VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P176/2020
Permit Application no. 74/2019/P	
CATCHWORDS	
Section 77 Planning and Environment Act 1987; Frankston Planning Scheme; General Residential Zone; Three dwellings; Neighbourhood Character; Visual Bulk; Traffic; Access.    	

APPLICANT	Puneet Mahindra	
responsible authority	Frankston City Council	
RESPONDENTs	James Toncinich
John Dalton	
SUBJECT LAND	4 Cassowary Close 
CARRUM DOWNS	
WHERE HELD	Melbourne	
BEFORE	Joel Templar, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	4 August 2020	
DATE OF ORDER	26 August 2020	
CITATION	Mahindra v Frankston City Council [2020] VCAT 921 	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & 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:	Archimedium Australia Pty Ltd	
•	Drawing numbers:	TP3 to TP6	
•	Dated:	June 20	
Permit granted
2	In application P176/2020 the decision of the responsible authority is set aside.
In planning permit application 74/2019/P a permit is granted and directed to be issued for the land at 4 Cassowary Close CARRUM DOWNS in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of three dwellings on a lot.

Joel Templar 
Member			

Appearances
For Puneet Mahindra	Mr Russell Hocking, town planner. 	
For Frankston City Council	Ms Adrianne Kellock, town planner of Kellock Town Planning Pty Ltd	
For James Toncinich and John Dalton	Each in person.	

Information
Description of proposal	The proposal involves the construction of three (3) double storey dwellings. Dwellings one and two are to be constructed side-by-side across the frontage of the property with dwelling three located at the rear. An existing access point at the south-east corner of the site would provide access to dwellings two and three at the rear, with a new access point proposed at the north-east corner to provide access to dwelling one. Secluded open space for dwellings 1 and 2 is provided to the west (rear) with the rear yard of dwelling 3 sited to the north and west of the dwelling. The main living area of each dwelling is located at ground level. The ground floor of dwellings 1 and 3 also contain one bedroom (with ensuite) and dwelling 2 contains a ground floor sitting room. Each dwelling contains two bedrooms, amenities and an open plan ‘media’ area at the upper level. Maximum height proposed is 8.35 metres (dwelling 1)	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Frankston Planning Scheme	
Zone and overlays	General Residential Zone	
Permit requirements	Clause 32.08-6 – to construct two or more dwellings on a lot.	
Land description	The subject site is a regular rectangular shaped allotment with a width of 18 metres and a length of 36.36 metres and overall area of approximately 654.5m2. It is affected by a two metre wide easement that extends along
approximately 20 metres of the northern boundary (western end) and has a fall of less than one (1) metre from the front towards the rear. The site contains a single storey dwelling that is setback approximately 8.5 metres from the front boundary. Vehicle access is provided via a crossover located at the southern end of the frontage. A gravel driveway runs diagonally across part of the front setback and provides access to a single carport, which is sited to the north of the dwelling. The site contains scattered canopy vegetation.	

