VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. p2124/2019
Permit Application no. 718188	
CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Whittlesea Planning Scheme; Residential Growth Zone – Schedule 1; Neighbourhood renewal housing change area; Design response; Street setback; Landscaping; Clause 55.	

APPLICANT	MS Designer Living	
responsible authority	Whittlesea City Council	
SUBJECT LAND	4 Messmate Street, Lalor	
HEARING TYPE	Hearing 	
DATEs OF HEARING	15 September 2020 & 4 November 2020	
DATE OF ORDER	11 December 2020	
CITATION	MS Designer Living v Whittlesea CC [2020] VCAT 1405	

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:	MS Designer Living	
•	Drawing numbers:	TP1/4, TP2/4, TP3/4, TP4/4	
•	Revision reference:	Revision A, VCAT submission	
•	Dated:	16/9/20	
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by including an additional permit trigger, as follows:
To reduce the visitor car parking space required under clause 52.06-5.

No permit granted
3	In application P2124/2019 the decision of the responsible authority is affirmed.
4	In planning permit application 718188 no permit is granted.

S McDonald
Member			

Appearances
For applicant	Mr Matthew Buckmaster, Buckmaster Town Planning	
For responsible authority	Mr Murray Ness, Whittlesea City Council	

Information
Description of proposal	The proposal is to construct six two-storey dwellings and reduce the requirement for one visitor car parking space.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Whittlesea Planning Scheme (planning scheme).	
Zone and overlays	Residential Growth Zone–Schedule 1 (RGZ1);
Development Contributions Plan Overlay–Schedule 3 (DCPO3).	
Permit requirements	Clause 32.07-5:  To construct two or more dwellings on a lot in the RGZ1.
Clause 52.06-3: To reduce the visitor car parking space required under clause 52.06-5.	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 21.02, 21.03, 21.04, 21.09, 22.01, 22.11, 22.16, 32.07, 45.06, 52.06, 53.18, 55, 65 and 71. 	
Land description	The subject land is located on the northern side of Messmate Street, Lalor, between May Road (to the west) and French Street (to the east).  It is rectangular, with a frontage to Messmate Street of 15.24 metres, a depth of 42.6 metres, and a total area of approximately 650 square metres.  The land is relatively flat.  A 2.44 metre wide drainage and sewerage easement extends across the width of the land, adjacent to the northern (rear) boundary.  The land is occupied by a single-storey dwelling and associated outbuildings.
The surrounding area to the south, east, and north-east is residential, with a predominance of older single-storey detached houses.  The land to the west of May Road is the Lalor shopping centre.
The adjoining property to the west (2 Messmate Street) is occupied by a single-storey detached house.  The adjoining land to the north (1-3 Cyprus Street) is occupied by a public car park, as is the land along May Road.	
	The adjoining property to the east (6 Messmate Street) is a single-storey medical centre.  That building occupies the rear half of the site and an open car park occupies the front half.

