This is to align with the current fence location. The applicants say that this should be setback 1m from the title boundary (this would be about 700mm from the current fence line). As set out above, I do not find that this would be required for the streetscape or neighbourhood character. 
15	From an amenity point of view, the proposal should comply with Standard B17. However, the offset from the boundary is to ensure that the garage adopts the current fence line, rather than the surveyed title boundary. The intent is that it performs in practice as a wall on the boundary. I find this approach acceptable. Both the height and length of the wall would comply with Standard B18 of Clause 55.
16	I considered the impact of the length of this wall on a window (children’s bedroom) on the adjoining property. While the wall will change the outlook from this window, compliance with Standard B19 (daylight) is achieved. The wall is to the south of the window and will not cast shadow.
17	The applicants were concerned about the impact of the wall on the circular window facing west under the carport at the front of the property. This window serves the master bedroom. Daylight to this window will be further reduced as a result of this development, however it is more greatly compromised by the carport itself.
18	Overlooking is generally addressed. However, overlooking from the first floor rear master bedroom window of each dwelling relies on a lattice fence extension (600mm) to the boundary fencing. The applicants for review do not support this fence extension. I am not persuaded that the fencing will resolve the potential for overlooking from the bedroom windows. I have required an alternative screening solution as a permit condition. 
19	Concerns were raised about the impact of the location of the services on adjoining bedroom windows. The applicant has agreed to relocate the services area and I have included this in the permit conditions. 
20	The applicants submit that the development will create further issues with traffic congestion in the street. The proposal provides for its entire car parking on site. This will minimise the need for on-street car parking. There was no evidence that the additional traffic associated with an additional dwelling was unacceptable. 
Conclusion
21	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Megan Carew
Member			

Appendix A – Permit Conditions

Permit Application No	MV/473/2018	
Land	18 Roberts Street
ESSENDON	

What the permit allowS	
In accordance with the endorsed plans:
Construction of two dwellings in the General Residential Zone and a Special Building Overlay	

Conditions
Endorsement Conditions

1.	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The amended plans must be drawn to scale with dimensions and an electronic copy must be provided. The amended plans must be generally in accordance with the plans submitted and assessed with the application but modified to show:

a)	Both driveways to be 3.3 metres wide, tapered to the garages and aligned with the crossovers;
b)	The dimension of the distance between the two proposed crossovers;
c)	The sill heights of the highlight windows within the southern elevation;
d)	Any internal dividing fencing with the front property boundaries to be no higher than 1.5 metres;
e)	All references to ‘Unit’ replaced with ‘Dwelling’;
f)	Pedestrian visibility splays in accordance with Clause 52.06-9 (Design Standards for Car Parking) of the Moonee Valley Planning Scheme;
g)	A minimum headroom clearance of 2.1 metres for all garages in accordance with Clause 52.06-9 (Design Standards for Car Parking) of the Moonee Valley Planning Scheme;
h)	Any stormwater treatment measures and notations as a result of Condition 3;
i)	A Landscape Plan in accordance with Condition 7; and
j)	All changes required by Melbourne Water in accordance with Conditions 8 to 16.

k)	Overlooking from the first floor bedroom 1 windows of each dwelling to be screened or treated to accord with Standard B21 of Clause 55 without relying on the boundary fence.
l)	Relocation of “services area” for dwelling 1 to the area adjacent to the ground floor living room.

When approved, these plans will be endorsed and will form part of this permit.

2.	The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3.	An amended STORM assessment report must be submitted simultaneously with the submission of amended plans in accordance with Condition 1. The STORM Assessment must obtain a minimum 100% to comply with Clause 22.03-4 (Stormwater Management) of the Moonee Valley Planning Scheme.

4.	A minimum 30 days prior to any building or works commencing, all WSUD Design Details (relating to the WSUD treatment measures nominated in the approved and complying STORM report), such as cross sections and/or specifications, to assess the technical effectiveness of the proposed stormwater treatment measures, must be submitted for approval by the Responsible Authority.

