VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2417/2019
Permit Application no. 718306	

APPLICANT	Gene Hogan & Michelle Harrington	
responsible authority	Whittlesea City Council	
SUBJECT LAND	20 Pleasant Road, Thomastown	
WHERE HELD	Melbourne	
BEFORE	Jane Tait, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	29 June 2020	
DATE OF ORDER	23 July 2020	
CITATION	Hogan v Whittlesea CC [2020] VCAT 768	
Order
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:	Draftmode Designs Pty Ltd 	
•	Drawing numbers:	Sheets 1-4, B1-B5, S1-S2 – Job 326-18	
•	Dated:	8 May 2020
	
•	Prepared by:	Draftmode Designs Pty Ltd	
•	Drawing numbers:	Landscape Plan Sheets 1-2	
•	Dated:	7 May 2020	
2	In application P2417/2019 the decision of the responsible authority is affirmed.
3	In planning permit application 718306 no permit is granted.

Jane Tait
Member			
Appearances
For Mr Gene Hogan and Ms Michelle Harrington	Mr Lorenzon Rigoni, town planner, Terrain Consulting Group	
For Whittlesea City Council	Mr Justin Fox, development planner	
Information
Description of proposal	To construct five dwellings and waive the visitor car parking requirement.
The site layout includes Dwellings 1 and 2 with frontage to Pleasant Road and Dwellings 3-5 located to the rear with access from the main driveway along the east boundary.
Dwellings 1 and 2 are a reverse living design with two bedrooms and bathroom at ground floor level.  The first floor contains a family room, meals, kitchen, laundry nook and toilet.  
Dwelling 1 contains a first floor balcony (8.2 square metres) abutting the north elevation and Dwelling 2 has a balcony (8 square metres) abutting the east elevation.
Dwellings 3 and 4 include a ground floor study nook, bedroom and bathroom and the first floor contains a bedroom, bathroom, kitchen, meals, family room and laundry nook.  Both dwellings have a balcony (minimum 21 square metres) abutting the east elevation.
Dwelling 5 is located at the rear and includes ground floor kitchen and living areas. The first floor contains two bedrooms, a bathroom and en-suite.
Each dwelling has a car space.  Dwellings 2-5 have a single garage with access from the driveway and Dwelling 1 has an uncovered car space in the frontage setback with access from a separate crossover.
The dwellings have a maximum height of 8.31 metres.  Materials include face brickwork, cement sheet cladding, rendered walls and skillion and flat roofing.
The site coverage is 59.3% and permeable area is 25.91%.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Whittlesea Planning Scheme 	
Zone and overlays	Residential Growth Zone Schedule 1 (RZG1)
Developments Contributions Plan Overlay Schedule 3 (DCPO3)	
Permit requirements	Clause 32.07-5 – Construction of two or more dwellings on a lot
Clause 52.06-7 – Car Parking (reduction in one visitor car space)	
Land description	The subject site is located on the north side of Pleasant Road, Thomastown.  It has a 15.85 metre frontage, depth of 46.9 metres and site area of 743.9 square metres.  
The site is relatively flat and a 3.05 metre wide drainage and sewerage easement is located along the north (rear) boundary.  It is occupied by a single storey detached brick dwelling.  There is a 2 metre high brick fence along the frontage and a driveway runs along the east boundary that leads to a brick garage in the rear yard.
There are no significant trees on the site.
Abutting land uses include two single storey dwellings to the east at 18 Pleasant Road and two dwellings to the north at 19 Chappell Street.  To the west is a two storey detached house at 24 Pleasant Road. 	
Tribunal inspection	An unaccompanied site inspection of the neighbourhood was conducted after the hearing.	

Reasons
What is this proceeding about?
1	Gene Hogan and Michelle Harrington (the ‘applicants’) propose to construct five dwellings and waive the visitor car space at 20 Pleasant Road, Thomastown.  Whittlesea City Council (the ‘Council’) refused to grant a permit and the applicants are seeking a review of this decision.   
2	Council argues the local policy at Clause 22.16-3 clearly indicates the internal environmental quality is an important aspect of design.  It says the reverse living layout of four of the five dwellings fail to achieve a correct balance between urban consolidation and providing a suitable indoor environment for future residents.
3	Council says the development does not meet the objectives of Clause 22.16-3 (Housing Diversity and Design) and standards of Clause 55 relating to landscaping, overshadowing of open space and storage.  It submits the development will result in overshadowing of the dwellings to the east.  It also says there are neighbourhood character issues relating to the inclusion of a double crossover and driveway in the frontage.
