VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1934/2020
Permit Application no. P20/0848	
CATCHWORDS	
Mornington Peninsula Planning Scheme; Design and Development Overlay Schedule 1; medium density residential development in Dromana.	

APPLICANT	JDSD Superannuation Fund Pty Ltd	
responsible authority	Mornington Peninsula Shire Council	
Referral Authorities	APA Group, Melbourne Water, South East Water, United Energy	
SUBJECT LAND	2 Jetty Road, Dromana	
HEARING TYPE	Hearing 	
DATE OF HEARING	26 July 2021	
DATE OF ORDER	5 August 2021	
CITATION	JDSD Superannuation Fund Pty Ltd v Mornington Peninsula SC [2021] VCAT 868	

Order
1	In application P1934/2020 the decision of the responsible authority is set aside.
2	In planning permit application P20/0848 a permit is granted and directed to be issued for the land at 2 Jetty Road, Dromana in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	To subdivide land
•	To construct two or more dwellings on a lot
•	To construct a building and construct or carry out works

Michael Deidun			
Member			

Appearances
For applicant	Peter Newman, Town Planner of PLN Planning Pty Ltd	
For responsible authority	Charlotte McGillivray, Town Planner of Mornington Peninsula Shire Council	
For referral authorities	No appearances	
Information
Description of proposal	The construction of three double storey dwellings, and a three lot subdivision of the land	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.  	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	General Residential Zone 1
Design and Development Overlay 1	
Permit requirements	Clause 32.08-3 to subdivide land within the General Residential Zone
Clause 32.08-6 to construct two or more dwellings on a lot on land within the General Residential Zone
Clause 43.02-2 to construct a building or construct or carry out works on land to which the Design and Development Overlay applies
Clause 43.02-3 to subdivide land to which the Design and Development Overlay applies	
Relevant scheme policies and provisions	Clauses 02, 11, 12, 15, 16, 32.08, 43.02, 52.06, 55, 65 and 71.02.	
Land description	The land is an irregular shaped allotment, with a frontage to Jetty Road of 24.73 metres, a depth of between 45.2 and 59.58 metres, and an overall area of 1054 square metres.  The land presently supports a single storey detached dwelling and a number of outbuildings.	
Tribunal inspection	The Tribunal inspected the site and surrounding area on 1 August 2021	

Reasons
What is this proceeding about?
1	JDSD Superannuation Fund Pty Ltd (the ‘Applicant’) seeks to review the decision of the Mornington Peninsula Shire Council (the ‘Council’) to refuse to grant a permit for the construction of three double storey dwellings, and a related three lot subdivision, on land at 2 Jetty Road, Dromana (the ‘review site’).  The Council’s grounds of refusal raise concerns with the extent of scale and bulk proposed, and the intensity of development and lack of spaces around and between dwellings, and how this compares to the existing neighbourhood character, the guidance provided by DDO1, and the intent for the residential areas of the municipality as set out in the Localised Planning Statement.
2	No nearby resident lodged an objection during the planning permit application process, or a Statement of grounds following the lodgement of the application for review.
3	The issues or questions for determination are:
a.	Is the proposal an appropriate response to the surrounding neighbourhood character?
b.	Will there be any unreasonable off-site amenity impacts?
c.	Is an appropriate level of internal amenity achieved?
d.	Does the proposal appropriately provide for car parking and traffic movements?
4	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions presented with regard to the applicable policies and provisions of the Mornington Peninsula Planning Scheme, I have decided to set aside the Council’s decision, and direct the grant of a planning permit subject to conditions.  My reasons follow.
Is the proposal an appropriate response to the surrounding neighbourhood character?
5	The review site is located in a neighbourhood that is accessible to a range of services and facilities, without being immediately proximate to a higher order activity centre, or in an area identified for substantial change.  As such, the review site would benefit from a range of policy at a State level that encourages a level of housing diversity, that can display an appropriate level of respect for the existing or preferred neighbourhood character.  It is often the policies and provisions at a local level that then identify, for a particular residential neighbourhood, how to balance the extent to which medium density development is to be encouraged in a location, as compared to the level of respect that is to be shown to the existing neighbourhood character.
6	And it is at a local level that the review site and the surrounding neighbourhood is identified as a location that is suitable for medium density residential development.  This is achieved through the application of Schedule 1 to the Design and Development Overlay (DDO1) to the review site and surrounding properties, which includes the following design objective.
To indicate residential areas adjacent to the foreshore and commercial centres of Rosebud and Dromana that will provide for a range of medium density residential living in conjunction with a limited range of service and leisure based commercial uses.
7	Design and Development Overlays are applied liberally across the residential areas of the Mornington Peninsula municipality, in order to guide the preferred built form outcomes as they vary across different neighbourhoods.  The remaining schedules to the Design and Development Overlays that apply to other residential neighbourhoods all seek to restrict the density of development.  For example, Schedule 3 to the Design and Development Overlay (DDO3), that applies a couple of streets away to the south of the review site, has mandatory requirements of a 1500 square metre average lot size, and a limit of one dwelling per allotment.  It is significant therefore that the review site is covered by a schedule to the Design and Development Overlay that seeks to encourage medium density development.