5.	A minimum 30 days prior to any building or works commencing, a Construction and Site Management Plan (CSMP) must be submitted to and be approved by the Responsible Authority detailing the construction activity proposed and the site and environmental management methods to be used. The CSMP must be in accordance with Moonee Valley City Council’s CSMP’s guideline and templates.

When approved, the CSMP will be endorsed and will form part of this permit.

The development must be carried out in accordance with the endorsed CSMP and the provisions, requirements and recommendations of the endorsed CSMP must be implemented and complied with to the satisfaction of the Responsible Authority.

6.	A maximum 30 days following completion of the development, a WSUD Maintenance Program must be submitted to and approved by the Responsible Authority which sets out future operational and maintenance arrangements for all WSUD measures.  The program must include, but is not limited to:

a)	Inspection frequency;

b)	Cleanout procedures;

c)	As installed design details/diagrams including a sketch of how the system operates; and

d)	A report confirming completion & commissioning of all WSUD Response treatment measures written by the author of the WSUD Response and STORM or MUSIC model approved pursuant to this permit, or licensed installing/commissioning plumber, or similarly qualified person or company.  This report must be to the satisfaction of the Responsible Authority and must confirm that all WSUD treatment measures specified in the WSUD Response and STORM or MUSIC model have been completed and implemented in accordance with the approved report.

The WSUD Maintenance Program may form part of a broader Maintenance Program that covers other aspects of maintenance such as a Builder’ User’s Guide or a Building Maintenance Guide.

7.	Before the development starts, and before any trees or vegetation are removed an amended landscape plan and schedule to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The amended landscape plan and schedule must be prepared by a person or firm with suitable qualifications to the satisfaction of the Responsible Authority, drawn to scale and an electronic copy must be provided. The amended landscape plan and schedule must be generally in accordance with the development plans submitted with the application but modified to show:

a)	Any changes in accordance with Condition 1 of this permit;

b)	The provision of at least one canopy tree which is able to achieve a minimum mature height of 4 metres within the front setback of each dwelling;
c)	A planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant;

d)	Any notations and changes in accordance with Conditions 8 to 16;

e)	The use of drought tolerant species;

f)	Features such as paths, paving and accessways;

g)	All planting abutting the accessway(s) and land frontage to have a maximum mature height of no more than 900mm in accordance with Clause 52.06-9 (Design Standards for car parking) of the Moonee Valley Planning Scheme; and

h)	An appropriate irrigation system.

When approved the amended landscape plan and schedule will be endorsed and will form part of this permit.

Landscaping in accordance with the endorsed landscape plan and schedule must be completed before the building is occupied.

End Endorsement Conditions

Melbourne Water Conditions

8.	Prior to the endorsement of plans, amended plans must be submitted to Council and Melbourne Water addressing Melbourne Water's conditions. Plans must be submitted with surface and floor levels to Australian Height Datum (AHD) and must be modified to show:

a)	The dwellings must be set with finished floor levels set no lower than 36.29 metres to Australian Height Datum, which is 300mm above the applicable flood level of 35.99 metres to Australian Height Datum.

b)	The garages must be set with finished floor levels set no lower than 36.14 metres to Australian Height Datum, which is 150mm above the applicable flood level of 35.99 metres to Australian Height Datum.
c)	Removal of the feature landscaping at the rear of the site and the area set at natural ground level.

d)	The swimming pool must be shown to be at natural ground level.

e)	An annotation indicating that the decking is open and unenclosed and steps contain no vertical risers.

9.	The dwellings must be constructed with finished floor levels set no lower than 36.29 metres to Australian Height Datum, which is 300mm above the applicable flood level of 35.99 metres to Australian Height Datum.

10.	The garages must be constructed with finished floor levels set no lower than 36.14 metres to Australian Height Datum, which is 150mm above the applicable flood level of 35.99 metres to Australian Height Datum.

