VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment division
planning and environment LIST	vcat reference No. P2189/2019
Permit Application no. M/243/2014/B	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987, Moonee Valley Planning Scheme, Proposed amendment to plans, Elevated ground level, Neighbourhood character, Streetscape, Landscaping, Clause 55 ResCode	

APPLICANT	Maria & Dimitrios Voumvakis	
responsible authority	Moonee Valley City Council	
SUBJECT LAND	6 Bordeaux Street, Avondale Heights	
WHERE HELD	Melbourne	
BEFORE	Tracey Bilston-McGillen, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	18 May 2020   	
DATE OF ORDER	27 May 2020	
CITATION	Voumakis v Moonee Valley CC [2020] VCAT 586   	

Order
No amendment of permit
1	In application P2189/2019 the decision of the responsible authority is affirmed.
2	Planning permit M/243/2014/B must not be amended.

Tracey Bilston-McGillen
Member			

Appearances
For applicant
	Mr Dominic Scally, solicitor Best Hooper.  He called the following witnesses:
•	Mr John Glossop, town planner, Glossop Town Planning.
•	Mr Rob Thomson, landscape, Habitat.
Mr Dimitrios & Ms Maria Voumvakis were in attendance as observers.
Ms Lucy Eastoe was in attendance as an observer.	
For responsible authority
	Ms Kate Murphy, town planner.
Mr Matt Spozio was in attendance.	

Information
Description of proposal	It is proposed to amend Planning Permit MV/243/2014/A to provide for:
•	Increased floor heights;
•	Increased boundary fence heights;
•	Modifications to accommodate raised floor levels, including introduction of steps;
•	Modifications to window proportions; and
•	Removal of a garage door.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 to review the Notice of Decision to Refuse to Amend a Permit to Planning Permit Application No MV/243/2014/B.	
Planning scheme	Moonee Valley Planning Scheme	
Zone and overlays	General Residential Zone Schedule 1 (GRZ1).	
Permit requirements	Clause 32.08-6.  A permit is required to construct two or more dwellings on a lot.  	
Land description	The site is located on the corner of Bordeaux Street and Raphael Street, Avondale Heights.  The surrounding area is residential.  There is a combination of single and two storey dwellings and some medium density developments.  
Dwellings appear to be raised with access to front verandahs via steps.	
Tribunal inspection	I inspected the site and area.   	

