VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2546/2018
Permit Application no. P169/2018	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Banyule Planning Scheme; General Residential Zone 2; Vegetation Protection Overly Schedule 5; Four double storey dwellings; Massing, Visual Bulk, Height; Scale; Solar Access; Front Setback; Landscaping, Roof Form; Sheer Walls; Overlooking; Topography; Shading; Noise; Parking, Storm Water.	

APPLICANT	Project Facilitator Pty Ltd	
responsible authority	Banyule City Council	
RESPONDENTS	Theo Karseras, Mr Edward Zarb & Others, Theo Karseras & Others	
SUBJECT LAND	125 Mountain View Parade
ROSANNA  VIC  3084	
WHERE HELD	Melbourne	
BEFORE	Alison Slattery, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	5 October 2020	
DATE OF ORDER	10 February 2021	
CITATION	Project Facilitator Pty Ltd v Banyule CC [2021] VCAT 4   	

Order

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:	VIA Architects Pty Ltd	
•	Drawing numbers:	TP00-050, TP00-101, TP10-000, TP10-001, TP10-002, TP10-004, TP40-001, TP40-002 to TP50-001 Revision G 	
•	Dated:	18/11/2019	
No permit granted
2	In application P2546/2018 the decision of the responsible authority is affirmed.
3	In planning permit application P169/2018 no permit is granted.

Alison Slattery
Member			

Appearances
For applicant	Mr Chis McKenzie, town planner of Planning Appeals Pty Ltd.	
For responsible authority	Mr Andrew Crack, town planner of Andrew Crack and Associates	
For respondents	Mr Theo Karseras and Mr Edward Zarb in person	

Information
Description of proposal	Construction of four double storey dwellings down the length of the lot with dwelling 1 appearing as a triple storey form due to the garaging cut in to the site below the dwelling.  Two crossovers are proposed.  One to dwelling 1 and a further driveway extending up the southern boundary servicing the remaining 3 dwellings.  Two trees requiring permission are proposed to be removed.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Banyule Planning Scheme	
Zone and overlays	General Residential Zone Schedule 2 (GRZ2). 
Vegetation Protection Overlay Schedule 5 (VPO5)	
Permit requirements	Clause 32.08-6-construction of two or more dwellings
Clause 43.02-2-2 removal of vegetation 	
Relevant scheme policies and provisions	Clauses 11, 11.02, 15.01, 16.01, 21.01, 21.02, 21.04, 21.05, 21.06, 22.02, 22.03, 22.05, 32.08, 52.06, 55 and 65   	
Land description	The site is located on the western side of Mountain View Parade, around 70 metres to the south of the intersection with Davies Street.  The current single storey dwelling on site is a cream brick, mid 20 century, pitched roof dwelling with tennis court in the rear.  This is in line with the surrounding area which contains either older housing stock of a similar era, or recently constructed infill development of single dwellings and multi units up to two storeys.
The site is rectangular in shape with a frontage of 30.48 metres (east) and a depth of 52.73 metres for a total site area of 1607 square metres.  The site includes a slope of 7 metres from the west down to the east.  The site contains trees and shrubs, two of which require planning permission for removal.  
Surrounding sites are residential in nature and generally include single and double storey dwellings of varied ages with two storey, often multi-unit infill development becoming apparent.  Dwellings generally include carports or garages set behind the frontage of the dwellings.  
Rosanna AC provides bus and train transport and shopping.  These trains/buses provide direct access to the CBD.  The site is well served with access to schools, parks, open spaces and community facilities.
Vegetation in the area is established with some properties including large trees, with the majority including well cared for gardens.  Street Trees contribute to the character of the area.	
Tribunal inspection	The Tribunal undertook an unaccompanied inspection of the site and surrounds after the hearing   	

Reasons
What is this proceeding about?
1	Project Facilitator Pty Ltd applied to the Banyule City Council for a permit to develop the land at 125 Mountain View Parade, Rosanna for the construction of four double storey dwellings, one which would face Mountain View Parade and includes a garage facility underneath, rendering it triple storey in appearance.
