VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P570/2018
Permit Application no.P386/2016 	

CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 

APPLICANT	Thi Xuan Nho Nguyen & Van Liem Duong	
RESPONSIBLE AUTHORITY	Brimbank City Council	
SUBJECT LAND	23 Clairmont Street
ALBION  VIC 	
WHERE HELD	Melbourne 	
BEFORE	Laurie Hewet, Senior Member 	
HEARING TYPE	Hearing 	
DATE OF HEARING	10 April2019 	
DATE OF ORDER	24 June 2019 	
CITATION	Nguyen v Brimbank CC [2019] VCAT 935	

Order

1	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	CRYSTAL Building Design 	
•	Drawing numbers:	Sheet 1 to Sheet 13 inclusive all Rev A	
•	Dated:	09/08/2018 	

2	The decision of the Responsible Authority is set aside.
3	In permit application P386/2016 a permit is granted and directed to be issued for the land at 23 Clairmont Street, Albion in accordance with the endorsed plans and on the conditions set out in Appendix A.  The permit allows:
•	Construction of four double storey dwellings in the General Residential Zone 

Laurie Hewet
Senior Member			

APPEARANCES

For Applicant	Mr P Rygl, town planner	
For Responsible Authority	Ms S Loddo, town planner	

INFORMATION
Description of Proposal	Construction of four double storey dwellings.  	
Nature of Proceeding	Application under Section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Zone and Overlays	Clause 32.08:  General Residential Zone (GRZ1)	
Permit Requirements	Clause 32.08-6:  A permit is required to construct two or more dwellings on a lot.  A development must meet the requirements of Clause 55.	
Land Description	The site is located on the south east corner of Clairmont Street and Norwood Street, Albion.  The site has a frontage to Clairmont Street of 12.8m, a maximum depth of 39.62m and an area of 623.8m2.  
A single storey dwelling occupies the site.  
The site is part of an established residential area comprising mainly single storey detached dwellings. Some medium density developments are present in the neighbourhood. 
The site enjoys reasonable access to the services and facilities normally associated with suburban locations.
The Sunshine Metropolitan Activity Centre which is part of the Sunshine National Employment and Innovation Cluster is about 1.4 klms from the site.  Bus services are available on Ballarat Road (about 600m away) and Albion railway station is about 1klm away.    
The review site has two residential abuttals.  To the east there is a single storey dwelling fronting Clairmont Street and to the south there is a single storey dwelling fronting Norwood Street.   	

