VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P484/2020
Permit Application no. P/2019/7330	
CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987. Knox Planning Scheme. Neighbourhood Residential Zone, Schedule 4. Neighbourhood character.	

APPLICANT	Yanjun Mu	
responsible authority	Knox City Council	
RESPONDENTs	Jing Hai, Huanyuan Zhang, Con Hourmouzis, Jing Zhu, Pamela Wade, Pooja Saini, Genevieve Cure, Jacqulin Cure, Kim Hua, Paul Koomen, Cathy Holden, Gurnam Singh Saini, Owen Wade, Menglu Wang	
SUBJECT LAND	13 Gidgee Court
WANTIRNA SOUTH  VIC  3152	
HEARING TYPE	Hearing	
DATE OF HEARING	17 February 2021	
DATE OF ORDER	19 April 2021 	
CITATION	Mu v Knox CC [2021] VCAT 365  	

Order

1	Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following persons are joined as part of a joint party to the proceeding:
Paul Koomen, Cathy Holden, Gurnam Singh Saini, Owen Wade, Menglu Wang
2	In application P484/2020 the decision of the responsible authority is affirmed.
3	In planning permit application P/2019/7330 no permit is granted.

Cindy Wilson
Member 			
Appearances
For applicant	Mr Daniel Bowden, town planner of SongBowden Planning	
For responsible authority	Mr John Klarica, town planner of Calibre Planning	
For respondents	Mr Wim de Groot, town planner of WD Subdivision and Planning Solutions	

Information
Description of proposal	The construction of four dwellings, three double storey and one single storey	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Knox Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone, Schedule 4
Special Building Overlay 	
Permit requirements	Clause 32.09-6 A permit is required for construction of two or more dwellings on a lot in the Neighbourhood Residential Zone.
Clause 44.05-2 A permit is required to construct a building or construct or carry out works in a Special Building Overlay.	
Land description	The review site is located at the western end of Gidgee Court, Wantirna South. It has a curved frontage of 13.3 metres and a site area of approximately 1261 square metres. The land slopes approximately 1.5 metres from the front to the rear of the lot. It currently contains a single storey dwelling.	
Tribunal inspection	I inspected the site and surrounds after the hearing. 	

Reasons

1	Knox City Council (Council) refused an application for construction of four dwellings at 13 Gidgee Court, Wantirna South. The grounds of refusal raise concerns about poor response to planning policy, failure to respond appropriately to neighbourhood character and lack of compliance with specific requirements for front setback, landscaping and private open space. 
2	Respondents and a statement of grounds support the refusal of the application and raise concerns about neighbourhood character, consistency with clause 55 of the Planning Scheme, amenity impacts and car parking.
3	The applicant submits the proposal represents a good design outcome in achieving urban consolidation whilst responding appropriately to neighbourhood character and avoiding unreasonable amenity impacts.
4	The Tribunal must decide if a permit should be granted and, if so, what conditions should apply. Having considered the submissions, the statement of grounds, the provisions of the Knox Planning Scheme and having inspected the site and surrounds, I have decided to affirm the Council’s decision and direct that no permit should issue. My reasons for reaching this position relate to the following key issues:
•	Is the proposal respectful of neighbourhood character?
•	Does the proposal achieve sufficient compliance with the requirements of clause 55 of the Planning Scheme?
5	Before addressing these issues, I describe the proposal and the site and surrounds followed by a summary of the relevant Planning Scheme provisions.
What is proposed?
6	Three double storey dwellings are proposed across the site attached at ground level and each provided with a single garage and space for a tandem car parking space. At upper level, dwelling 1 is separated from the other dwellings. The upper levels of dwellings 2 and 3 are attached. Dwelling 3 contains three bedrooms and dwellings 1 and 2 each contain three bedrooms and a study. 
7	Dwelling 4, located at the rear of the site, is single storey and contains two bedrooms. A single garage for this dwelling connects it to the eastern side of dwelling 3.
8	A shared driveway is proposed along the south side of the site providing vehicle access to all dwellings.  

