VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P125/2019 
Permit Application no. PLP206/18	

APPLICANT	Abdulrahman Abdul-Rahman	
responsible authority	Mitchell Shire Council	
SUBJECT LAND	8 Eden Place, Wallan	
HEARING TYPE	Hearing	
DATE OF HEARING	2 February 2021	
DATE OF ORDER	17 February 2021	
CITATION	Adbul-Rahman v Mitchell SC [2021] VCAT 112  	

Order

No permit granted
1	In application P125/2019 the decision of the responsible authority is affirmed.
2	In planning permit application PLP206/18 no permit is granted.

Tracey Bilston-McGillen
Member			

Appearances
For applicant	Mr Zoran Sanjinovic, town planning consultant, 2181 Planning.  He called the following witness:
Mr Herman Lai, traffic engineer, Cardno.	
For responsible authority	Mr Rees May, town planner.	

Information
Description of proposal	The construction of thirty-one double storey dwellings.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Zone and overlays	General Residential Zone Schedule 1 [GRZ1].
Development Plan Overlay Schedule 15 [DPO15].	
Permit requirements	Clause 32,08-6 a planning permit is required to construct two or more dwellings on a lot.
Having regard to clause 43.04-1, a permit must not be granted to construct a building until a development plan has been prepared to the satisfaction of the Responsible Authority [RA].  Section 1.0 of schedule 15 to the DPO, the RA may grant a permit to construct a building before a development plan has been prepared.
Clause 52.19.  Planning permit PLP261/19 has been issued for the removal of native vegetation.
A Cultural Heritage Management Plan [CHMP] has been prepared by Australia Cultural Heritage Management sponsored by Albilly Group Pty Ltd on 8 November 2020. The plan has been reviewed by the Registered Aboriginal Party (Wurundjeri Woi-wurrung) and approved on 10 November 2020. 	
Key scheme policies and provisions	Clauses 11, 15, 16, 18, 19, 32.08, 52.06, 55 and 65.   	
Land description	The site is located on the north eastern side of Eden Place Wallan, at the end of the court bowl.  The site is irregular in shape and has an area of 8,678 square metres.
The area is characterised by residential development ranging from single dwellings on large lots to multi dwelling development. 	

