VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1394/2019
Permit Application no. P19/0496	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Neighbourhood character; visual bulk; walls on boundaries; overlooking; Landscaping opportunities.     	

APPLICANT	Julie Molloy	
responsible authority	Mornington Peninsula Shire Council	
RESPONDENT	Adela McMurray, Jennifer & Allan Day	
SUBJECT LAND	20 Johnson Street
CAPEL SOUND  VIC  3940	
WHERE HELD	Melbourne	
BEFORE	Juliette Halliday, Member 	
HEARING TYPE	Hearing	
DATE OF HEARING	24 January 2020	
DATE OF ORDER	16 March 2020	
CITATION	Molloy v Mornington Peninsula SC [2020] VCAT 265  	

Order

Amend permit application 
1	Pursuant to 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:	Howse Studio Pty Ltd	
Drawing numbers	Dated	
•	TP03, TP04, TP05, TP06, TP07	•	22 November 2019 Revision A	
Prepared by:	Habitat	
Drawing numbers	Dated	
•	Landscape Plan	•	December 2019 Issue A	
Permit granted
2	In application P1394/2019 the decision of the responsible authority is set aside.
3	In planning permit application P19/0496 a permit is granted and directed to be issued for the land at 20 Johnson Street, Capel Sound in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of a dwelling where there is at least one dwelling existing on the lot.

Juliette Halliday Member 			

Appearances
For Julie Molloy	Mr Simon Skinner, town planner of Planning Sense	
For Mornington Peninsula Shire Council	Mr Gerard Gilfedder, town planner of Currie and Brown	
For Adela McMurray	Ms McMurray appeared in person	
For Jennifer and Allan Day	Mr Day appeared in person	

Information
Description of proposal	Construct a dwelling where there is at least one dwelling existing on the lot.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	General Residential Zone, Schedule 1	
Permit requirements	Clause 32.08-6	
Land description	The land is located on the north side of Johnson Street, opposite the intersection with Rae Street. Percival Street is to the west and Brendel Street is to the east if the land. The land has a frontage to Johnson Street of 15.35 metres and a depth of 38.41 metres. Its overall size is approximately 597.27 square metres. There is an existing single-storey ‘fibro’ dwelling on the land. Vehicular access is provided along a formed gravel driveway close to the western boundary. 	
Tribunal inspection	An unaccompanied inspection was undertaken after the hearing.   	

Reasons

What is this proceeding about?
1	The applicant sought a permit from the Mornington Peninsula Shire Council (Council) to develop a two-storey dwelling to the rear of an existing single-storey dwelling on the land at 20 Johnson Street, Capel Sound (land). The permit application was the subject of notice and several objections were received. 
2	In essence, the Council refused to grant the permit on the basis that the proposal:
a.	Does not adequately respond to relevant policies in the Mornington Peninsula Planning Scheme (Scheme) or the objectives and decision guidelines of the General Residential Zone;
b.	Is inconsistent with the objectives and Strategies of the Mornington Peninsula Localised Planning Statement (July 2014);
c.	Fails to satisfy relevant objectives and standards under clause 55 of the Scheme (also known as ‘Rescode’); including those regarding neighbourhood character;
d.	Is not an acceptable design outcome due to the scale and bulk of the proposal, its limited setbacks, boundary to boundary development and lack of sufficient landscaping opportunities. 
3	The permit applicant applied to the Tribunal for review of the Council’s decision to refuse the permit. Amongst other things, she submits that the proposal is consistent with both relevant policy and clause 55 of the Scheme. She also submits that the proposal is respectful of the prevailing neighbourhood character; that appropriate landscaping can be provided, and that the proposal will not cause any detrimental impact on the amenity of adjoining properties. 
4	Statements of grounds were filed with the Tribunal by Ms McMurray and Mr Day who object to the proposal. Amongst other things, Ms McMurray says that it will result in a loss of amenity, including a loss of privacy and overshadowing. Mr Day submits that the proposal does not respond to the existing neighbourhood character and that it does not provide a suitable response to the objectives and standards of clause 55 (amongst other things). Mr Vouch filed a statement of grounds with the Tribunal but indicated that he did not wish to participate in the hearing. Whilst he is not a party to this matter, I have taken his statement of grounds into account in reaching my conclusions in this matter.