Figure 1: Proposed site and ground floor plan Source: Plans by A Better Design Sheet P1 dated December 2019
9	Elevations show pitched tile roofs to each dwelling, flat metal roofs to garages, face brickwork to lower level walls and rendered cladding to upper level walls.  

Figure 2: Proposed south elevation facing the driveway Source: Plans by A Better Design Sheet P3 dated December 2019
What is the physical context?
10	The review site is located at the end of the court bowl. It has an irregular triangular shape with a curved frontage of 13.3 metres and a site area of approximately 1261 square metres. The site contains a single storey brick dwelling. 
11	Adjoining to the south is a two storey timber dwelling set well back from the frontage. To the north there is single storey brick dwelling.  
12	There are 15 properties with frontage to Gidgee Court. They comprise a mix of residential development including dwellings that are traditional post-war and more contemporary styles. External materials include timber, brick and render finishes and roofs are pitched with either a tiled or metal finish. There is both single and two storey height and there are some dual occupancy developments. 
13	Front fences are low and gardens visible to the street. The well-established street trees on the nature strip along the north side of the road contribute to an attractive streetscape.  

Figure 4 Aerial photo  Source: Nearmaps 
14	The rear boundary of the site adjoins a drainage reserve approximately 13 metres wide. It is fenced to the review site and is fenced at nearby road interfaces. There are canopy trees either side of the concrete drain in this reserve. Rear gardens of properties facing Pentlowe Road adjoin the other side of the drainage reserve.
15	The wider area includes a nursing home on the east side of Lewis Road, a bus route along Lewis Road, a primary school and small local shops within 500 metres and Studfield shopping centre approximately 1.6 kilometres to the north east.
What does the Planning Scheme say?
16	The review site is zoned Neighbourhood Residential, Schedule 4 (NRZ4). This zone was applied to the site and nearby area under Amendment C172.  At the time the permit application was considered by Council, the land was zoned General Residential, Schedule 2. 
17	The purpose of the NRZ, in addition to requiring implementation of the Municipal Strategic Planning Strategy and the Planning Policy Framework, is:
To recognise areas of predominantly single and double storey residential development. 
To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
18	A permit is required for the construction of two or more dwellings on a lot. A minimum garden area requirement of 35% applies, a maximum building height of 9 metres and two storeys applies and a development must meet the requirements of clause 55 (ResCode). 
19	Schedule 4 to the NRZ varies the requirements of ResCode in relation to street setback, landscaping, private open space and front fence height. 
20	A Special Building Overlay (SBO) applies to the rear section of the land. A permit is required to construct a building or construct or carry out works in a SBO. Referral to the relevant floodplain management authority is required. The application was referred to Melbourne Water who did not object subject to imposition of conditions. 
21	Relevant policy seeks a number of key outcomes that can be summarised under the following themes:
•	Development that responds to context including the ‘green and leafy’ character of Knox, achieves a high standard of urban and building design, achieves best practice environmentally sustainable design and is respectful of existing or preferred neighbourhood character. 
•	Increased diversity in housing types and forms to meet changing household needs. 
•	Provision of increased density of housing in appropriate locations, especially where there is convenient access to public transport, services and facilities. 
22	Knox has a scaled approach to residential development that supports a different level of housing change in identified areas. The review site is within the Knox Neighbourhood area where the preferred future character will:
Continue to be low-scale neighbourhoods, characterised by detached houses and dual occupancies; with some villa unit developments on larger blocks. 
Retain their green and leafy identity and character through the retention of front and back yards, and the establishment of a garden setting that includes canopy trees. 
23	In relation to preferred dwelling typologies, the local policy supports more villa unit developments on lots greater than 1000 square metres. Local policy also specifies design objectives and design guidelines for residential development in the Knox Neighbourhood areas. 
24	Other relevant provisions include those relating to car parking and decision guidelines in the NRZ and at clause 65.
Is the proposal respectful of neighbourhood character?
In summary what do the parties say?