8	At Clause 02.03-1 of the Mornington Peninsula Planning Scheme the Dromana Activity Centre is identified as a large township activity centre, sitting one rung below the Major Activity Centres at Mornington, Rosebud and Hastings in the activity centre hierarchy.  This hierarchy is accompanied by the following policies.
Directing growth to these centres close to services and facilities prevents dispersed population growth throughout the Peninsula’s rural area and thereby protects the unique characteristics of small coastal townships and rural villages as well as areas of environmental, landscape, agricultural or recreational significance, including the ‘green break’ between the Peninsula and metropolitan Melbourne. Directing growth to these centres also supports the need to increase housing diversity. 
Council’s strategic directions for ‘Settlement’ are to: 
•	Direct growth primarily to major activity centres, and the remainder to neighbourhood activity centres. 
•	Strengthen the hierarchy of activity centres while having regard to their individual character and functions, their relationships to each other and to adjacent rural, coastal and port development areas.
•	…
•	Encourage greater housing diversity in established areas.
9	Clause 02.03-5 Built environment and heritage then contains the following policy:
Council’s strategic directions for ‘Built environment and heritage’ are to: 
•	Ensure the location, design and construction of buildings and works are compatible with the built form and landscape character of the surrounding area. 
10	A Strategic Framework Plan is found at Clause 02.04, where Dromana is again identified as a large township activity centre, and the review site is noted as being within a residential area.
11	Finally, Clause 11.03-5S contains a number of reference documents, including the Mornington Peninsula Localised Planning Statement, July 2014.  The Planning Statement, that commences on page 3, includes the following objective and strategies on page 8.
Objective
To protect the role and character of the Mornington Peninsula’s settlements, towns and villages.
Strategies
The townships of the Mornington Peninsula are expected to accommodate at most moderate and generally low levels of housing growth, with many smaller towns and villages intended to accommodate very limited further development…
Development within the Urban Growth Boundary, whether within residential, commercial or other areas, will be of a type and scale that maintains the existing valued character of each town or settlement, or supports a change to a preferred future character that is clearly established through community consultation and the adoption of a relevant local area plan.  In the assessment of any planning permit application, priority will be given to any local character statement or policy adopted by the responsible authority.
12	The key messages from the matrix of policy and provisions in the Mornington Peninsula Planning Scheme is that this is a neighbourhood that will provide for medium density residential development, that will encompass greater housing diversity, with such development occurring in a manner where the buildings and works are compatible with the built form and landscape character of the surrounding area.  
13	The Council submits that the proposed development contrasts with the low scale built form that characterises this neighbourhood, due to the extent of two storey form, and the lack of separation between the proposed dwellings and the boundaries of the review site.  They say that the proposal fails to have regard to the existing streetscape pattern as set by the existing building heights, scale and siting.  The Council is also concerned by the absence of opportunities for meaningful landscaping around the dwellings to soften the built form.  The Council submits that the location of the review site, where it is not particularly convenient to public transport or any services, means that it is not an appropriate location for development at this level of intensity.
14	I am not persuaded by these submissions, and instead find that the proposed development is, subject to some minor changes which I describe below, an appropriate response to the surrounding neighbourhood character, and the guidance provided by the Mornington Peninsula Planning Scheme.  I make this finding for the following reasons.
15	The review site sits in neighbourhood that is already experiencing a degree of change. The land that is covered by DDO1 is slowly being redeveloped with medium density housing that comprises between two and five dwellings per allotment.  Close to the review site, this emerging character is exemplified by the medium density development that is either under construction, or approved, on three of the lots that adjoining the northern boundary of the review site.  These developments comprise the following:
a.	The current construction of three double storey dwellings at 163 Palmerston Avenue, on a corner allotment with an area of 1110 square metres;
b.	The current construction of a double storey dwelling at the rear of the existing dwelling at 165 Palmerston Avenue, on a lot with an area of 766 square metres; and,
c.	The grant of a planning permit for two double storey dwellings at 167 Palmerston Avenue on a lot of 1011 square metres.
16	Together, these three developments will not only have a noticeable built form impact on the character of this neighbourhood, but they will also relatively dramatically change the built form context that surrounds the review site.  Where the review site was, at the time of lodgement of the planning permit application with Council, surrounded by a series of open rear yards and single storey development, to the northern interface of the review site this will now be replaced with a series of large two storey dwellings sited in relative close proximity to the northern boundary of the review site.  One can only view this change in built form context, as a realisation of the application of DDO1 to the review site and surrounding properties.
17	Ms McGillivray submits that Council seeks to apply in the future a more restrictive set of planning controls and policy matrix to the review site and surrounding properties.  This will include the application of the Neighbourhood Residential Zone to this neighbourhood, in a manner that will restrict subdivision, and in effect medium density development, to one dwelling to every 650 m².  That represents a profound change to both the existing controls, and the emerging character of medium density housing in this neighbourhood.  However, these changes are contained in a proposed planning scheme amendment that is not yet been placed on exhibition, despite these new provisions being foreshadowed in strategic documents that date back to 2018.  As such, the revised planning controls foreshadowed by Council are in their infancy, and insufficient weight can be placed on them at this time to have any meaningful influence on my decision making process for the proposal that is before me.  The current land owner has a reasonable expectation to rely on the planning controls and policies as they currently apply in the Mornington Peninsula Planning Scheme.
