VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment division
planning and environment LIST	vcat reference No. P2171/2018
Permit Application no. PlnA00266/18	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Casey Planning Scheme; General Residential Zone Schedule 1; Construction of a second dwelling; planning Policy; Interface with Green Wedge Zone;  Neighbourhood Character; Amenity Impacts	

APPLICANT	Glenn Kennedy	
responsible authority	Casey City Council	
SUBJECT LAND	262 Victoria Road, Pearcedale	
WHERE HELD	Melbourne	
BEFORE	Katherine Paterson, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	1 May 2019   	
DATE OF ORDER	9 July 2019	
citation	Kennedy v Casey CC [2019] VCAT 1032	

Order
1	In application P2171/2018 the decision of the responsible authority is set aside.
2	In planning permit application PlnA00266/18 a permit is granted and directed to be issued for the land at 262 Victoria Road, Pearcedale in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows the construction of two dwellings on the lot.  

Katherine Paterson
Member			

Appearances
For applicant	Mr David de Giovanni, Town Planner, David de Giovanni Town Planning	
For responsible authority	Mr Angus McGuckian, Town Planner, Journeyman Planning	
Information
Description of proposal	Construction of a second dwelling on the lot.  The new dwelling is proposed to be a three bedroom dwelling with a double garage accessed via an existing crossover to Victoria Road.  The existing four bedroom dwelling is proposed to be retained, and converted to a three bedroom dwelling with car parking provided within a reinstated garage, accessed by a separate existing crossover to Pearcedale Road.  A tree is proposed to be removed to make way for the proposed development.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Casey City Council	
Zone and overlays	General Residential Zone Schedule 1	
Permit requirements	Clause 32.08-6 – Construct two or more dwellings on a lot.  	
Land description	The subject site has an area of 1135.24 square metres and currently contains a four bedroom dwelling with a large shed accessed via a separate crossover to Victoria Road.  	
Tribunal inspection	6 May 2019   	
Cases referred to:	Low v Casey CC [2013] VCAT 1454	

Reasons
What is this proceeding about?
1	In 2010 the subject site was created by subdividing the then parent title into two lots, with the subject site containing the existing dwelling with a lot area of 1135 square metres, and the smaller lot, now also occupied by a dwelling having an area of 853 square metres.  
2	The owners of the subject site now wish to further develop the site by constructing a second dwelling, effectively creating three house sites from the original allotment.  
3	Council refused to grant a planning permit for the proposed second dwelling on a number of grounds.  Essentially, they consider that the proposed density and lot size to be at odds with the character of the area, particularly as it fails to respond to the interface with the Green Wedge Land located opposite the site.  

4	Several statements of grounds were received from residents living in Victoria Road.  They share Council’s concerns but are also concerned that the proposal will generate extra noise, dust, traffic and affect the Casey Equestrian Trial.  In addition, there is concern that the proposed development will exacerbate drainage issues in the area and will be rented out rather than owner occupied. 
What are the key issues?
5	Having considered all the submissions and evidence and inspected the subject land and its locality, I find that the key issues in this proceeding are:
•	Is the proposal consistent with planning policy?
•	Is the proposal respectful of the neighbourhood character?
•	Does the proposal create unacceptable amenity impacts?
Summary of findings
6	I have determined that a planning permit should issue for this proposal as:
•	It is generally consistent with planning policy;
•	The siting and design of the proposed dwelling is consistent with neighbourhood character; and
•	The proposal will not generate any unreasonable amenity impacts.  
My reasons follow.  
Procedural issues & rulings 
7	My order of 6 May 2019 required the responsible authority to provide details of the poultry farm it referred to in its submissions, including location, type of farm, numbers of birds and distance from the site, as well as any implications for the proposed development.  On 8 May 2019, the responsible authority provided this information and advised that the existing poultry farm will have no implications for the proposed development.  In response, the permit applicant advised that it concurred with this assessment.  I also agree that this farm will have little impact on the proposal before me.  
Is the proposal consistent with planning policy?
8	Clause 11.01-1R seeks to protect the green wedges of Metropolitan Melbourne from inappropriate development.  One strategy to achieve this is to consolidate new residential development in existing settlements and in locations where planned services are available and green wedge values are protected. Clause 16.01-2R seeks to increase housing in established areas to create a city of 20 minute neighbourhoods close to existing services, jobs and public transport.