Figure 1:  Subject land and adjoining properties

Figure 2:  Subject land in broader surrounding context

Reasons
What is this proceeding about?
1	MS Designer Living (applicant) is seeking a planning permit to develop six dwellings on the land at 4 Messmate Street, Lalor (subject land).
2	Notice of the planning permit application was given and there were no objections to the application.
3	The Whittlesea City Council (responsible authority) refused to grant a planning permit on grounds relating to the urban design outcome, inconsistency with the local Housing Diversity and Design policy (clause 22.16), housing diversity, neighbourhood character, landscaping, non-compliance with clause 55, non-compliance with planning scheme requirements introduced by Amendment C200, waste collection and bin storage, and car parking.
4	The applicant has sought this review of that decision.  Its statement of grounds in support of this application essentially counter the grounds of refusal.
5	At the commencement of the first hearing day it emerged that the plans filed with the Tribunal as part of the application for review differed to those that comprised the planning permit application plans.  The hearing was adjourned prior to submissions regarding the merits of the application were heard.  The applicant subsequently gave notice of an application to amend the permit application by substituting amended plans and to confirm that the application included a reduction of the visitor car parking requirement.  There being no objection to the amendment of the permit application the application has been amended accordingly and it is on these amended plans that this decision is based.
6	The responsible authority acknowledges that the subject land is suitable for a medium to higher density residential development, but that the policy support includes a range of balancing factors that have not been incorporated into this proposal.  It submits that the extent of compromises that the proposal is seeking is unreasonable and fails the test of the proposal being site responsive and properly responding to policy.  It says there are numerous design deficiencies that do not provide an appropriate neighbourhood character response and that it does not deliver a reasonable amenity for future residents.
7	The applicant submits that the proposal displays a high level of consistency with the relevant provisions of the planning scheme, particularly the RGZ1, the Housing’ statement at clause 21.09, the Housing Diversity and Design’ policy at clause 22.16, and the relevant objectives and standards of clause 55.
8	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  In doing so I must consider whether the proposal will produce ‘acceptable outcomes’ in relation to the relevant policies and provisions of the planning scheme.  In having regard to the planning policy framework, I must endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
9	Based on the statements of grounds and submissions, I consider the key issues to be determined are:
•	Is the proposal an acceptable design response to the physical context and planning policies and provisions?
•	Will the proposal provide an acceptable amenity for future residents?
•	Does the proposal provide an acceptable response to the objectives and standards of clause 55?
•	Does the driveway provide for safe, easy and efficient access?
•	Is the reduction in the visitor car parking acceptable?
10	Having considered the statements of grounds and submissions, and the relevant policies and provisions of the planning scheme, I have decided to affirm the decision of the responsible authority and direct that no permit be issued.  My reasons follow.
What is proposed?
11	The proposed dwellings are arranged in an attached form down the length and across the rear of the land.  Unit 1 faces and has its pedestrian access from the street.  A shared driveway extends along the eastern side, providing pedestrian access to units 2 to 6 and vehicle access to all six units.
12	Units 1 to 4 (the front four dwellings) are a ‘reverse living’ format.  Each unit has one bedroom, laundry, service yard, storage and garage, and in the case of unit 1 a bathroom, at the ground floor level.  The upper levels of each contain an open plan kitchen/living/meals area, one bedroom, bathroom, and balcony.  The balconies cantilever over the driveway.
13	Units 5 and 6 (the two rear dwellings) have their kitchen/meals/living area at ground floor level.  The upper levels each contain two bedrooms and a bathroom.  Their secluded private open spaces are at ground floor level, in the rear setback area.
14	Units 1 to 5 have a single-car garage, while unit 6 has a single car space that is partially covered by the cantilevered first-floor level of that unit.  No visitor car parking is provided.
15	The dwellings are contemporary in design, with a mix of hip, flat and skillion roofs and a variety of materials and finishes (see Figure 3).  The maximum height of the development is 7.9 metres.
Figure 3:  3D representation of the proposed development