Reasons
What is this proceeding about?
1	This proceeding concerns the review by the applicant of council’s refusal to grant a planning permit for the construction of three dwellings on a lot at 4 Cassowary Close, Carrum Downs.
2	A delegated officer of the council recommended approval of the proposal subject to conditions. This recommendation was not accepted at a council meeting and the council determined to issue a notice of refusal on several grounds, mostly relating to neighbourhood character and related policy.
3	As part of the planning permit application process, the application surrounding land owners and occupiers were notified of the application and 6 objections and one petition were received. Two of those objectors are respondents to this proceeding.
4	From the submissions at the hearing, including the statements of grounds from the respondents, the key issues from the council and respondents can be summarised as:
•	Attached two storey form and impact of the proposal in a consistent single storey streetscape.
•	Lack of articulation to the side walls of the front dwellings
•	Minimal side setbacks as will be seen from the street.
•	Impact of bulk on adjoining properties and lack of space for screen planting.
•	Impact of additional traffic and parking within the street.
5	The applicant submitted that the proposal was acceptable and will not be a dominant feature in the streetscape and reflects many of the characteristics of existing development, including side setbacks. It was also submitted that the extent of change this proposal presents is not unexpected in a location such as this, including the zoning of the land and proximity to services and facilities. 
6	It was also accepted by the applicant, in response to my questions, that there could be some changes to the layout of the proposal to improve its presentation to the street, without any fundamental consequences from a design perspective.
7	I must determine whether this proposal is an acceptable outcome, taking into account the existing physical and planning context. The notion of acceptable is inherent in the planning scheme requirements, and does not mean that a proposal has to be perfect, or that if a proposal has some flaws, it must be refused.
8	In this case, I have found that the proposal is an acceptable one and a permit should issue. My reasons are set out below.
is the proposal an acceptable neighbourhood character outcome?
9	The council described the surrounding area:
The surrounding area is characterised by predominantly detached, single storey, brick dwellings with pitched roofs. There are mix of dwelling styles and front boundary treatments. The area has a spaciousness of the streetscapes, created by the generous dwelling setbacks and the low or open style front fences. There is also a sense of space between properties towards the rear of lots, as dwellings are usually sited towards the front/middle of lots and well setback from rear boundaries.
10	The council also submitted that lot sizes nearby are generous and there were some examples of multi dwelling development nearby. 
11	Numerous photographs, including aerial photographs were tendered to the Tribunal as part of submissions. It appears that the council’s description above is accurate and the applicant did not dispute how the council characterised the surrounding area. 
12	The subject site is located in a ‘hinterland’ residential area but is within reasonable proximity to a number of services and facilities including:
•	The Carrum Downs Regional Shopping Centre, approximately 850 metres to the north.
•	Public open space areas Rotary Park 350 metres to the north-east and Botany Park 200 metres to the south west.
•	Rowellyn Primary School 1 kilometre to the north east and St Josephs Catholic Primary School 430 metres to the north.
•	Various bus routes along Hal Road to the north, Frankston-Dandenong Road to the west, Ballarto Road to the south and Lyrebird Drive 200 metres to the east.

Figure extracted from the council’s submission.
13	The council submitted that the neighbourhood character objectives of the Planning Policy Framework and Local Planning Policy Framework, as well as those within Clause 55 of the Scheme, seek to ensure that new development respects existing neighbourhood character or contributes to a preferred neighbourhood character.

14	The council’s Neighbourhood Character Policy provides specific design guidance regarding a preferred neighbourhood character for the area, including a series of design guidelines. The character description for Precinct Carrum Downs 2 describes the area as follows:

