VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1793/2019
Permit Application no. D/302/2017	
CATCHWORDS	
Application under Section 77 of the Planning & Environment Act 1987 to review refusal to grant a permit; Darebin Planning Scheme; Commercial 1 Zone; Design and Development Overlay Schedule 17; five storey building for a shop and four apartments; design response; setbacks and car parking                	

APPLICANT	John Divitkos	
responsible authority	Darebin City Council	
SUBJECT LAND	655 Plenty Road, Preston	
WHERE HELD	Melbourne	
BEFORE	Christopher Harty, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	11 March 2020   	
DATE OF ORDER	24 March 2020	
CITATION	Divitkos v Darebin CC [2020] VCAT 373 	

Order
1	In application P1793/2019 the decision of the responsible authority is set aside.
2	In planning permit application D/302/2017 a permit is granted and directed to be issued for the land at 655 Plenty Road, Preston in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Development of a five (5) storey building comprising four (4) apartments, a shop and a reduction in car parking

Christopher Harty
Member			

Appearances
For John Divitkos	Mr Gintaras Simkus, Town Planner from Direct Planning	
For Darebin City Council	Mr Gerard Gilfedder, Town Planner from Currie & Brown (Australia)	

Information
Description of proposal	Development of a five (5) storey building comprising four (4) apartments, a shop and a reduction in car parking.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Darebin Planning Scheme	
Zone and overlays	Commercial 1 Zone (C1Z)
Design and Development Overlay Schedule 17 – Plenty Road Corridor (DDO17)
Development Contributions Plan Overlay Schedule 1 – City of Darebin Development Contributions Plan (DCPO1)	
Permit requirements	Clause 34.01-4 to construct a building or construct or carry out works
Clause 43.02-2 to construct a building or construct or carry out works
Clause 52.06-3 to reduce the required number of car parking spaces	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 19, 21.01, 21.03, 21.05, 22.06, 34.01, 43.02, 52.06, 53.18, 58, 65 and 71.02    	
Land description	The subject land at 655 Plenty Road, Preston (site) is located on the north-western side of the road, which is in the Road Zone Category 1 (RDZ1) and is approximately 25 metres north of Tyler Road.  It is rectangular in shape with a frontage width of 6.1 metres and depth of 36.58 metres with an overall area of 223 square metres.  The rear of the site abuts a constructed 3.6 metres wide laneway.  A single storey shop building occupies the site, which forms part of the Tyler Street Neighbourhood Activity Centre.  The site is affected by a covenant restricting mining and quarrying activities to which the proposal does not conflict with or offend.
The locality includes double storey commercial buildings on either side of the site with single storey residential dwellings to the rear and located on the other side of the laneway with outbuildings located closest to the site.  A lattice transmission tower over 16 metres in height is located on adjoining land to the north-west of the site.    	
Tribunal inspection	18 March 2020 unaccompanied   	

Reasons
What is this proceeding about?
1	John Divitkos (applicant) seeks to demolish the existing single storey shop and construct a five (5) storey building at 655 Plenty Road, Preston (site) comprising (refer to Figure 1):
•	A ground floor car park with a stacker system accessed via the rear laneway and catering for four (4) car parking spaces.
•	Bicycle parking for four (4) bikes within the ground floor car parking area.
•	A shop at ground floor facing the street with a floor area of 51 square metres.
•	Four apartments with pedestrian entry from the Plenty Road frontage leading to a central stairwell and lift and comprising:
o	Two (2) apartments with single bedrooms at the first floor level with Unit 1 facing Plenty Road and Unit 2 facing the rear laneway.
o	Two (2) apartments each with two bedrooms over three levels (the second, third and fourth floors) with Unit 3 facing Plenty Road and Unit 4 facing the rear laneway.  
2	A permit is also required for a reduction of one (1) car parking space.