25	It is the applicant’s submission that the four unit development responds well to the preferred future character for the Knox Neighbourhood area and is entirely consistent with the low scale ‘villa unit’ style development anticipated. The applicant says the ‘green and leafy’ setting sought for the area is implemented through the varied ResCode requirements for landscaping and private open space and the proposal responds appropriately to these varied requirements.  
26	The applicant says the proposal responds well when tested against the deign objectives and guidelines in local policy for the Knox Neighbourhood area as follows:
•	Sufficient space within the front setback to accommodate substantial planting that will enhance the streetscape.
•	The setback of dwelling 1 from both side boundaries and the street avoids building dominating the street. 
•	The single crossover and the varied front setbacks ensures the loss of front and rear garden space is avoided.
•	Car parking is hidden from view to the streetscape avoiding the dominance of car storage facilities when viewed from the street and excessive areas of paving is avoided.
•	Large backyards for landscaping and open space are provided in excess of the varied private open space requirement.
•	There is adequate space for landscaping and a tendered plan demonstrates an example of how this could be achieved. The low site coverage of 39% and the high permeability indicate the generous landscaping opportunities. 
•	The rear dwelling is single storey as sought for developments of three or more dwellings. 
•	The traditional pitched roof form with eaves is consistent with the architectural style of the neighbourhood, upper levels are well articulated and no front fence is proposed.
27	Council submits the proposal fails to respond to the preferred character set for the area. In particular, the following elements are criticised:
•	Limited opportunity to plant around the site resulting in failure to contribute to the landscape character.
•	A building footprint that extends along the length of the site without landscaped breaks between buildings and narrow setbacks to the side and rear.
•	A long driveway and significant paved areas for car accommodation with minimal opportunity to ‘break up’ the hard surface with landscaping.
•	Inadequate recessing of upper levels from the ground level resulting in poor articulation of built form.
•	The development will dominate the streetscape, be incongruous in an area with low scale buildings in spacious settings and adversely impact the rear yard character.
28	Council refers to the decision of the Tribunal in Belle Xu Investments Pty Ltd v Knox CC where the Council refusal of a three dwelling development on a 921 square metre lot was upheld for reasons that related to neighbourhood character.
29	The respondents submit the continuous built form of the development represents overdevelopment of the site, is inconsistent with the low density and largely detached existing development and fails to provide opportunities for landscaping between built form. Reference is made to the decision of the Tribunal in Skinner v Knox CC  to refuse four double storey dwellings on a site of 1149 square metres in the Knox Neighbourhood area.
Tribunal findings 
30	There are design features of this proposal that respond positively to the preferred neighbourhood character including the use of a single driveway, the spacing to side boundaries of the dwelling facing the street, the location of all car accommodation behind the front dwelling and the traditional design detail. I find the setback of the first floor levels from the ground floor is acceptable. Although there are some two storey walls that will be sheer, the upper level recessing to most elevations provide appropriate articulation to the built form. 
31	Despite these positive elements, I am not satisfied the proposal responds acceptably to the preferred neighbourhood character that refers to the retention of the ‘green and leafy identity and character through the retention of front and back yards’. There is considerable emphasis on this aspect of neighbourhood character with design objectives that seek to avoid the loss of front and rear garden space and retain large backyards for landscaping and open space. The desired future character for the Knox Neighbourhood area refers to a sense of spaciousness within the public and private realm.  
32	I find the layout has not sufficiently responded to the preferred future character for the following reasons.
33	The siting of dwelling 4 does not respond to the spacious rear garden setting sought for the area. Instead there are narrow setbacks of 1.2 metres to the southern boundary and 1.1 metres to the western boundary that will provide little opportunity for any meaningful planting that would contribute to the garden character. The layout will create a sense of ‘crowded’ built form in the south west corner of the site and fails to provide the large rear yard space sought for the area. 
34	The design includes a driveway extending for nearly 40 metres with a slight curve adjacent to the entry. Council traffic engineers require the existing crossing to be widened to 3 metres and aligned with the driveway. This will create a long straight driveway that, in combination with a narrow planting strip on the south side, will result in the south side of the site being dominated by hard surface. 