An area of low scale dwellings set in informal garden settings. There are a variety of dwelling styles, but a predominance of brick and tile materials.
There is a sense of openness in the streetscapes, resulting from the general absence of front fences and the wide nature strips. An attractive vegetation character is starting to emerge. 
15	The preferred Neighbourhood Character Statement for this precinct is:
The sense of openness will be maintained.
16	The council accepted that the subject site was not affected by any specific planning scheme controls that might constrain development and therefore relied on consistency with the existing and preferred neighbourhood character as its key argument.
17	The council said “…the overall building mass of dwellings 1 and 2 will be overly prominent when viewed from the streetscape due to their attached form, overall combined mass, expanse across the vast majority of the site width and limited articulation of upper floor side walls.”
18	The council did accept that local policy identified Carrum Downs for increased housing and that moderate growth is expected in this location. 
19	The respondents made similar submissions to the council.
20	The applicant submitted that the proposal will not be a dominant element in the streetscape, based on the articulation provided to the front facades, how the proposal will be viewed in three dimensions, the varied setbacks along the sides and the first floors of dwellings 1 and 2 being recessed from the respective ground floor facades.
21	There is no doubt that the proposal introduces a degree of change into this street and the surrounding area. There are few, if any, double storey dwellings nearby.
22	However, the zoning of the land and the planning scheme context contemplate a degree of change that is not markedly different from what is proposed.
23	The council also accepted that there is a degree of articulation with varied setbacks and materials and there was a large gap between the upper floors of dwellings 1 & 2 and dwelling 3.
24	I am not persuaded that the proposal represents an acceptable degree of change in the street. I find that the degree of articulation claimed by the applicant has been overstated and therefore impact on the streetscape has been understated. 
25	The upper floor front façade of the proposal extends a width of 9.3 metres and has one small ‘step’ across this expanse. Although the envelope of the upper floors of dwellings 1 and 2 is smaller than the ground floor envelope, and there is a small step across the façade plane, they present a rather different built form outcome than what is envisaged for this area and from what currently exists. 
26	I do acknowledge, however, that the side setbacks of the upper floors of dwellings 1 and 2 are quite significant.
27	Further, the dwellings 1 and 2 are setback from both side boundaries at the ground and first floor levels. The ground floor is setback 1.01 metres and 4 metres respectively. I find that these setbacks are similar to those found in the surrounding area, where dwellings are setback on both sides but with a smaller setback on one side and larger on the other.
28	The upper floors of dwellings 1 and 2 are setback greater distances than the ground floors which I find is respectful of the existing single storey character, by further confining the envelope of the upper floor.
29	However, I also find that the presentation of the upper floors of dwellings 1 and 2 is not so far from an acceptable outcome such that it cannot be addressed through conditions to require some modifications to result in an acceptable outcome.
30	If the ensuite to bedroom 2 of unit 1 were deleted with a resultant gap between bedroom 2 of unit 1 and bedroom 1 of unit 2, this, combined with the materials and design detail to the façade, and also the side setbacks of the upper floor would result in an acceptable built form outcome in my view.
31	The applicant agreed that the deletion of the ensuite could be deleted without any fundamental design consequences but noted that internal rearrangement would be necessary to accommodate a shared bathroom at the upper level. On this basis, I will include a condition to delete the ensuite of bedroom 2 of unit 1 with any consequential internal redesign.
32	In terms of the impact of the side elevations, I find that these will be acceptable, subject to some greater colour differentiation along the sides of dwellings 1 and 2. I will also include this as a condition. 
impact on adjoining properties
33	The council submitted that the rear dwelling will have an unreasonable visual impact on the adjoining properties at 6 Cassowary Court (to the south) and 14 Fieldlark Court (to the south west). It said the minimal setbacks and resultant lack of space for screen planting and extent of built form of the upper floors will present substantial bulk to these properties.
34	These adjoining properties have areas of private open space directly abutting the rear of the subject site.
35	The council did not say the proposal did not meet standard B17 of clause 55.04-1 (Side and rear setbacks). However, there are qualitative elements to this clause that require assessment in addition to meeting the standard.
36	The upper floor south and west elevations of bedroom 3 of dwelling 3 require a setback of 2.39 metres from the southern and western boundaries respectively and are proposed to be setback 3.0 metres and 4 metres respectively.
37	The upper floor west elevation of dwelling 3 requires a setback of 2.39 metres from the southern boundary and is proposed to be setback 3.0 metres.
38	The south elevation of bedroom 3 of dwelling 3 is a maximum width of 5.0 metres, which would be the extent of built form at the upper level most prominently visible to the private open space at 6 Cassowary Court.

