VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
  planning and environment DIVISION
planning and environment LIST	vcat reference No. P2525/2018
Permit Application no. P18/1882	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987, two, two storey dwellings, setbacks from side and rear boundary, neighbourhood character, visual bulk, planting opportunities, design detail      	

APPLICANT	Curtis De La Pierre	
responsible authority	Mornington Peninsula Shire Council 	
SUBJECT LAND	8 Eliza Street, Capel Sound	
WHERE HELD	Melbourne	
BEFORE	K Birtwistle, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	24 June 2019   	
DATE OF ORDER	9 July 2019	
CITATION	De La Pierre v Mornington Peninsula SC [2019] VCAT 1008  	

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:	LMD Design & Drafting	
•	Drawing numbers:	TPO1-TPO9	
•	Dated:	15.03.19	
		
2	In application P2525/2018 the decision of the responsible authority is affirmed.
3	In planning permit application P18/1882 no permit is granted.    

K Birtwistle 
Member			

Appearances
For Curtis De La Pierre 	In person	
For Mornington Peninsula Shire Council	Ms A Bhat, town planner of SMEC Consulting	
Information
Description of proposal	Construction of two, two storey dwellings in a one behind the other format.  The dwellings will share a common accessway along the southern side boundary.  Dwelling 1 is setback 7.6 metres from the street, and 1.0 metre from the northern side property boundary.  A fenced area of secluded private open space (spos) is shown within this front setback adjacent the northern side property boundary. The two car garage for this dwelling is built to the northern side property boundary.
Dwelling 2 is located at the rear, with its two car garage built to the southern side property boundary.  It is setback 1.8 metres from the rear property boundary and 1.0 metre from the northern side property boundary.
Both dwellings comprise four bedrooms. 	
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 Planning Scheme	
Zone and overlays	General Residential Zone – Schedule 1 (GRZ1)	
Permit requirements	Clause 32.08-6 – construction of two or more dwellings on a lot. 	
Land description	The review site is located on the western side of Eliza Street, south of the intersection with Flamingo Road, Capel Sound.  The site has a width of 15.9 metres, a depth of 39 metres and an overall area of approximately 618 sq.m.  A 1.83 metre wide drainage easement exists across the rear of the lot.  An existing modest single storey dwelling on the land will be demolished.
Abutting the site to the north, at 6 Eliza Street (corner Flamingo Road) is a single storey dwelling setback approximately 8.0 metres to the Eliza Street frontage.  To the south, at 10 Eliza Street is a vacant site.  A planning permit has been issued to redevelop this land with two, two storey attached side by side dwellings.  The development has not commenced.
To the rear at 23 Flamingo Road, is a single storey dwelling with its large rear spos located adjacent the review site.
Eliza Street is characterised by modest seaside shacks, with little evidence of more recent contemporary development.  There are no constructed footpaths or kerbing along Eliza Street and the road verges are grassed with a mixture of no or low scale street vegetation.  	
Tribunal inspection	Unaccompanied subsequent to the hearing   	