Figure 1: Artists impression of the proposed five storey building
3	Darebin City Council (Council) determined to refuse the permit application.  The applicant has lodged a review application with the Tribunal to review Council's decision.
4	Council’s grounds of refusal generally relate to the following specific design matters:
•	Poor compliance with rear setbacks
•	Non-compliance with the car parking requirements of Clause 52.06
•	The unacceptability of the built form design response for this part of Plenty Road
•	Poor amenity outcomes from insufficient sizing of a proposed light court.
5	The applicant refutes Council’s concerns saying the site is located within a commercial precinct that is in a relatively dilapidated condition and identified in the planning scheme for substantial housing change.  It is also an area which exhibits a robust built form character that has capacity to absorb intensive redevelopment.  The applicant says the proposal achieves an acceptable planning outcome with respect to the policy and provisions of the Darebin Planning Scheme.  
What are the key issues?
6	The issues raised within the context of this review relate generally to specific design matters relating to rear setbacks, acceptable design response, daylight access associated with a light court and car parking provision.  
7	Having heard the submissions and inspected the site and locality, the key issues arising from this proposal are:
•	Whether the design response is reasonable for this part of Plenty Road?
•	Whether the proposed rear setbacks are acceptable?
•	Whether solar access associated with a light court is acceptable?
•	Whether car parking is appropriate?
8	I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the Darebin Planning Scheme.  Net community benefit is central in reaching a conclusion.  Clause 71.02-3 - Integrated Decision Making of the planning scheme requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.  
9	With this proposed development I must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions presented with regards to the applicable policies and provisions of the Darebin Planning Scheme, I find the proposal represents an acceptable outcome and appropriately responds to the provisions of the planning scheme and is an acceptable response regarding built form design.
10	I have decided to set aside the decision of Council and that a permit is granted subject to conditions outlined in Appendix A.  My reasons follow. 
Whether the design response is reasonable for this part of Plenty Road? 
11	The site is located within the Tyler Street Neighbourhood Activity Centre, it is in the Commercial 1 Zone (C1Z), which includes the purpose of providing for residential uses at densities complementary to the role and scale of the commercial centre.  It is also affected by the Design and Development Overlay Schedule 17 (DDO17) which relates to the Plenty Road Corridor.  DDO17 is also assisted by local policies at Clauses 21.01-6 and 21.03-1 that identifies the role Plenty Road has as a corridor for commercial/residential redevelopment and for substantial housing change respectively.
12	DDO17 recognises that the section of Plenty Road within which the site is located is expected to accommodate new development up to six (6) storeys in height.  The proposal is for five (5) storeys.  The proposal is within the anticipated scope of new built form redevelopment in terms of height, which is a mandatory provision under DDO17.
13	One of the fundamental concerns Council has with the proposal is its design approach based on a site that is only a little over 6 metres in width and not contemplating any lot consolidation to achieve a higher density-built form with good design and amenity outcomes.  
14	In this sense, Council says the proposal fails to satisfy the objectives and strategies of both Clause 22.06 relating to Multi-Residential and Mixed Use Development and DDO17 by not seeking to consolidate lots to achieve a high quality urban redevelopment that achieves higher residential densities with high quality design and amenity outcomes.  Council considers the proposal does not satisfy the general building envelope requirements relating to minimum frontage width to Plenty Road for land in the C1Z to be consolidated to provide a minimum frontage width of 15 metres for redevelopment opportunities.  
