VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P2465/2019
Permit Application no. P19/0791	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme, General Residential Zone (GRZ), subdivision of land into two lots.	

APPLICANT	John Farag	
responsible authority	Mornington Peninsula Shire Council	
SUBJECT LAND	1 Greythorn Road
HASTINGS  VIC  3915	
HEARING TYPE	Hearing	
DATE OF HEARING	16 November 2020	
DATE OF ORDER	26 November 2020	
CITATION	Farag v Mornington Peninsula SC [2020] VCAT 765	

Order

No permit granted
1	In application P2465/2019 the decision of the responsible authority is affirmed.
2	In planning permit application P19/0791 no permit is granted.
3	This matter was conducted ‘on the papers’, pursuant to section 100(2) of the Victorian Civil and Administrative Tribunal Act 1998.

Christina Fong 
Member			

Appearances
For applicant	Mr. John Farag	
For responsible authority	Carl Jenkins, Senior Planner, Mornington Peninsula Shire Council	

Information
Description of proposal	Subdivision of land into two lots in a battle-axe configuration.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	General Residential Zone (GRZ1).	
Permit requirements	Clause 32.08-3 to subdivide land	
Relevant scheme policies and provisions	Clauses 11, 12, 15, 16, 21.07, 22.11, 22.13, 53.01, 56, and 65.	
Land description	The land is located on the south side of Greythorn Road one lot west of Lomica Drive, Hastings.  It is generally rectangular in shape, with a frontage of 18.1 metres, a maximum depth of 37.47 metres, and a site area of approximately 681 square metres. A single storey brick veneer house occupies the front of the land constructed almost to both side boundaries. The aerial photograph of the site shows several canopy trees at the front and in the backyard of the house.
Greythorn Road is a residential street and is dominated by single storey single dwellings.	