5	Having inspected the land and its surrounds and had having regard to the relevant provisions of the Scheme, the submissions of the parties and the documents filed with the Tribunal I have decided to grant a permit for the development. My reasons follow.
the Proposal and site context
6	The proposal is for the construction of one two-storey dwelling to be located to the north of the existing single-storey dwelling on the land. The new dwelling will be located to the rear of the existing dwelling and each dwelling will have a single car garage accessed from a newly constructed driveway along the western boundary of the land. The front setback of the existing dwelling (which is approximately 7.5 metres) will remain unaltered, and the existing dwelling will have access to secluded private open space at the rear.  
7	The new dwelling will have a kitchen; a study; a living and dining area; a laundry and a powder room at ground level. There will be access available to secluded private open space from the living/dining area. At first floor the new dwelling will have two bedrooms (each with an ensuite) and one with a walk-in robe.
8	The maximum height of the new dwelling is approximately 7.05 metres. The proposal includes brick and render building materials and a flat, angled metal deck roof. The proposal is of a contemporary design. An extract from the ground floor plan is set out in Figure 1 below.

Figure 1
9	The land adjoins the following properties:
a.	To the west, there are single-storey detached dwellings at Nos. 21 and 19 Percival Street. The existing dwelling at No. 21 Percival Street is setback from the western boundary of the land by approximately 1 metre. The rear yards of Nos. 19 and 21 Percival Street adjoin the western boundary of the land. At No. 19 Percival Street, there is a detached outbuilding located approximately 6 metres from the common boundary with the land and there is a detached, single-storey dwelling sited approximately 13.5 metres from the common boundary;
b.	To the north, the existing detached single-storey dwelling, and the rear yard of No. 17 Percival Street adjoin the northern boundary of the land. To the north of this dwelling is a relatively large undercover patio area (with table and chairs) which is accessed from the living area in the house. Two bedrooms located at the rear of the house face onto the garden, which is located to the east of the house; 
c.	Also, to the north is a single-storey dwelling, being one of 34 units at No. 1559 Nepean Highway; and
d.	To the south are two recently constructed single-storey dwellings at Nos. 1-2/18 Johnson Street. The garage wall for No. 2/18 Johnson Street extends for about 7 metres along the eastern boundary of the land, and the secluded private open space of this dwelling is located directly to the east of the boundary.
10	There is an existing single storey ‘fibro’ dwelling at No. 2 Rae Street. Opposite the land at No. 1 Rae Street two attached double-storey dwellings are under construction.
11	The land is within approximately 340 metres of the Capel Sound (Rosebud West) Local Activity Centre and is within about 760 metres of the Rosebud Major Activity Centre. The land is located on bus route 787 (Sorrento-Safety Beach) and is near bus route 788 (Frankston-Portsea via Dromana, Rosebud and Sorrento). Rosebud Secondary College is located within about 1 kilometre to the south east and Eastbourne Primary School is located about 1 kilometre to the south.
What are the key issues?
12	Having regard to the submissions made by the parties at the hearing, the key issues for consideration are:
a.	Is the proposal an appropriate response to the relevant policies?
b.	Does the proposal respond appropriately to the neighbourhood character?
c.	Are there any unacceptable amenity impacts?
Is the proposal an appropriate response to the relevant policies?
13	Amongst other things, Council’s submission is that:
a.	The proposal is an inappropriate design response that fails to address relevant planning policies in the Planning Policy Framework (PPF) and the Local Planning Policy Framework (LPPF); and
b.	The scale and intensity of the proposal is inconsistent with policy objectives in the Mornington Peninsula Localised Planning Statement and adopted Council policies which seek moderate and generally low levels of housing growth and to protect the valued and special characteristics of the Peninsula’s landscapes, townships and neighbourhood; and
c.	The proposal is inconsistent with the Council’s adopted Housing Strategy according to which Capel Sound is expected to experience limited growth. The proposal for two dwellings on the lot is more intensive than envisaged by this policy framework.
14	The Council referred to the Mornington Peninsula Localised Planning Statement (MPLPS), which is one of three policy documents to be considered under clause 11.03-5S of the PPF regarding ‘Distinctive areas and landscapes’. The objective of clause 11.03-5S is ‘to protect and enhance the valued attributes of identified distinctive areas and landscapes’. 
15	Capel Sound is within an ‘urban area’ in the MPLPS. Relevant objectives and strategies in the MPLPS include: 
a.	To protect the role and character of the Peninsula’s settlements, towns and villages;
b.	An expectation that the townships will accommodate, at most, moderate and generally low levels of housing growth; 
c.	Development of a type and scale that maintains the existing valued character of each town or settlement; and
d.	Development in each settlement to be of a scale and character appropriate to the role, function and location of that settlement.