Extract of upper floor plan, showing dwelling 3
39	Although the upper floor setbacks of bedroom 3 of dwelling 3 comply with standard B17, I agree with the council that there is limited or no opportunity for screen planting, particularly in a context where there is an absence of double storey form at the rear of properties in the surrounding area, and where there are examples of larger specimens of trees at the rear of existing properties. 
40	The applicant accepted that the ensuite to bedroom 3 of dwelling 3 could be deleted with no fundamental consequences for functionality. The deletion of this would increase the setback of this bedroom from the western boundary and also reduce the extent of upper floor form that would be visible from 6 Cassowary Court.
41	The combination of this, along with the compliance with standard B17, I find will result in an acceptable built form outcome from an amenity impact perspective of the adjoining properties.
42	I will therefore include a condition to delete the ensuite associated with bedroom 3 of dwelling 3.
traffic and access
43	The respondents were concerned about the impact of additional vehicles being parked in the street, as well as the effect this would have on the ability to navigate the street, particularly if vehicles were parked opposite each other. They were also concerned with this in respect of emergency services vehicles and garbage trucks and concerned with safety impacts all of these would have on existing residents. 
44	Clause 52.06 of the planning scheme sets out requirements for the provision of on site car parking as well as design requirements for such parking.
45	The proposal provides the required number of on site car parking spaces for each dwelling. There were no submissions that the proposal did not meet the design standards of clause 52.06 and the officers report confirms this position.
46	On this basis, the provision of on site car parking is not a matter that I am able to take into account. 
47	Whilst the proposal makes the required provision of on site car parking, this is of course not to say that vehicles associated with this development will not park on the street or that occupants of these dwellings might not have more cars than provisions has been made for. However, this is the case with any dwelling, including existing dwellings in the street and is not a matter that I have any role in considering for the reasons already set out above. 
48	I accept that the reality of what could occur in the street might be as the respondents say. However, any issues arising from this will be a matter that the council will need to address as the relevant authority for the road.
Are there any other issues?
49	The concern about this proposal creating a precedent, planning assessments should not be based on precedent, rather on the merits of each individual application. Whilst proposals are subject to a character assessment and existing development contributes to what should be taken into account, that is different from a ‘precedent’ assessment.
50	Mr Tonicinch raised concerns about increased noise and privacy concerns.
51	I accept that a proposal for increased housing might create additional residential based noise. However, I am not persuaded that this will be discordant with an existing residential area and with an expectation of increased density through the relevant planning scheme consideration, it must be expected that a commensurate level of residential noise might eventuate.
52	The privacy concerns related to the perception of residents being ‘watched’ by additional residents, particularly across the street.
53	The provisions of the planning scheme in standard B22 of clause 55.04-6 only require screening of existing habitable room windows and secluded private open space if they are within 9 metres of same associated with the proposal.
54	The proposal complies with this standard. And so whilst there might be a perception of being ‘watched’, this could occur now via the existing dwelling and any increased potential for this could also have positive benefits of passive surveillance of the street.
Conclusion
55	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Joel Templar 
Member			

Appendix A – Permit Conditions

Permit Application No	74/2019/P	
Land	4 Cassowary Close, Carrum Downs	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of three dwellings on a lot.	