REASONS
1	This is an application to review the Council’s refusal to grant a permit for the construction of four dwellings at 23 Clairmont Street, Albion.
2	The Council refused the application on five grounds that raise neighbourhood character, policy, detailed design, energy efficiency and internal amenity issues.  
3	Amended plans have been prepared by the Applicant after the Council’s refusal of the application.  I substituted the amended plans at the start of the hearing.  The Council advises that it continues to oppose the grant of a permit on each of its grounds of refusal. 
4	The Council has included an additional ground of refusal relating to the unacceptable impact of the proposal on street trees.  In response to an arborist report prepared by the applicant the Council is now content that subject to the imposition of permit conditions the proposal’s impact on street trees is acceptable. 
5	Having considered the submissions and having inspected the site and surrounding neighbourhood I have concluded that the proposal is acceptable having regard to the relevant provisions of the planning scheme.  The proposal makes a contribution to the achievement of policies that encourage increased diversity of housing on well located sites in established residential areas.  The design of the proposal responds acceptably to the character of the neighbourhood.  There are no unacceptable impacts on the amenity of neighbouring properties. The proposal provides acceptable levels of amenity for future residents.
6	My reasons are set out below.
Basis of decision
The site’s physical and strategic context
7	Both the Council and the Applicant provided me with details of all relevant background information including:
•	The procedural background to the application.
•	The relevant planning scheme provisions
•	A description of the proposal.
•	A description of the review site’s physical context, the character of the neighbourhood and the site’s sensitive residential interfaces.
8	There is no significant dispute between the parties in relation to these matters and it is not necessary for me to repeat that material. 
9	It is appropriate that I record that:
•	The site is zoned General Residential (GRZ1).  The schedule to the zone contains variations to Clause 55 standards B13 (Landscaping) and B28 (Private open space).
•	The relevant purpose of the zone is to encourage development that respects the character of the neighbourhood, and to encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport. The site is not affected by overlay controls.  
•	The site is included in an ‘incremental change area’ in the Brimbank Housing Strategy.  The General Residential zone is applied to incremental change areas and in these areas housing diversity in the form of unit and townhouse development will facilitate incremental change over time.  
•	There is no preferred character statement for the neighbourhood.  
•	State and local policy aims to: 
o	Encourage residential consolidation of established urban areas;
o	Encourage the design of energy efficient buildings;
o	Ensure development that respects existing or preferred neighbourhood character;
o	Ensure that development improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing;
o	Achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community;
o	Encourage the provision of housing to accommodate future housing needs and preferences of the local community;
o	Protect existing vegetation and ensure the creation of an appropriate landscape setting for development including opportunities for the planting of canopy trees;
•	While the site is not located proximate to an activity centre, the Sunshine Metropolitan Activity Centre which is part of the Sunshine National Employment and Innovation Cluster is about 1.4klms from the site.  Bus services are available on Ballarat Road (about 600m away) and Albion railway station is about 1klm away.    
10	I am satisfied that in policy terms the site is well located.  The development of the site that contributes to increasing housing diversity is supported by the planning scheme.  The Council acknowledges the support offered by the planning scheme for medium density development of the site.  I was advised however that the Council regards a development of three dwellings rather than four as proposed would be an acceptable response to the relevant provisions of the planning scheme and the character of the neighbourhood.  
11	The Council submits that this proposal is unacceptable because:
•	A development of four dwellings is not consistent with the outcomes encouraged in incremental change areas because its scale, bulk, form density and lack of landscaping opportunities creates a built form that is not respectful of the preferred character of the neighbourhood.  
•	The proposal fails to demonstrate high quality design and sets a poor precedent for future development in the area. 
•	Insufficient landscaping opportunities are available throughout the site.  Minimal setbacks and extensive paving are a result of the number of dwellings proposed.
•	The attached form is uncharacteristic of the area. 
•	Existing infill development in the area is typically comprised of two or three dwellings.  
•	Standard B6 (street setback) of Clause 55 is not met in Clairmont Street and while the side street setbacks do comply with the standard there is a lack of articulation in the presentation to Norwood Street.
•	Continuous built form creates excessive bulk in the presentation to the street and neighbouring properties.  
•	Standard B10 of Clause 55 (Energy efficiency) is not met because northern orientation of habitable room windows is not maximised.
•	The functionality of the secluded private open space is compromised by overshadowing and the area and configuration of those spaces. 
Findings
12	I reject the Council submission that the proposal is unacceptable because it provides four dwellings.  The acceptability of the proposal is unrelated to the proposal’s density.  The planning scheme provides no foundation to the submission that density is or should be a contributing factor to the acceptability of this or any proposal.  
13	Whether the proposal achieves an acceptable outcome is a function of the proposal’s built form.   
14	I have concluded that this proposal does achieve an acceptable outcome for the following reasons:
•	The acceptability of the proposal’s built form must be considered having regard to the site’s strategic context in accordance with the planning scheme.  The GRZ1 zoning of the site and its inclusion in an incremental change area in which town house development is specifically encouraged, combined with my earlier findings about the site being well located in policy terms, establishes a realistic expectation that this is a neighbourhood in which change in built form character is to be anticipated and is encouraged.  