4	The applicants argue the proposal is a site responsive design that achieves the desired balance between residential amenity and neighbourhood character.  They submit the dwellings provide an appropriate quality living environment for future occupants without compromising the amenity of neighbours.  They say the development satisfies the objectives of Clause 22.16 which anticipates higher density built form in this area.
5	The applicants have circulated amended plans in accordance with the Tribunal Practice Note PNPE9.  These amendments increase landscaping in the frontage, relocate the balconies of Dwellings 1 and 2, provide external storage for Dwelling 1 and reconfigure the balconies for Dwellings 3 and 4.  Having reviewed the amended plans, Council advised that it continues to maintain its opposition to the proposal based on the original grounds of refusal.
What are the key issues?
6	The key issues in this dispute primarily relate to the reverse living design of Dwellings 1-4.  This layout impacts the internal amenity of the dwellings and external amenity of neighbouring properties.  Consideration must also be given to the State and local policy objectives for urban consolidation and neighbourhood character implications of the design.  
7	The questions for determination are:
•	Does the proposal have strategic support?
•	Is the proposal an appropriate response to the surrounding neighbourhood character?
•	Does the development provide an acceptable level of internal amenity for future residents?
•	Will there be any unreasonable off-site amenity impacts?
•	Is the provision of car parking acceptable?
8	I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented regarding the applicable policies and provisions of the Whittlesea Planning Scheme and undertaken a site inspection, I have decided to affirm the decision of the responsible authority and direct that no permit issue.  I find the layout fails to provide a satisfactory level of internal amenity for future occupants and there will be unreasonable amenity impacts on neighbouring properties. My reasons follow.
Does the proposal have strategic support?
9	The strategic context that is relevant to the assessment of this permit application is summarised below.
10	The subject site and surrounding land to the south are within a RGZ1.  One of the purposes of this zone is to provide housing at increased densities in buildings up to and including four storey buildings.  The RGZ1 relates to Neighbourhood Renewal Areas and contains variations to Clause 55 standards to allow a building to be set back 1 metre less than the average of the abutting dwellings (Standard B6).  There is also a variation of Standard B28 that states a balcony must have minimum area of 8 square metres and width of 2 metres for 1-2 bedroom dwellings and an area of 12 square metres and width of 2.4 metres for a dwelling containing three or more bedrooms.
11	The zoning reflects the land’s location within an area identified for increased densities and urban renewal.  In addition to policies relating to housing diversity and increased densities, the zone calls for a scale of development that provides a transition between areas of more intensive use and development and other residential areas.  This is to be achieved by ensuring landscaping within the frontage setback and throughout the site is maximised.
12	The principle of developing the subject land for increased housing density is not in dispute between the two parties. This is also in accordance with the Planning Policy Framework (PPF) that seeks to encourage a diversity of housing choice and a sustainable city by locating development in and around major activity centres and areas with good access to public transport.  The subject site is located 300 metres from High Street Shopping Strip, 400 metres from Thomastown Railway Station and 400 metres from Thomastown Primary School.  
13	The Local Planning Policy Framework (LPPF) at Clause 21.09 – Housing, seeks to implement the Housing Diversity Strategy (2013) which is a reference document at Clause 21.09-5.  It provides greater certainty as to where growth and change can be expected and identifies six Housing Change Areas.  Clause 21.09-4 nominates the subject site is within a Neighbourhood Renewal Change Area which is the second highest level of change.  This is where the location and housing types are:
Areas within close proximity to the Lalor, Thomastown and Bundoora Neighbourhood Activity Centres, public transport and a good mix of community services and facilities, will be characterised by medium and higher density housing that is appropriate in a neighbourhood context such as townhouses, multi-units, small scale apartments, and shop-top housing and mixed use developments.
14	The Housing Diversity and Design Policy at Clause 22.16 implements the objectives of the Strategy.  It includes policies relating to housing design including the provision of canopy trees in the frontage to support the preferred neighbourhood character.  It also encourages development that achieves setbacks and sense of separation between dwellings, minimises vehicle crossovers, provides useable open space, integrates overlooking measures and provides articulated building form to avoid visual bulk.
15	Whilst I agree the development meets the broad planning policies in the PPF and LPPF relating to increased housing densities in accessible locations such as this, the layout fails to provide an acceptable level of amenity for future occupants.  I also find there will be unacceptable amenity impacts on sensitive residential interfaces. My reasons follow.  
Is the proposal an appropriate response to the surrounding neighbourhood character?
16	The subject site is located in a RGZ1 where change is encouraged and expected.  This is reiterated in the LPPF at Clause 21.09-4 that encourages medium and higher density housing in Neighbourhood Renewal Change Areas in the form of town house, multi-unit, apartments and shop-top housing.
