VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2001/2019
Permit Application no. MPS/2019/194	
CATCHWORDS	
Three attached double storey dwellings; Streetscape presentation; Crossovers; Landscaping; Energy efficiency and internal amenity.  	

APPLICANT	Planning & Design Pty Ltd	
responsible authority	Moreland City Council	
SUBJECT LAND	17 Minona Street
FAWKNER VIC  3060	
WHERE HELD	Melbourne	
BEFORE	Rachel Naylor, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	10 June 2020	
DATE OF ORDER	29 July 2020	
CITATION	Planning & Design Pty Ltd v Moreland CC [2020] VCAT 816	

Order
No permit granted
1	In application P2001/2019 the decision of the responsible authority is affirmed.
2	In planning permit application MPS/2019/194 no permit is granted.

Rachel Naylor 
Senior Member			

Information
Land description	The site is located on the west side of Minona Street between Preston Street to the north and Denys Street to the south.  It is about 1.5km east of Gowrie railway station and 700m southwest of Bonwick neighbourhood activity centre.  There are a variety of other services and parkland in the surrounds.  
The site has a 19.2m frontage and a depth of 35.58m, with a total area of about 702.3sqm.  
There is a 2.44m wide sewerage easement along the rear of the site.  
A single width crossover is constructed at the north end of the frontage, which widens into a double width accessway on the site itself.  There is no front fencing.  
The site contains limited vegetation, including a large non-native palm tree next to the driveway, a pittosporum variety on the south side boundary and an unidentified tree on the rear boundary.  There is a street tree in the naturestrip located about 3m north of the site’s south side boundary. 	
Description of proposal	Three two storey dwellings built in a row/‘side by side’ arrangement whereby their ground floor levels and some of the first floor levels are attached.  
Each dwelling contains two storeys and a single garage with a tandem car space.  Units 1 and 2 share a common driveway and Unit 3 has its own driveway generally located at the south end of the site frontage.  
Unit 1 contains three bedrooms.  Its first floor is separated from Unit 2 by 1.55m.  Unit 1 is attached to Unit 2 at the ground floor level.  
Units 2 and 3 each contain four bedrooms, including a ‘guest’ bedroom on the ground floor.  They are attached at ground and first floor levels.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Moreland Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 1 (NRZ1)
No overlay controls apply	
Permit requirements	Clause 32.09-6  Construction of two or more dwellings on a lot in NRZ1	

Reasons
Overview
1	The applicant seeks planning permission to construct three double storey dwellings across the site at 17 Minona Street, Fawkner.  
2	The location of the site is described in the previous ‘Information’ section of this order and is depicted in the aerial image below (extracted from the Council’s submission).  

3	The Council has refused to grant planning permission.  
4	The planning scheme identifies areas zoned Neighbourhood Residential as being suitable for multi-dwelling infill development ‘but at a lower density’.  The policy emphasis for these areas is to create an enhanced open and landscaped character by providing increased private open space and landscaping.  The Council accepts increased housing supply in established areas well serviced by existing infrastructure, including in this neighbourhood, is an appropriate design response.  However, it considers this particular design proposal for this site does not ‘adequately observe preferred neighbourhood character objectives’.  
5	The Council identifies the relevant policies that provide guidance of the preferred character as the Neighbourhood Character policy at clause 22.01 and the Car and Bike Parking and Vehicle Access policy at clause 22.03.  Having considered these policies together with the objectives in clause 55, the aspects of the proposed design of particular concern to the Council are:
•	A second vehicle crossover along the site frontage resulting in garages dominating the streetscape;
•	Consequential reduced landscaping opportunities in the front setback;
•	Limited opportunities for active frontages;
•	Reduction in on-street car parking; and
•	Non-compliance with standards B10 of clause 55.03-5 relating to energy efficiency and B14 of clause 55.03-9 relating to access.
Dominance of car parking and vehicle access in the streetscape
6	The Council relies on both local policies mentioned in the previous paragraph to support its opposition to the design of the car parking and vehicle access.  
The Car and Bike Parking and Vehicle Access policy at clause 22.03
7	The Council submits the provision of a second vehicle crossing ‘is in opposition to its local policy at clause 22.03-3 to:
•	Limit the number of vehicle crossings to one per site frontage, other than on corner lots.
8	It must be remembered that a local policy is a guideline.  It is not a mandatory requirement.  Whether such a policy guideline is appropriate to be applied to a particular design response on a specific site needs to be considered having regard to what the overall policy is seeking to achieve and whether it is acceptable to apply this particular policy guideline.  
9	The objective of clause 22.03 is to:
To ensure provision of car, bike and vehicle access and parking:
•	Contributes to an improved built environment.
•	Is suitable to the likely demand and nature of the locality, and
•	Encourages people to walk, cycle and use public transport.
10	The Council takes no issue with the demand for car parking or the encouragement for alternative modes of transport.  Rather, the Council’s concern is a lack of contribution to ‘an improved built environment’. 
11	In considering this built environment objective, I am not persuaded it is appropriate to merely look at the policy limiting the number of crossovers (quoted in paragraph 7 above).  Other policies in clause 22.03 are also relevant to the objective about an improved built environment:
•	Ensure development utilises rear laneways for vehicle access where possible to allow street frontages to prioritise pedestrian movement and safety and to create active frontages.
•	Ensure vehicle crossing provision limits the removal of on street public parking spaces, removal of street trees, and encroachment into landscaped front setbacks, and maximises pedestrian safety and sight lines.
12	This site has no rear laneway access, so this policy aspiration is not relevant.  The second policy provision quoted above follows the one that the Council is relying upon.  Hence, whether an additional vehicle crossing is appropriate should obviously have regard to the matters identified in this second policy provision quoted above.  
13	The Council does not raise concern about pedestrian safety, sight lines or removal of street trees.  
14	The Council submits the second vehicle crossing will result in the loss of one on-street car space.  The mere loss of an on-street space is not sufficient reason to refuse a permit.  Rather, the relevance and importance of this outcome is influenced by any demonstrated demand for on-street car parking and whether there is an undersupply.  
15	Whilst car parking was raised in the objections, the Council officer report does not identify that any comments were sought from the Council’s traffic engineers.  A review of Nearmap aerial images over the last 10 years often illustrates one to two cars parked on site in this block along Minona Street.  The ‘worst case’ appears to be the most recent image dated 28 April 2020 when there are four cars parked in this block.  Even then, further opportunities for on-street parking remain.  Overall, there is no illustration of a demand or an undersupply in this block or the adjoining blocks to the north and south along Minona Street.  This Council concern is not a reason to refuse this proposal.  
16	This leaves the impact on landscaped front setbacks.  The applicant relies on a landscape concept plan prepared by John Patrick Landscape Architects that was circulated on 16 April 2020.  An extract of the proposed landscaping in the street frontage is shown on the following page.  The Council submits there is insufficient space within the street setback to accommodate meaningful planting, including trees, that will contribute to an ‘enhanced, leafy, landscape character’.  
17	The landscape concept shows three trees (Melbourne Yellow Gum, Dwarf Red Spotted Gum and Natchez Crepe Myrtle) that will grow to mature heights of between 7 and 10 metres.  
18	The Council points out the hard surfacing accounts for approximately 75.5 square metres or 54.8% of the 136.7 square metre street frontage.  The Council relies on its Tree Planting Manual that nominates suitable tree sizes based on the depth and width of the available space.  Using this Manual, the Council considers one medium or large tree could be planted in Dwelling 1’s setback and a very small tree could be planted in each of Dwelling 2 and 3’s setbacks.  The Council also notes that Dwellings 2 and 3 setbacks are encumbered by gas/water metres and rain gardens.  