16	Relevantly, the Mornington Peninsula Strategic Framework Plan at clause 21.04 of the LPPF includes Capel Sound within a ‘Township Area’. An objective of clause 21.06 (Strategic Framework) is to ensure that urban development does not prejudice the environmental, recreational and agricultural values of the Peninsula (amongst other things).
17	Clause 21.07 of the LPPF contains objectives and strategies in respect to ‘Guiding future township development’. In terms of ‘Local area character’, the objective of clause 21.07-2 is to ensure that the design and intensity of new residential development is site and area responsive having regard to the neighbourhood character of an area and the accessibility of the area to facilities, services and employment centres (amongst other things). A relevant strategy is to ensure that proposed development within existing townships has regard to a number of matters. These include:
a.	The established residential fabric; 
b.	Maintaining the balance between open space, vegetation and building density; and 
c.	The provision of appropriate landscaping.
18	The land is located within the General Residential Zone, Schedule 1 (GRZ1) the purposes of which include encouraging a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
19	Whilst the land is not within the Rosebud Activity Centre, the Council referred to the Rosebud Major Activity Centre Structure Plan (Rosebud Structure Plan) which was adopted by the Council on 16 October 2017, under which the land is indicated to be in an ‘Incremental residential growth’ area.
20	The Council’s submissions refer to the following documents:
a.	The Mornington Peninsula Housing and Settlement Strategy 2017 (Housing Strategy) which was adopted by the Council on 4 December 2017. Under the Housing Strategy, the land would be rezoned to a Neighbourhood Residential Zone, Schedule 2 which would provide for a minimum site or lot area of 450 square metres per dwelling; and
b.	The Mornington Peninsula Neighbourhood Character Study and Guidelines (Neighbourhood Character Study) which was adopted by the Council on 14 October 2019. Amongst other things, the Neighbourhood Character Study sets out the preferred character statement for the ‘Garden Residential Character 2 Precinct’ which would apply to the land.
21	As I understand from the Council’s submissions, the Council had yet to exhibit a proposed amendment to the Scheme under the Planning and Environment Act 1987 (Act) to implement the Housing Strategy or the Neighbourhood Character Study as at the date of the hearing. 
22	The Council submitted that whilst some weight should be placed on the Housing Strategy and the Neighbourhood Character Study (because they have been adopted by the Council) both documents are ‘embryonic’ in nature and I should place more weight on the policies in the Scheme.
23	Whilst an adopted policy of the Council is something that I can consider, I find that until the Housing Strategy and the Neighbourhood Character Study are subject to the planning scheme amendment process under Part 3 of the Act, I can only give them limited weight. I place greater weight on the relevant provisions of the Scheme.
24	Taking this into account, I find that the proposal to increase the number of dwellings on the land from one to two is generally consistent with the purposes of the GRZ1 and the relevant policies in the Scheme in that it seeks a moderate increase of one, two-storey dwelling within an established urban area, in a location which has reasonable access to transport and services. 
DOEs the proposal respond appropriately to the neighbourhood character?
25	It is the Council’s submission that the proposal is an overdevelopment of the site and that is not responsive to the neighbourhood character. It says that it is not responsive to the existing built form pattern of the area for the following reasons:
a.	It has an overall cramped appearance with inadequate separation between dwellings and to the eastern and western site boundaries;
b.	The principal secluded private open space for each dwelling is constrained by buildings, paving and an easement;
c.	The 3.7 metre setback of the proposal from the northern boundary; and
d.	The boundary to boundary built form, and the minimal opportunities for landscaping.
26	In terms of ‘Urban design’ and ‘Neighbourhood character’, policies in the PPF contain objectives and strategies that require development to respond to its context in terms of character and to recognise, support and protect neighbourhood character (amongst other things). A related strategy at clause 15.01-5S of the PPF is to ensure development responds to cultural identity and contributes to existing or preferred neighbourhood character.
27	The purposes of the GRZ1 include encouraging development that respects the neighbourhood character of the area. The objectives of clause 55.02-1 of the Scheme (Neighbourhood character objectives) are as follows:
To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
To ensure that development responds to the features of the site and the surrounding area.
28	Johnson Street itself consists of a paved road with kerb and channel and a nature strip with no footpath. A moderate number of street trees are planted informally in the nature strip and the topography is generally flat.