9	As can be seen from the above excerpt from Melways Online, the subject site is located approximately 900 metres (an 11 minute walk) from the Pearcedale Village Centre, which is identified as a neighbourhood activity centre at Clause 21.02.  Nearby public transport is in the form of buses, which operate along Pearcedale Road, with the nearest stop located 120 metres (a one minute walk) from the site, and providing a link from the site to Frankston, Cranbourne and Baxter.  I find that it is a site that is supported by planning policy for more intensive forms.  
Local Planning Policy
10	Clause 21.01-1 identifies Pearcedale as part of Casey’s farm belt, and indicates that Casey is experiencing the same development pressures that are common throughout metropolitan Melbourne.  A key issue for the municipality is maintaining the “country feel, city living” experience of its residents.  
11	Clause 21.03-2 seeks to create clear physical delineations between Casey’s communities and discourages the use of rural residential allotments as a transition between suburban and non-urban areas.  This policy is further emphasised in Clause 21.13-3 which seeks to reinforce the identity, character and sense of place of Pearcedale by defining and maintaining a clear village boundary and compact centre, and by ensuring new housing is complementary to the character of the village.  The subject site is located within the township boundary as shown in the map below, extracted from Clause 21.13-15.  

12	Whilst Council was concerned raised about the lack of transition between the proposed development and the green wedge land to the north, this is not the desire of policy.  Rather policy seeks to provide a ‘hard edge’ between the urban and non-urban areas of the municipality.  This desire is reflected in the inclusion of the site within a General Residential Zone Schedule 1, rather than an alternative zone such as a low density zone or rural living zone which would have provided a softer transition between the green wedge zone and the township.  
13	I find that the development of this site for an additional dwelling is consistent with planning policy, however, the design must be consistent with the neighbourhood character of the area.  I turn to this aspect of the proposal next.  
Is the proposal respectful of the neighbourhood character?
14	One of the purposes of the General Residential Zone is to encourage development that respects the neighbourhood character of the area.  Clause 55.02-1 seeks to ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
15	Whilst there is no specific neighbourhood character policy within the scheme at present, I was provided with a copy of the neighbourhood Character Statement for the Pearcedale Township, which was adopted by Council on 1 December 2015.  However, it has not been included within the scheme itself and as such, can only be given limited weight.  However, it does provide a preferred character statement for Pearcedale as follows:
The retention of the existing compact street layout, the large lots, the detached low rise style of housing and the protection and enhancement of the open ‘treed’ environment.
16	The statement allows for the provision of medium density housing within a 200 metre radius of the town centre, so long as it is limited to a maximum of two dwellings per lot.  In terms of the location and number of dwellings, the statement is at odds with the site’s inclusion of the site within the General Residential Zone and with the existing planning policy framework of the scheme.  As such I have given the ‘prohibition’ on medium density housing outside the 200 metre radius little weight.  I will however, have some regard to the preferred character statement.
17	I find that the design of the development is generally consistent with the preferred character statement due to its orientation to the street, single storey height, the pitched roof form, and traditional style of the proposed dwelling.  The front setback of the proposed development is consistent with the requirements of the scheme and will allow for the planting of canopy trees to assist in softening the impact of the proposed development when viewed from the street, as is demonstrated in the landscape plan that has been prepared for the application.  The choice to utilise the existing crossovers for vehicle access will further assist in ensuring that this development will be a comfortable fit in the streetscape.  Whilst some concern was raised with the proposed 1.2 metre setback to the southern boundary, I find that this is acceptable particularly given it will adjoin a dwelling with a similar setback.  