Extract of landscape concept plan for street frontage

19	The landscape concept shows the rain garden areas for Dwellings 2 and 3 but is silent on the infrastructure.  Certainly, the Council’s Manual provides assistance and information, but it is not a mandatory requirement or indicative of the only way in which trees can be planted.  On the flip side, I have not had the benefit of any further material or evidence from the applicant to explain why or how the proposed trees will be successfully planted and grow.  In any event, whilst landscaping may form part of a preferred new character, it does not and should not be the determining factor as to whether the overall built form is acceptable.  
20	For the reasons that follow that focus upon the merits of the built form, I find the design is not an acceptable response to the neighbourhood character.  
Streetscape presentation 
21	The Council identifies that the study areas adjacent to the front doors are narrow at 600mm.  The Council submits garages account for 10.5 metres of the site’s 19.2 metre street frontage, and the garages are set back 500mm from the dwelling entries.  The Council considers this means the garages dominate the frontage in comparison to the front doors and study windows.  

Extract from Council’s submission

22	The applicant highlights that the Council’s submission focuses on ‘activation’ and that there is no guidance in the planning scheme about what would be a satisfactory response.  The applicant submits the porches and dwelling entries provide definition; the doors, windows and garages themselves promote activation; and the first floor bedroom windows achieve a passive surveillance.  
23	I share the Council’s concerns about the garages dominating the ground floor, which is the principal component of the frontage.  The first floors are smaller, include articulation and windows, but they are also recessed behind the ground floor.  Overall, the first floors are meant to, and do, create a recessive or secondary presentation.  Hence, the passive surveillance and design of this floor level does not overcome the weaknesses in the design of the ground floor level.  
24	The 500mm setback of the garages behind the front doors is of minor assistance in the overall presentation.  Similarly, the porch design is of minor assistance.  This is because the garages do extend across the majority of the streetscape and the ground floor features the same parapet height across the streetscape.  Whilst lowering the parapets of the garages may be able to be done, such a change would not be sufficient to find that the ground level streetscape is acceptable.   
Energy efficiency
25	The Council acknowledges that the lot runs east to west, so any side by side dwelling layout would likely include south facing habitable room windows.  In this case, the Council considers the inclusion of three side by side dwellings is unacceptably compromising the internal amenity of the dwellings.  This is best illustrated in the following extract from the Council’s submission.

Extract from Council’s submission.  I note Figure 12 should be referring to the First floor plan (rather than the ground floor)

26	I do not share the Council’s concerns about Dwelling 3 (the dwelling at the bottom of each floor plan) as its south facing windows have access to daylight and benefit from being oriented towards the side boundary with a greater separation than that occurring within the site between Dwellings 1 and 2.  
27	There is no north elevation of the north side of Dwelling 2 so I have assumed that it will be similar to the north elevation of Dwelling 1.  Dwelling 2’s first floor north facing window of concern to Council will be able to obtain some sunlight access at various times throughout the year.  The ground level window of concern will not have access to direct sunlight.  The applicant points out these windows have a light court with a minimum of one metre clear to the sky.  That does not appear to be the case for the ground floor window due to the overhanging eave.  Whilst this can be changed, the one metre setback at ground level and the minimum 1.55 metre setback at first floor level is indicative of the tightness of this development of three side by side dwellings.  
Conclusion
28	For these reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed.  No permit is granted.  

Rachel Naylor
Senior Member