VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2504/2019
Permit Application no. PA 2222	

CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Hepburn Planning Scheme; 
Medium density housing:  Neighbourhood character (DDO4 & NCO1)	

APPLICANT	Judith Najee	
RESPONSIBLE AUTHORITY	Hepburn Shire Council	
RESPONDENTs	MS Gardiner Pty Ltd and Shane Gardiner; David and Alyson Martinelli; and Julien McDonald	
SUBJECT LAND	2A Ruthven Street, Daylesford	
WHERE HELD	Melbourne	
BEFORE	Tracy Watson, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	5 August 2020	
DATE OF ORDER	14 September 2020	
CITATION	Najee v Hepburn SC [2020] VCAT 1020	

Order
1	The decision of the Responsible Authority is affirmed.
2	In permit application PA 2222 no permit is granted.

Tracy Watson
Member		

APPEARANCES
For Applicant	Judith Najee, in person.  
	
For Responsible Authority	Nathan Aikman, town planner.
	
For Respondents	Andrew Clarke, town planner, on behalf of MS Gardiner Pty Ltd and Shane Gardiner; David Martinelli, in person; Julien McDonald, in person.

INFORMATION
Description of Proposal	It is proposed to construct two dwellings on the subject site accommodated in three buildings.
	
Nature of Proceeding	Application under Section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 
	
Zone and Overlays	Clause 32.08 – General Residential Zone, Schedule 1.
Clause 42.01 – Environmental Significance Overlay, Schedules 1 and 2.
Clause 43.01 – Heritage Overlay, Schedule 376.
Clause 43.02 – Design and Development Overlay, Schedule 4.
Clause 43.05 – Neighbourhood Character Overlay, Schedule 1.
	
Permit Requirements	Clause 32.08-6 – To construct two or more dwellings on a lot.
Clause 42.01-2 – To construct a building or construct or carry out works and to remove vegetation.
Clause 43.01-1 - 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 43.05-2 - To construct a building or construct or carry out works.	
Relevant Scheme, policies and provisions	Includes Clauses 11, 14, 15, 16, 21.05, 21.09, 22.01, 22.02, 22.08, 32.08, 42.01, 43.01, 43.02, 43.05, 52.06, 52.12, 55, 65 and 71.02.
	
Land Description	The subject site is located on the southern side of Ruthven Street, approximately 70 metres west of Vincent Street.  The site is currently vacant, has an irregular shape and an overall site area of approximately 1,120m2.	