15	Mr Gilfedder says Council considers the preferred width is 15 metres.  He submitted that Council acknowledges that the proposed design has a height less than the maximum of six (6) storeys.  However, the intention, particularly as the first development in the centre, is to enhance the streetscape and the role of the activity centre.  
16	Mr Gilfedder submitted that despite the high quality of the design, it does not achieve an innovative high quality that enhances the appearance and identity of the commercial centre.  The narrowness of the site results in a design response that creates significant bulk to Plenty Road and is not a model or benchmark to be replicated by others.
17	In contrast, the applicant submits that the proposal does provide a high-quality design outcome, despite dealing with a narrow site.  Mr Simkus argued that the provisions relating to lot consolidation are policy and are not mandatory provisions of the planning scheme.  He argued that the policy preference for lot consolidation was recognition that the narrow width of existing lots in the C1Z may not lead to good design outcomes for proposals seeking to maximise both dwelling densities and higher built form along Plenty Road.  However, he submitted that the proposal provides for four new apartments with a diversity of design with single and two bedrooms.  Each apartment has either frontage outlook with access to a balcony space and natural daylight to internal living areas to Plenty Road to the east or to the rear laneway to the west. 
18	I find this is a reasonable approach and that the design of the proposal represents an acceptable outcome that is reasonable for this part of Plenty Road, given the policy intent for intensive change in the area.  My findings are supported by:
•	The height of the proposal below the maximum six (6) storeys identified in DDO17.
•	The rhythm of the streetscape maintained with both a shop front and pedestrian entry to the apartment complex at street level.
•	The use of balconies and articulation including the use of ‘breeze’ blocks to add interest and ventilation.
•	The use of treated concrete panels of both textured rough cast panel and timber pattern in contrasting tints of grey that will help break up the wall mass, whilst allowing for equitable development opportunities either side of the site in the future.
•	The use of balconies and living areas to each frontage to Plenty Road and the rear laneway.
•	The provision of setbacks from the rear laneway in response to the nearby residential properties beyond to the west.
•	The close matching of building height (around 16 metres) with that of an existing lattice transmission tower located on adjoining land to the north-west of the site at the rear laneway.    
19	Overall, I find the proposed design is acceptable, noting that Council itself, including through the officer’s delegate report has made similar findings.  The absence of lot consolidation is not fatal given the design outcome of the proposal achieves good amenity outcomes for the development density that is proposed.
Whether the proposed rear setbacks are acceptable? 
20	One of the elements that I find helpful in supporting the proposal is the relatively high degree of compliance with the numerical requirements of the planning scheme.  In this regard, I note the requirements of Clause 58 relating to Apartment Developments have been satisfied by the proposal.  The only area where non-compliance has been identified is with the rear setbacks for the first and third floor levels.
21	Council considers the proposal fails to satisfy Clause 2.1-3 of DDO17 relating to Building setbacks by not achieving the following setback requirements to minimise unreasonable amenity impacts on residential land to the rear (refer to Figure 2):
•	At first floor level, the rear setback of a building from the boundary of an adjoining residential site must be setback by a minimum of 5.5 metres (including a laneway where applicable).  The proposal provides a rear setback of 3.6 metres (a shortfall of 1.9 metres). 
•	Any other upper levels must be setback from the boundary of an adjoining residential site to be contained within a 45-degree setback envelope measured from the opposite side of a rear laneway.  A section of the third-floor level is 300mm within the 45-degree envelope sought under DDO17.  