29	Houses in Johnson Street are generally single-storey detached houses of modest proportions within a garden setting. Materials of construction are varied, including fibro-cement sheeting, masonry and weatherboard. Roof forms are mixed and include flat roofs and hipped, tiled roofs. Front setbacks vary between about 4 to 7 metres. There is typically a wall (or structure) built on, or close to part of at least one side boundary. There are also outbuildings built on, or close to part of a side boundary in some of the rear yards. Whilst canopy trees exist in some front and rear gardens, they are not a typical feature within rear yards in Johnson Street. 
30	The character of the neighbourhood more broadly is varied. While many of the original detached, single-storey dwellings are retained, there is a noticeable presence of multi-dwelling development (both single-storey and more recent two-storey development). This includes two single storey units to the east of the land at 18 Johnson Street; 34 single storey units at No. 1559 Point Nepean Road; 24 two-storey townhouses at No. 1553 Point Nepean Road (to the north of the land) and three two-storey townhouses at No. 16 Brendel Street (to the east). Aspects of this development can be seen in the aerial photograph at Figure 2 below.

Figure 2
31	Having considered clause 55.02-1 of the Scheme, I am satisfied that Standard B1 is met and that the objectives of clause 55.02-1 are achieved. I conclude that the proposal is an appropriate response to the existing neighbourhood character of the area for the following reasons:
a.	The retention of the existing dwelling means that the proposal will continue to present as one dwelling to the street, reflecting the prevailing form of dwellings in Johnson Street;
b.	The single vehicle crossing and driveway is retained with space for landscaping and a tree along the western side (and part of the eastern side) of the driveway. The location of the garages minimises the impact of car parking structures on the streetscape;
c.	The ability to achieve the numerical standards of clause 55 is relevant (I will return to this later in my reasons);
d.	The building mass of Dwelling 2 is tempered through the varied setbacks at first floor level from the northern boundary of between 5.4 to 5.7 metres. The ground floor setbacks from the northern boundary of between 3.7 to 5 metres are reflective of rear boundary setbacks in the area. For example, the rear setback of the adjoining single storey dwelling at No. 2/18 Johnson Street is in the range of approximately 3 to 5 metres;
e.	The design incorporates sufficient modulation at the first-floor level together with varied setbacks from the boundaries to achieve an acceptable response to the broader neighbourhood. A new Coast Banksia tree in the rear yard of Dwelling 2 and a row of 12 Grevilleas planted next to the rear fence in the yard of Dwelling 2 will help to soften the appearance of the first floor of Dwelling 2 when viewed from the property to the north at No. 17 Percival Street;
f.	In this neighbourhood, as well as single detached dwellings, there are examples of one and two-storey medium density development built with minimal separation between dwellings. The design incorporates sufficient separation between the dwellings (between approximately 4 to 7 metres at ground floor level) to achieve an acceptable response to the broader neighbourhood;
g.	Walls on boundaries form part of the character of Johnson Street and the broader neighbourhood. The siting of the walls on the eastern and western side of the land behind the existing dwelling, and the length and height of the walls is respectful of this neighbourhood character;
h.	While there are examples in the neighbourhood of properties with large rear yards and canopy trees, there are also examples of properties with very small rear yards with little or no vegetation of any note. As well as the existing trees and tall shrubs to be retained in the front garden and the rear yard of Dwelling 2, it is proposed to plant one new canopy tree in the front yard, and one new tree in each of the rear yards of the dwellings. Together with the proposed lawn and paved areas in the secluded private open space for each dwelling, this will allow for the creation of secluded private open space areas which respond suitably to the landscape character of the neighbourhood, as the vegetation matures over time; and
i.	The skillion roof form, and the contemporary design and materials provide an acceptable outcome in this locality. The roof responds to the roof form of the existing dwelling on the land and the design and materials respond to similar, more recent development in the surrounding area.
Are there any unacceptable amenity impacts?
32	Ms McMurray and Mr Day submit that the proposal will cause a loss of amenity to their properties due to the impacts of visual bulk; overlooking; overshadowing and the lack of landscaping opportunities. I now turn to these issues.
Visual bulk
33	In terms of visual bulk, the provisions of clauses 55.04-1 (Side and rear setbacks objective) and 55.04-2 (Walls on boundaries objective) are relevant.
34	The objective of clause 55.04-1 (Side and rear setbacks objective) is as follows:
To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.
35	The side and rear setbacks comply with the numeric requirements of Standard B17 at clause 55.04-1. I find that the objective of clause 55.04-1 is achieved in relation to the side and rear setbacks of Dwelling 2. In addition, I find that the impact of Dwelling 2 on the habitable room windows and secluded private open space of the existing adjoining dwellings is acceptable for the reasons set out below.