Reasons
1	This is an application for review against the decision of Mitchell Shire Council [Council] to refuse to grant a planning permit for the development of 8 Eden Place Wallan for dwellings.  Council refused the application of the grounds that the proposal would prejudice the desired outcomes of DDO15, the absence of an approved Development Plan for the entire area would result in a disorderly planning outcome for the area, the proposal would detrimentally impact on the amenity of adjoining residents, does not respect the character of the area, the layout results in poor vehicle movements through the end of Eden Place and the proposal fails to meet the requirements of clause 52.06.
2	The applicant submitted that the proposed development is acceptable having regard to the planning scheme, neighbourhood character, amenity impacts and vehicle movements.  
3	It is proposed to construct 31 double storey dwellings described as follows:
•	A central driveway is proposed which divides the dwellings to be located along the western boundary and to the eastern portion of the site.  
•	A single access point is proposed from Eden Place.  
•	The dwellings accommodate a combination of two and three bedrooms, living, dining and kitchen areas as well as a single car garage with tandem car space.  
•	The dwellings are a combination of brick, tender and timber construction using earthy and muted tones.  
•	Each dwelling is provided with a courtyard ranging from 40 to 180 square metres.  
•	The site is proposed to be landscaped around the perimeter of the site with two pockets of land located in the northern corner and on the eastern boundary providing a green space.
4	Having regard to the proposed development, the provisions of the planning scheme and the submissions and evidence, I have decided to affirm the decision of the Council and order that no permit be granted.  This is not a case about whether or not the site is appropriately zoned.  The site is zoned GRZ which is a zone that encourages a diversity of housing types and growth in locations with access to services and transport.  The zone also, however, encourages development that respects the neighbourhood character of the area.  
5	I am concerned that the number of dwellings proposed has been squeezed on to the site with little regard to the character of the area.  I agree that there is a tension between providing for future growth and development of an area particularly when the zoning is GRZ but there are neighbourhood character considerations.  
6	As to the issue of the DPO15, the absence of an approved development plan for the site or the DPO area would not have prevented the granting of a planning permit if I considered the form of development appropriate.  My reasons for this refusal follow.
Reasons for REfusal
Neighbourhood character
7	The planning scheme does not include any specific statements in respect to preferred character or character guidelines for this particular area.  There is no neighbourhood character overlay.  Therefore, I am required to assess the proposal against existing neighbourhood character, relevant objectives under the Scheme and clause 55 provisions.  Clause 21.11 Local Areas planning policy identifies that Wallan has an estimated population of 10,000 persons.  The policy at clause 21.11-9 Wallan, establishes a number of strategies in relation to housing including:
Provide sustainable growth and housing for all
•	Provide a diversity of lot sizes throughout Wallan to create a range of housing, lifestyle and affordability choices including shop top housing, apartment buildings on large and consolidated lots and townhouses within the Town Centre. 
•	Ensure new residential communities are designed to respond to the natural environment and landscape setting. 
•	Support residential development in close proximity to shops, services, open space and public transport. 
•	Encourage infill development within established residential areas. 
•	Support residential development that provides a variety of lot sizes. 
•	Support the conversion of inadequately serviced low density residential areas to residential development densities where urban services are provided and the development is linked to the formation of the town centre.
8	The Wallan Town Centre Master Plan and Urban Design Framework at clause 21.11-9 identifies the site as ‘existing residential’.  It does not identify the site or area as ‘residential intensification proposed’.  I note that the areas for intensification are located to the north of the site and Watson Street and west of the Northern Highway.  
9	The GRZ sets the following objective regarding neighbourhood character:
To encourage development that respects the neighbourhood character of the area.
10	Clause 55 establishes the following neighbourhood character objectives 
To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character. 
To ensure that development responds to the features of the site and the surrounding area.
11	Council refused the development on the ground that the proposed development failed to respect the character of the area.  Council submitted that clause 55.02-1 Neighbourhood Character seeks to link the proposed design to the existing character of the surrounding area.  It was further put that the proposed development has adopted the built form found within the existing unit developments located to the west of the review site, although, Council submitted that this development is not considered to be an appropriate adoption of existing character.  
12	The applicant submitted that the proposed development responds to the existing character and responds to the features of the site and surrounding area.  It was submitted that the proposed building form, landscape provision and setbacks are all characteristic within this neighbourhood.  

Figure 1 Outline of proposed development layout.

13	I am persuaded by Council that the proposed form of development is out of character with the future vision of the area.  Eden Place runs in an east/west direction off Windham Street.  It is located at the end of the ‘court bowl’ adjoined by, in part, single dwellings on large allotments and a multi dwelling development.  
14	I consider there is a twofold character of Eden Place.  There has been several lots development with multi-dwellings whilst some lots remain undeveloped with single dwellings.  From my site visit, I observed that the key character elements of Eden Place include the very large lot sizes with limited frontage to Eden Place and low rise development.  Despite the intensity of form displayed in the aerial photograph below, Eden Place still exhibits the features of a rural/residential area despite the density of development that has occurred at 4 and 5 Eden Place.  
15	The photograph below is a birds eye view of the density of development in Eden Place.  As can be viewed, the sites to the west include one lot with a single dwelling as well as multi dwelling development.  I am also aware that a permit has been issued for the development of six dwellings at 9 Eden Place Wallan (a site with an area of almost 6,000 square metres).  To the east of the site, lots are generally developed with single dwellings on large lots.  

Figure 2: Aerial photograph of review site and surrounds.  Source nearmap.