18	The proposed development of three double storey dwellings on the review site represents an appropriate response to the guidance from DDO1, and the emerging character of medium density housing in this neighbourhood, including that which has been approved and under construction on the adjoining properties to the north of the review site.  The proposed development of the review site contains a number of design attributes that both reflect the pattern of recent development, as well as provide a level of respect for the remaining examples of low scale traditional housing in this neighbourhood.  These design attributes include the following:
a.	A front setback that will allow for the establishment of a generous garden setting to present to Jetty Road. While the proposed development incorporates two crossovers and driveways to Jetty Road, this is a reasonable outcome given the width of the frontage of the review site at 24.73 metres.  Further, the proposed layout of these two driveways provides landscaping opportunities to each side boundary, as well as a generous area in front of the proposed Dwelling 1.
b.	A single dwelling that fronts Jetty Road, with a façade width that is relatively narrow and which therefore reflects the existing rhythm and spacing of dwellings in the streetscape.
c.	A generous level of landscaping opportunities either side of the common driveway that provides access to Dwellings 2 and 3, that will enable a landscaped presentation to Jetty Road that will reduce the visual impact of the extent of paving and built form that will be visible in the streetscape.
d.	A generous set of setbacks from the side and rear boundaries, where except for the garages, all of the built form is setback at ground level between 3.0 and 4.5 metres from these boundaries.  This enables the establishment of a landscaped setting to the boundaries of the review site.  While I am satisfied that an appropriate amount of space has been provided for the establishment of a future landscape, I am not so persuaded that the landscape plan that has been prepared to date has adequately taken advantage of the opportunities created by the spaces provided on the review site.  As such, I consider that a condition of any permit issued should require a revised landscape plan that provides a more significant palette of tree planting on the review site.
e.	A range of design attributes that seek to respond to the lower scale of development that exists to the south of the review site, including the low scale single storey dwelling at 4 Jetty Road.  These design attributes include the provision of a generous landscaped setback along the part of the southern boundary of the review site that sits closest to Jetty Road, and which will influence the transition in built form as viewed in the Jetty Road streetscape.  These design attributes also include a stepping in built form from 1 to 2 storeys, adjacent to the southern boundary in Dwellings 2 and 3.  While the proposed Dwelling 3 includes a garage that is to be built to the southern boundary of the review site, I find that this siting is an appropriate response to the surrounding context, given the siting of an outbuilding on the adjacent part of the adjoining property to the south.
f.	A relatively high level of articulation to the respective first floor components of each of the proposed dwellings.  The first floor areas of each of the proposed dwellings on the review site are often substantially setback from the extent of the respective ground floors, and provide a high level of articulation through a variety of setbacks, changes in wall materials and colours, pitched and hipped roof elements, and protruding balconies.  Further, the design choice to propose three, double storey dwellings on the review site is appropriate given the pattern of emerging double storey scale in recent medium density development in this neighbourhood.  While similar development can often include a single storey dwelling located at the rear of a site adjacent to surrounding rear yards, the decision here to position a double storey dwelling at the rear of the review site is a characteristic response to the emerging character of medium density housing in this area covered by DDO1, as exemplified by the developments to the immediate north of the review site.  
g.	Despite this general finding, I am not persuaded that the extent of first floor scale that will be presented to the rear boundary of the review site, and thus the adjoining property at 2 Seaview Parade, is appropriate or reasonable.  The proposed rear Dwelling 3 on the review site, has setbacks to the first floor from the rear boundary of between 3.0 and 4.1 metres, to a first floor that is relatively wide at 11.75 metres.  Approximately two-thirds of this first floor forms a sheer two storey wall with the plane of the ground floor below.  I consider that this extent of scale and bulk presenting to the rear boundary of the review site is uncharacteristic for this neighbourhood, even having regard to the emerging character of medium density development, and extent of two storey form approved at the rear of sites.  I consider that an appropriate outcome can be achieved by deleting the first floor Bedroom 2 from Dwelling 3, including the walk-in robe and en-suite bathroom associated with this bedroom.  This will have the effect of removing part of the first floor that forms a sheer two storey wall with the ground floor below, as well as reducing the width of the first floor component that will present adjacent to the rear boundary of the review site.  Given that the proposed Dwelling 3 comprises four bedrooms, this change will reduce it to a three bedroom dwelling, which will still provide a generous level of accommodation on the review site.  I will implement this change by way of permit conditions.  Subject to this one change, and for the reasons set out above relating to ground floor setbacks, first floor articulation and landscaping opportunities, I find that the proposed development will not present any unreasonable levels of visual bulk to the surrounding properties.
19	The Council submits that its approach in this proceeding is supported by two previous Tribunal decisions in this neighbourhood affected by the DDO1 in Dromana, which have each refused to grant permits for double storey medium density developments.  I draw a distinction between this site, and those which were the subject of the previous Tribunal decisions, on the basis of the character of the neighbourhoods that provide the context to the respective sites.  In the decision of Cianci Enterprises Pty Ltd v Mornington Peninsula SC [2019] VCAT 1498 the Tribunal described the context that surrounded that site in the following manner.