What are my findings?
16	I am satisfied that there is clear strategic policy support for a high level of housing change in this location.  The subject land is within a ‘neighbourhood renewal’ housing change area under the Housing Diversity Strategy (2013) and the local Housing statement at clause 21.09-4.  Neighbourhood renewal housing change areas are second highest in the hierarchy of six categories of housing change.  The objectives of the local Housing Diversity and Design policy at clause 22.16 also ‘support the highest level of housing change in proximity to City of Whittlesea’s Principal Public Transport Network and Metropolitan Activity and Neighbourhood Activity Centres, to reduce car dependency’.
17	The preferred housing types in neighbourhood renewal areas are anticipated to ‘be characterised by medium and higher density housing that is appropriate in a neighbourhood context such as townhouses, multi-units, small scale apartments, and shop-top housing and mixed use developments’.
18	These local policies underpin and support the RGZ1 that applies to the subject land and surrounding residential area.  The purpose of the RGZ1 includes ‘to provide housing at increased densities in buildings up to and including four storey buildings’ and ‘to encourage a diversity of housing types in locations offering good access to services and transport including activity centres and town centres’.
19	I am satisfied that the subject land is well located with access to a range of services.  It is adjacent to the Lalor ‘neighbourhood activity centre’, with the edge of the Commercial 1 Zone commencing at May Road, one property to the west of the subject land.  Even though the land is not necessarily in an easy walking distance to the two closest train stations, there is a bus route along Station Street, less than 200 metres to the west of the subject land, that provides access to both stations.  In any case, the land’s location at the edge of the Lalor neighbourhood activity centre supports its potential for a high level of change in the policy context.
20	In this policy and physical context, I am satisfied that a proposal for six townhouses provides an acceptable response to the intensity and typology of housing anticipated in this area.
21	My reasons for finding that no permit should be granted for this proposal relate to matters of the design response and amenity.
Is the proposal an acceptable design response to the physical context and planning policies and provisions?
22	The responsible authority takes issue with several aspects of the overall design response of the proposal, including the street setback, the reverse living format of units 1 to 4, the private open spaces, landscaping, and the scale of the development.
23	I do not share the responsible authority’s concerns with the overall scale of development or the reverse living format in principle.  In the policy context that supports high levels of housing change it can reasonably be expected that new dwelling developments will be of a larger scale and more robust form than the traditional housing stock of single-storey detached houses.  Indeed, the preferred housing types for neighbourhood renewal areas contemplate townhouses and small scale apartment developments, and the RGZ1 provides for buildings up to four storeys. 
24	Rather my concerns with the proposal’s response to the physical context and planning policies and provisions relate to the street setback and landscaping.
Street setback
25	I find that the proposed setback from the Messmate Street boundary is unacceptable.  The front wall of unit 1 is to be set back 3.0 metres from the street boundary, with the porch encroaching into this setback by 1.0 metre.  This is inconsistent with the standard B6 under the street setback objective at clause 55.03-1, as varied by the RGZ1 schedule.
26	While the local variation to standard B6 provides for buildings to be set back as little as 3 metres, this is not the applicable setback in the circumstances of the subject land.  The local variation to standard B6 requires a minimum front setback of one metre less than the average distance of the setbacks of the front walls of the existing buildings on the abutting lots facing the front street, and that the setback must not be less than 3 metres.  In the circumstances of the buildings on the two adjoining properties, with setbacks of 7.7 metres and 23.32 metres, the required setback is 14.51 metres.
27	I agree with the responsible authority that the 23.32 metres setback of the medical centre is an anomaly within Messmate Street and would lead to an absurd outcome for the required setback for the subject land.  I also agree with the responsible authority that, in the absence of information regarding the prevailing setbacks of buildings in Messmate Street, applying the setback of the dwelling at 2 Messmate Street is an appropriate benchmark for the setback.  On this basis a minimum setback of 6.7 metres would be acceptable, however the proposed setback is less than half this.
28	Having regard to the typical setback of existing buildings in this section of Messmate Street, which reflect that of the dwelling at 2 Messmate Street,  I find that the proposed setback is not acceptable.  Rather the proposed setback will be an anomaly in the streetscape and have an unacceptable visual impact.  The visual impact will be emphasised by the two storey form of unit 1, the substantial setback of the medical centre at 6 Messmate Street, and proposed unit 1 being built along the western boundary for approximately 5 metres forward of the existing dwelling at 2 Messmate Street.