17	This neighbourhood is currently undergoing change from the original detached 1950’s-60’s detached houses to townhouses that is envisaged in the LPPF.  This includes multi-dwelling development at 12, 14, 16, 25, 27 and 29 Pleasant Road.  Most of these dwellings are in a conventional layout that includes ground floor secluded open space, but there are some examples of ‘reverse living’ developments in the street and wider area.
18	Clause 22.16-3 contains policies for site capacity, housing diversity and housing design.  It acknowledges that multi-dwelling development may include reverse living arrangements and provides criteria for the design of secluded private open space.  
Issues in Dispute
Landscaping
19	Council says the dual crossovers fail to respond to the landscaped character of this area.  It highlights that Schedule 1 of the RGZ contains a decision guideline that requires submission of landscape plans that maximise landscaping in front setbacks and throughout the site which may include on balconies, roofs and walls.  Council also states Clause 22.16-3 encourages developments that minimise vehicle crossovers to maximise landscaping in the frontage and maintain on-street parking provision.
20	Council considers the inclusion of a second crossover for access to the uncovered car space of Dwelling 1 limits the opportunity for meaningful landscaping in the frontage.  It says the hard surface area associated with the communal driveway for Dwellings 2-5 and limited service yards further reduces landscaping that is envisaged in the RGZ1 and Clause 22.16-3. 
21	The applicants argue the amended plans have addressed this concern as the path to Dwelling 1 has been removed.  They say the landscape plan shows there is enough space in the frontage for the planting of two Crepe Myrtles that have a mature height of 5 metres. 
22	Whilst the layout incudes a second crossover and driveway in the frontage, I am satisfied the landscape plan demonstrates there is sufficient space for planting of a front garden that will enhance the garden character of this area.  My observation of this neighbourhood indicates that gardens with canopy trees are not a strong feature as many are landscaped with smaller canopy trees and exotic shrubs.  I find the planting of the two trees and other shrubs will respond positively to the landscape character of the area.  I also note this layout is also evident throughout the street as many other properties have two crossovers including at 7, 11, 12, 30 and 34 Pleasant Road.  
23	However I find the location of an uncovered car space abutting the bedroom window of Dwelling 1 is a poor design response.  Paving for this space extends from the frontage to the dwelling and there is no opportunity for landscaping adjacent to the facade.  I accept that parking in the frontage is evident in the street but the plans fail to fully acknowledge the objectives of the RGZ1 which is to ‘maximise’ landscaping in the frontage.  Whilst the applicants have offered to provide a garden bed adjacent to the bedroom window, I find this is an afterthought which does not address all of my other concerns with this development. 
Reverse Living Design
24	The proposed development includes four of the five dwellings in a reverse living design.  Council says this layout fails to respond to the landscaped character of this area.
25	Reverse living designs are becoming more common throughout metropolitan Melbourne, particularly in RGZ1, as they provide greater yield on a site.  I observed examples of this layout nearby at 30 Pleasant Road and in neighbouring streets at 6 Central Avenue and 7 Highlands Road.  I consider this layout has a role to play in this RGZ and could be acceptable on this site provided it is designed to respect the internal amenity of occupants and neighbouring properties.  I will discuss these matters further below.
Frontage Setbacks
26	Standard B6 is varied in the RGZ1 and allows dwellings to be set back from the frontage one metre less than the average distance of the adjoining existing dwellings.  This variation is seeking to encourage more intensive development in this area.
27	The development has not capitalised on this variation as Dwellings 1 and 2 are set back a minimum of 6 metres from the frontage whereas they could be set back a minimum of 5.75 metres.  The applicant advised that the proposed setback was considered to be consistent with existing setbacks in the street.
28	I find this is an indication the development has not responded to the opportunities found at this location in a RGZ1 as the additional space could have been redistributed throughout the site to improve the level of internal amenity of the dwellings and reduce the external amenity impacts that I will discuss below. 
Does the development provide an acceptable level of internal amenity for future residents?
Issues in Dispute
Amenity of First Floor Balconies
29	Clause 22.16-3 provides the following guidance on the design of reverse living dwellings:  
Support ‘reverse living’ arrangements in townhouses (where living areas are at the upper level and secluded private open space is on a balcony or deck) when all of the following circumstances exist: 
•	No other options are available; and 
•	Enhanced outlook opportunities exist, such as adjacent public open space, or attractively landscaped communal open space within the site; and 
•	The balcony is designed or located to minimise the need for overlooking screening.
30	The development includes first floor balconies with access from the living areas for Dwellings 1-4.  All these balconies include screening measures to prevent views into the adjoining dwellings to the east and west.  