[13]	My inspection of the site and area reveals that this part of Dromana is dominated by single storey single dwellings, although there is a two storey dwelling adjoining, one that has a height similar to the single storey building on the land. The streetscape has a casual coastal feel. The street does not have constructed kerb and channel and no footpath. Most of the original housing stock, such as the single storey holiday houses, many of fibro-cement construction, including the house on the land, is still common. There have been some dual occupancies in Callas Street. All are single storeys, except the one at 17 Callas Street where the rear dwelling is part double storeys. The overall scale of development of the area can be described as single storey and low.
20	This extract describes the surrounding character of that site as being dominated by single storey dwellings.  In difference, the review site that is before me has a different existing neighbourhood character, which is now firmly influenced by the emerging scale of double storey development approved by Council at 163, 165 and 167 Palmerston Avenue, respectively.   This emerging scale includes dwellings at two storey in height, throughout the depth of those sites.
21	Similarly, the Tribunal in the decision of Ryan v Mornington Peninsula SC [2019] VCAT 1610 describes the character of the neighbourhood in the context of that site in the following terms.
[21]	Both parties refer to the informal coastal character evident in this location. There has been limited unit development. The character is predominantly of single storey dwellings with several double storey detached houses. I accept Mr Harrison’s submission that various elements contribute to the coastal character. These elements include varied setbacks, divergent but modest dwelling styles, mostly no or low front fences, evident tree planting including tea-tree, the absence of footpaths associated with vegetated verges, and often sizable private open space with small out-buildings. It is apt to adopt the description of the area as comprising buildings that do not dominate, but rather sit in the landscape.
22	Importantly, the Tribunal in the extract above emphasises the limited unit development, and predominant character of single storey dwellings.  Again, the character the provides the context to the review site in this proceeding is different, given the extent of medium density development that has already occurred in the surrounding context, and the emerging scale of new two storey dwellings.
23	The Council also submits that the proposal does not comply with the decision guidelines found in DDO1, which have an increased relevance given the failure of the proposal to comply with the general requirement in DDO of 5.5 metre wall heights and 6.0 metre overall heights.  Firstly, it needs to be noted that the wall and overall heights proposed for the review site have been increased during the course of the planning permit application, in response to the Council’s identification of the flooding potential of the land, which is not noted in any overlay under the Mornington Peninsula Planning Scheme.  
24	Secondly, the decision guidelines as set out in DDO1 are set out below.
•	The design objectives of this schedule. 
•	Where an objective has been applied from Clause 54.02 to 54.06, inclusive, the relevant decision guidelines from that Clause. 
•	Whether any loss of amenity will result from a variation to the requirements of this schedule. 
•	Any relevant development plan, heritage study, code or policy relating to the protection and development of land in the area. 
•	Whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs, including split level and staggered building forms, that follow the natural slope of the land and reduce the need for site excavation or filling. 
•	The effect of any proposed subdivision or development on the environmental and landscape values of site and of the local area, including the effect on streamlines, foreshores, areas of remnant vegetation, areas prone to erosion and on the amenity and accessibility of areas of public open space. 
•	The need to ensure that the design of development has adequate regard to fire risk and includes appropriate fire protection measures. 
•	The suitability of each lot to accommodate a dwelling.   
25	In response to these decision guidelines I note the following:
a.	The proposal appropriately responds to the design objectives of DDO1 in the following ways:
i.	For the reasons set out above the proposal responds appropriately to the established streetscape and context in terms of building height, scale and siting;
ii.	There are no shared view lines across the review site that were brought to my attention in this proceeding;
iii.	The extent to which the proposed dwellings on the review site will be visible from surrounding streets and properties, is consistent with the emerging character of two storey form in this neighbourhood, and as such the proposed dwellings will be integrated with the site and surrounding area;
iv.	There are no heritage values in this neighbourhood, nor is the review site close to the foreshore, or a main road; and,
v.	Traffic matters are addressed separately later in these reasons.
b.	Clause 54 does not apply to this proceeding;
c.	Amenity impacts are assessed separately later in these reasons, however it is suffice at this stage to observe that there are no unreasonable off-site amenity impacts caused to surrounding properties;
d.	There is no relevant study, code or policy that is sufficiently advanced through the planning process to be given any meaningful weight in my decision making task;
e.	This is not a part of the Peninsula where the character of the area is defined by the topography, and where buildings need to follow the natural slope of the land and reduce cut and fill.  In any case, the proposed dwellings do not create the need for excessive cut and fill, and are of a scale that will not be visually obtrusive, compared to the emerging scale in this neighbourhood;
f.	The review site is not in a neighbourhood with any particular environmental and landscape values, nor is it identified as a bush fire prone area; and,
g.	For the reasons set out later in this decision, the proposed subdivision layout is appropriate, and each lot can accommodate a dwelling, as demonstrated in the plans that are before me.