No. 19 Percival Street
36	The upper level of Dwelling 2 is set back 3.6 metres from the common boundary with this property, and it sits directly opposite a detached outbuilding which is located approximately 6 metres from the common boundary. This limits the impact of the upper level of Dwelling 2 on the secluded private open space at this property and the habitable room windows of the existing dwelling at No. 19 Percival Street (which is setback approximately 13.5 metres from the common boundary);
No. 17 Percival Street: 
37	The walls of Dwelling 2 are setback from the common boundary with this property between approximately 3 to 5 metres at ground floor level, and between approximately 5.4 to 5.7 metres at first floor level. The dwelling has an overall height of approximately 7 metres on its northern elevation.  
38	Whilst Dwelling 2 will be visible from No. 17 Percival Street, based on the facts and circumstances of this case I conclude that the height and setback of Dwelling 2 limits the impact on the amenity of No.17 Percival Street. This is because of the minimal visibility of Dwelling 2 from the undercover patio area located on the north side of No. 17 Percival Street, and because of the orientation of the bedroom windows at the rear of the existing dwelling to the east (rather than to the south). 
39	A row of 12 Grevilleas planted next to the boundary fence and a Coast Banksia are part of the proposed landscaping in the rear yard of Dwelling 2, together with the retention of two existing 3 metre high Photias. To further filter views of the new dwelling from the secluded private open space at No. 17 Percival Street, I consider that it is appropriate to plant an additional Coast Banksia tree (or a similar tree) in the secluded private open space of Dwelling 2, in the vicinity of the existing Photia trees, and I will impose a condition requiring this to be done.
No. 2/18 Johnson Street: 
40	The ground floor footprint of Dwelling 2 is generally aligned with the footprint of the existing dwelling at No. 2/18 Johnson Street, which means that the impact of the ground floor walls of Dwelling 2 on the existing secluded private open space and habitable room windows will be minimal.  At first floor level, the eastern wall of Dwelling 2 is setback 2.3 metres from the boundary. It sits immediately adjacent to, and directly above the existing double garage at No. 2/18 Johnson Street, thereby minimising the impact of the first-floor wall on the secluded private open space and habitable room windows at No. 2/18 Johnson Street.
Walls on boundaries
41	The objective of clause 55.04-2 (Walls on boundaries objective) is:
To ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.
42	The length and height of the walls complies with the numeric requirements of Standard B18 at clause 55.04-2. I find that the relevant objective is achieved. In addition, I find that the walls on the eastern and western boundaries are acceptable, for the following reasons:
a.	Walls on boundaries form part of the neighbourhood character, where at least one wall located on (or close to) part of a boundary is typical, including garages or outbuildings built on a boundary, such as the existing garage wall located on the eastern boundary of the land which is approximately 7 metres long.
b.	A section of the proposed wall on the eastern boundary which is approximately 2.5 metres long adjoins the existing garage wall at 2/18 Johnson Street. The remaining part of this wall which is about 4 metres long (and 3 metres in height). It abuts the driveway of the existing property to the east. The impact of this boundary wall on the amenity of the existing dwelling to the east is limited because a section of the wall is concealed by the existing garage wall, and the remaining part of the boundary wall abuts an existing driveway; and
c.	The proposed wall on the western boundary (adjoining No. 19 Percival Street) is approximately 5.2 metres long and 3 metres in height. The impact of this boundary wall on the amenity of the existing dwelling to the west at No. 19 Percival Street is limited because the proposed wall is to be located approximately 6 metres to the east (rear) of the existing shed at No. 19 Percival Street.
Overshadowing
43	Ms McMurray submitted that the proposed dwelling casts permanent shadows and darkness over her property; that she will experience a loss of sun for her garden and associated winter warmth for her home, and that she will experience a loss of light into her home.
44	The objective of clause 55.04-5 (Overshadowing open space objective) is:
To ensure buildings do not significantly overshadow existing secluded private open space.
