VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2179/2019
Permit no. 5/2016/612/2	

CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Bayside Planning Scheme; 
Amend permit for two-dwelling development:  Neighbourhood character & off-site amenity impacts	

APPLICANT	Michael & Jenna Lambert	
RESPONSIBLE AUTHORITY	Bayside City Council	
RESPONDENTs	Sharon Xue, James & Bridget Crowe and Lorraine Sommers	
SUBJECT LAND	25 Dawson Avenue, Brighton	
WHERE HELD	Melbourne	
BEFORE	Tracy Watson, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	29 October 2020	
DATE OF ORDER	7 December 2020	
CITATION	Lambert v Bayside CC [2020] VCAT 1372	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the application to amend the permit is amended by substituting for the application plans, the following plans filed with the Tribunal:
•	Prepared by:	BE Architecture (Development Plans); Craig Eldridge Design (Landscape Plan).	
•	Drawing numbers:	Development Plans:  TP03.1, TP03.2, TP04.1, TP04.2, TP09.1, TP09.2, TP09.3, TP09.4, TP09.5, TP09.6, TP09.7 – All Rev 2, VCAT Issue.
Landscape Plan:  TPL01C-TPL04C	
•	Dated:	Development Plans:  30.3.20
Landscape Plan:  01/04/20
	
2	The decision of the Responsible Authority is set aside.
3	Planning Permit No. 5/2016/612/1 is amended and an amended permit (No. 5/2016/612/2) is granted and directed to be issued for the land at 25 Dawson Avenue, Brighton.  Condition Nos. 1 and 14 of the permit are amended as set out below.
4	Condition No. 1 is amended as follows:
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 and three copies must be provided. The plans must be generally in accordance with the Revision 2, VCAT Issue plans prepared by BE Architecture dated 30.3.20 but modified to show:
a)	Reduction of the overall height of Dwelling 1 to comply with Standard B7 of Clause 55 of the Bayside Planning Scheme.
b)	Roof terrace setbacks to comply with Schedule 1 of the Design and Development Overlay.
c)	A 0.6m reduction in the width of the paved pathway adjacent to the site’s west boundary along its 26m length between the front boundary and the Dwelling 1 courtyard. The path shall have a maximum width of 1.2 metres.
d)	A detailed landscape plan in accordance with Condition 14 of this permit.
e)	Any development modifications recommended in the Tree Impact Assessment Report in accordance with Condition 17 to ensure the continued health and longevity of all trees whose Tree Protection Zones (refer AS4970-2009) fall within the subject site.
f)	A 0.8m wide splitter island added within the nature strip, to separate the two driveways.
g)	The 1 metre vehicle ramp transitions extended to 2 metres.
h)	A schedule of construction materials, external finishes and colours (incorporating, for example, paint samples).
5	Condition No. 14 is amended as follows:
Prior to endorsement of plans pursuant to Condition 1, a detailed landscape plan must be submitted to, and endorsed by the Responsible Authority. The plan must be generally in accordance with the landscape concept plan prepared by Craig Eldridge Design, titled “25 Dawson Ave Brighton, Victoria”, dated 01/04/20, Sheets TPL01C-TPL04C, and be drawn to scale with dimensions. Three copies must be provided. The plan must show:
a)	A survey, including botanical names, of all existing trees to be retained on the site.
b)	A survey, including botanical names, of all existing vegetation to be removed from the site.
c)	A survey, including botanical names, of all existing trees on neighbouring properties where the Tree Protection Zones of such trees calculated in accordance with AS4970-2009 fall partially within the subject site. 
d)	A planting schedule of all proposed trees and shrubs, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant. 
e)	Landscaping and/or planting within all areas of the site not covered by buildings or hard surfaces.
f)	Details of surface finishes of pathways and driveways.
g)	One large coastal canopy tree with the capacity to reach a mature height of 10 m and spread of 6 m at maturity, in the front setback of each new dwelling.
h)	One small coastal canopy tree, with the capacity to reach a mature height of 8 m and spread of 4 m at maturity in the rear private open space of each dwelling. 
i)	Shrubs and ground-covers must also include coastal species.
j)	All proposed plantings that were shown on Council land, removed.
k)	Landscaping of the enlarged permeable area adjacent to the western boundary to be created by 0.6 metre reduction in the width of the paved pathway, in accordance with Condition 1(b).
6	The Responsible Authority is directed to issue an amended permit in accordance with these orders.

Tracy Watson
Member

1.	