2	Council issued a Notice of Refusal to Grant the Permit on  27 November 2018.  The decision was based on Council’s view that the design is contrary to the character of the neighbourhood.  Council contends that this development also does not comply with the objectives of ResCode and fails to meet the objectives of the PPF and local policy.
3	The review applicant, Project Facilitator Pty Ltd, through Mr Mc Kenzie, disagrees with Council and asserts that the design has taken into account the constraints of the site and is site responsive.  He argued that the areas of non-compliance with the standards of ResCode are justified and contends that the proposal meets the objectives of ResCode.  It was his contention that the PPF and local policies lend support to the proposed development.  He submitted that the landscaping outcome was appropriate.  
What are the key issues?
4	The key issues for determination are:
a.	Is the proposal consistent with the planning policy framework of the Banyule Planning Scheme?
b.	Does the development achieve a satisfactory level of compliance with Clause 55 (ResCode)?
5	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions with regard to the applicable policies and provisions of the Banyule Planning Scheme, I have decided to affirm the Council’s decision.  My reasons follow.
Is the proposal consistent with the planning policy framework of the Banyule Planning Scheme?
Density 
6	The proposal is consistent with the Planning Policy Framework that promotes the consolidation of existing urban areas for the efficient use of existing infrastructure and services.  Mr Crack submitted that the site is not near the PPTN, but that access to services is reasonable.  Rosanna neighbourhood centre is located (as the crow flies) around 800 metres to the south east and includes daily shopping, medical facilities and a train station with ready access to the CBD.  I am satisfied that the extent of change (increase in dwellings by 3) is reasonable for a site with moderate access to services.  In this way, this is a site where the PPF would direct limited higher density development than currently exists on site.
7	The Banyule Planning Scheme includes a Local policy framework that identifies where medium density housing should occur within the municipality.  Clause 21.06 of the scheme seeks to encourage new development, which, amongst other things, responds to the character of existing residential areas.  In order to achieve this aim, the policy divides the municipality into six areas, as identified in the Residential Areas Framework.  The subject site is located within the Incremental area (reflecting the distance to an activity centre as noted above).
8	It is envisaged that the bulk of higher density development would occur within those areas categorised as Diversity and Accessible, with a more tempered change occurring in the Incremental Areas.  The proposed development, at an increase of three dwellings, will not offend against the objective of Clause 21.06 relating to density of development.  
9	The balance then, is the question the appropriateness of this development within this neighbourhood.  I find that the development is not sufficiently responsive to the built character of the area.
Neighbourhood Character 
10	A Neighbourhood Character Study has been referenced into the scheme which identifies the importance of vegetation and the landscaped character of the municipality.  This study informs the Policy at Clause 22.02 under which the subject site and the surrounding area are included in Garden Suburban Precinct 2.  In general Garden Suburban areas are described in the following manner (as relevant):
The Garden Suburban character area type has a spacious leafy character in generally formal garden settings, with space around and between dwellings, a relatively wide and open street space, and garden style vegetation, often mature and exotic, in both the private and public domain, creating an attractive, tree-dominated landscape setting in some streets. The most important characteristics of the area type are the scale, siting and architectural style of the dwellings and the vegetation and topography of their settings. 
Development in these areas should reflect the main themes of existing dwelling styles, and defined special characteristics of particular precincts should be protected and enhanced. 
11	The policy points to this area as being able to sustain a medium level of change to accommodate future increases in dwelling stock.  The policy also seeks to maintain the overall scale character of the area through the implementation of styles and scale that are sympathetic to the area.  This includes locating dwellings in vegetated surroundings and ensuring front setbacks are appropriately respected.  