45	I find that the objective of clause 55.04-5 is achieved. In addition, I find that the extend of overshadowing at the equinox is acceptable for the following reasons:
a.	While there will be some additional shadow in the secluded private open space of No. 19 Percival Street at 9.00am at the equinox, the extent of overshadowing of existing secluded private open space at No. 19 Percival Street complies with the requirements of Standard B21 at clause 55.04-5, as does the overshadowing in terms of other existing properties; and
b.	At the equinox, no additional shadows will be cast by Dwelling 2 into the rear secluded private open space of Ms McMurray’s property at No. 2/18 Johnson Street. Shadows generated by Dwelling 2 at 3.00pm at the equinox fall across part of the roof of the existing garage, and part of the driveway to the east at No. 2/18 Johnson Street (noting that the existing boundary fence already casts a shadow across the existing driveway). The additional shadow cast over the garage roof and the adjoining driveway is an acceptable outcome in light of the requirements of Standard B21 and the objective of clause 55.04-5, which are directed towards overshadowing of existing secluded private open space (rather than roof of an existing building or a driveway). 
Overlooking
46	Ms McMurray submits that she will experience a loss of privacy with a two-storey dwelling being built close to the boundary fence and that the windows of Dwelling 2 overlook straight into her property affecting her privacy both inside and outside in a major way.
47	Mr Day submits that his amenity will be affected by the impact of six windows looking into his back yard. He says that tall people will easily be able to look into his back yard even though the first floor north facing windows in Dwelling 2 have sill heights of 1.7 metres. He questions how the rear yard can be screened off so he can have some privacy in his rear yard.
48	The objective of clause 55.04-6 is as follows:
To limit views into existing secluded private open space and habitable room windows.
49	I am satisfied that the objective of clause 55.04-6 and Standard B22 can be achieved with respect to the first-floor windows. I conclude that views into existing secluded private open space and habitable room windows will be limited as follows:
a.	The north facing first floor windows in Bedroom 2 of Dwelling 2 will have a minimum sill height of 1.7 metres above floor level, thereby limiting views into the secluded private open space, and the east facing bedroom windows at No. 17 Percival Street; 
b.	Both north-facing first floor windows to the ensuites in Dwelling 2 have a minimum sill height of 1.8 metres. I am satisfied that a sill height of 1.8 metres for the two ensuites is satisfactory to minimise views from these windows into the secluded private open space and the east facing bedroom windows at No. 17 Percival Street; and
c.	Whilst the east-facing facing first-floor Bedroom 1 window of Dwelling 2 does not have a sill height of 1.7 metres, I consider that with a fixed external screen to at least 1.7 metres above floor level (and no more than 25 percent transparency) views to the existing secluded private open space at No 2/18 Johnson Street will be limited. I will require a condition to this effect. 
50	The plans indicate that the new ground floor habitable room windows which directly face north towards the property boundary with Mr Day’s property at No. 17 Percival Street will face a fence which appears to be at least 1.8 metres high. The floor level of the habitable room window appears to be less than 0.8 metres above ground level at the boundary. On that basis,  Standard B22 at clause 55.04-6 would not apply to these windows. 
51	I observe that the plans do not show natural ground level; the finished ground level or the finished floor or overall building height of Dwelling 2 reduced to a common datum point. I will include a permit condition requiring the plans to be modified to show these levels.
Are there any other issues?
52	Although the Council did not submit that there is non-compliance with any of the ‘amenity’ provisions at clause 55.04 of the Scheme, it submitted that the proposal does not comply with the objectives of clause 55 with respect to landscaping and the design detail. I now turn to these issues.
Landscaping
53	The Council submits that due to the intensity of the development, there will be a significant reduction in the level of planting that can be achieved on the land. It says that whilst some planting will be possible, the extensive development footprint and extensive hard surfacing has resulted in insufficient opportunities being provided, and the landscaping objectives at clause 55.03-8 are not achieved.
54	The objectives of clause 55.03-8 (Landscaping objectives) are:
To encourage development that respects the landscape character of the neighbourhood.
To encourage development that maintains and enhances habitat for plants and animal in locations of habitat importance.
To provide appropriate landscaping.
To encourage the retention of mature vegetation on the site.
55	The proposed landscape plan prepared by Habitat shows the following:
a.	The existing tree and shrubs within the front yard are to be retained, as are the existing Kangaroo Apple and two 3 metre tall Photias in the rear yard;
b.	It is proposed to plant five new trees and large shrubs. These consist of a Coast Manna Gum in the front garden (which can reach a height of 12 metres); a Coast Tea Tree in the secluded private open space of Dwelling 1 (which can reach a height of 6 metres); a Moonah tree on the western side of the driveway (which can reach 7 metres in height) and a Coast Banksia in the rear yard of Dwelling 2 (which can reach 9 metres in height);
c.	Groundcovers and tussocks will be planted along the western side of the driveway including Dodonaea, together with a Moonah tree; Dwarf Native Rosemary will be planted next to the existing dwelling on the eastern side of the driveway; and an Ornamental Pear will be planted next to the driveway in front of the fence surrounding the secluded private open space of Dwelling 1; and
d.	There will be small areas of lawn planted in the secluded private open space of each dwelling, together with ground covers and a row of 12 Grevilleas along the rear (northern) boundary (average height at maturity 3 metres when trimmed).