REASONS
What is this proceeding about?
1	The application for review was lodged by the permit applicant against the Council’s refusal to grant a planning permit for the proposed development.  I note that neither the Council or the third parties have raised concerns which relate to the Heritage Overlay or Environmental Significance Overlay provisions of the planning scheme.
2	Based on the hearing process and all the relevant associated documentation, I consider that the key issue relates to the intensity of the development in respect of its impact on the neighbourhood character given the subject site’s existing physical and strategic contexts.  
3	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions, and the statements of grounds, together with the applicable policies and provisions of the Hepburn Planning Scheme, I have decided to affirm the decision of the Responsible Authority.  My reasons follow.
Is the proposal respectful of neighbourhood character?
4	Ms Najee submitted that the siting, height, form and materials of the proposed buildings are appropriate to their context.  Ms Najee submitted that, amongst other things:
•	The proposal was supported by the Council’s planning officer.
•	The proposed built form and its visual impact are comparable to a previously approved development on the subject site.
•	The bulk of the buildings is mitigated by their relatively narrow widths and their separation and setbacks which allows for landscaping between and around the buildings. 
•	The proposal complies with Standard B17, except for small sections of the proposed awnings of the ‘North wing’ and ‘South wing’ of the main residence.
•	The proposed side setback to the ‘Guesthouse’ building is acceptable as it does not impact on views towards the lake from the property at 2B Ruthven Street.
•	The maximum proposed building height does not exceed 10 metres, which is below the maximum height permissible under the zoning.  
•	There are existing elevated, two storey high buildings within the Lake Daylesford viewshed.
•	The 44% site coverage is a consequence of the proposed decks rather than the proposed buildings.
•	The proposed built form, architectural style and materials are consistent with existing developments in the area.
5	I can understand Ms Najee’s confusion and disappointment that the Council did not adopt the planning officer’s recommendation.  However, this is a de novo proceeding, which means that I must consider the planning merits of the proposal afresh, and it is open to the Tribunal to reach a different conclusion to that of the Council planning officer.  Ultimately in this case, I have found that the intensity of the proposal is such that it does not meet the mandatory neighbourhood character objectives at Clause 55.02-1 of the planning scheme. 
6	A different two-dwelling development of the subject site has previously been approved by the Council under Planning Permit no. 11423.  This planning permit has now expired.  Again, I need to consider the proposal before me afresh, rather than undertake a comparative analysis of the visual impact of the previously approved development compared to the current proposal.  In other words, I have not given any weight to the expired planning permit in my deliberations.
7	The size of the subject site and its proximity to the Daylesford town centre make it suitable for some form of appropriately designed and sited medium density housing.  However, the intensity of any future built form outcome is significantly tempered by the special character of the lakeside environs as well as the topographical constraints of the subject site.  The subject site has a particular sensitivity as it directly interfaces with the Lake Daylesford Reserve.
8	The special character of the subject site and its surrounds is clearly identified in the planning scheme by the numerous overlays which apply to this area.  Of particular relevance to this proceeding is the Design and Development Overlay, Schedule 4 (DDO4) and the Neighbourhood Character Overlay, Schedule 1 (NCO1).  By contrast, the built form examples given by Ms Najee which are located at 3 Millar Street, 43 Jamieson Street, and 3/108 Central Springs Road are not within the Neighbourhood Character Overlay.  Furthermore, the example cited by Ms Najee at 1A Queensberry Street is within the Neighbourhood Character Overlay, Schedule 2, which importantly contains different neighbourhood character outcomes to Schedule 1 of the Neighbourhood Character Overlay.
9	The example cited at 15 King Street is within the NCO1, however it does not have an interface with Lake Daylesford and is therefore not included in the DDO4.  As with no. 15 King Street, no. 4 Leggatt Street is also some distance from the subject site, although it is covered by the same zone and overlay controls as the subject site.  However, it is evident from the photograph tendered by Ms Najee that the building has a recessive upper level.  This contrasts to the subject proposal which is for three buildings each featuring ‘sheer’ walls.
10	The only existing examples provided by Ms Najee within the immediate neighbourhood of the subject site are the nearby properties at 132 Vincent Street and 8 Ruthven Street.  However, these are both single dwellings and consequently have a more modest built form outcome compared to the subject proposal.
11	The Lake House development does have an interface with the Lake Daylesford Reserve and features attached two storey high buildings.  However, this development provides hotel accommodation and does not provide sufficient justification for the proposed design response which is of a domestic nature.  
12	I therefore find that none of the existing examples cited by Ms Najee provide a reason to support the proposed built form outcome.  It is clear that the proposed design response is for a medium density housing proposal with a degree of change which is an uncomfortable fit within the existing neighbourhood character of the area.