26	The final change that I consider to be necessary in order to achieve an appropriate and reasonable built form outcome for the review site, is to create opportunities for surveillance of the common driveway from the proposed Dwelling 1.  Presently, this dwelling presents a blank wall to the common driveway at ground level, which has a length of 12.4 metres.  At first floor of this dwelling, only one window is provided in a wall length of 9.7 metres.  The result is a lack of surveillance of the adjacent common property, but more importantly from a neighbourhood character perspective, the result is a rather plain and unarticulated side wall that will be visible on views in the streetscape.  An appropriate built form outcome will see a much higher level of articulation provided to the southern ground and first floor walls of Dwelling 1, through the insertion of additional windows at both ground and first floors, and through a variation in the plane of the first floor wall.  In terms of the additional windows that are required in the ground floor southern wall, I consider that this is best achieved by relocating the laundry internally within the ground floor plan, and providing opportunities for two large windows from the ground floor living area towards the common property driveway.  Having regard to the existing floor layout of the first floor of Dwelling 1, I consider that a variation in the plane of the first floor wall is best achieved by extending the southern wall of bedroom 3 further to the south, so that it cantilevers over the plane of the ground floor, and provides an added level of variation to this elevation.  I again will provide for these changes by way of permit conditions. 
27	For these reasons, and subject to the changes which I have described above, I find that the proposed development is an appropriate response to the existing neighbourhood character, the emerging character of medium density development in this neighbourhood, and the range of guidance provided by the Mornington Peninsula Planning Scheme.
Will there be any unreasonable off-site amenity impacts?
28	Off site amenity impacts are usually measured in terms of visual bulk, overshadowing and overlooking.  For the reasons set out above, I have already found that the proposed development will not result in any unreasonable levels of visual bulk to the surrounding properties.
29	Overshadowing from the proposed development at the equinox is mostly contained within the boundaries of the review site.  To the extent that additional shadows will be cast on two adjoining properties from the proposed Dwelling 3 at both 9:00am and 3:00pm at the equinox, the small amount of additional shadowing that is cast at these times is well within the extent that is permitted under the relevant standard.  Further, there are no north facing habitable room windows close to the boundaries of the review site that will be affected by overshadowing.  For these reasons I find that the proposed development will not cause any unreasonable overshadowing impacts on the surrounding properties.
30	The Council submits that there will be overlooking from the west facing ground floor window of Dwelling 3 into the adjacent property to the west of the review site.  However, after review of the elevations, I am persuaded that this window is sufficiently close to the natural ground level, that the potential for overlooking will be sufficiently restricted by the proposed boundary fencing.  In terms of the potential overlooking from the first floor windows, I raised during the course of the hearing that the plans depict screening in the form of openable louvres.  It is a requirement of the relevant standard that such screening be fixed, as louvres that are openable can potentially allow an inappropriate level of overlooking to surrounding properties.  As such, I will apply a permit condition requiring the screening to be noted as fixed.
31	For these reasons I find that the proposed development will not cause any unreasonable off-site amenity impacts on the surrounding properties.
Is an appropriate level of internal amenity achieved?
32	The Council submits that the proposed development fails to provide an appropriate level of internal amenity, having regard to:
a.	the extent of screening that is proposed to the first floor windows and balconies, and thus the impact on daylight and solar access, and the energy efficiency of the proposed dwellings; and,
b.	the areas of secluded private open space for Dwellings 1 and 2, which fails to provide adequate space for the reasonable recreation and service needs of the residents.
33	I am not persuaded by these submissions, and instead find that the proposed development will provide an appropriate level of internal amenity for future residents.  I make this finding for the following reasons.  Firstly, in relation to the extent of screening to the first floor windows, I find this to be acceptable given that it is bedroom windows which are to be screened, and the bedrooms are likely to have limited use, outside of sleeping hours.  Further, I note that each of the proposed dwellings are provided with a balcony at first floor level, which while screened, provides an opportunity for a full height unscreened north facing window onto each balcony, providing natural light and solar access to the first floor of each dwelling.  For these reasons the proposed floor space at first floor in each of the proposed dwellings will receive an adequate level of solar and daylight access, and will not have their energy efficiency levels unreasonably compromised.
34	Secondly, both Dwellings 1 and 2 are provided with areas of secluded private open space that meet the relevant standard, as they each exceed 40m² in size, and each have a minimum dimension of 4.0 metres or more. In addition, Dwelling 1 will have access to and use of the front open garden space, and each dwelling will also have access to a generously proportioned balcony at first floor level.  In addition to these areas of secluded private open space, the review site is within walking distance of the Dromana Neighbourhood Activity Centre, and as such is also within walking distance of the extensive recreational areas located at the foreshore at Dromana.  For these reasons I find that the extent of areas of secluded private open spaces provided on site to be appropriate.
35	Thirdly, from my own analysis I was concerned with the amount of daylight entry that would occur into the ground floor living area of Dwelling 1.  However, with the changes I have foreshadowed above regarding an increase in the amount of windows that overlook the common driveway, I am satisfied now that this concern has been addressed.
36	Finally, I consider that an appropriate level of internal amenity is provided while also having regard to the other usual considerations, such as the size and orientation of habitable rooms within the three dwellings, the size and layout of the proposed garages, and the overall layout of each proposed dwelling.
Does the proposal appropriately provide for car parking and traffic movements?
37	The proposal provides a level of car parking that meets the requirement set out under Clause 52.06 of the Mornington Peninsula Planning Scheme, by providing a double garage for each of the proposed dwellings.  Further, the common driveway that services Dwellings 2 and 3, will allow for all vehicles to enter and exit the site in a forward motion.  