Reasons

What is this proceeding about?
1	Curtis De La Pierre (the applicant) proposes to develop two, two storey dwellings at 8 Eliza Street, Capel Sound. In December 2018, Mornington Peninsula Shire Council (the Council) determined to refuse to grant a planning permit for the proposed development. The permit applicant has requested the Tribunal to review Council’s decision.
2	The Council refused the proposal on numerous grounds, including inconsistency with neighbourhood character, inconsistency with the Mornington Peninsula Localised Planning Statement, that it failed to satisfy several objectives and standards of ResCode, and that it did not align with the outcome sought by Council’s Housing and Settlement Strategy.
3	Prior to the commencement of the hearing, the applicant circulated amended plans in accordance with the Tribunal Practice Note PNPE9.  Despite the amended plans, Council continues to maintain its opposition to the proposal. There being no objection, I allowed the amended plans to be substituted and these now form those on which my decision is reached.
4	The applicant says the responsible authority has inappropriately sought to rely on the Housing and Settlement Strategy (HSS) as a primary reason for refusal, which is not incorporated into the Planning Scheme. He says the application is consistent with the state and local planning policy framework strategies having regard to urban consolidation principals, the natural environment, and the existing neighbourhood character and the objectives of clause 55 (ResCode).
5	I must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions presented with regard to the applicable policies and provisions of the Mornington Peninsula Planning Scheme, and undertaken a site inspection, I have decided to affirm the decision of the responsible authority and direct that no permit be issued.
6	My reasons follow.
Is the proposal respectful of the neighbourhood character?
7	No party disputes that the site is suitable for a redevelopment that will assist in meeting Planning Policy Framework (PPF) objectives that seek to increase housing opportunities and locations with good access to services and facilities.  To that end, I note that the site is well located with respect to the small Capel Sound (Rosebud West) Activity Centre which is identified as a Service Centre in the Mornington Peninsula Strategic Framework Plan and a local activity centre.  Nevertheless, in the context of the local planning hierarchy, Capel Sound is a small suburb which still retains in “seaside holiday” feel.
8	The land is located in the GRZ1, which includes amongst its purposes 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.
9	The Local Planning Policy Framework does not contain any neighbourhood character policy that establishes preferred neighbourhood character outcomes to guide land use change.  Therefore, the purpose of the zone and clause 55.02-1 of the Planning Scheme requires that any proposal needs to respect the existing neighbourhood character and respond appropriately to the features of the site and the surrounding area.
10	The Council says that the design is not site responsive and does not produce an acceptable design outcome and is therefore contrary to the orderly and proper planning of the area. They say that it is not respectful of the neighbourhood character, due to the scale and built form, particularly with regard to the continuous, boundary-to-boundary built form and lack of separation between the dwellings, the lack of solar access to habitable room windows and secluded private open space, and lack of sufficient opportunities for landscaping to assist with reducing visual bulk and integrating the development within the area. 
11	On my inspection I observed that Eliza Street is largely developed with modest generally single storey detached dwellings on fairly large allotments set amongst low scale or no gardens. Many houses are either weatherboard or fibro cement interspersed with some brick, but most have generally low slung roofs.  The dwellings generally sit centrally in their lots with little evidence of built form to side boundaries.  Many have unconstructed driveways and there are no footpaths or kerb and channel along this section of Eliza Street, contributing to its “holiday home” character.  There is no significant recent infill redevelopment evident in the immediate neighbourhood.
12	The applicant relies on examples of change he asserts is occurring in the area, as partly evidenced by the planning permit that has been issued for the adjoining site at 10 Eliza Street, with two attached two storey dwellings.  These dwellings are in a side by side format.
13	The Council says that the proposal is not in keeping with the existing neighbourhood character of Eliza Street which is a street with established single storey developments.  They say that the proposal lacks recognition of the existing urban form by virtue of its two storey form, reduced upper level setbacks and lack of landscaping opportunities.
14	Conversely, the applicant says the proposal is consistent with the existing neighbourhood character as it maintains a significant area within the front setback to provide for future planting opportunities, and the material use provides a modern interpretation of the existing building stock.  He says that the upper storey footprints are smaller than the ground level below, ensuring visual impacts to adjoining sites are minimised.
15	Clause 21.07-2 Local Area Character seeks to ensure that the design and intensity of new development is site and area responsive, having regard to the neighbourhood character of the area. The strategies to achieve this objective include requiring site and location responsive design in the siting and design of buildings, that development within existing townships demonstrates regard to the established residential fabric and maintaining the balance between open space, vegetation and building density.
16	In my view, the existing neighbourhood character is derived from the low scale nature of the existing buildings on the land, their setbacks from boundaries, the open nature of the landscaping, and the absence of extensive hardstand or driveways on the land.  