•	The proposal adopts a conventional townhouse typology of the type that is increasingly characteristic of development occurring throughout suburban locations in metropolitan Melbourne.  
•	The proposal’s double storey height represents a single storey transition in height to the neighbourhood’s predominantly single storey scale. A single storey transition in height is acceptable especially having regard to the site’s strategic context which encourages townhouse developments in this neighbourhood.  In the GRZ1 a maximum height of 11.0m or three storeys is permitted.  
•	There is nothing incongruous or alien about this proposal in this suburban location.  The proposal incorporates pitched roof forms and conventional materials and finishes common in this neighbourhood.  The upper levels are recessed from the ground floor footprints and additional articulation is provided by eaves, ground level porches and regularly configured and located openings.   
•	The proposal’s front setback that ranges between 6.4m and 6.7m at ground level, increasing to 7.8m at the upper level, is acceptable in this neighbourhood context.  The objective of Clause 55.03-1 is met.  The extent to which standard B6 is not met, is relatively minor and in this neighbourhood in which the pattern of setbacks is mixed, and in which incremental change in character is encouraged in any event, the proposed setback has no adverse impact on the neighbourhood’s character.  
•	Because of the site’s corner location, the front setback allows the proposal to sit comfortably in the streetscape.  A design that adopted strict compliance with the standard would achieve no significant character benefit.  A requirement to that effect would contribute to an inefficient use of the site.
•	The setbacks to the side street are compliant with standard B6 and the objective is therefore met.  In addition the setbacks allow reasonable landscaping opportunities and are staggered allowing a building presentation in the streetscape with projections and recesses successfully breaking down the visual bulk associated with the continuous ground level built form.  
•	The break down in bulk is further assisted by the upper level separations and recessing discussed above.  Three of the four dwellings have low front fences to the side street.  The garages accessed from the side street are recessed behind the front façade of those dwellings and are not a dominant element in the streetscape. 
•	The proposal provides acceptable levels of internal amenity for future residents.  The schedule to the GRZ1 varies the Clause 55 standard and the proposal generously complies with the varied standard.  The secluded open spaces are generously proportioned and regularly configured.  The spaces are accessed from internal living rooms.  The relevant objective of Clause 55.05-4 is met.  Standard B29 (Solar access to open space) is met and the objective is therefore met.
•	The site is located on the south side of Clairmont Street and the east side of Norwood Street.  The northern orientation of habitable room windows is maximised to an acceptable degree for a site exhibiting these characteristics.  
•	There are no indications of overdevelopment associated with this proposal.  Site coverage, permeability and garden area standards are comfortably met or exceeded. 
•	There are no unacceptable offsite amenity impacts.  The proposal complies with all relevant Clause 55 standards relating to overlooking, overshadowing and loss of daylight.  In terms of visual bulk impacts, the proposal complies with and exceeds side and rear setbacks.  In addition the sensitive interface to the east is addressed by a combination of generous setbacks, articulation in the built form and the opportunity to provide landscaping along the side boundary to filter views of the building from the neighbouring open space.  
Conclusion
15	It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued. 
16	In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions of the parties in addition to the matters which arise from my reasons.
17	I have not included the condition sought by the Council requiring a bond of bank guarantee (to the value of $94,420.84) intended to ensure that street trees are not damaged during or after construction.  
18	I have previously commented in an earlier decision in the City of Brimbank about the relevance of street trees to a decision about the grant of a planning permit.  In that case the grant of a permit required the removal of a street tree which was opposed by the Council.  The applicant submitted that I ought to issue a permit for the removal of the tree.  I found that:  
The grant of a permit will have the effect of necessitating the removal of the street tree in Adelaide Street, because the crossover to the driveway for dwelling 1 will intrude significantly into the TPZ of that tree. The parties agree that the street tree is unlikely to survive the construction of the crossover……..
During the hearing I commented that removal of the street tree is not subject to the grant of a planning permit but is matter controlled under separation regulation via Council’s local laws. I acknowledged that the removal of the tree is an action that flows directly from the grant of a permit for the proposed development and the tree’s existence does constitute a site constraint to which the design of the proposal ought to have regard…….
The applicant has requested me to grant a permit for the removal of the street tree however because of the circumstances discussed above, a permit is not required to remove the tree and I have no jurisdiction to authorise its removal. As I have stated above, the removal of the tree is a matter the applicant will be required to pursue separately with the Council. 
19	In this case the proposal does not necessitate the removal of street trees.  The Council is content that subject to the implosion of conditions on any permit issued the street trees are unlikely to be damaged during construction of the proposed development.  The Applicant does not oppose the implosion of those conditions.  
20	I am content to impose the conditions sought by the Council especially in circumstances where I have a report from an arborist demonstrating that the proposal will have no adverse impact on the trees, subject to the imposition of those conditions.  The Council’s arborist agrees with that assessment.  The permit conditions are sufficient in detail and rigor to provide a reasonable level of confidence that the street trees will not be adversely affected by the proposal.  A further layer of control in the form of a bank guarantee is onerous, excessive and unnecessary.  