12	More specifically, the statement of preferred future neighbourhood character includes the following as relevant:
a.	The character of the precinct is to be retained and enhanced by: 
i.	Designing new infill dwellings and extensions in a scale and architectural style that is sympathetic with existing dwellings in the precinct. 
ii.	Encouraging detailed design variation between dwellings to prevent mirror image street presentations. 
iii.	Maintaining the overall one or two storey scale of the dwellings in the GRZ2 or NRZ3. 
iv.	Positioning new dwellings in keeping with the front setbacks of dwellings along the street and with sufficient space for tree planting. 
v.	Positioning new carports or garages behind or in line with the dwelling. 
vi.	Providing low and permeable front fencing coupled with vegetated front gardens. 
vii.	Improving streetscapes with the consistent planting of larger street trees in avenues, retaining the eucalypt street trees and carriageway treatments, and enhancing the view of trees on private properties from the street 
viii.	Removing environmental weeds where appropriate and planting large native or indigenous trees and understorey vegetation. 
ix.	Designing site layouts (including basements) with spacing around dwellings that allows for the planting and future growth of trees to maturity. 
x.	Protecting and enhancing spines of trees along neighbouring rear yards. 
xi.	Landscaping the front setback to improve the garden setting and discourage car parking in front of dwellings. 
xii.	Ensuring basement ramps do not dominate the streetscape. 
xiii.	Designing developments with only one single width crossover and a driveway that is softened with curves and vegetation. 
xiv.	Obscuring household services from street view.
13	The policy specifically points to development within the areas in the General Residential Zone 2 having the following characteristics:
a.	These areas will protect and enhance the garden suburban character of the precinct with an emphasis on protecting trees and creating new opportunities for vegetation throughout sites. They will provide for a mix of well-designed single dwellings and medium density dwellings in garden settings, with space around and between dwellings to create an attractive, treed landscape setting.
14	I visited the site and the surrounding area and noted that there is an inconsistency of scale in that one and two storey dwellings are readily evident in the wider streetscape.  This is an area experiencing some change, with recent approvals for two storey multi-unit development in close vicinity in Mountain View Parade on the corner of Davies Street.  During my site visit I noted that the area includes buildings that date from the middle to latter part of last century and are reaching a stage where they require updating.  The lot sizes are generally around 700-900 square metres and able to accommodate more medium density development whilst maintaining a sense of openness and spacing as sought within local policy.  Existing dwellings are gradually being replaced by larger two storey multi single dwellings and multi-unit development.  
15	More specifically, Mountain View Parade is suburban in nature and moderately vegetated with on street and off street planting playing a role in this landscape.  There are a variety of building types and scale in the immediate area with multi-unit development (most often dual occupancy) the emerging replacement typology.  In addition, siting of dwellings on lots is also varied with some built form to side boundaries.  That said, front setbacks are generally consistent, and there is consistency of well planted, well established gardens.  
16	Relevantly, the Garden Suburban Precinct 2 contains objectives which seek (my underlining):
To ensure new buildings and extensions are sympathetic to the current building form and architectural style.
To ensure that household services are not a visually prominent feature
To maintain consistency of current front setbacks whilst enabling tree planting in front gardens.
To ensure buildings and extensions do not dominate the streetscape or the building, and do not adversely affect the outlook and amenity of neighbouring dwellings.
To minimise loss of front garden space, and the dominance of vehicle access, storage facilities and built form as viewed from the street.
To maintain the openness of front boundary treatments the view of established front gardens and tree lines streets, and the presentation of dwellings to the street.
To maintain and strengthen the garden dominated streetscape character and landscaped setting of the precinct.
To ensure that developments on or near ridgelines retain existing trees, sit below the tree canopies, minimise excavation, and enable further tree planting to form a continuous canopy, so that the scenic quality is maintained and enhanced.