56	I have considered the decision guidelines at clause 55.03-8, and I am satisfied that the objectives of clause 55.03-8 are achieved and the requirements of Standard B13 are met, for the following reasons:
a.	The retention of the existing tree and shrubs within the front garden and the proposed additional planting therein will maintain and enhance the existing landscape character of the neighbourhood when viewed from Johnson Street;
b.	The proposed planting of one canopy tree within the rear garden of Dwelling 1, and a canopy tree (together with a row of 12 Grevilleas along the rear fence) in the rear yard of Dwelling 2 provides appropriate planting which is responsive to the existing character of this neighbourhood, in which canopy trees are not a typical feature of rear yards; 
c.	The proposed planting will filter views of Dwelling 2 from Johnson Street and from the existing properties to the north and west (including the additional Coast Banksia in the rear yard of Dwelling 2 which will be required by way of a permit condition); and
d.	The planting on either side of the driveway including the ground covers; the Moonah tree and the Ornamental Pear provides an acceptable treatment of the driveway which reflects driveway landscaping that exists in the neighbourhood, such as that along the driveway at No. 1-2/18 Johnson Street.
Existing dining room window
57	The Council submits that the dining room window of the existing dwelling is not setback 1.5 metres from the driveway, nor does it have a sill height 1.4 metres above the driveway, as is required under Standard B15 of clause 55.03-10 (Parking location objectives). I accept Council’s submission that this is something that should resolved by way of a condition requiring the sill height of the dining room window to be at least 1.4 metres above the driveway and a condition requiring modification of the plans to achieve this is appropriate.
Design detail
58	The Council submits that the proposed development does not meet the objectives of clause 55.06-1 (Design detail objective) or Standard B31 because:
a.	It is unsympathetic to surrounding residential development design detail through its significant mass and bulk across the site; and
b.	The design is contemporary and has not incorporated many of the elements of the adjoining built form; and
c.	It does not reflect or enhance the established and identifiable neighbourhood character of the immediate and wider area.
59	I have already found that the proposal provides an appropriate response to the neighbourhood character. I rely on these findings to conclude that Standard B31 and the objective of clause 55.06-1 is achieved with respect to the design detail. 
Sewer
60	Ms McMurray submits that there is a large sewer pipe that runs along the back fence and also into the middle of the rear yard of the property. She says the regulations state that no planting of trees nor building over the sewer pipe is to take place. The sewer pipe has a large concrete manhole opening and Ms McMurray questions how this will be addressed. 
61	It is my understanding from Mr Skinner’s submissions that Dwelling 2 has been designed to comply with the requirements of the relevant water and sewer authority. In this regard Mr Skinner informed the Tribunal that the building has been appropriately setback from the sewer, and the demountable part at the rear of the Dwelling 2 garage has been designed to allow the access by the relevant authority to the sewer pit, should this be required.  
What conditions are appropriate?
62	Without prejudice permit conditions were circulated by the Council and discussed at the hearing. I have imposed permit conditions which are generally consistent with that discussion and with my findings.
Conclusion
63	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Juliette Halliday Member 			

Appendix A – Permit Conditions

Permit Application No:	P19/0496	
Land:	20 Johnson Street
CAPEL SOUND  VIC  3940	

What the permit allows	
In accordance with the endorsed plans:
•	Construction of a dwelling where there is at least one dwelling existing on the lot.	

Conditions:
Amended plans 
1	Before the developments starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the amended plans TP03, TP04, TP05, TP06 and TP07 dated 22 November 2019 (Revision A) by Howse Studio Pty Ltd and the Landscape Plan dated December 2019 (Issue A) by Habitat Landscape and Environmental Design Consultants but modified to show:
(a)	A minimum 3.0 metre wide reinforced concrete vehicle crossing at the property boundary;
(b)	Site Services for both dwellings in accordance with Clause 55.06-4;
(c)	The windowsill of the west facing dining room window of the existing dwelling at least 1.4 metres above the access way;
(d)	Shading devices to the northern aspect of the ground-floor level of Dwelling 2 to all windows/doors to protrude at least 450mm from the facade;
(e)	A schedule of colours and materials including surfaces and trim;
(f)	A permanent fixed external screen (of no more than 25% transparency) to at least 1.7 metres above first floor level to the east facing first floor Bedroom 1 window of Dwelling 2. 