18	Council was particularly concerned that this development would result in a ‘small lot’ of approximately 450 square metres.  The subject site has already been the subject of a subdivision.  This proposal will be the second lot created from the original parent lot, resulting in three dwellings constructed on the original lot, whereas the character statement suggests a maximum of two dwellings should be constructed per lot within Pearcedale.  Whilst the proposed dwelling will be eventually sited on a lot smaller than its neighbours, this does not itself make this proposal unacceptable.  As I have found that the design of the proposed dwelling will be a comfortable fit with its neighbours, it follows that I find the smaller lot is acceptable and will provide for a diversity of housing forms in this part of Pearcedale.  
19	During the hearing I was provided with several cases related to developments within the smaller townships within Casey.  The latest of these cases, Low v Casey CC [2013] VCAT 1454, dates from 2013, when a different planning policy regime was in place for Pearcedale.  In that case, the Tribunal found that a proposal for four dwellings was incompatible with the unique character of Pearcedale, with its larger lots and large backyard spaces.  In this case, this proposal for a second dwelling will retain a relatively large back yard and is a design that respects the low scale character of the township, whilst maintaining the ‘hard edge’ desired by policy between the land included within the Green Wedge and the residential zone land.  
Does the proposal create unacceptable amenity impacts?
20	With respect to the submissions about amenity impacts raised in the statement of grounds, I make the following findings:
Noise
21	There is no reason to expect that the noise generated by the proposed dwelling will be any greater than any other dwelling within Pearcedale.  Should the noise generated by the dwelling prove to be excessive, this may be addressed through the usual enforcement agencies.
Dust
22	Victoria Road is an unsealed road, and any additional vehicles may increase any problems currently experienced through dust, however I find that the traffic generated by one additional dwelling should not ‘tip the balance’ in terms of amenity.  
Traffic
23	No traffic evidence was provided to the Tribunal, but I note that the referral response by Council’s traffic engineers indicates that Victoria Road has the capacity to accommodate the traffic generated by the additional dwelling.  Based on this referral response, I am satisfied that the amenity of Victoria Road will not be unreasonably affected through increased traffic.
Casey Equestrian Trail
24	There is a proposal to create a equestrian trail along Victoria Road.  I consider that the construction of an additional dwelling will have limited, if any impact, on the delivery of this infrastructure, particularly as the existing crossovers are to be utilised for the development.   
Drainage
25	Council’s drainage engineers have raised no concerns with the proposal, indicating that this proposal is acceptable from a flood management perspective.  The site is not included within any flood overlays, indicating that this area is not particularly susceptible to flooding.  
Occupants
26	It is unknown whether the proposed dwelling is to be owner occupied or rented out, however from a planning perspective this is irrelevant.  I am satisfied that the proposed design will provide a comfortable home for the future occupants of the dwelling.  
What conditions are appropriate?
27	Draft conditions were discussed at the hearing, and any changes to those conditions reflect those discussions as well as further consideration by the Tribunal.  I make the following findings with respect to conditions:
•	I have retained conditions 1(c) and 1(d), as the works for the driveway for the proposed dwelling may have an impact on the trees to be retained.  
•	I have also retained condition 2, as whilst I find that it is generally satisfactory, there may be some changes needed as a result of the requirements of 1(c) and 1(d). 
•	 I have retained condition 5 as I find that the requirements of this condition are reasonable, but have deleted 5(d) as this is unnecessary given proposed conditions 9 and 10. 
•	I have included the Tribunal’s standard expiry condition with 3 years to commence and 5 years to complete as requested by the permit applicant and deleted the notes.  
Conclusion
28	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Katherine Paterson
Member			