Reasons

What is this proceeding about?
1	This is a section 77 pursuant to the Planning and Environment Act 1987 against the Mornington Peninsula Shire Council’s refusal to grant a permit to subdivide the land into two lots in a battle-axe configuration. The grounds of refusal relate to the proposal failing to satisfy planning policies, the subdivision inconsistent with Mornington Peninsula localised Planning Statement, is of a scale and density that is inconsistent with the moderate to low levels of housing in the area, not protecting the valued character of the area, and an uncertainty caused by an absence of development plan for the land.
What are the key issues?
2	The key issues of this review are whether the proposal is consistent with the neighbourhood character of the area; its performance against clause 56 of the planning scheme and the uncertainty created by an absence of an approved development plan.
neighbourhood character consideration
3	Regarding neighbourhood character, council’s concern is that the eventual development on the lots would not be consistent with the preferred character of the area, nominated as ‘Garden Court 1’ in its neighbourhood character study where minimum setbacks from side boundaries have been nominated, and where the preferred character is about space for vegetation and a sense of space and openness around buildings. It also submits that the proposed subdivision does not align with the identified pattern of subdivision in the area which consists primarily of lots ranging between 500 square metres and 1461 square metres, where the majority of lots had not been subdivided, and where there is no existing pattern of battle-axe subdivision.
4	Mr. Farag disputes council’s views. Regarding council’s neighbourhood character concerns, he notes that the proposed subdivision is consistent with council’s decision on other subdivisions, such as the 20 lot subdivision approved on 13 May 2019 at 4 Lomica Drive located 160 metres from the review site, which has an average lot size of 320 square metres. He cites another council decision in the subdivision of 2A and 2B Merlebah Court which allowed for two lots of 341 square metres.
5	As a response to neighbourhood character, Mr. Farag maintains that the proposed battle-axe configuration of the subdivision is consistent with the character of the area, as the dwelling at the rear lot will be setback a minimum of 26 metres.
6	He notes that the land is located within the urban growth boundary and is surrounded by residential developments. He submits that the schematic development plan demonstrates that appropriate landscaping can be provided. He suggests that council has given weight it its Housing Settlement Strategy in its assessment of the application, a document that is not part of the planning scheme where a minimum lot size of 450 square metres is recommended.
7	However, information on the two properties cited by Mr. Farag shed a different light in their history of their subdivision. For 2A and 2B Merlebah Court, council’s information is that there are two existing dwellings on that land in a tandem arrangement. Both dwellings remain on one title. As for 4 Lomica Drive, Council’s information is that the subdivision was approved following the development. In that land, there are 20 dwelling on a site that is located between the commercial properties fronting Frankston-Flinders Road and the established residential area in Lomica Drive. That development was part of a large site (around 6265 square metres) and formed part of a comprehensive development. In other words, they had development preceding subdivision. As for 2A and 2B Merlebah Court, there has been no subdivision.
8	Council advised that there has been a subdivision at 1 Lomica Drive into four lots. That land was 1733 square metres and each lot is over 430 square metres, with each lot having direct frontage to the street.
9	I agree with council that the cited examples are not comparable to the proposal before me. The subdivision at 4 Lomica Drive is informed by an approved development. If 2A and 2B Merlebah Court is subdivided in the future, that subdivision will also be informed by the existing development on the land.
10	The proposal is to subdivide the land into two lots in a battle-axe configuration. The front lot (Lot 1) will have an area of 366 square metres and occupy the front of the land except for a three metre wide accessway for Lot 2. It current contains the existing house on the land and the garage of the house. The garage, which is constructed over the proposed accessway, will need to be demolished if the subdivision goes ahead.
11	Lot 2 will have a 3 metre frontage to Greythorn Road (the access for the lot) and an area of 349 square metres. A 3 metre wide easement runs along the rear of the land. 
12	Aerial photographs of the land indicate that there are several trees on the land varying in sizes: three within the frontage and four at the rear of the house. No information about these trees has been submitted with the application. It is not possible to gauge their contribution to the streetscape or landscape qualities of the area.
13	The proposed layout of two tandem lots suggest that there will be a dwelling at the front and one at the back. Such a presentation is consistent with the existing building rhythm of the area of presenting a single dwelling to the street.
14	The submitted schematic plans show a single storey single dwelling on each lot, and a single width garage for each. The single storey scale and their footprints represent a benign scale of development. This presentation is generally consistent with the single dwelling rhythm of Greythorn Road. The two parallel crossovers and driveways may need to be reviewed regarding their impact on the streetscape.
15	These schematic plans do not form part of the proposed subdivision. An approval of the subdivision does not mean there will be a single storey single dwelling of the size, scale and general layout indicated in these plans. The impact of future dwellings on the streetscape and outlook from neighbouring backyards are unknown and likely to be very different.  
16	I am not satisfied that the constraints of the lots and an absence of development plans as part of the proposal will necessarily result in the development of both lots as respectful of the character of the area and context of the site.
Clause 56 consideration
17	Clause 56 is the relevant assessment for subdivisions. In the GRZ, clause 32.08-3 has the following requirements for subdivision of land into two lots:
•	For a lot less than 400 square metres, a requirement of 25% garden area;
•	Must meet clause 56 objectives and should meet the standards in Clause 56.03-5, 56.04-2, 56.04-3, 56.04-5, and 56.06-8 to 56.9-2.
18	Regard the provision of 25% garden area, despite an inference in the submitted schematic development plans for a single storey dwelling on each lot that such a 25% garden area is possible, no calculation and no building envelope has been submitted to demonstrate that to be the case.
19	As for the requirement to meet the objectives/standards of clause 56, these provisions relate to neighbourhood character (clause 56.03-5 and Standard C6), lot layout and building envelope (clause 56.04-2 and standard C8), solar orientation (clause 56.04-3 Standard C9), common area (clause 56.04-5 and standard C11), and access (clause 56.06-8 to 56.9-2).
20	There is no issue with common property or access, as there is no common area in the subdivision and access is available, apart from the possible issue of two parallel crossovers and driveways close to each other in the front setback area. 
21	Of the clause 56 requirements, council submits that the proposed subdivision fails to achieve the objectives of clause 56.04-2 despite technically meeting standard C8 (building envelope), which is to provide a rectangle of 10 x 15 metres because of the constraints of  Lot 2, which is limited in size at just 349 square metres, within which are a 3 metre easement along its rear boundary and the 3 metre wide and 21.6 metres long accessway from Greythorn Road, effectively reducing the size of land available for the dwelling considerably.
22	Regarding Standard C9 (Solar orientation of Lots), council’s view is that the development of Lot 1 is likely to result in the secluded private open space of a house on the south side of the dwelling, resulting in a much reduced solar access for the dwelling.
23	I agree with council’s view on the proposal’s performance against clause 56, that it does not deliver on the objectives and standards in the areas of building envelope and solar orientation of lots.
Conclusion
24	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Christina Fong
Member