Conditions
Amended Plans
1	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be substantially in accordance with the plans identified as Project number 2018/24 by Archimedium Australia Pty Ltd, sheets TP3 to TP6, dated June 20 “VCAT SUBMISSION” but modified to show:
(a)	The ensuite to bedroom 2 of unit 1 deleted with any consequential internal redesign but maintaining the gap between dwellings 1 and 2 created by the deletion of the ensuite and without reducing any other setbacks;
(b)	The ensuite associated with bedroom 3 of dwelling 3 deleted with any internal redesign and without reducing any setbacks;
(c)	Greater colour variation of the north and south elevation upper floor walls of dwellings 1 and 2;
(d)	All trees growing on the site and on the adjoining properties within 3m of the boundaries must be clearly illustrated on all relevant plans to demonstrate canopy width, trunk location and clearly labelled in accordance with the Arboricultural Impact Assessment and Tree Management Plan prepared by All Trees Consulting March 2019 and clearly state whether the tree is to be retained or removed.
(e)	The Tree Protection Zone and Structural Root Zone for all trees to be retained and the tree protection fence locations must be illustrated on all relevant plans.
(f)	A Landscape Plan in accordance with Condition 3.
(g)	A Tree Protection Plan in accordance with Condition 5.
(h)	Root sensitive footings and paving in accordance with Condition 6.
(i)	Demonstrate that accessway grades are in accordance with Clause 52.06-9 of the Frankston Planning Scheme.
(j)	Storage sheds to be nominated with a minimum capacity of six (6) cubic metres.
(k)	Free standing trellis fence in accordance with Condition 15.
(l)	Bollard lighting to be included along the shared accessway in accordance with Condition 19.
No Alterations
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
Landscaping
3	Before the commencement of buildings and works, a landscape plan prepared by a suitably qualified person must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the plan by Habitat, dated July 2020 sheet 1 of 1 and show:
(a)	a survey (including botanical names) of all existing vegetation to be retained and/or removed;
(b)	buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
(c)	details of surface finishes of pathways and driveways, retaining walls and areas of cut and fill;
(d)	lighting in accordance with condition 1(l);
(e)	a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at maturity and quantities of each plant;
(f)	A planting theme of a minimum 40% indigenous, up to 40% native and up to 20% exotic within each plant group;
(g)	landscaping to a minimum height of 1.5m to be incorporated along the west boundary of the common driveway
(h)	the provision of suitable canopy trees (minimum two metres tall when planted) in the areas specified below (trees are not to be sited over easements) with species chosen to be approved by the Responsible Authority;
i	One (1) within each of the front setbacks of Dwelling 1 and 2 with minimum mature heights of 10 metres.
ii	One within the private open space of Dwellings 1 and 2 with a minimum mature height of 7 metres.
iii	One (1) within the landscape area on the southern boundary adjacent to the garage of Dwelling 2 with a minimum mature height of 7 metres.
All species selected must be to the satisfaction of the Responsible Authority.
Prior to Occupation
4	The landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or commencement of the use or at such later date as is approved by the Responsible Authority in writing.
Tree Protection Management Plan
5	A Tree Protection Management Plan generally in accordance with the Arboricultural Impact Assessment and Tree Management Plan prepared by All Trees Consulting March 2019 but modified to include all relevant measures regarding the retention of Tree 7; installation on root sensitive paving, footings and at / above grade slab or like; arboriculturally supervised excavations; requirement for ground protection and all other AS4970 Protection of Trees on Development Sites compliant measures to the satisfaction of the Responsible Authority.
Root Sensitive Footings and Paving
6	Root sensitive at / above grade paving and root sensitive footings and at / above grade capping beam and slab must be used within the following radial tree protection zone:
(a)	Tree 7 (Red Ironbark, as identified in the Arboricultural Impact Assessment and Tree Management Plan prepared by All Trees Consulting March 2019) – 7.4m.
Street tree removal
7	Prior to the construction of the crossover the “Request Form - Street Tree Removal for Private Development” and payment for the removal of the Council Street tree species located on the nature strip at address must be provided to Frankston City Council’s Planning and Environment Department in accordance with the fees for a Small Street Tree and the fees for the re-planting of another tree outlined in Council’s Guidelines for Council Tree Removal for Private Development. Upon receipt of the form and payment the street tree removal will be actioned.
Drainage
8	Provision of a Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI predevelopment value to the satisfaction of the Responsible Authority.
9	Prior to commencement of development construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure are to be submitted and approved to the satisfaction of the Responsible Authority.
10	Stormwater Drainage Outfall is to be constructed to the satisfaction of the responsible Authority.
11	All disused vehicle crossings shall be removed and the area reinstated to kerb and channel and landscaped to the satisfaction of the Responsible Authority.
12	Existing vehicle crossing shall be altered and widened to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority.
13	Water Sensitive Urban Design principles (WSUD) are to be incorporated into the drainage design, which may include but not be limited to the following components or a combination thereof:
(a)	On-site stormwater detention and rainwater tanks.
(b)	Soil percolation
(c)	Stormwater harvesting and Re-use of stormwater for garden watering, toilet flushing, etc
(d)	On-site ‘bio-treatment’ to reduce dissolved contaminants and suspended solids.
14	The stormwater management system be 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) in compliance with Standard B9-Permeability and stormwater management objectives.
Free-Standing Trellis
15	Prior to the occupation of the development, a freestanding trellis (maximum 25% openings) must be erected above the existing fence on the northern (side) boundary of the site to a minimum height of 1.7 metres above the finished floor level of Dwelling 1, to restrict overlooking from northern habitable into the adjoining residential property to the satisfaction of the Responsible Authority. The trellis must be framed and thereafter maintained to the satisfaction of the Responsible Authority.
Urban Design
16	All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
17	Mailboxes shall be provided to the proposed dwelling/s to the satisfaction of the Responsible Authority and Australia Post.
18	All plumbing work, sewer pipes etc. (except for spouting and stormwater pipes) associated with the new dwelling shall be concealed from general view. 
19	Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.
Completion of Buildings and Works
20	Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Expiry of permit for development
21	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 two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) 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 –