Figure 2: Cross-section showing areas of non-compliance with rear setbacks
22	Council considers the rear setback provision is a key element to provide suitable transition from the proposed higher built form to the existing residential areas to the west and not detract from their amenity by way of building bulk and mass.  It considers the proposal’s design response does not justify the variation from the required setbacks.
23	The applicant considers the setback variations to be either minor (i.e. the 300mm variation at third floor level) or negated by the presence of outbuildings on the residential properties on the opposite side of the rear laneway (i.e. the 1.9 metre variation with the first floor level).  The applicant says achievement of most setbacks from the rear boundary within the 45-degree envelope suggests the proposal will not have an overly dominant impact on residential amenity due to building bulk and mass.
24	I find the presence of the outbuildings located at the rear of the residential properties, opposite the laneway from the site, assists in providing space for a transitioning to the higher built form of the proposal.  However, the proposal is the first of its kind in the locality and hence, I am persuaded to accord weight to the setback requirements of DDO17 because the proposal is a redevelopment that will establish the beginning of the revitalisation of the Tyler Street Neighbourhood Activity Centre and so, it needs to carry some of the heavy lifting of exemplary change.
25	In this regard, I will impose conditions to ensure that the rear setback of the first-floor level is increased by 1.9 metres to achieve the 5.5 metre DDO17 setback and for the third-floor level rear setback to be increased by 300mm to also achieve compliance with DDO17.  On this basis, I find the rear setbacks acceptable. 
Whether solar access associated with a light court is acceptable?
26	The proposal includes a light court on the southern elevation of the building adjoining a part double and single storey building.  It has the same dimensions of 1.3 metres in width and 5.5 metres in length with an area of approximately 7 square metres from the first-floor level (the ground floor level is roofed) to the roof, a depth of approximately 14 metres.  
27	Council says the proposal fails to provide an appropriately dimensioned light court that progressively widens towards the top of the building as required under Clause 22.06 of the planning scheme.  Mr Gilfedder referred to Council’s Urban Design Framework 2015 St Georges Road and Plenty Road Corridors, which refers to light courts having minimum dimensions of 3 by 3 metres and splayed to a wider dimension at upper levels.
28	Council considers the proposed light court is an inadequate design response where the adjoining property to the south may be redeveloped in the future creating borrowed light conditions that will result in poor internal amenity outcomes and increased energy consumption.
29	The applicant contends that provision of a light court 7 square metres in area exceeds, for instance, ResCode requirements (Clauses 55.04-3 and 55.07-14) and that requirements under Clause 58 are also satisfied.  
30	Mr Simkus also referred me to Council officer comments in the delegate report which found that the proposed configuration of the light court is justified based on the site’s constraints and that the level of amenity provided to the dwellings is generally high.
31	Generally, with a development over four storeys, I am satisfied the proposed light court will provide adequate daylight access.  Units 1 and 2 will have their single bedrooms reliant on daylight access via the light court, while Units 3 and 4 will only rely on the light court for daylight access to the second bedrooms.  
32	I note the policy at Clause 22.06-3.1 relating to Sustainability seeks to create a high level of daylight access preferably via front and rear facing dwellings, which is what is proposed in this case, and then via light courts.  Given the role of the light courts in providing secondary daylight access to bedrooms, I am satisfied the internal amenity of the proposed apartments will not be significantly compromised by the proposed light court.
Whether car parking is appropriate?
33	The proposal seeks a reduction in the provision of car parking.  Council contends that the proposal is contrary to the requirements for car parking under Clause 52.06 of the planning scheme.
34	The site is located within the Principal Public Transport Network (PPTN) and requires four (4) car parking spaces for the four apartments and one (1) car parking space for the proposed shop.  The proposal provides four (4) car parking spaces via a stacker system with access via the rear laneway.  Three (3) spaces are allocated for the apartments and one (1) space for the shop, requiring a reduction of one (1) car parking space for one of the apartments.
35	The applicant says the reduction of one (1) car parking space is acceptable given the proximity of the site to bus routes and tram services (Tram 86), the inclusion of bike parking facilities and the walkable distances to services along Plenty Road.
36	I agree with the applicant and find the reduction of one (1) car parking space acceptable.  The site has immediate access to public transport and walkability to services within Plenty Road.  It provides parking for four (4) bicycles at ground floor, which exceeds the planning scheme requirements.  Access is via the laneway, which is achievable and avoids crossovers to Plenty Road.  
37	Generally, I find the proposed car parking appropriate.
What conditions are appropriate?
38	In deciding the conditions to be included on the permit I have had regard to the conditions contained in Council's circulated conditions and to the "without prejudice" discussion held with the parties and their submissions in addition to the matters which arise from my reasons.
39	I note that Council proposed a condition relating to streetscape improvement works.  I do not consider this is necessary.  These works should be undertaken as part of a more comprehensive rejuvenation programme and not left to individual landowners/developers to progress in a piecemeal manner.
Conclusion
40	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Christopher Harty
Member			