38	During the course of the planning permit application, an internal referral was made to Council’s Development Engineer, who supports the grant of a planning permit having regard to the relevant engineering considerations.  While it is unclear whether these have included as assessment of the capacity of the surrounding road network to accommodate the additional traffic from the proposed development of the review site, I have no reason to believe that this cannot be safely accommodated thereon.
39	For these reasons, I find that the proposed development appropriately provides for car parking and traffic movements.
is the proposed subdivision appropriate?
40	The Council submits that the proposed subdivision layout is inappropriate for the following reasons:
a.	the subdivision layout is not characteristic of the pattern of subdivision in the surrounding area, and fails to provide for an appropriate built form;
b.	the subdivision will fail to respect the existing and preferred neighbourhood character as it will result in an inappropriate level of intensity of development, and fails to address the preferred low scale neighbourhood character;
c.	the proposed lot sizes are inappropriate for this area, given that the review site is not within 400 metres walking distance of an activity centre; and,
d.	the proposed lot areas and dimensions are insufficient to enable the proposed dwellings to have sufficient solar access to living areas, and unusable areas of secluded private open space.
41	I am not persuaded by these submissions, and instead find that the proposed subdivision layout is appropriate for the review site.  I make this finding for the following reasons.  I find that the Council’s analysis of this proposed subdivision fails to recognise that the proposed subdivision layout is a product of the proposed layout of medium density development on the review site, rather than the reverse being true.  As I have, for the reasons set out above, found that the proposed medium density development for the review site is an appropriate response to the surrounding neighbourhood character, and achieves appropriate on-site and off-site amenity outcomes, it therefore follows that the subdivision layout that accompanies this medium density development outcome is also appropriate.  In a combined application for multiple dwellings and subdivision, it is the character and amenity outcomes that are achieved by the medium density housing proposal, that is the determining factor as to whether both the proposal for multiple dwellings, and the proposal for subdivision, achieves appropriate outcomes.  All that the proposed subdivision achieves is to place each of the proposed dwellings on an individual lot, which of itself does not create any character or amenity impact on the surrounding context.
42	I also note that the Council does not raise any criticism in relation to the actual subdivision layout, that is the manner in which the proposed subdivision aligns with the proposed medium density layout, or the extent and layout of land that is allocated as common property. 
43	For these reasons I find that the proposed subdivision layout will appropriately provide for the subdivision of the proposed dwellings onto individual lots.
What conditions are appropriate?
44	A number of other matters about permit conditions were raised by the parties.  With respect to those matters, other than those already addressed above, I summarise my conclusions as follows:
a.	I will delete Condition 1(a) as drafted by Council, as for the reasons set out above I find that the siting of the proposed first floors are acceptable, aside from the changes that I have foreshadowed to the west elevation of Dwelling 3.
b.	I will amend Condition 1(b) as drafted by Council, as given the height difference between the ground floor and the natural ground level, I do not consider that the living room windows to Dwelling 2 need to be setback 1.5 metres from the common accessway.  Rather, a 1.0 metre setback is acceptable.  I will require this 1.5 metre setback to be applied to the adjacent Bedroom 1 window however, in order to ensure a level of built form variation along this elevation.
c.	I have not been persuaded by Council that the west facing kitchen window in the ground floor of Dwelling 3 needs to be screened, so I will delete Condition 1(c) as drafted by Council.
d.	I will delete Condition 1(e) as drafted by Council, as for the reasons set out above I have not been persuaded that additional ground floor setbacks are required between Dwelling 1 and the northern boundary of the review site.
e.	I will retain Conditions 25 and 26 which were originally opposed by Mr Newman, as I regard them as necessary in order to cover the scenario where the subdivision precedes the development.
f.	Finally, I will replace the proposed time limit condition, with those preferred by the Tribunal.

Conclusion
45	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Michael Deidun			
Member			

Appendix A – Permit Conditions

Permit Application No	P20/0848	
Land	2 Jetty Road, Dromana	

What the permit allowS	
In accordance with the endorsed plans:
•	To subdivide land
•	To construct two or more dwellings on a lot
•	To construct a building and construct or carry out works	

Conditions
1	Before the developments starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the plans submitted with the application but modified to show:
(a)	Deletion of bedroom 2, and the associated en-suite bathroom and WIR, from the first floor of Dwelling 3.
(b)	Unit 2 ground floor living room windows to be setback a minimum of 1.0 metres from the accessway, and Unit 2 ground floor Bedroom 1 window setback a minimum of 1.5 metres from the accessway.  
(c)	Notation that all screening to prevent overlooking has a maximum transparency of 25%, and the louvres depicted on plan TP06 are to be notated as fixed screens.
(d)	The existing vehicle crossing being reconstructed, and the new vehicle crossing being constructed, in reinforced concrete as per Mornington Peninsula Shire Standard Drawing MP305.
(e)	The surface of the internal driveways being reinforced concrete.