17	The proposal seeks to construct two double storey dwellings down the site, with both dwellings attached at the ground floor.  Each dwelling is provided with four bedrooms, and an attached two car garage.
18	The garage of Dwelling 1 is built to the northern side boundary. At ground level this dwelling is setback 1 metre from this boundary. An area of spos is shown fenced within the front setback. At the upper level, the front façade has minimal recession from the ground level footprint below.  Bedroom 2 at the upper level (at the rear of the dwelling) has no recession from the walls of the ground level laundry below across all three sides.  When viewed from the two adjoining sites, this part of the building will appear as a sheer-walled boxlike construction.
19	At ground level, Dwelling 2 at the rear spans much of the width of the lot.  It extends for a width of 14.8 metres across a site width of 15.8 metres.  The garage to this dwelling is to be built to the southern side boundary. This dwelling is setback 1.83 metres from the rear boundary, which coincides with the width of the rear drainage easement. A 1 metre setback is provided along the northern side property boundary.
20	At the upper level, there is minimal recession of the upper floor along the eastern side elevation in the area of the retreat and bedroom 2, and the northern side elevation in the area of bedrooms 2 and 3.
21	I find that Dwelling 2 is particularly problematic.  The extent of double storey built form in the rear yard is out of place with other development in Eliza Street.  The dwelling is proposed to be sited within 1.8 metres of the rear boundary at ground level and to within 2.8 metres at the upper level.
22	While the applicant relied on the approved development for the adjacent site at 10 Eliza Street, I note from the endorsed plans for this site that the ground level has a varied rear setback of between 2.4 metres and 3.2 metres and an upper level setback from the rear of between 8.2 metres and 9.0 metres.  I note also that the rear of this dwelling is an open (albeit covered) alfresco area, contributing to a sense of spaciousness.
23	Based on the more extensive ground and upper level setbacks of the approved development next door, I am not persuaded that the development before me is generally consistent with any emerging backyard character.
24	Within the 1.8 metre wide rear setback (which is an easement) there is little opportunity to establish meaningful canopy landscaping to assist in reducing the perception of visual bulk. Further, the 1.0 metre setback along the northern side of the dwelling similarly provides little opportunity to establish screen planting along this elevation.
25	I find that the extent of built form adjacent the boundaries of the site means that the development will not be able to provide landscaping to an extent that is characteristic of the surrounding area. 
26	Whilst the plans show the ability to plant canopy trees, the extent of proposed landscaping is not commensurate with the surrounding lots.  A canopy tree is shown within the spos of Dwelling 2, however this is constrained by the presence of a storage shed and the adjacent covered verandah to this dwelling.  Along the southern side of the land and across the rear, no canopy trees are shown.  To the extent the rear dwelling is proposed to be two storeys with a number of sheer walls, I consider the failure to provide space for planting of canopy trees to be particular deficiencies with the plan.
27	Overall, I regard the combination of the mass and extent of built form, its location, massing and two storey form particularly in the rear half of the site, and the lack of sufficient landscaping opportunities will result in a development that would not be respectful of the existing neighbourhood character. 
28	While I have ultimately determined not to support the proposal on neighbourhood character grounds, I record my additional concerns with respect to other issues with the design response. This will enable any new application to address these further issues. As I have indicated previously, I consider the site is suitable for redevelopment with two dwellings.  It may be possible, subject to an improved design response, to achieve two, two storey dwellings on the land. But in the context of a substantially original modest character setting, development within a backyard context must be sensitively designed with, for example, more recessive upper level setbacks and greater capacity to achieve landscaping around the periphery. 
29	Finally, the spos for Dwelling 1 is shown in two parts, the first a fenced area of approximately 13 sq.m. within the front setback and the second at the rear of the dwelling adjacent the northern property boundary (having an area of approximately 35 sq.m.).  The enclosure of an area of spos within the front building setback is out of character with development in the immediate area.  Existing dwellings have lawn and vegetation in the front setback, contributing to the open, less formal nature of the streetscape.
30	I also consider that the spos at the rear of this dwelling is not ideally located being accessed off a dining room along the western elevation of the dwelling.  Any redesign should attempt to take greater advantage of the long east-west orientation of the lot to achieve improved northern access for the spos.  
31	Similarly, the principal area of spos for Dwelling 2 is located on the eastern elevation of the dwelling albeit on its northern side.  A large area of this spos is proposed to be covered, and part of that which isn’t is proposed to accommodate an outside shed.  While the plan shows spos of 60 sq.m., this includes the entire rear 1.8 metre wide easement, and the 1.0 metre wide setback of the dwelling from the northern property boundary. I do not consider this spos to be capable of providing for the reasonable recreational needs of its residents.  
conclusion
32	For the reasons explained above, the decision of the responsible authority is affirmed.  No permit is to issue.    

  

K Birtwistle 
Member