31	Council says reverse living designs that contain extensive screening of the balconies is not merely a consequence of the RGZ designation but a direct consequence of a poor design outcome and lack of integration of outlook into the architecture and building typology.  It says its local policy is clear that internal amenity is an important aspect of building design that is to be addressed.  The applicant submits screening of the balconies is required to respond to the sensitive residential interfaces.  
32	I agree with Council that the amenity of the balconies is poor and has not responded to the design guidance in Clause 22.16-3.  Each has screening on all sides to prevent direct overlooking of adjoining dwellings.  I will discuss the internal amenity impacts on each dwelling separately.
33	Dwelling 1 has a balcony abutting the north elevation with access from the meals area (8.25 square metres).  It contains 1700mm high obscure glass screening on the north and west side and is set back 1.9 metres from Dwelling 3.  Whilst obscure glass is not a solid material, I find this space will still have a sense of enclosure and poor outlook from the meals area and kitchen which also has a highlight window in the west elevation.  
34	Council is also concerned about the overshadowing of the balcony for Dwelling 1 which is set back 4.07 metres to 5.8 metres from Dwelling 3.  It says this feature fails to meet Clause 55.05-5 (Standard B29 – Solar Access to Open Space) that requires a setback of 5.06 metres.  There will also be some shadows cast over the balcony by the 1.7 metre high screening that is 2.15 metres wide.  
35	I find the restricted width and full enclosure of the balcony will result in a poor level of amenity for the living areas of this dwelling.  I acknowledge the shadow diagrams indicate there will be some sunlight access into the balcony in the afternoon, but the dimensions, coupled with its orientation facing Dwelling 3, is a poor design response. 
36	The balcony for Dwelling 2 abuts the east elevation kitchen window and north elevation meals glazed door (8.02 square metres).  This feature includes rendered sheet metal cladding balustrade, permeable trellis screen and planter box along the east elevation and a 1.7 metre high timber screen along the north elevation. I find this screening will also create a feeling of enclosure for the balcony and poor outlook from the kitchen and meals area. 
37	The balcony is also set back approximately 2 metres from the south elevation of Dwelling 3 which will also contribute to the sense of enclosure in this space.  I acknowledge the dwelling has a second balcony off the family room that faces the street.  However, this is a narrow space (i.e. 1 metre wide) that will not serve as the main entertaining area for the occupants of the dwelling.
38	Dwellings 3 and 4 are provided with an east facing balcony with access from the family room and meals area (i.e. minimum 21 square metres). These larger spaces include metal cladding balustrade, permeable trellis screen and planter box along the west elevation and timber screens on the north side.  They also contain a section of vertical aluminium blades that enable views over the driveway within the development and front garden of 2/18 Pleasant Road.  
39	I agree with the applicant that these balconies have greater area and some outlook due to the inclusion of the blade screening.  However, I am not satisfied that the outlook from these balconies is satisfactory due to the extent of screening required around all elevations.  The inclusion of blade screening along one section does not negate the overall lack of outlook from these dwellings at first floor level.
40	Overall, I agree with Council that the development has not responded to the criteria recommended in Clause 22.16-3 for reverse living dwellings.  The balconies are not designed to minimise the extent of screening or positioned to face landscaped communal open space, public open space or the street.  
41	The original plans included balconies for Dwellings 1 and 2 in the south (front) elevation but they were relocated to the north and east elevations to respond to Council’s concerns about access to sunlight.  I find this response poor as the south facing balconies were not enclosed and provided some outlook from the living areas of the dwellings.  I don’t consider the increase in access to sunlight outweighs the potential outlook opportunities that exist when facing the street.
42	I also inspected the other reverse living developments nearby.  I observed most balconies were located abutting or over the driveway within the subject site and the driveway on the adjoining properties.  This provides more ‘breathing space’ and a reduced sense of enclosure for occupants in comparison with what is proposed in this development.  
Car Parking Location 
43	Dwelling 1 includes an uncovered car space located in front of the ground floor bedroom 2.  Dwelling 2 also shows the ground floor east elevation bedroom 2 window is set back 560mm from the main driveway.  Council says this layout will reduce the level of amenity of the dwellings due to the proximity of the driveway.  Whilst this may be the case, measures such as greater landscaping or raised sill heights can address this concern. 
Noise
44	The site layout includes the main balcony for Dwelling 4 set back approximately 2.4 metres from the first floor master bedroom of Dwelling 5.  This room also contains a window facing the balcony.  I find this layout fails to consider the potential noise impacts from the balcony adjacent to the noise sensitive bedroom. 