16	What is proposed here, is a ‘step up’ in form and density than what currently exists (and has approval for) in Eden Place.  I find the density of 31 dwellings is too intense for the residential/rural character of the area.  Dwellings 16 to 20 and 21 to 24 also appear squeezed on to the site.  I further find that the form is foreign to the area and out of character.  I make these findings in the context that a GRZ seeks to encourage a diverse range of dwellings, but that development is to respect neighbourhood character, existing and vision.  It is also in the context that there is stark difference in the level of intensity of development located to the west and part west (front site fronting Eden Place) and the east of the site.  
17	The dwellings proposed include a design (Type 1) that is box like with a flat roof, no gutters and no articulation.  This form is out of character with the area.  It is well known that the term ‘respect’ does not mean to replicate, but a box like, two storey attached form is an intensive form in an area where there is single storey hipped roof dwellings.  
18	Having regard to the strategies contained in clause 21.11-9 and the provisions of clause 55, I find that whilst the site presents a development opportunity, the proposed development provides a number of design responses that are not consistent with key elements of existing neighbourhood character including the following.
•	Minimal built form articulation between the ground and first floor dwellings.
•	The applicant submitted that the flat roof designed dwellings are a contemporary approach to houses.  It was further submitted that such elements as window proportions reflect the character of the area.  I am not persuaded by this submission.  The side elevations are devoid of any windows which contribute to what will be viewed as a visually bulky form of development.  The use of flat roof form and lack of eaves for dwelling type 1 is visually incompatible and inconsistent with the dominant roof form found along Eden Place and within surrounding streets.
•	The extent of continuous built form with minimal separation.  There is also limited variation at the ground level.  For example, dwellings one to eight are setback a consistent 4 metres from the rear boundary and dwellings 25 to 31 are setback a consistent 4.5 metres from the rear boundary.  The proposed development reads like a wall of built form.  There is inadequate variation.  This is not an inner city where development is often close to boundaries.  This location is a site of 8,678 square metres.  It is a large site that can be redeveloped with more than one dwelling.  I find the proposal has given inadequate consideration as to how dwellings could be sensitively located on the site and how their form could be varied.  
•	Poor orientation of secluded private open space for dwellings 25 to 31, given the extent of the site and potential for access to north facing open spaces.
•	The front setback to Eden Place fails to achieve compliance with clause 55.03-1.  Standard B6 seeks to ensure that the setbacks of buildings from a street respect the exiting of preferred neighbourhood character and make efficient use of the site.  The plans seek to provide a 6.96 metre setback, which fails to achieve the requirement for a 9 metre setback.  I see no reason to support a reduced setback.  Eden Place displays larger front setbacks which establish an open character of the street and area.  I note that the applicant offered to make changes to the plans if the Tribunal considered necessary, but given my concern of the overall density of development of the site, an increase in the front setback does not result in a development that is acceptable.
19	I consider that there are too many dwellings on the site.  The area is characterised by low scale form and whilst this will change over time, the proposed density is too significant a departure from the existing and preferred character elements I observed in and around the site.  

Development Plan Overlay
20	Council refused the application of the grounds that the proposal would prejudice the desired outcomes of DDO15 and the absence of an approved Development Plan for the entire area would result in a disorderly planning outcome for the area.  Council submitted that the overlay was introduced to the site and surrounds in May 2016 to ensure that any development within the area appropriate connects to existing and future residential neighbourhoods through additional road and pedestrian road connectivity. 
21	DPO15 Watson Street South, Wallan applies to the site.  The provision states that: 
This schedule aims to ensure the coordinated development of two residential infill locations within the Wallan Township. Each infill location is south of Watson Street and connects to existing residential neighbourhoods. 
22	I have refused the proposal primarily on the grounds that the proposed development fails to respect neighbourhood character.  I have also stated that the absence of a master plan would not have prevented the grant of a planning permit, given a form that I considered acceptable.  I therefore make no further comment regarding this matter of the DPO as my key reason for refusal is neighbourhood character.
Vehicle movements
23	Concern was raised regarding the number of vehicle movements generated by the proposed development using Eden Place.  There was a discussion regarding whether or not Eden Place is classified as an Access Place or Access Street.  However, if Eden Place is classified as an Access Place it means it is designed to carry up to 1,000 vehicles.  The proposed development falls comfortably under an Access Place capacity.  
24	I would not have refused the development for reasons of traffic movement, provision of car parking or road capacity.  I make the further observation, that the classification of this road should be confirmed.
Conclusion
25	This is an unusual shaped site. It narrows at one end.  It is located in an area where there is evidence of multi dwelling developments.  From an aerial photograph, it would appear that the proposed development is not dissimilar to what already exists.  But there are key differences.  The proposed form differs, the number of dwellings differ, and the planning context differs from the previously approved developments.  This site can be developed for more than one dwelling, but it should be less intensively, there should be a greater level of variation in the form of development and consideration given to the appropriateness of the box like, flat roof housing form.  

26	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Tracey Bilston-McGillen
Member