29	I am not persuaded by the applicant’s submissions that the reduced front setback is consistent with the design principles in the Housing Diversity Strategy that seeks reduced front setbacks to activate the streetscape.  Rather, I give greater weight to the local variation to standard B6 under the RGZ1 schedule, than the design principles in the Housing Diversity Strategy.  The Housing Diversity Strategy is a policy reference document to the Housing Diversity and Design policy at clause 22.16, whereas the local variation to standard B6 is a prescriptive standard within the scheme.  I consider the local variation to standard B6 provides clear guidance about the expectations for the street setback and reflects the design principle in the Housing Diversity Strategy by incorporating a reduction of the average setback by 1 metre within the varied standard.
30	Even though development in and the future character of this area can reasonably be expected to change and intensify, this does not persuade me that such a substantial reduction in the street setback is acceptable in the circumstances of the local variation to standard B6 or the physical circumstances of the subject land.
Landscaping
31	I find that the proposed landscaping does not provide an acceptable response to the planning policies and provisions.  The design objectives at of the RGZ1 seek that ‘landscape plans will maximise landscaping within the front setback and throughout the site, which may include on balconies, roofs and walls’.  The landscaping objectives at clause 55.03-8 seek, as relevant to the circumstances of the subject land, ‘to encourage development that respects the landscape character of the neighbourhood’ and ‘to provide appropriate landscaping’.  The key design principle for landscaping in the Housing Diversity Strategy seeks for ‘landscaping to complement medium to higher density built form’.
32	The applicant submits that the proposed landscape plan provides meaningful landscaping that reflects the character of the area and provides small canopy trees to soften the appearance of the dwellings on Messmate Street and the surrounding area.  The landscape plan includes two canopy trees in the front setback, and two in the rear setback.
33	I am not persuaded that the spaces available for landscaping are consistent with the design objective of the RGZ1 or that the landscaping will complement the built form.  While I consider the landscape plan makes the most of the spaces available, I am not satisfied that the proposed landscaping can overcome the limitations of these spaces.
34	The substantially reduced street setback is inconsistent with the objective of maximising landscaping within the front setback.  Despite the applicant’s submission that the 3.0 metre setback can accommodate landscaping, the area actually available for landscaping is reduced by the front porch and path to unit 1, architectural features of the front facade, and the letterboxes for all six units that are proposed across the frontage.  At the hearing it emerged that the area available for landscaping, including the siting of one of the two proposed canopy trees, may need to be further reduced to provide access to the letterboxes.
35	There are also minimal opportunities for landscaping along the side setback areas.  The siting and layout of the buildings and driveway provide for a narrow (0.5 metre) strip of landscaping along only one side of the driveway.  The proposed landscaping in this strip is proposed to be ground covers and sections of climbing plants up to a height of 2.2 metres, which will only marginally extend above the height of the boundary fence.  The small triangles of landscaping to the side of the entry doors of units 2 to 4 are to be planted with ground covers.  As these will be covered by the cantilevered first floor levels, I have concerns about the viability of any landscaping in these locations, despite the assurances of Mr Buckmaster that the proposed plants are shade tolerant and that a watering system could be installed.
36	The small areas of open space of units 2 to 4 along the western boundary are set aside as service yards, with only small patches of low level planting proposed.  This landscaping will not be visible from the surrounding properties or public realm.
37	Overall, I am not satisfied that the landscaping provides an acceptable response to the design objective of the RGZ1.
Will the proposal provide an acceptable amenity for future residents?
38	The objectives of the Housing Diversity and Design policy seek ‘To encourage residential development that maintains and enhances internal and external amenity for existing and future residents’.  The policy itself provides no specific guidance as to how this is to be achieved, but requires consideration of the extent to which a proposed development meets the objectives and policy statements of this policy, and the design objectives for the housing change area.
39	As relevant to matters of amenity, the policy statement for housing design seeks to encourage development that, among other things:
•	Achieves Secluded Private Open Space that demonstrates useability and achieves positive amenity by providing adequate circulation space for recreational use and outlook.
•	Provides shared bin storage that is screened and located away from dwelling entry points and windows.
40	The key design principles for neighbourhood renewal areas under the Housing Diversity Strategy include, among other things:
•	Building heights that allow for all levels to achieve passive surveillance.
•	Usable private open space, balconies and communal shared spaces.
•	Support ‘reverse living’ arrangements in townhouses (where living areas are at the upper level and secluded private open space is on a balcony or deck) when all of the following circumstances exist:
o	no other options are available; and
o	enhanced outlook opportunities exist, such as adjacent public open space, or attractively landscaped communal open space within the site; and
o	the balcony is designed or located to minimise the need for overlooking screening.
41	I find that the proposal does not provide an acceptable response to these policies or an acceptable amenity for future residents.  I say this for the following reasons.
Balconies of units 1–3
42	While I do not in principle take issue with the reverse living format of units in this proposal, I am not satisfied that the siting and design of the balconies of units 1–3 provide for an acceptable amenity for these spaces.
43	These balconies are set back only 1.3 metres from the eastern side boundary and will have an interface to the car park of the adjoining medical centre.  The proposal does not provide for landscaping on the subject land to extend above the floor level of the balconies to filter or screen views between the balconies and the medical centre car park.  Nor is there any landscaping along the medical centre car park at the interface with the subject land that would filter views.
44	While the glass balustrading along the eastern side of these balconies could be changed to provide a greater degree of privacy, I am not satisfied that this alone will ensure an acceptable amenity for these spaces.  In this regard I note that there is nothing about the siting of these balconies or the existing and proposed landscaping that provides enhanced outlook opportunities, as sought by the housing design policy statement at clause 22.16-3.
Ground floor level bedrooms of units 2 to 4
45	I am not satisfied that the outlook from the ground floor level bedrooms of units 2 to 4 will be acceptable.  These bedrooms have an outlook to a 6.6 square metre service yard that is to accommodate clotheslines and bin storage.  While the landscape plan shows a patch of landscaping in front of the window of each of the bedrooms, I am not persuaded that the proposal for 0.7 metre high plants across the front of each window will offset the poor amenity of this outlook.  Also, irrespective of where the bins are placed within the service yards, they will be near the bedroom windows, with the potential for impacts from odour.
Location of communal bin storage
46	I find that the siting of the storage area for the communal recycling bins in the driveway is not acceptable.  The bin storage area is next to the entry of unit 4, adjacent to the access to the entry to unit 5, and opposite the living room window of unit 6.  Other than a nib wall (with a window insert) to the side of the bin storage area screening the bins from the entry to unit 4, there is no other screening proposed.  While locating communal bin storage areas adjacent to the communal driveway is practical and convenient, I am not satisfied that the siting and screening of the proposed bin storage area in this proposal is sufficiently resolved to provide an acceptable amenity outcome.
Does the proposal provide an acceptable response to the objectives and standards of clause 55?
47	The responsible authority submits that the proposal fails to meet a number of standards at clause 55, including energy efficiency, safety, walls on boundaries, daylight to existing windows, private open space, solar access to open space, and site services.  At the hearing I sought submissions on other matters including dwelling entry and storage.  The applicant addressed each of these matters in its submission and submits that the proposal is consistent with the relevant objectives.
48	I find that the proposal fails to provide an acceptable response to many of these objectives and standards as follows:
i	The proposal does not maximise the opportunities for solar access to north-facing windows of units 1, 3 and 4, as sought by standard B10 at clause 55.03-5 (Energy efficiency objectives).  Although north facing windows are provided, they are ‘highlight’ windows with high sill levels that will not maximise solar access.
ii	The proposal provides limited opportunities for passive surveillance of the driveway area as sought by standard B12 at clause 55.03-7 (Safety objective).  There are no habitable room windows at ground floor level of units 2 to 5, and the cantilevered balconies obscure the dwelling entries from view from windows above.  While there are some windows at the upper level facing the driveway, they are mostly highlight windows that do not provide for views down to the driveway and dwelling entries.  While dwellings 2 and 3 are provided with a ‘side light’ window beside their entry doors and unit 6 has a living room window facing the driveway, these are limited opportunities for passive surveillance of the driveway and dwellings entries in a development of six dwellings.
iii	The siting of boundary walls opposite the habitable room windows of the dwelling at 2 Messmate Street results in the proposal not providing a light court with a minimum dimension of 1 metre clear to the sky in accordance with standard B19 at clause 55.04-3 (Daylight to existing windows objectives).  The applicant’s reliance on raking the ceilings of the ground floor level bedrooms of units 2 and 3, to lower the height of the boundary wall opposite these windows to minimise the impact on daylight, will be at the expense of the internal amenity of those bedrooms.  Given the proposal includes service yards along this boundary interface, the siting of the boundary walls opposite these habitable room windows is indicative that the design response has not responded to the site context in an acceptable way.