Laurie Hewet
Senior Member			

 APPENDIX A

PERMIT APPLICATION NO:	P386/2016	
LAND:	23 Clairmont Street
ALBION  VIC	
WHAT THE PERMIT ALLOWS:	
•		Construction of four double storey dwellings in the General Residential Zone 
in accordance with the endorsed plans.	

conditions
Amended/Endorsed Plans
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 and one digital copy must be provided.  The plans must be generally in accordance with the plans submitted with the application (Amended plans received by Council on 20/02/2019) but modified to show:
(a)	The eaves shown on the elevation plans related to first floor Unit 1 to be shown on Sheet 5 (Proposed First Floor Plan).
(b)	The secluded private open space area of at least 25sqm with a minimum dimension of 4m to be provided for all Units.
(c)	The door opening in the carport to be modified to a sliding door.
(d)	Site and elevation plans to clearly notate and reflect that the carport over easement is constructed with readily removable structures (light weight cladding). The first floors over the carport to be self-supportive structure.
(e)	All single vehicle (Unit 1 and 4) crossings to be 3m wide or to the satisfaction of the responsible authority.
(f)	A notation included on plan to show:
i	That no pruning of the existing street tree located within the naturestrip shall be undertaken by any party other than Brimbank Tree Services.
ii	That the naturestrip and street tree to be barricaded out using portable cyclone fencing for the duration of the development.
iii	That no building materials are to be stacked and/or dumped on the naturestrip during construction.
2	The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Landscaping
3	A landscape plan 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 plan must be drawn to scale with dimensions and one digital copy must be provided.  The must be generally in accordance with the landscape plan prepared by Crystal Building Design (Revision A dated 9/8/1) and must show: 
(a)	Details of surface finishes of pathways and driveways;
(b)	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;
(c)	Landscaping and planting within all open areas of the site;
(d)	Appropriate irrigation system;
All species selected must be to the satisfaction of the Responsible Authority.
4	Prior to the Occupancy Permit being issued for the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.
5	The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
6	A cash bond for $2000, plus a non-refundable 5% service charge of $200 (Total of $2200), shall be lodged with the Responsible Authority prior to the collection of endorsed plans to ensure the completion and establishment of landscaped areas.  This cash bond will only be refunded after a 13 week establishment period beginning when the Responsible Authority is satisfied with the completed landscaping works, provided that the landscape is being maintained to the satisfaction of the Responsible Authority.
Street Trees Protection 
7	The following measures must be adhered to for the protection of the street tree(s):
(a)	A qualified arborist to oversee all works in and around Tree Protection Zones (TPZ) of Level 5 or above must be employed.
(b)	Suspended walls, using pier and beam construction inside a TPZ.
(c)	Hand digging footings for piers inside a TPZ and supervised by a suitably qualified arborist.
(d)	Use of cantilevered pathway slabs over root zone of Tree 2, to reduce the incursion into the soil inside its TPZ.
(e)	All services are to be routed outside 'Tree Protection Zones'. If there is no alternative to passing through the TPZ, the consulting arborist and local authority must be advised on the need for boring beneath root zone (a minimum of 50cm in soil depth).
(f)	Tree Protection Zones for Tree 1-3 are to be fenced off with a 1.8 metres high temporary cyclone wire fence prior to the commencement of any works; clearly marked with signs indicating it as an exclusion zone for the 3 street trees.
(g)	The fenced protection zones for retained trees are to be set outside the critical root zone and should incorporate the maximum amount of exposed root zone.
(h)	This will be done in consultation between the consulting arborist and site manager.
(i)	Under no circumstances is a Tree Protection Zone or temporary fenced area to be encroached without the consent of the consulting arborist.
(j)	Under no circumstance is there to be any incursion into the Structural Root Zone (SRZ), without prior discussions with the supervising arborist and the local authority. Any works on this area must be closely monitored and supervised by suitably qualified arborist.
(k)	No storage of building materials, waste or excess soils inside the Tree Protection Zones (TPZs); in particular for the parts of the TPZs that are to be part of the private open space inside this property that is to be developed.
(l)	No digging, trenching or other soil disturbance is allowed in the fenced area. This includes washing of tools or equipment or allowing the residue of any cleaning to wash into this zone.
(m)	No fittings or fixtures are to be attached to the trees, including temporary services, wires, nails or screws during the construction phase of development.
(n)	The Tree Protection Zone is to be mulched and irrigated to ensure the water needs of each tree during construction.
  