APPEARANCES
For Applicant
	Mick Meyer, town planner	
For Responsible Authority	Sanela Kabas, town planner
	
For Respondents	Trent Thompson, town planner

INFORMATION
Description of Proposal	It is proposed to amend the existing planning permit to allow for changes to Dwelling 1.	
Nature of Proceeding	Application under Section 77 of the Planning and Environment Act 1987 – to review the decision to refuse to grant an amended permit.	
Zone and Overlays	Clause 32.09 – Neighbourhood Residential Zone, Schedule 3.
Clause 43.02 – Design and Development Overlay, Schedule 1.
Clause 45.06 – Development Contributions Overlay, Schedule 1.	
Permit Requirements	Clause 32.09-6 – Construct two or more dwellings on a lot and construction of a front fence exceeding 1.2 metres in height.
Clause 43.02-2 – Construct a building or construct or carry out works (in this case, being construction of a roof deck above the second storey of a building).	
Relevant Scheme policies and provisions	Includes Clauses 11, 15, 16, 21.02, 21.03, 21.06, 22.06, 32.09, 43.02, 55, 65 and 71.02.	
Land Description	The subject site is located on the southern side of Dawson Avenue, is rectangular in shape with a width of 21.34 metres and a depth of 45.92 metres, yielding a site area of 994m2.
The subject site is currently being developed with two dwellings, and is located in an established residential area.	