17	I have not been persuaded that the proposed development satisfies the objectives of Clause 22.02 for the Garden Suburban Precinct 2.  That said, the development includes some positive elements that satisfy the objectives.  However, on balance, the extent of form, especially to the street and down the length of the lot, militates against approval of the development.   I say this for the following reasons: 
a.	While existing trees are not retained in full, it is noted by Council, and I agree, that the trees for removal do not have a significant impact on the character of the area.  I am satisfied that the removal of these trees is appropriate.  
b.	I have not been satisfied the replacement trees as proposed in the landscaping plan prepared by Etched (now superseded) are appropriate.  Trees include 4 larger canopy trees complemented by lower trees and shrubs.  I agree with Mr Crack that the two and three-storey built form scale in conjunction with the sloping topography, raised floor levels, minimal visual separation and the lack of suitable space for landscaping between dwellings combine to accentuate the visual dominance of the built form to the detriment of the outlook from neighbouring dwellings.  Due to these site and built form attributes, the impact of the form proposed would not be softened by the proposed planting (if I was to transpose the planting proposed in the Etched design).  To that end, the level of planting would not reflect the green and leafy character that is envisaged in policy.  
c.	The proposed site coverage is low at 34.5%.
d.	Permeability is high at 43.6%
e.	I am satisfied that the spaces between dwellings are appropriate for recreation purposes but I am not satisfied that sufficient separation is provided between each dwelling to allow for the planting and future growth of small to medium trees and understorey vegetation. 
f.	I am satisfied that tree species and planting locations have been carefully selected to avoid canopy or root conflicts with overhead wires, easements and existing trees. 
g.	I have not been satisfied that the proposed development responds appropriately to the topography of the site.  As noted above, there will be great visibility of the development up the site due to the rising topography.  This results in a three storey appearance at the frontage of the site that rises up in to higher perceived forms.  This scale of development is not readily apparent in the streetscape and is not responsive to the character of the area.  The design is monumentalist at the frontage with increasing understanding of form into the rear of the block.  This design ethic is unrelenting and out of character in this area where dwellings are located within garden settings and where large trees dominate over built form.  
h.	Such dominant form is exacerbated by the sheer walls, lack of articulation and lack of variety in materials.  The result is high scale development that is unrelieved, and continues unrelieved well into the site.  
i.	Cut and fill exacerbates the perception of the bulk, especially to the frontage of the site which appears as a three storey element.
j.	Not only are trees not appropriately placed to screen views of the development, the development itself includes excessive and prominent hard surfacing that is not in keeping with the character of the area.
k.	First floor portions of buildings are not reasonably recessed from ground level wall surfaces, and offer a poor sense of articulation horizontally and vertically.
l.	Roof forms are dissimilar to those found in the streetscape and do not serve to minimise the impacts of the sheer walls and excessive scale of form.
m.	No solar panels are included.
n.	External storage has not been shown.
o.	The front setback to Mountain View Parade meets the ResCode standard.  However, the front setback is far less than surrounding properties, and is incongruent in the streetscape and allows greater views to the development.  I have not been persuaded that the front setback appropriately transitions to the predominant setback along the street.  
p.	The garaging of dwelling 1 is prominent in the streetscape, in opposition to policy objectives.
q.	A 1.5 metre front fence is provided to the street elevation.  I am satisfied that this fence is in keeping with the predominant characterises of the area where fences are readily apparent.
18	I find that the development is non-compliant with the objectives of Local Policy as noted above.    
Does the development achieve a satisfactory level of compliance with Clause 55 (ResCode)?
19	Several areas of ResCode compliance were included as grounds of refusal or of concern to residents.  These include Neighbourhood Character, Street Setback, Access, Energy Efficiency, Landscaping Objective, Shading, Overlooking and Design Detail.  
20	I agree with Banyule Council in its determination.  Although the development displays compliance with many objectives and standards of Clause 55 (ResCode), I have not been satisfied that the proposed development complies with all Clause 55 objectives and represents an overdevelopment of the site.  I say this for the following reasons:
a.	As noted in the previous section, I am not satisfied that the proposed development responds well to the character for this area as sought in local policy.  In addition, as previously stated, landscaping opportunities are inappropriately provided in line with the policy direction for this area.  
b.	As noted previously, the front setback to the street frontage does not respect the existing nor preferred neighbourhood character of front setbacks.  I am not satisfied that the 9 metres (approx.) setback represents an appropriate transition in the streetscape where dwellings to Mountain View Parade are set back over 15 metres, and many over 20 metres.