(g)	The existing ground level; the finished ground level and the finished floor levels reduced to a common datum point (RL or AHD) shown on the plans and elevations. The elevations must show the wall heights and overall building height based on the common datum point. 
(h)	Landscape Plan dated December 2019 (Issue A) by Habitat Landscape and Environmental Design Consultants must be modified to show:
i	A survey (including botanical names) of all existing vegetation to be retained and/or removed;
ii	Details of surface finishes of pathways and driveways;
iii	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;
iv	Vegetation marked for retention to be marked with protection barriers;
v	The location of site services for both dwellings including bins and mailboxes;
vi	An additional Coast Banksia tree (or similar tree) to be planted in the rear secluded private open space of Dwelling 2 (near the existing Photia shrubs to be retained).
Layout not altered 
2	The layout of the land, the size and type of the buildings and works, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
Colours/Materials
3	The materials and colours of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.
Finishes 
4	Prior to the initial occupation of the dwelling external finishes must be completed to a professional standard to the satisfaction of the Responsible Authority.
Disturbed Surfaces
5	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.
Driveway/Crossover
6	A vehicular crossing must be provided to the standards of the Responsible Authority prior to the initial occupation of the development.
7	A driveway must be provided to the land and surfaced to the satisfaction of the Responsible Authority.  It must be completed prior to the initial occupation of the development.
8	All disused or redundant vehicle crossings must be removed, and the area reinstated with nature strip, kerb and channel, and footpath to the satisfaction of the Responsible Authority. 
Landscaping
9	Prior to the occupation of the development (or other time agreed to in writing by the Responsible Authority) the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
10	The landscaping referred to in Condition 1 above must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.
11	Prior to the commencement of any building or works appropriate tree protection fencing must be erected in accordance with Australian Standard AS4970 – 2009 (Protection of trees on development sites). The tree protection fencing must remain in place until the completion of any works hereby approved. 
12	Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
Screening
13	Prior to the initial occupation of the development, all required privacy screening devices and fencing shown on the endorsed plans must be installed and completed to the satisfaction of the Responsible Authority.
Engineering conditions 
14	After the endorsement of Condition 1 plans and before any works associated with the development starts, engineering plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions. 
The plans must show:
(a)	Areas of the proposed development excluding the existing dwelling being drained by means of an underground drainage system to retain a post development 1 in 10-year storm event for the critical storm duration. Discharge from the proposed development must be limited to an equivalent pre-development flow based on a 1 in 2-year storm event for the critical storm duration. Discharge from the total area of the site is to be connected to the existing underground Council drainage system within Johnson Street via a minimum 150mm PVC drainage pipe and construction of a junction pit over the existing Council pipe. 
(b)	A drainage system on the site being designed to ensure storm water runoff exiting the site meets the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999).
(c)	A drainage surcharge route within the development to avoid inundation of any dwellings.
(d)	Details, including levels of the common driveway within the site.
(e)	The reinforced concrete vehicle crossing being a minimum width of 3.0 metres at the property boundary.
(f)	The design of all vehicle movements entering and exiting the property being in a forward direction.
(g)	Reinforced concrete vehicular crossings to Council standards, with any redundant crossing or vehicle laybacks being removed and replaced with kerb and channel, including reinstatement of the nature strip fronting the site.
(h)	Sight distance for vehicles and pedestrians not being unduly restricted at the exit from site by fencing or landscaping works.
15	Before any works associated with the development commences, drainage computations are required for the proposed drainage system, including consideration of any drainage catchment external to the development that may drain to the proposed drainage system.
16	Before the initial occupation of the development drainage works associated with the development must be constructed in accordance with approved engineering plans, and to the satisfaction of the Responsible Authority.
17	Before the initial occupation of the development, vehicle crossings, areas set aside for the parking of vehicles and driveways as shown on the endorsed plans must be constructed in accordance with approved engineering plans, surfaced with reinforced concrete and drained to the satisfaction of the Responsible Authority.
Car spaces, access lanes and driveways must be kept available for these purposes at all times.
Expiry
18	This permit will expire if:
(a)	The development is not commenced within two years of the date of this permit.
(b)	The development is not completed within four years of the 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 -