Appendix A – Permit Conditions

Permit Application No	D/302/2017	
Land	655 Plenty Road, Preston	

What the permit allowS	
In accordance with the endorsed plans:
•	Development of a five (5) storey building comprising four (4) apartments, a shop and a reduction in car parking	

Conditions
1	Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to, and approved by, the responsible authority.  The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application (identified as: TP03 Rev D, TP04 Rev D, TP05 Rev D, TP06 Rev D, TP07 Rev D, TP08 Rev D, TP09 Rev D, TP10 Rev D, TP11 Rev D and TP12 Rev D, dated 12.12.2018 and prepared by Divitcos Architecture) but modified to show:
(a)	Increased setback (by an additional 1.9 metres) of the first floor level from the rear of the residential land across the laneway to an overall minimum of 5.5 metres (this includes the width of the rear laneway).
(b)	Increased setback of the rear third floor level by an additional 300mm to the east to ensure full compliance with the 45 degree rear setback envelope. 
(c)	Modifications in accordance with the Sustainable Design Assessment (refer to Condition No. 4 of this Permit).
(d)	Modifications in accordance with the Stormwater Management System Report (refer to Condition No. 5 of this Permit).
(e)	A comprehensive schedule of construction materials, external finishes and colours (including colour samples).
(f)	The location of all plant and equipment (including air conditioners and the like).  These are to be co-located where possible, screened to be minimally visible from the public realm and adjacent properties, located as far as practicable from site boundaries and integrated into the design of the building.
(g)	External operable sun shading devices (excluding roller shutters) to all west facing habitable room windows/ glazed doors.  Where sun shading devices are being utilised a dimensioned section diagram or photograph must be included to demonstrate the shading type and effectiveness.
(h)	Window operation on all elevation plans.  Window operation must not increase overlooking of secluded private open space and/ or habitable room windows.  Casement, sliding, sash and or louver windows must be provided to maximise ventilation.
(i)	Layouts in accordance with Standard D17 (Accessibility) of Clause 58 of the Darebin Planning Scheme.
(j)	The canopy over the public footpath set back 0.75 metres from the kerb and to have a minimum clearance height of 3 metres above the level of the public footpath.
(k)	A single communal antenna for the development (refer also to Condition No. 16 of this Permit).  The location of the antenna must be shown on the roof plan and elevations.  The height of the antenna must be nominated.
(l)	The light court must be open to the sky (unroofed).
(m)	Solar panels to the southern section of the roof of dwellings 3 and 4, designed to serve the energy needs of the communal elements of the building.
(n)	The light court dimensioned on floor plans.
(o)	Indicative sign location for the retail premises.
When approved, the plans will be endorsed and form part of this Permit.
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
3	As part of the consultant team John Divitcos Architects or an experienced architect must be engaged to oversee the design intent and construction quality to ensure that the design and quality and the appearance of the approved building is maintained to the satisfaction of the responsible authority.
4	Before the development starts, a Sustainable Design Assessment (SDA) detailing sustainable design strategies to be incorporated into the development to the satisfaction of the responsible authority must be submitted to and approved in writing by the responsible authority.  The SDA must outline proposed sustainable design initiatives within the development such as (but not limited to) energy efficiency, water conservation, stormwater quality, waste management and material selection.  It is recommended that a Built Environment Sustainability Scorecard (BESS) report is undertaken as part of the SDA.
The development must be constructed in accordance with the requirements/recommendations of the Sustainable Design Assessment to the satisfaction of the responsible authority.
5	Before the development starts, a detailed Stormwater Management System Report must be submitted to the satisfaction of the responsible authority and be approved in writing by the responsible authority.  The report must include:
(a)	Details of how the stormwater management system is designed to meet the current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999), including;
i	An assessment using an industry recognised stormwater tool;
ii	The type of water sensitive urban design (WSUD) stormwater treatment measures to be used and details of these treatment measures including cross sections, materials, plants and drainage directions;
iii	The location of stormwater treatment measures in relation to buildings, sealed surfaces, neighbouring properties and landscaped areas;
iv	A plan illustrating where all impervious surfaces will be treated and drained;
v	A construction and maintenance schedule.
(b)	Details of how the stormwater management system contributes to cooling, improving local habitat and providing attractive and enjoyable spaces; and 
(c)	Consideration of how the WSUD stormwater treatment measures will integrate with on-site detention requirements.
The development must be constructed and maintained in accordance with the requirements/ recommendations of the approved Stormwater Management System Report to the satisfaction of the responsible authority.
6	Floor levels shown on the endorsed plans must be confirmed.  The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006.  This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the responsible authority no later than 7 days from the date of the sub-floor inspection.  The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the responsible authority.
7	All dwellings that share dividing walls and/or floors must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.
8	Waste collection must be undertaken by a private contractor.  Waste storage and collection must be undertaken in accordance with the Waste Management Plan prepared by Urban Leaf, dated 16 February 2018 and must be conducted in such a manner as not to affect the amenity of the surrounding area or cause any interference with the circulation and parking of vehicles on abutting streets.
9	Before the dwellings are occupied, an automatic external lighting system capable of illuminating the residential entry to Plenty Road and the vehicle and pedestrian access to the ROW must be provided on the land to the satisfaction of the responsible authority.
The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the responsible authority.
10	The land must be drained to the satisfaction of the responsible authority.
11	Boundary walls facing adjoining properties must be cleaned and finished to the satisfaction of the responsible authority.
12	With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.
13	No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the responsible authority.
14	Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the responsible authority.
15	Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a)	Constructed;
(b)	Properly formed to such levels that they can be used in accordance with the plans;
(c)	Surfaced with an all-weather sealcoat; and
(d)	Drained to the satisfaction of the responsible authority.
Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
16	Only one (1) communal television antenna may be erected on the building. Individual antennae for individual dwellings/tenancies must not be erected.
17	The amenity of the area must not be adversely affected by the use or development as a result of the:
(a)	Transport of materials, goods or commodities to or from the land; and/or
(b)	Appearance of any building, works, stored goods or materials; and/or
(c)	Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and/or in any other way, to the satisfaction of the responsible authority.
18	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 –