c.	The maximum height of the buildings is compliant.  However, as noted above, I am dissatisfied with both the presentation of dwelling 1 as a three storey element, and also the perception of the increase in form down the length of the lot.  These higher forms are incongruous in the streetscape and are exacerbated by sheer walls and minimal variety in materials.  As a result, the dwellings have an unreasonable presence in the streetscape. 
d.	The site coverage is less than 40%
e.	The permeability is 43.6% which is excellent.  However, as noted above, the opportunities that such permeability provides have not been availed to provide for adequate landscaping.  
f.	Dwelling entries are highly visible with dwelling 1 facing Mountain View Parade and other dwellings including identifiable entry areas. 
g.	Infrastructure is readily available.  There has been concerns raised regarding the flooding of this area.  The flooding was noted both by Council and residents as a well known and regular occurrence.  Any new development should seek to ameliorate any offsite flooding impacts from the development.  I understand that Banyule Council is in the process of addressing the flooding concerns of residents, especially as it relates to the wider area, in particular, to Waiora Road.  This is an admirable and wise task that the Council undertakes, one that can hopefully address the flooding issues for this area into the future.   
h.	The side and rear setbacks comply with the standard.  However, as noted previously, I have not been satisfied that the side and rear setbacks provide opportunity for appropriate planting.  
i.	No new wall is proposed to be located the boundary.
j.	Provision is not made for storage or solar panels.
k.	Mail boxes have not been shown.
l.	Two new crossovers are proposed to Mountain View Parade.  I have not been satisfied that this level of parking access maintains the rhythm and character of the streetscape in Mountain View Parade as the two driveways results in excessive hard surfacing both to the frontage and to the southern boundary where canopy tree vegetation ought otherwise be located.
m.	Parking spaces for dwellings have direct access to dwellings.  
n.	Overlooking in any new development proposal can be minimised via screening that is in line with Standard B22.
o.	Overshadowing in any new development proposal needs to be cognisant of the solar facilities on adjoining properties.
p.	Dwellings have good access to northern light to the living areas and open spaces.
q.	Private open spaces provided are reasonable in that at between 47 and 307 square metres of open space is provided, of which at least 25 square metres with a minimum dimension of 3.0 metres has been provided as secluded private open space.  The location of the SPOS of dwellings is excellently located to the north of the dwellings.  
r.	I see no sources of noise that are located close to boundaries, such as mechanical devices.  Air conditioners are located on the roof.
s.	I find that the development incorporates several unreasonable design elements as iterated previously that inadequately protects the amenity of the surrounding properties and militate against approval of this proposal, such as sheer walls, triple storey presentation, higher presentation down the length of the lot, limited variation in materials, incongruous roof forms and limited landscaping.
21	I find that the development is non-compliant with the objectives of ResCode as noted above.    
Clause 52.06 parking and traffic
22	The provision of parking is in line with the requirements of Clause 52.06.  The number of car spaces provided is appropriate and I do not share concerns regarding increased traffic from three additional dwellings.  I have not been presented with any evidence that this increased traffic will overload the capacity of the road network.  This extent of parking, the location of parking spaces, and the reversing required is a practice that is undertaken daily throughout Melbourne and not an unusual feature of suburban development, such that Clause 52.06 clearly contemplates such provision of parking.
23	Having said that, I find that the access arrangements are poor from a character and built form perspective.  Two crossovers are proposed, one to dwelling 1 and one to the remaining 3 dwellings.  This serves to increase the extent of hard surfacing to the frontage, reducing the opportunity for tree planting and lower order landscaping.  In addition to this, and more problematic is the extent of the driveway extending high into the site, that serves the 3 rear dwellings.  This driveway includes extensive paving which reduces opportunity to plant trees in line with policy expectations and also provides greater view opportunities through to built form which is sheer and unrelenting.  
Conclusion
24	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Alison Slattery
Member