35	My concern about the limited opportunity for landscaping to the south side of the site is exacerbated by the attached built form that faces the driveway. This aspect of the development will be apparent from the public realm due to the 20 metre street setback of the adjoining dwelling to the south and the absence of opportunity for planting of trees that could soften the built form. This layout does not create a garden setting or contribute to a green and leafy character. 
36	The inclusion of the site in Schedule 4 to the NRZ alters the standard for private open space increasing the requirement for both overall private open space and secluded private open space. This provides further emphasis to achieving generous rear yards. I address this issue in detail later but the failure of dwellings 3 and 4 to meet the varied standard adds to my concerns about responding to preferred neighbourhood character. 
37	The policy on preferred neighbourhood character set out in the Planning Scheme creates a clear expectation of development that will contribute to the green and leafy character that is to be created through front and rear garden spaces and landscaping. The purpose of the NRZ requires policy to be implemented.  
38	In balancing the range of matters to be considered, it is relevant that this is a location where there the Planning Scheme does not direct intensive growth or seek substantial change. The change in zoning from GRZ to NRZ alters the purpose to be applied. Although both zones purposes refer to the need for development to respect existing or preferred neighbourhood character, under the NRZ there is no specific reference to encouraging housing growth. 
39	In these circumstances I am not persuaded the design achieves an acceptable outcome.
40	A number of nearby developments were referred to at the hearing. I inspected these sites and I have read the Tribunal decisions referred to by parties. These do not change my view on this proposal. 
Does the proposal achieve sufficient compliance with the requirements of Clause 55 of the Planning Scheme?
41	Council and respondents criticise elements of the proposal which fail to meet applicable ResCode standards in relation to private open space, landscaping and street setback. Addressing each of these in turn, I find as follows.
Private open space 
42	The ResCode objective for private open space is:
To provide adequate private open space for the reasonable recreation and service needs of residents.
43	Schedule 4 to the NRZ specifies the following standard:
Private open space consisting of: 
•	An area of 80 square metres with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with minimum area of 60 square metres with a minimum dimension of 5 metres of secluded private open space with convenient access from a living room, or 
•	A balcony of 8 square metres with a minimum width of 1.6 metres and convenient access from a living room, or 
•	A roof-top area of 10 square metres with a minimum width of 2 metres and convenient access from a living room.
44	All dwellings are provided with private open space that exceeds the 80 square metres specified. However, dwellings 3 and 4 fail to meet the standard for secluded private open space that specifies a minimum area of 60 square metres with a minimum dimension of 5 metres. Rather these dwellings are provided with 49 and 48 square metres of secluded private open space with a minimum dimension of 5 metres respectively. 
45	Council says there is not justification for a reduced secluded private open space and it is indicative of a poor design response and allows less space for landscaping. Respondents say the non-compliance is indicative of overdevelopment.
46	The applicant says the objective relating to private open space is met with each dwelling provided with generous, usable, north facing secluded spaces well connected with living rooms. Acknowledging that parts of the 60 square metres have a dimension less than 5 metres, the applicant says overall the open spaces will achieve a high level of amenity and useability and satisfy the relevant objective. 
47	There is considerable policy emphasis on maintaining a sense of spaciousness and for retention of large back yards to provide for landscaping and open space in the Knox Neighbourhood area. The varied standard in NRZ4 in relation to private open space is one of the tools to achieve these outcomes. In these circumstances, I am not satisfied that non-compliance with the numerical requirements of the varied private open space is acceptable. 
48	I agree with Council that the secluded private open spaces for dwellings 3 and 4, in addition to failing to meet the standard, are of an overall awkward shape that limits useability. I acknowledge the applicant’s submission that the review site is highly irregular in shape but do not see that as a justification for a design with reduced secluded private open space. 
49	This is not an area identified in policy for significant change that might justify variation of standards. Rather there is a specific strategy that directs growth away from the Knox Neighbourhood areas.