Appendix A – Permit Conditions

Permit Application No	PlnA00266/18	
Land	262 Victoria Road Pearcedale	

What the permit allowS	
The permit allows the construction of two dwellings on the lot in accordance with the endorsed plans.  	

Conditions
Amended Plans Required
1	Before the development 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 submitted with the application (prepared by Modarc; Project No: 17044; Date: March 2019; Revision: C; Pages TP1 and TP2 – total number of sheets: 2), but modified to show:
a)	External storage area of 6m3 to be included in the private open space of the proposed dwelling, and outside any existing easements.
b)	The tree protection zones (TPZ) to all trees proposed to be retained within the subject site.
c)	The level of development encroachment (as a percentage) of the TPZ area of all trees proposed to be retained within the subject site, in accordance with the relevant Australian Standard(s). 
d)	Any mitigation measures necessary to the development in order to retain trees within the subject site, in accordance with the relevant Australian Standard(s).
e)	A minimum 2,500 litre water tank nominated to each dwelling and appropriately located within their private open space areas.
f)	The outline of the southern fence line for the proposed dwelling nominated on elevations.
g)	Colour elevations, consistent with the finishes schedule nominated.
Landscape Plan
2	Before the development starts, a landscape plan prepared by a person suitably qualified or experienced in landscape design to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and must be provided in electronic format. The landscape plan must be generally in accordance with the Landscape Plan prepared by Habitat Landscape and Environmental Design Consultants dated March 2019, except that the landscape plan must show:
a)	A survey (including botanical names, trunk location, trunk diameter and canopy spread) of all existing vegetation, for the entire subject site. The survey must clearly mark existing vegetation to be retained and removed. The survey must also include any street trees in the road reserve along the subject site frontage. 
b)	Buildings and trees (including botanical names, trunk location, trunk diameter and canopy spread) on neighbouring properties within three metres of the boundary.
c)	Details of existing and proposed surface finishes of pathways and driveways.
d)	A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
e)	Landscaping and planting within the vicinity of the proposed new dwelling.
f)	Landscaped areas must be planted with shrub and groundcover species capable of achieving a minimum density of at least 85% coverage 12 months after planting.
g)	All garden beds adjoining turf or gravel surfaces must have hard garden edging.
h)	Provision of an automated, inground irrigation system to all proposed new garden beds.
i)	1200mm organic mulch diameter around any retained or proposed trees in lawn areas.
j)	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.
k)	The location of tree protection zones and protection measures for existing trees that are to be retained, including for street trees accurately drawn to scale and labelled and with notations referring to any endorsed Tree Management and Protection Plan or Arboricultural Report.
All species selected must be to the satisfaction of the Responsible Authority. Landscaping must demonstrate the use of sustainable practices and irrigation must not use potable water. Any planting within an easement must utilise species suitable for planting within easements and must not be root invasive plant species that are known commonly invade sewers and drains. 
Layout Not Altered
3	The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
4	Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Works Prior to Occupation
5	The buildings must not be occupied until the following works have been completed to the satisfaction of the Responsible Authority:
a)	The changes proposed to the existing dwelling are completed.
b)	The premises are connected to reticulated water supply, sewerage, drainage and underground electricity to the requirements of the relevant servicing authority.
c)	The car parking and driveway areas have been constructed with coloured (dusted) concrete or asphalt in accordance with the endorsed plan.
d)	A letter box and street number have been provided to the satisfaction of the Responsible Authority
General Amenity
6	Construction activities must be managed so that the amenity of the area is not detrimentally affected, through the:
a)	Transport of materials, goods or commodities to or from the land.
b)	Inappropriate storage of any works or construction materials.
c)	Hours of construction activity.
d)	Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste and storm water runoff, waste products, grit or oil.
e)	Presence of vermin.
7	External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
Buildings and Works
8	All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
Landscaping
9	Before the use/occupation of the development starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
10	The landscaping shown on the endorsed plans must be maintained in accordance with the endorsed plans to the satisfaction of the Responsible Authority. Areas shown on the endorsed plan as landscaped must not be used for any other purpose and any dead, diseased or damaged plants are to be replaced
11	Except where specified on the endorsed plan, no other vegetation may be removed from the site, without the further written consent of the Responsible Authority
12	Trees to be retained must be protected to the extents of Tree Protection Zones (TPZs), as per the guidelines contained within Australian Standard AS4970-2009, Protection of Trees on Development Sites. Tree protection fencing must be in place on site prior to any works commencing, and remain until all construction & site works are completed. No vehicles, materials, chemicals, equipment or machinery is to enter or be stored within the TPZ of any existing tree that is to be retained, all to the satisfaction of the Responsible Authority.
Engineering - Drainage
13	Stormwater must not be discharged from the site other than by means of an underground pipe drain discharged to an appropriate watercourse, drain, dam or infiltrated on site by use of a rubble pit to the satisfaction of the Responsible Authority.
14	Polluted stormwater must not be discharged beyond the boundaries of the lot from which it emanates, or into a watercourse or easement drain, but must be treated and/or absorbed on that lot to the satisfaction of the Responsible Authority.
15	Prior to the occupation of the second dwelling a minimum 2,500 litre rainwater tank must be installed to collect stormwater from the roof of the dwelling. The tank must be connected to supply water to a toilet within the dwelling to the satisfaction of the Responsible Authority.
16	Appropriate sediment control measures must be undertaken during construction to the satisfaction of the Responsible Authority to ensure that no mud, dirt, sand, soil, clay or stones are washed into or allowed to enter the stormwater drainage system.
Engineering - Traffic 
17	The proposed crossovers must be located a minimum of 1.0m from any service facilities or existing trees etc.
18	The minimum width of the proposed vehicular crossing must be 3.5m and to be constructed in accordance with MPA standards. Approval required from Council Works Centre
19	The gravel vehicular crossing to be thoroughly compacted and sealed to the satisfaction of the responsible authority to prevent dirt, dust or any loose materials are washed onto the road surface.
20	Adequate Lighting must be provided along the driveways for safe night time traffic movement to the satisfaction of the Responsible Authority (Bollard lighting recommended).
21	The gradients of access driveways must be in accordance with Australian Standards AS/NZS 2890.1:2004 Section 2.6.2. The maximum gradient of domestic driveways shall be 1in 4 (25%), driveway across property line shall be 1 in 20 (5%) and across a footpath and proposed crossover 1in 40 (2.5%).
22	Clear sight lines shall be provided for adequate visibility between vehicles leaving access driveways and pedestrians at the property lines as per Australian Standards AS/NZ 2890.1:2004 S3.2.4 Fig3.3.  Obstructions including letterboxes, meter boxes, front and boundary fencing, vegetation and the like must be restricted to a maximum height of 1m.
Permit Expiry
23	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 three (3) years of the issue date of this permit.
(b)	The development is not completed within five (5) 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 –