Development Contribution Levy
8	A Development Contribution in accordance with the approved Development Contributions Plan must be paid to Brimbank City Council.
Payment of the Development Infrastructure Levy (DIL) must:
(a)	Be paid prior to the commencement of any development or works on the land or prior to Statement of Compliance (SOC) for the subdivision of the land associated with the development permit, whichever comes first; OR
(b)	When a staged subdivision is sought, be paid prior to the issue of a Statement of Compliance based on the net increase in the number of new dwellings within each stage.
Payment of the Community Infrastructure Levy (CIL) must be paid prior to the issue of a building permit under the Building Act 1993.
General
9	During the construction phase of the development, the following conditions shall be met:
(a)	Only clean rainwater shall be discharged to the stormwater drainage system;
(b)	Stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises, enters the stormwater drainage system;
(c)	Vehicle borne materials shall not accumulate on the roads abutting the site;
(d)	All machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;
(e)	All litter (including items such as cement bags, food packaging and plastic stripping) must be disposed of responsibly;
(f)	All site operations shall comply with the Environment Protection (Residential Noise) Regulations 2008.
Car Parking
10	Before the occupation of the development starts, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a)	Constructed in concrete or asphalt;
(b)	properly formed to such levels that they can be used in accordance with the plans;
(c)	Drained and
11	Maintained
all to the satisfaction of the Responsible Authority.
Car spaces, access lanes and driveways must be kept available for these purposes at all times.
12	All disused or redundant vehicle crossings must be removed and replaced with kerb and channel, naturestrip and footpath to the satisfaction of the Responsible Authority.  A permit must be obtained from Council’s Engineering Department prior to the commencement of these works. 
13	The owner/developer is responsible for determining the location of any road infrastructure or non-road infrastructure in the road reserve (e.g. pits, poles, water mains, gas mains, telecommunications cables etc.) that could be affected by the installation of the new crossover(s) or related works.  Any existing road infrastructure or non-road infrastructure located within or adjacent to the new crossover(s) must be altered, relocated or reconstructed to the satisfaction of the Responsible Authority and/or the relevant utility provider or infrastructure manager at the expense of the owner/developer.
14	Concrete kerbs or other barriers must be provided to the satisfaction of the Responsible Authority to prevent direct vehicle access to (specify road) other than via the vehicle crossing(s) shown on the endorsed plans.
Engineering
15	Access to the site and ancillary road works must be constructed in accordance with the requirement of the Responsible Authority.
16	An on-site stormwater drainage retention/detention system must be installed on the subject land to the satisfaction of the Responsible Authority. 
17	The entire development site must be connected to the existing underground drainage and sewerage systems to the satisfaction of the Responsible Authority.
18	The crossover(s) must be located and constructed to the satisfaction of the Responsible Authority in accordance with plans approved by the Responsible Authority.  The plans submitted must show all services within the road reservation including power poles, drainage pits, Telstra pits, trees, road humps, bus stops and any other road infrastructure or asset that may hinder or impact on the operation of the crossover.
19	Protective kerbs (of a minimum height of 150mm) must be provided to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas and to control drainage flows.
20	A separate approval for the construction of carport over/in Council’s easement is required from Council’s Engineering Service Department.
Multi-Unit Residential Development
21	Provision must be made for a suitable structure or structures for receiving mail and newspapers.  Such area shall be kept clean and tidy.  The structure shall include separate provision for each unit to receive papers.
22	All service meters must be located in the front of the units in a location easily accessible to the various authorities.
23	The electrical meter box(es) must be within a suitable structure treated with appropriate materials to positively contribute to the amenity of the area and be to the satisfaction of the Responsible Authority.
24	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.
25	The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
26	Provision must be made on the land for the storage of waste and recycling bins in a location that is not visible from the street to the satisfaction of the Responsible Authority.
27	Prior to the occupation of the dwellings hereby permitted all side, rear and internal fencing must be a minimum height of 1.8m above the finished ground level (except where visibility splays are required toward the front of the site) and be in good condition to the satisfaction of the Responsible Authority.  The owner of the subject land must pay all costs associated with the construction / modification of the fence(s) (including materials), to the satisfaction of the Responsible Authority.
Time Limit – Development 
28	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two years of the date of this permit,
(b)	The development is not completed within four years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or:
(a)	Within six months afterwards for commencement, or
(b)	Within twelve months afterwards for completion.
- End of conditions -