11.	Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.

12.	Imported fill must be kept to a minimum on the property and only be used for the sub floor areas of the dwellings, garages and driveway ramps.

13.	The decking must be constructed with unenclosed foundations and any stairs with no vertical risers to allow for the passage of overland flows.

14.	Any new fence must be of an open style of construction (minimum 50% open) to allow for the passage of floodwaters/ overland flows.

15.	The swimming pool must be constructed in-ground, finished at natural surface level and the excavated material must be removed from the property.

16.	The open space at the rear of the site will be required to allow for the free flow of flood waters. This area must be set at natural ground level and be free of any solid structures such as sheds, masonry fencing or water tanks.

End of Melbourne Water Conditions

Development Conditions

17.	Before the buildings approved by this permit are occupied, all boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority if the owner of the adjoining land allows access for the purpose.

18.	Floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.

19.	Before the buildings approved by this permit are occupied, the privacy screens and other measures to prevent overlooking as shown on the endorsed plans must be installed in accordance with Clause 55.04-6 (Overlooking objective) of the Moonee Valley Planning Scheme to the satisfaction of the Responsible Authority.

All privacy screens and other measures to prevent overlooking as shown on the endorsed plans must at all times be maintained to the satisfaction of the Responsible Authority.

20.	All pipes, fixtures, fittings, ducts and vents servicing any building on the land, other than storm water down pipes and gutters above the ground floor storey of the building, must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

21.	Before the buildings approved by this permit are occupied, concrete vehicular crossing(s) must be constructed to suit the proposed driveway(s) in accordance with the Responsible Authority’s specification and any obsolete, disused or redundant vehicle crossing(s) must be removed and the area reinstated to footpath, nature strip and kerb and channel to the satisfaction of the Responsible Authority.

All vehicle access points must be located a minimum of 1.0 metre from any infrastructure including service pits.  Alternatively, such assets may be incorporated into the crossover with the prior written consent of the Responsible Authority and the relevant servicing authority/agency.  Subsequent works and costs in association with relocation and/or amendment must be incurred at the owner’s cost, to the satisfaction of the relevant servicing authority/agency and the Responsible Authority.

22.	Before the buildings approved by this permit are occupied, the areas set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must be:

a)	Constructed;

b)	Available for use in accordance with the endorsed plans;

c)	Properly formed to such levels and drained so that they can be used in accordance with the endorsed plans; and

d)	Finished with a permanent trafficable surface (such as concrete, asphalt or paving),

in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

The area set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must:

e)	Be maintained and made available for such use; and

f)	Not be used for any other purpose,

to the satisfaction of the Responsible Authority.

23.	The existing street tree within Roberts Street and the vegetation within the rear laneway must not be removed or damaged as a result of the permitted development and the following street tree/nature strip protection measures must be undertaken:

a)	The nature strip and street tree located within the Roberts Street frontage of the land must be barricaded out using portable cyclone fencing for the duration of the development.  Costs of such fencing must be borne by the developer and/or permit holder;

b)	No pruning of the nature strip and street tree located within the Roberts Street frontage of the land is to be undertaken by any party other than Moonee Valley City Council; and 

c)	No building materials are to be stacked and/or dumped on any nature strip during construction.

24.	Provision must be made for the drainage of the land including landscaped and pavement areas. The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the Responsible Authority.
25.	Prior to the issue of an Occupancy Permit, all new boundary fencing as shown on the endorsed plans must be erected. The cost of such fencing must be met by the owner and carried out to the satisfaction of the Responsible Authority.

26.	The garden areas shown on the endorsed plan and schedule must only be used as gardens and must be constructed, completed and maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Any tree or shrub damaged, removed or destroyed must be replaced by a tree or shrub of similar size and variety to the satisfaction of the Responsible Authority.

27.	This permit as it relates to development (buildings and works) 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.
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 –