REASONS
What is this proceeding about?
1.	In April 2018, the Bayside City Council issued Planning Permit No. 5/2016/612/1 allowing the proposed two-dwelling development subject to a range of conditions.  Development Plans in accordance with Condition 1 of this Planning Permit were endorsed in July 2018.  The development is currently under construction.
2.	This application for review relates to a request to amend Planning Permit No. 5/2016/612/1 which was refused by the Council in October 2019.  Mr Thompson represents the residents of the adjoining dwellings located at nos. 23 and 27 Dawson Avenue and no. 7 Cole Street who also oppose the proposed amendments.
3.	The changes to the permit seek to replace the currently endorsed plans with the plans that have now been substituted by the Tribunal.  The main change in dispute is the proposed addition of a rumpus room located at the rear of the upper level of Dwelling 1.  I also note that the amendments reduce the size of the proposed roof terrace.  The reduction in roof terrace is supported by the Council and was not an issue of concern raised by Mr Thompson.  It was agreed at the hearing that the setbacks to the proposed roof terrace need to be modified to reflect the approved setbacks in order to maintain compliance with Schedule 1 of the Design and Development Overlay.  The amended Condition 1 reflect this requirement.
4.	The proposed amendments are opposed because of their neighbourhood character and off-site amenity impacts.
5.	The Tribunal must decide whether an amended permit should be granted.  Having considered all submissions presented with regard to the applicable policies and provisions of the Bayside Planning Scheme, I have decided to set aside the decision of the Responsible Authority.  
Do the amendments respect the neighbourhood character of the area & have acceptable off-site amenity impacts?
6.	It was submitted that the proposed amendments are contrary to the neighbourhood character outcomes sought by Clause 22.06 of the planning scheme due to the rear addition’s contemporary and boxy style and form and its minimal setback from the ground floor which creates an unacceptable visual intrusion into the backyard realm.  It was also submitted that the addition of the proposed rumpus room is visually dominant, does not achieve the desired sense of space between buildings, and encroaches into the existing ‘spine’ of backyard open space.
7.	It was argued that because of the rumpus room’s visual bulk impact on the existing rear open space corridor, the proposed amendments do not meet the relevant Clause 55 objectives.
8.	The planning scheme requires that the proposed amendments must respect the neighbourhood character of the area.  
9.	One of the key objectives at Clause 22.06-2 of the planning scheme is, “To ensure that development is responsive to the preferred neighbourhood character of the area.”  In order to determine if this overarching objective is met, the applicable preferred future character statement and associated precinct guidelines (comprising objectives, design responses and avoid statements) need to be considered.  The design responses and avoid statements relate to specific precinct guideline objectives and assist in determining if the associated precinct guideline objective is met.
10.	The subject site is located within Precinct C1 which has the following preferred future character statement:
The mix of dwelling styles, including a substantial presence of pre WW2 dwellings, sit within spacious gardens and do not dominate or overwhelm the streetscape.  Garden plantings, and well-articulated façades and roof forms, assist in minimising the dominance of buildings from within the street space, as well as providing visual interest.  Front setbacks allow planting of substantial trees and shrubs and side setbacks on both sides maintain a sense of spaciousness in the area.  Trees are a mixture of exotic and natives, with an increasing frequency of traditional coastal and indigenous species, strengthening the visual connection of the area with the coast.  Open style front fences retain an ability to view buildings from the street.  Buildings fronting the foreshore reflect their setting and provide a visually attractive built form interface with the reserve.
11.	The Precinct C1 Guidelines have the following objectives:
•	To maintain and enhance the spacious garden settings of dwellings.
•	To enhance the bayside vegetation character of the area.
•	To retain the sense of spaciousness in the area and provide adequate space for front gardens.
•	To minimise the dominance of car parking facilities, driveways and crossovers.
•	To ensure that new buildings and extensions do not dominate the streetscape.
•	To encourage the use of a variety of building materials, finishes and design detail that complement the coastal setting.
•	To encourage the openness of the streetscape.
12.	It is important to highlight that clearly the applicable preferred neighbourhood character statement and guidelines emphasize the impact of new buildings, and their landscaping, on the existing public/ streetscape realm.  The proposed rumpus room is at the rear of Dwelling 1 and the changes to the proposed landscaping are also at the rear of the subject site.  In other words, the proposed amendments do not have any detrimental impacts on how the development interfaces with the public realm.  
13.	Furthermore, the proposed changes to the landscape plan do not impact on the provision of appropriate indigenous coastal trees nor in the number of proposed canopy trees.  The residents were concerned about the reduced width of the rear garden bed and consequently the impact on the long term viability of the proposed rear planting.  In total it is proposed to plant twenty-two Pinnacle Lilly Pilly trees along the rear boundary which have a maximum height at maturity of 8 metres.  The landscape plan has been prepared by a professional landscape architect who is trained and experienced in selecting tree species that are suitable to the spaces and growing conditions in which they will be planted.  I find that the proposed Lilly Pilly trees are an appropriate species to be planted in the rear garden area taking into account its width and its relationship to the proposed pool of Dwelling 1.  There is no reason to conclude that the width of the garden bed will have a detrimental impact on the long term viability and growing capacity of the Lilly Pilly trees. 
14.	In addition, while the Precinct C1 Guidelines include a Design Response to recess upper level elements from the front façade, there are no specific guidelines relating to rear built form contained in the Clause 22.06 local policy.
15.	Similarly, Schedule 1 to the Design and Development Overlay does not contain any specific requirements or objectives relating to the backyard realm.  Rather, it has a somewhat generic objective, “To protect the amenity and privacy of residential properties.”
16.	The planning scheme does, however, contain specific requirements in relation to rear built form in the local variation to Standard B17 which forms part of Schedule 3 to the Neighbourhood Residential Zone.  The local variation to Standard B17 is that:
A new building not on or within 200mm of a boundary should be set back 2 metres from the side boundary, and 3 metres from the rear boundary, plus 0.6 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 2 metres for every metre of height over 6.9 metres.
17.	This means that, given the proposed building height, the local variation to Standard B17 allows for a 2 metres side boundary setback and a 5 metres rear boundary setback.  By contrast, the proposed rumpus room is well in excess of this with a 4.6 metres side boundary setback and an 8.95 metres rear boundary setback.  I consider that these increased side and rear boundary setbacks do ensure that the proposed amendments appropriately respond to the existing backyard realm conditions found in this immediate neighbourhood.  There is nothing about the existing backyard realm that would lead me to conclude that even greater setbacks are required.
18.	Contrary to the Council and respondents, I do not consider that the proposed rumpus room has an unreasonable visual bulk impact on the existing rear open space corridor.  It will clearly be visible from the adjoining rear secluded private open space areas, however, I find that its visual impact is acceptable.  In addition to exceeding Standard B17 the rumpus room is also: recessed 3.59 metres behind proposed Bedroom 3 of Dwelling 2; recessed from the ground level on its southern and western sides; and is setback 4.6 metres off the western side boundary where the garage of no. 27 Dawson Street also provides an additional visual buffer to the principal rear secluded private open space of this property.
19.	For these reasons, I find that the objective at Clause 55.04-1 of the planning scheme, “To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings”, has been met.
20.	I therefore find that the proposed amendments respect the existing and preferred neighbourhood and landscape character of the area and will not have any unreasonable off-site amenity impacts on the adjoining properties.  I am satisfied that all of the clause 55 objectives have been met, including those objectives relating to neighbourhood character, landscaping, amenity and design detail.
Conclusion
21.	For the reasons outlined above I have concluded that the amended development plans and the amended landscape plan are acceptable.  These are the plans that have been formally substituted by the Tribunal.  
22.	This conclusion means that I need to set aside the decision of the Council which was to refuse the application to amend the existing planning permit.
23.	In order to approve the amended plans, the only changes required to the existing permit are to Condition Nos. 1 and 14 of the permit.  All other conditions of the permit remain the same.
24.	I have therefore directed the Council to issue an amended permit.

Tracy Watson
Member