Reasons
What is this proceeding about?
1	This is an application for review against the decision of the Moonee Valley City Council (Council) to refuse to amend Planning Permit MV/243/2014/A to provide for:
•	Increased floor heights;
•	Increased boundary fence heights;
•	Modifications to accommodate raised floor levels, including introduction of steps;
•	Modifications to window proportions; and
•	Removal of a garage door.
2	Council refused the request for an amendment to the permit/plans on the grounds that the amendments are out of character with the neighbourhood, the development presents as visually dominant and unsympathetic to the streetscape and the proposed changes fail to achieve ResCode provisions relating to side and rear setbacks, overlooking, private open space and accessibility.
3	The applicant submitted that the history of the site is unfortunate but the amendments are acceptable.  It was further submitted that the site is located in an area where there is a tendency of elevated ground floor levels and the amended development responds acceptably to clause 55 ResCode.
4	Council has approved the redevelopment of the site for three dwellings under planning permit MV/243/2014/A.  Dwelling 1 has its frontage to Bordeaux Street and dwellings 2 and 3 front Raphael Street.  
5	The development is currently under construction.  Council advised that the proposed amendments are in response to enforcement and stop work orders.  The applicant in its written submission noted that the raised ground floor level, was a consequence of the flooring system that was purchased which resulted in the ground floor being raised.  After further enquiries during the hearing, the applicant advised me that the raising of the ground floor ‘is to do with the engineering of the ground floor and being constructed off site’.  In further addressing the history of the site, the applicant put that the starting point for consideration of this application is an acknowledgement that the retrospective nature of this application is not in any way determinative of its merits.  I was referred to a decision Jurkic v Manningham CC where President Justice Morris (as he then was) made the observation that:
In considering the application on its merits the tribunal must proceed upon the assumption that the unlawful development has not been carried out, because to do otherwise would be to reward the applicants for unlawfully erecting the building.  Nonetheless the existing building can be utilised to better understand, and assess, the impact it would have it if was permitted.  
6	I adopt the principle above.  My consideration of this matter is based on the merits of the proposed amendments having regard to the provisions of the Moonee Valley Planning Scheme (planning scheme).
7	Both parties identified two key issues including neighbourhood character and compliance with clause 55.  I agree that these are the key issues and address these below.
8	Having regard to the submissions, evidence and my site inspection, I have decided to affirm the decision of Council and refuse to grant the amendment to the permit.  My reasons follow.
Neighbourhood character
9	At the commencement of the hearing, I provided observations from my site inspection.  I noted that the area is flat.  The area accommodates predominantly single but some two storey form.  The area more broadly has evidence of some limited new medium density developments.  Houses are generally constructed using brick.  I observed houses that are elevated and generally had two or three steps up to the finished floor level.  I note that houses with five or six steps could be found.  The area is modest in form and style.  The area is characterised by grassed front yards with gardens having some shrubs and plants.  Front fences are low. 
10	The review site is located in the Garden Suburban 7 (GS7), Precinct Airport West, Keilor East & Avondale Heights.  The precinct is described as an area of horizontal streetscapes, low brick dwellings, low garden settings, moderately set back dwellings simple in form and materials.  The preferred character statement calls for new developments to contribute to the character of the area with established gardens, simple design details, low front fenced and buildings with a consistent setbacks and scale.  
11	The applicant submitted that the GS7 guidelines offer little in the form of guidance or assistance when considering the height or elevation of dwellings other than to avoid buildings that exceed two storeys at the front façade.  I agree that there is little guidance offered in the GS7 guidelines.  
12	For dwellings 2 and 3 to Raphael Street, the setback remains as approved with the porch sited at two metres and three metres to the façade to the dwelling.  The key change is the elevation of the ground floor.  The approved development plans detail the development sitting slightly above natural ground level.  The proposed plans detail a raised ground floor between 0.8 metre to 1.1 metre (depending on where you measure) above natural ground level.  
13	I was presented with evidence from Mr Glossop (planning) and Mr Thomson (landscape).  Mr Glossop in his evidence supported the proposed raised floor level subject to some changes, including, the hipped roofs of porches of dwellings 2 and 3 replaced with a flat roof to reflect dwelling 1, the elevated ground floor component of dwellings 2 and 3 finished in brick work, the porch balustrades being a minimum height and transparent materials and the improved landscape concept prepared by Mr Thomson.  Mr Thomson proposed further landscaping to the site including a ‘mound’ within the front garden setback between dwellings 2 and 3 as well as additional tree planting.
14	I agree with the applicant that within the area there is a tendency for dwellings to be elevated, but the elevation is generally two or three steps and the built form is generally single storey.  As a result, the dwellings generally appear as low-to-the-ground dwellings which span across lots.  The dwellings are also generally single storey and are set back typically seven to nine metres from the street.
15	Below is a series of photographs of the review site in the context of the Bordeaux and Raphael Streets streetscapes and the relationship with the adjoining properties.

Figure 1: Photograph provides a streetscape view in the context of the adjoining dwellings.  Source Moonee Valley Council submission.

Figure 2: Photograph details the relationship between proposed dwelling 3 and 32 Raphael Street to the east.   Note the ground floor levels and height of the properties.  Source Nearmap.

Figure 3: Photograph details relationship between proposed dwelling 1 and 8 Bordeaux Street to the north.  Source Mr Glossop evidence.