(f)	The provision of additional windows in the southern elevation of the ground and first floors of Dwelling 1, including by the internal movement of the ground floor laundry to this dwelling away from the external southern wall in order to provide an opportunity for large windows in the southern wall of the ground floor living area, in order to achieve a greater level of articulation to this elevation.  It is acceptable for the common property driveway to be slightly realigned so as to provide a minimum 1.0 metre separation to any new ground floor habitable room window.
(g)	A reduction of the southern boundary setback to the first floor Bedroom 3 of Dwelling 1, so that it cantilevers over the alignment of the ground floor by 500mm, in order to achieve a greater level of articulation to this elevation.
(h)	Any changes to the layout of the proposed subdivision, to accommodate the changes set out above.
(i)	A landscaping plan prepared by a suitable landscape professional, that must show:
i	A survey (including botanical names) of all existing vegetation to be retained and / or removed including Tree Protection Zones (TPZ) for trees to be retained, calculated in accordance with Australian Standard AS 4970-2009 Protection of trees on development sites;
ii	Details of surface finishes of pathways and driveways;
iii	A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant (at least one indigenous canopy tree within the front setback and at least one canopy tree within the secluded private open space of each dwelling);
iv	At last 50% of species by type and number must be indigenous to the local Ecological Vegetation Class to the satisfaction of the responsible authority;
v	All trees must to be installed at a minimum pot size of 250mm and height when planted of 1.5 metres and shrubs installed at a minimum pot size of 200mm.
vi	No trees with a mature height over five (5) meters are to be planted over proposed or existing easements.
vii	More significant canopy tree planting throughout the site, as compared to that depicted on the Concept Landscape Plan prepared by Bradbury Culina and dated 27 July 2020.
2	The layout of the land, the size and type of the buildings and works, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
3	The materials and colours of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.
4	Prior to the initial occupation of the dwelling external finishes must be completed to a professional standard to the satisfaction of the Responsible Authority.
5	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.
6	Vehicular crossings must be provided to the standards of the Responsible Authority prior to the initial occupation of the development.
7	Driveways must be provided to the land and surfaced to the satisfaction of the Responsible Authority.  They must be completed prior to the initial occupation of the development.
8	Prior to the occupation of the development the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
9	The landscaping referred to in Condition 8 above must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.
10	Prior to the commencement of any building or works appropriate tree protection fencing must be erected in accordance with Australian Standard AS4970 – 2009 (Protection of trees on development sites).  The tree protection fencing must remain in place until the completion of any works hereby approved. 
11	Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
12	Prior to the initial occupation of the development, all required privacy screening devices and fencing shown on the endorsed plans must be installed and completed to the satisfaction of the Responsible Authority.
13	After the endorsement of Condition 1 plans and before any works associated with the development starts, a signed and completed ‘Checklist for Development Engineering Plan Approval’ along with engineering plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and shall be emailed to devengadmin@mornpen.vic.gov.au in pdf format.
The plans must show:
(a)	All areas of the development being drained by means of an underground drainage system to retain a post‑development 1 in 10 year storm event for the critical storm duration. Discharge from the site must be limited to an equivalent pre‑development flow based on a 1 in 2 year storm event for the critical storm duration.  Discharge from the total area of the site is to be connected to the existing underground Melbourne Water drainage system within Jetty Road via a minimum 150 mm diameter drainage pipe and to the satisfaction of Melbourne Water.
(b)	All surface areas of private open spaces being drained by a minimum 100 mm diameter drainage pipe connected to the storm water system.
(c)	A drainage system on the site being designed to ensure storm water runoff exiting the site meets the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999). 
(d)	A drainage surcharge route within the development to avoid inundation of any dwellings.
(e)	Details, including levels of the driveways within the site.
(f)	The central reinforced concrete vehicle crossings being a minimum width of 3.0 metres at the property boundary.
(g)	The design of all vehicle movements entering and exiting the property to and from Unit 2 and 3 being in a forward direction.
(h)	Reinforced concrete vehicular crossings to Council standards, with any redundant crossing or vehicle laybacks being removed, including reinstatement of the nature strip fronting the site.
(i)	Sight distance for vehicles and pedestrians not being unduly restricted at the exit from site by fencing or landscaping works.
(j)	Tree Protection Zones (TPZs) impacted by the works, or as shown on any other development plans and documents. 
(k)	Drainage works designed to avoid TPZs where possible. 
(l)	Proposed methodologies for complying with AS4970-2009 (Protection of trees on development sites) for any works that are required within TPZs.
14	Before the approval of engineering plans, drainage computations and documentation are required for:
(a)	The proposed drainage system.
(b)	The consideration of any drainage catchment external to the development that may drain to the proposed drainage system.
15	Prior to the commencement of any works, a project-specific Minor Construction Management Plan (CMP) must be endorsed by the Responsible Authority. This CMP is to be based on the standard Minor CMP template found on the Mornington Peninsula Shire’s website. When approved, the CMP will be endorsed and form part of the Planning Permit. The endorsed CMP must be implemented to the satisfaction of the Responsible Authority prior to, and during the works.
16	Before the initial occupation of the development drainage works within the development must be constructed in accordance with approved engineering plans, and to the satisfaction of the Responsible Authority.
17	The owner must operate and maintain the drainage works including the on-site storm water detention and treatment system at their cost and must allow the system to be inspected by an authorised officer of the Responsible Authority from time to time. The owner must not modify the on-site storm water detention and treatment system without prior written approval from the Responsible Authority.