Landscaping
50	The objective relating to landscaping is:
To encourage development that respects the landscape character of the neighbourhood. 
To encourage development that maintains and enhances habitat for plants and animals in locations of habitat importance. 
To provide appropriate landscaping. 
To encourage the retention of mature vegetation on the site.
51	The standard is varied in NRZ4 to require:
Provision of a minimum of one canopy tree per 175 square metres of the site area including: 
•	a minimum of one canopy tree within each area of secluded private open space; and 
•	a minimum of one canopy tree within the front setback per 5 metres of width of the site (excluding the width of one driveway).
Each tree should be surrounded by 20 square metres permeable surface with a minimum radius of 3 metres. Up to 50 per cent of the permeable surface may be shared with another tree. 
52	A landscape plan was provided by the applicant as part of submission to demonstrate how landscaping could be achieved on the site. The plans shows seven canopy trees which meets the standard. 
53	Council provided comments of its landscape officer on the plan which recommended changes that included:
•	Driveway garden bed should be increased to be minimum 1m wide with 1.5m bump-outs to allow for meaningful long term landscape plantings to break up expanse of long driveway.
•	Additional space provided in south-west corner of site to allow for long term viability of canopy tree planting. (While there is just enough space to accommodate a small canopy tree, the permeable area around it does not meet the requirements of standard B13, especially with the proposed compacted gravel surface).
•	Proposed paving in all secluded private open spaces be changed to decking to increase permeability and long term viability of landscape.
•	Deletion of path to dwelling 1 from the street.
54	I have set out my concerns about opportunity for landscaping in addressing neighbourhood character. The criticisms of the landscape plan made by Council’s landscape officer build on my concerns about the intensity of built form in the southwest corner of the site and the limited opportunity for planning along the southern boundary. 
Street setback
55	The objective relating to street setback is: 
To ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site.
56	Application of the standard for street setback requires a setback of 9 metres on the review site. Dwelling 1 facing Gidgee Court is setback a minimum of 7.3 metres at ground level and 8.6 metres at upper level thereby failing to meet the standard. 
57	Council says the failure to meet the standard will result in a dominant built form to the street and compromise the sense of spaciousness in the street created by existing generous front setbacks. 
58	I would not reject the application for failure to meet this standard. I say this for the following reasons.
59	Front setbacks in Gidgee Court vary considerably and include a number of properties with 7-8 metre setbacks similar to that proposed on the review site. The immediately adjoining site to the north is setback 7.3 metres. This creates a setting where the proposal will not appear intrusive at the setback proposed.
60	The curvilinear frontage combined with the angled front façade of dwelling 1 limits the extent of non-compliance with the standard.
61	The court bowl location of the review site results in a context where front setbacks, even when similar, do not present uniformly.
Other matters
62	Respondents raise concerns about increased traffic and on-street parking issues resulting from the increased dwelling density.
63	The proposal meets the Planning Scheme requirement for car spaces (two spaces per three bedroom dwelling and one space per two bedroom dwelling) and is satisfactory.
64	There would be extra traffic generated by three additional dwellings on the land. I am not persuaded that this would be beyond the capacity of Gidgee Court or the nearby road system. In making this finding I have had regard to the traffic department of Council raising no issues in regard to generation or road capacity.
65	Overlooking concerns were raised by respondents. Generally, the upper level windows have been setback from boundaries to comply with the relevant ResCode standard. Where some windows did not meet the standard, I am satisfied this matter could have been addressed by permit condition that required appropriate screening. 
66	Concern that the development could exacerbate drainage issues were raised by respondents. I am satisfied that permit conditions required by Melbourne Water and Council’s drainage engineers could address drainage issues.
67	There is support in the Planning Scheme for additional dwellings in this location. This was not disputed by the parties. The site is relatively large and the location provides reasonable access to services and facilities. The rejection of this proposal is based on a design that fails to acceptably respond to preferred neighbourhood character and provide for private open space. 
Conclusion 
68	For the reasons given above, the decision of Council is affirmed. No permit is granted. 

Cindy Wilson
Member