16	I am persuaded by Council that the amended elevated ground floor level is at odds with the character of the area and will present as an overwhelming element to the streetscape.  I say this for the following reasons.

Figure 4: Southern elevation of proposed dwellings 2 and 3.  Note the location of the steps to the front porch.

17	When viewed from Raphael Street, dwellings 2 and 3 will sit noticeably higher than the adjoining dwelling and those dwellings with the immediate area.  The elevated ground level results in an awkward visual relationship between dwellings 2 and 3 (fronting Raphael Street) and 32 Raphael Street.  
18	The elevated nature of the ground level is exacerbated by the minimal street setback of two metres to the porch and three metres to the dwelling facade. Dwellings 2 and 3 sit noticeably closer to the street, when compared to its neighbour at 32 Raphael Street and others further along the street which have setbacks in the order of 8 metres.  The setbacks combined with the proposed raised ground floor, results in an unacceptable outcome from a streetscape and character perspective.  
19	The verticality of the proposed dwellings being a combination of elements including the roof form to the entrance porch and the inclusion of vertical windows, is exaggerated due to the elevated ground floor.  This verticality of form, is an incongruous element in the streetscape.  From my site inspection, I further note that these vertical elements/forms are not an element of neighbourhood character.  As the GS7 statement describes, the area is characterised by existing horizontal streetscapes with low brick dwellings spanning across low garden settings.  The preferred character statement does not envisage this changing.  
20	During the hearing, the importance of the proposed amended landscaping plan was discussed.  The plan prepared by Mr Thomson provides additional landscaping in the garden area between dwellings 2 and 3 to Raphael Street.  The landscape plan proposes low mounding up to 500mm with two canopy trees and ground cover planting.  The applicant submitted that the mounding will in part soften the elevated ground floor height, but as the planting matures, the mound will be of less importance.  
21	Mr Thomson’s plan is an improved landscaping scheme to what is currently proposed and required.  The amended landscape plan has been submitted as part of the proposed changes, to improve the landscape concept of the dwellings to Raphael Street (and the overall site).  I am not persuaded that it is the role of landscaping to effectively hide an elevated ground floor level.  Whilst I consider an improved landscaping scheme would go some way to assist in softening the visual appearance of the height, in this case, I am not persuaded that the landscaping will effectively mitigate the impact of the increased height.  As can be seen from the plan extract below, the steps to the front porch extend to within approximately 1 metre to the Raphael Street front boundary.  Due to the minimal setback from Raphael Street, the path and steps to the front porch are prominent to the street.  The landscaping may soften the base of the study/living area and part of the porch, but again, I find that the landscaping will not mitigate the impact of the increased ground floor level.  

Figure 5: Ground floor plan. Note the proposed garden/landscape area between dwellings 2 and 3.  Note the location of the entrance path and steps to Raphael Street.

22	The applicant submitted that the planning scheme does not require development to be exemplary but acceptable.  This is an adopted planning principle.  Having acknowledged that principle however, I also make the observation that development is to be acceptable having regard to the planning scheme and in this case, having regard to matters of neighbourhood character and amenity impacts.  I find the proposed changes unacceptable having regard to the character of the neighbourhood.  The elevated ground floor level is at odds with the low rise horizontal elements in the streetscape.