iv	The design relies on opaque glazing and highlight windows to address the potential for overlooking in relation to standard B22 and the overlooking objective at clause 55.04-6, without there being evidence of an assessment of which windows require screening. Given that some of the windows at first floor level face the internal driveway, and others the public car park to the rear, it is possible that not all the windows require screening.
v	The dwelling entry to unit 5 is poorly resolved, with it presenting as a door in a blank wall.  This entry is in the far corner of the communal driveway, not visible from the street or much of the driveway, with no shelter and no windows of the dwelling at ground floor level facing onto the entry or driveway.  As such, I find this dwelling is not provided with a sense of identity, as sought by the dwelling entry objective at clause 55.05-2.
vi	The proposal does not provide adequate storage facilities for units 2 to 4.  Despite the plans showing a storage area of ‘6m2’ in the garages of each of these units, at the hearing the applicant conceded that these areas would provide only 3 cubic metres of storage.  This is half the amount required under standard B30 at clause 55.05-6 (Storage objective).
Are there any other issues?
49	Based on the reasons outlined above I find that no permit should be granted.  It is therefore unnecessary for me to make findings on the other key issues.  However, to assist the parties in any future application for a revised development proposal I make the following observations:
i	The ground level layout and front facade of unit 1 is not well resolved to achieve an active frontage to the street and passive surveillance of the dwelling entry.  Although there is one bedroom facing the street at ground floor level, most of the frontage is occupied by the stairs, a laundry and a bathroom.  These provide limited opportunities for windows facing the street and the dwelling entry.  Another concern is the amenity implications of providing a full height window to the ground floor level bathroom of this unit.  This window will be afforded little privacy, being set back only 3 metres from the street frontage and adjacent to the driveway entry to the other five units.
ii	The width at the driveway to the garages of units 2 to 4 is less than the minimum width required under design standard 2 at clause 52.06-9 (Design standards for car parking).  Based on the 3.0 metre width of the entries to each of the garages the accessway is required to be 5.2 metres wide.  The proposed driveway is approximately 4.8 metres.  I am not persuaded by the swept path analysis included in the Traffic Impact report that formed part of the permit application that vehicles will be able to safely, easily and efficiently enter and exit these garages.  The swept path diagrams indicate that vehicles may encroach into areas set aside for landscaping, the entry porches to dwellings and the columns to be located along the eastern edge of the driveway.  In the absence of expert evidence to support the swept path analysis or the applicant’s submissions, I defer to the design standards in the planning scheme.
iii	The waste collection for the development has not been resolved.  It is unclear whether a waste vehicle will be able to undertake waste collection on site, if required to do so, due to the dimensions of the driveway and the balconies overhanging it.
50	I also make the following observations in relation to the application plans and information.
i	The original permit application plans and the amended plans did not provide relevant information to assist with the assessment of the proposal.  For example, it appears that the original application was not accompanied by a neighbourhood and site description or design response, and the original application plans and the amended plans do not include key dimensions such as the side boundary setback of the dwelling on at 2 Messmate Street.  This has resulted in there being uncertainty about the prevailing setback of dwellings in this section of Messmate Street, and the assessment of the proposal against standard 55.04-3 (Daylight to existing windows objective), among other things.
ii	While it is incumbent on the permit applicant to provide relevant and accurate information to enable assessment of a permit application, it is also incumbent on the responsible authority to ensure that it has the relevant information it requires to undertake an assessment, and if not to seek further information.  It is of no assistance to anyone involved in the permit application and review processes if relevant information is not provided.
Conclusion
51	While each of the individual issues with this proposal may not warrant refusal of the application, I find that in combination the proposal does not provide an acceptable design response to the physical context and planning policies and provisions.  On balance, I find that this proposal seeks to capitalise on the potential for housing change at the expense of an acceptable design response and amenity, and does not provide a net community benefit and sustainable development outcome.
52	It may be that each of the individual issues with this proposal could be resolved through amendments to the plans.  However, given the number and nature of the issues I am not satisfied that they can reasonably be addressed through permit conditions or an interim order allowing for amended plans to be provided for further consideration.  In particular, the issues of the street setback and siting of the balconies may require substantial changes to the plans.
53	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

S McDonald
Member