18	Before the initial occupation of the development, vehicle crossings, areas set aside for the parking of vehicles and driveways as shown on the endorsed plans must be constructed in accordance with approved engineering plans, surfaced with reinforced concrete and drained to the satisfaction of the Responsible Authority.
Car spaces, access lanes and driveways must always be kept available for these purposes.
19	Prior to the issue of a Statement of Compliance, works must be completed in accordance with engineering plans and specifications approved by the Responsible Authority and must include:
(a)	Each lot being provided with a property drainage inlet located within that lot.
(b)	Discharge from the site being connected to the underground drainage system within Jetty Road to the satisfaction of Melbourne Water.
(c)	A reinforced concrete vehicular crossing being constructed to service lot 1 and the Common Property No. 1 with any redundant crossing or vehicle laybacks being removed and the nature strip reinstated to the satisfaction of the Responsible Authority.
20	Prior to the issue of a Statement of Compliance the applicant must:
(a)	Demonstrate to the Responsible Authority that water quality features will be implemented in accordance with clause 56.07-4 of the planning scheme and/or
(b)	Submit a completed “Stormwater Quality Offset Contribution Form” to the Responsible Authority to forward to Melbourne Water and demonstrate by way of advice from Melbourne Water that Melbourne Water Stormwater Quality Contributions has been paid.
21	The subdivision as shown on the endorsed plan must not be altered or modified without the consent in writing of the Responsible Authority. 
22	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas services to each lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time. 
23	All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created. 
24	The plan of subdivision submitted for certification under the Subdivision Act, 1988 must be referred to the relevant authority in accordance with Section 8 of that Act. 
25	Prior to the issue of a Statement of Compliance for any stage, the owner of the land must enter into an agreement with the Responsible Authority, pursuant to Section 173 of the Planning and Environment Act, 1987. This agreement must be registered by the Responsible Authority pursuant to Section 181 of the Planning and Environment Act, 1987 on the title of the subject land prior to approval of the subdivision.
This agreement must provide for Common Property and drainage detention being constructed in accordance with engineering plans approved by the Responsible Authority prior to the transfer or occupation of any lot created by the subdivision, whichever occurs first. 
The costs in preparation and registration of such agreement are to be met by the subdivider and must be paid prior to the registration of the agreement.
The above condition will be deemed to be satisfied and the Responsible Authority will waive the need for the subdivider to enter into an Agreement, if the Common Property areas and drainage detention have been completed in accordance with engineering plans approved by the Responsible Authority.
26	Prior to the issue of a Statement of Compliance, the subdivider must enter into an agreement with the Responsible Authority, pursuant to Section 173 of the Planning and Environment Act, 1987.  This agreement must be registered by the Responsible Authority pursuant to Section 181 of the Planning and Environment Act, 1987 on the title of the subject land prior to approval of this subdivision.  
This agreement must ensure that any building constructed on a lot resulting from this subdivision is in accordance with the development plan endorsed as part of permit P20/0848 (as amended from time to time) or authorised by a further Planning Permit.  
The costs in preparation and registration of such agreement are to be met by the subdivider and must be paid prior to the registration of the agreement.
The above condition will be deemed to be satisfied, and the Responsible Authority will waive the need for the subdivider to enter into an Agreement, if all of the approved buildings have been substantially completed in accordance with the development plans endorsed as part of planning permit P20/0848.
27	Prior to the issue of a Statement of Compliance, the subdivider must remove the dwelling and outbuildings located over the boundary of the lots to the satisfaction of the Responsible Authority. 
28	Prior to the issue of a Statement of Compliance the subdivider must pay a Public Open Space Contribution to the Responsible Authority of 5% of the site value.  Such payment will satisfy in full any Public Open Space requirement under the planning scheme.  
The payment must be made no less than 7 days prior to the issue of a Statement of Compliance
29	This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
30	This permit as it relates to development (subdivision) will expire if one of the following circumstances applies:
(a)	The plan of subdivision has not been certified within two (2) years of the issue date of this permit.
(b)	A statement of compliance is not issued within five (5) years of the date of certification.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
Telecommunications
31	The owner of the land must enter into an agreement with: 
(a)	a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time; and 
(b)	a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre. 
32	Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act, 1988, the owner of the land must provide written confirmation from: 
(a)	a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and 
(b)	a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre. 
Melbourne Water
33	Prior to the issue of Statement of Compliance, a separate application direct to Melbourne Water must be made for approval of any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system.
South East Water
34	The Certified Plan of Subdivision should show a 2.40m wide Sewerage easement, as per the attached plan, to be in favour of South East Water Corporation pursuant to Section 12(1) of the Subdivision Act, 1988.
United Energy
35	Prior to the prescribed information being issued under section 21(1) of the Subdivision Act, 1988 the applicant is required to:
(a)	Enter into an agreement with United Energy for an underground supply of electricity for the endorsed plan.
(b)	Establish common metering within the common property for any lot that touches common property and is affected by any owners corporation.
(c)	Remove/rearrange any existing electric power lines that are affected by the new subdivision to comply with the Victorian Service and Installation Rules 2014.
– End of conditions –