Clause 55
23	As a consequence of the elevated ground floor, variations are sought to a number of ResCode provisions including the matters of overlooking, private open space, accessibility and side and rear setbacks.  
Overlooking
24	Clause 55.04-6 seeks to limit overlooking into existing secluded private open space and habitable room windows.  Standard B22 does not apply to a ‘new habitable room window, balcony, terrace, deck or patio which faces a property boundary where there is a visual barrier at least 1.8 metres high and the floor level of the habitable room, balcony, terrace, deck or patio is less than 0.8 metres above ground level at the boundary’.  Relevant to this case, the adjoining dwelling at 32 Raphael Street to the east has a number of habitable room windows facing the site and in particular one window opposite the living room sliding doors and deck to dwelling 3.  The parties agreed that screening is required to dwelling 3 to limit overlooking to 32 Raphael Street.  An issue with the alfresco area of dwelling 2 was also identified due to potential overlooking to dwelling 1.  Screening was proposed to the alfresco deck.  
25	Mr Glossop offered suggestions to address the issue of overlooking including modification to the alfresco area to dwelling 2 and a screen provided to the eastern side of the deck extending from the sliding door of dwelling 3.
26	I share the concerns of Council that the use of screening is typically unnecessary to ground floor windows and or decks on a flat site.  I find that the requirement for screening in this case indicates that the development is not site responsive.  There are no factors such as a slope that would ordinarily require the use of screening.  The need for it in this case is a result of the elevated floor levels which are unacceptable on character grounds.
27	I further find screening to ground floor rooms results in a compromised internal amenity.  A purpose of clause 55 is ‘To encourage reasonable standards of amenity for existing and new residents’.  The orientation of dwelling 3 was an east facing deck extending from the living room with sliding doors.  This is now modified to a small landing from the living room that will need to be screened.  
28	I am persuaded by Council that the elevated ground floor has created a poor outcome in terms of internal amenity.  
Side and rear setbacks
29	Bedroom 2 of dwelling 3 (at the first floor level) has a setback of 1.66 metres.   A setback of 1.88 metres is required by the ResCode Standard.  The variation is the result of the increased wall height due to the elevated ground level.  
30	Mr Glossop contended that the non-compliance is limited to the western corner of this bedroom, with compliance achieved on the eastern side of the room.  I agree with Mr Glossop that this variation is considered minor.  I would not have refused the amendment due to this variation.
Accessibility
31	Council submitted that the dwelling entries of the ground floor of the dwellings are not accessible to people with limited mobility due to the five steps required to the front porch (and then another step inside the house).  It was the applicant’s submission that due to the absence of a ground floor bedroom the dwellings would have limited appeal to people with limited mobility.  That well may be the case however, clause 55.05-1 encourages the consideration of the needs of people with limited mobility in the design of developments.  
32	The standards states that ‘The dwelling entries of the ground floor of dwellings and residential buildings should be accessible or able to be easily made accessible to people with limited mobility’.  There was no suggestion from either party that the dwellings could be modified to achieve compliance with the ‘accessibility’ Standard of clause 55.05-1.  I am persuaded by Council that the raised floor level has had a negative impact on the accessibility of the dwellings and as such it is an unacceptable outcome.  
33	The objective of clause 55.05-1 ‘To encourage the consideration of the needs of people with limited mobility in the design of developments’ is not met.
Private open space
34	The arrangement and access to the secluded private open space of dwellings 2 and 3 is modified due to the increase in the floor level.  Council is concerned that the raised deck areas divide the backyard areas and result in the dwellings not achieving a minimum dimension of 3 metres within the secluded private open space areas.  Mr Glossop submitted that he was comfortable with the modified arrangements for dwellings 1 and 3 but with dwelling 2 suggested that the steps from the living room to the deck be modified to enhance the useability of the space and reduce the need for screening.
35	I share Council’s concerns.  The secluded private open spaces for dwellings 2 and 3, are compliant with the provisions of ResCode at 40 square metres.  As approved, the decks extend from living rooms at ground level creating a useable private open space.  This is not the result when the ground floor is elevated by 0.8 metre up to 1.1 metre.  The decks for dwellings 2 and 3 become landings and access points encroaching into the private open space areas.  
36	I share Council’s concerns that as a consequence of the raised floor level, the secluded private open space areas for dwellings 2 and 3 are compromised.  It is an unacceptable outcome and the relevant objective of clause 55 is not achieved.
Conclusion
37	For the reasons given above, the decision of the responsible authority is affirmed.  The permit must not be amended.  

Tracey Bilston-McGillen
Member