45	Whilst this issue could be addressed by the implementation of sound attenuation measures to the balcony and/or windows, it is another example of how the design response fails to adequately consider the internal amenity impacts on the future residents which is a direct result of the number of dwellings proposed on the site.
Storage
46	The original plans failed to provide external storage for Dwelling 1 in accordance with Clause 55.05-6 (Standard B30).  The amended plans addressed this issue with the inclusion of a store to the rear of bedroom 2.  Council says this amendment necessitated a redesign of the internal layout of the dwelling by deleting the study nook, relocating the laundry to first floor level and reducing the size of the meals/kitchen.  It considers this will lower the level of amenity of the dwelling.
47	Given the compact nature of the dwellings, external storage serves an important function for occupants.  There appears to be limited space in the service yard of Dwelling 1 (i.e. 4.78 square metres) for a clothes line and it is unclear where bin storage would go.  This is not the major reason why I am refusing this development but is one of a number of factors that leads me to the conclusion that further consideration must be given to the internal amenity of all of the dwellings in a revised design.
Will there be any unreasonable off-site amenity impacts?
Issues in Dispute
Visual Bulk 
48	My inspection of the neighbouring property at 1/18 Pleasant Road from the communal driveway reveals the main outdoor entertaining area and habitable room windows of this dwelling face west towards the subject site.  The balcony for Dwelling 3 is set back approximately 2-2.5 metres from the common boundary and is located opposite the secluded private open space of this dwelling.  .  
49	I am concerned the balcony and associated screening for Dwelling 3 will loom over the neighbouring secluded private open space and result in unacceptable visual bulk impacts.  I acknowledge the setbacks meet Clause 55.04-1 (Standard B17) but the cumulative impacts of height, siting and limited articulation of the balcony will reduce the amenity of the adjoining dwelling as the structure is located opposite the main secluded private open space.  I found balconies in reverse living developments nearby are generally located adjacent to driveways or laneways and do not have the same level of impact on the secluded open space of the adjoining dwellings.
50	The balcony for Dwelling 4 is set back a similar distance to the east boundary.  This structure is located opposite the front yard of 2/18 Pleasant Road.  Whilst this open space is less sensitive, I am concerned the balcony will also contribute to the sense of enclosure due to the combination of the bulk, scale and mass of the built form of Dwellings 3 and 4 in the centre of the site.  I also note both dwellings at 18 Pleasant Road are unlikely to be further developed as each dwelling is on a separate title.  Therefore, the open space for each dwelling is likely to remain unchanged.  
Overlooking
51	Council is concerned there will be ‘perceived overlooking’ from the balconies of Dwellings 2 and 3 into the rear yard of 1/18 Pleasant Road.  I am not persuaded by this argument as the range of screening measures meets the requirements of Clause 55.04-6 (Standard B22).  The decision guidelines of this standard do require consideration of loss of amenity from ‘perceived overlooking’. 
Overshadowing 
52	Shadow diagrams for the Equinox show there will be an increase in overshadowing of 1/18 Pleasant Road at 3.00pm.  I find the increase in overshadowing at this time acceptable as the rear yard receives five hours of sunlight (i.e. 9.00am to 5.00pm) is accordance with Clause 55.04-5 (Standard B21).
53	There will be some increase in overshadowing of the rear yard of 2/18 Pleasant Road at 1.00pm-2.00pm.  I consider the extent of additional shading minor as over 52 square metres of the rear yard is unaffected by the development.   
Is the provision of car parking acceptable?
54	The subject site is one property removed from the Principal Public Transport Network (PPTN) and therefore a permit is required to waive the visitor car parking requirement at Clause 52.06-3.  
55	The applicant prepared a Car Parking Demand Assessment that included a parking utilisation survey of the street in March 2019.  The results show there are at least 15 vacant spaces available during the week and 5 vacant spaces are available on the weekend in Pleasant Road. 
56	I find the waiving of one car parking space acceptable due to the availability of on-street parking and the proximity of the site to public transport (i.e. 400 metres).  
57	Council is also concerned the construction of the second vehicle crossover will reduce on-street parking by one space in front of the site.  I agree that this will occur but there is limited ability to park on the north side of the street as there are No Standing restrictions applicable from 11.00am to 6.00pm, Monday to Saturday.
Conclusion
58	For the reasons given above, I find the design and layout of the dwellings fails to achieve an acceptable level of amenity to future occupants due to the lack of outlook to the open space.  This development also fails to respond to its context, including the amenity of the neighbouring secluded private open space. 
59	The decision of the responsible authority is affirmed.  No permit is granted.

Jane Tait
Member