13	The preferred neighbourhood character and built form outcomes are articulated in the NCO1 and the DDO4.
14	The design objectives of the DDO4 are as follows:
To preserve and enhance the significant visual qualities of Lake Daylesford and its environs.
To maintain and enhance the character and amenity of residential areas in Daylesford that are within a Daylesford Neighbourhood Character Precinct. 
To retain and protect the existing vegetation that is characteristic of the locality, and to encourage new vegetation that is consistent with this character. 
To prevent development that intrudes on the sight lines, or is inconsistent with the open natural form of the site.
15	The emphasis of these design objectives is to protect the existing conditions of the lakeside environs.  In light of these objectives, I consider that a more modest design response is called for.  This is particularly important for the subject site which has a very direct interface with the Lake Daylesford Reserve.  Whilst existing vegetation may provide a visual buffer/ screen to some parts of the subject site, there is a direct unobstructed view from the public footpath within the Reserve towards the southern portion of the subject site.  This means that the proposed ‘Guesthouse’ building is particularly exposed, and is unacceptably visually intrusive.
16	The subject site is within Precinct 13 under the NCO1.  The applicable preferred neighbourhood character statement is as follows:
The spacious garden settings of the dwellings and the balance of vegetation and dwellings when viewed from a distance will be maintained and strengthened by:
•	Encouraging the retention and planting of large trees;
•	Ensuring buildings are setback from both side boundaries; 
•	Ensuring a balance between buildings and garden areas;
•	Ensuring buildings are sited to minimise intrusion on views to the lake from public areas including streets;
•	Ensuring buildings are sited within the landscape to minimise excavation; 
•	Ensuring development is sited to minimise visual impact from the lake environs; 
•	Encouraging the use of timber or other nonmasonry materials and non-reflective corrugated iron roofing materials, where possible; 
•	Ensuring delineation between public and private space in the lake environs; 
•	Encouraging low to average height, open style front fencing; 
•	Maintaining the rhythm and pattern of the prevailing rectilinear or angular form of subdivision; and
•	Retaining the informal street treatments.
17	The NCO1 neighbourhood character objectives to be achieved for Precinct 13 are as follows:
To maintain and strengthen the vegetation dominated landscape and the relationship to the vegetation qualities of the lake environs. 
To minimise site disturbance and impact of the building on the landscape. 
To maintain the rhythm of dwelling spacing. 
To ensure that adequate space is available on private land for the retention and planting of vegetation. 
To ensure that new buildings and extensions do not dominate the landscape and wider lakeside setting.
To ensure the reasonable sharing of views to the lake and surrounding landscapes. 
To use materials and finishes that reflect the traditional Daylesford Township materials and lakeside setting. 
To maintain the openness of the streetscape. 
To ensure that the land to which the public has access is clearly delineated and visual cohesiveness of the lake surrounds is enhanced.
18	Finally, the NCO1 varies the Clause 55 Standards B32 and B8.  In this case, the disputed local variation is the decrease in site coverage to 40%.
19	I consider that the proposed built form intensity results in an outcome which is too visually dominant and thus does not meet the outcomes sought by the NCO1.  The proposed buildings, because of their height, form and materiality, sit ‘proud’ on the subject site when viewed from the lakeside environs.  This means that the proposed design response does not strike an acceptable balance between landscaping and built form as required by the NCO1 provisions.
20	Both nos. 8 Ruthven Street and no. 2B Ruthven Street are orientated towards the subject site, and in addition to the site’s topography and direct lakeside interface, are contextual constraints.  I find that the proposal does not result in a reasonable sharing of views to the lake and surrounding landscapes in relation to both of these properties.  
21	I also consider that it is unacceptable that both Standards B17 and the local variation to Standard B8 are not achieved.  In addition to the building awnings of the main residence ‘pavilions’, I also consider that the siting of the ‘Guesthouse’ building close to the southern boundary given its relationship to the adjoining property results in unacceptable off-site amenity impacts.  I therefore find that the Site coverage and Side and rear setbacks objectives at Clauses 55.03-3 and 55.04-1 of the planning scheme have not been met.  
22	Given the clearly identified and highly valued characteristics of the subject site and surrounds I do not consider that the maximum permissible height of 11 metres under the GRZ1 provisions is the appropriate benchmark for the consideration of building height.  Although Ms Najee submitted that the maximum building height is under 10 metres, it is unclear from the documentation forming part of the permit application that the proposal in fact even complies with the mandatory maximum building height.  In any event, the overall building heights as they interface with the Lake Daylesford Reserve and the abutting property at no. 2B Ruthven Street are too visually dominant.  I therefore find that the building height objective at Clause 55.03-2 of the planning scheme is not met.
23	Overall, because of the DDO4 and NCO1, I do not consider that the proposal meets the neighbourhood character objectives at Clause 55.02-1 of the planning scheme, which are:
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.
Conclusion
24	For the reasons explained above, the decision of the Responsible Authority is affirmed.  No permit is to issue.

Tracy Watson
Member