VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P440/2021
Permit Application no. PP-973-2020	
CATCHWORDS	
Section 79 Planning and Environment Act 1987; Greater Geelong Planning Scheme; General Residential Zone (GRZ1); multi-dwelling development; Neighbourhood character; design response; amenity; traffic    	

Applicant	James Bruscella	

Responsible Authority	Greater Geelong City Council	
RespondentS	Felicity Speare, Iris Speare, Peter Donald, Stephen Francis Ryan, Darren Smith, Celeste Smith, Michael Harris, Graeme Stafford, John Ellerton, Cheryle Gargan, Vivien Hughes, Ash Martin, Faye Harris, Sue Stafford, Scott Martin	
Referral AuthoritIES	Barwon Water, Powercor, Downer Utilities Australia Pty Ltd, Country Fire Authority	
SUBJECT LAND	212 Bailey Street
GROVEDALE  VIC  3216	
HEARING TYPE	Hearing	
DATE OF HEARING	16 August 2021	
DATE OF ORDER	16 September 2021	
CITATION	Bruscella v Greater Geelong CC [2021] VCAT 1063	
Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed on 27 June 2021 with the Tribunal:
Prepared by: Urbanolodgy Designs
Drawings Numbers: TP1,TP2, TP3, TP4
2	In application P440/2021 the decision of the responsible authority is affirmed.  
3	In planning application PP-973-2020 no permit is granted. 

Laurie Hewet
Senior Member		Shiran Wickramasinghe
Member	

Appearances
For applicant	Mr J Bruscella	
For responsible authority	Ms A Green	
For referral authority	No appearance	
For respondent	Mr S Ryan in person
Mr S Juhasz representing Mr P Donald 
Ms I Spear in person 
Ms F Spear in person	

Information
Description of proposal	The construction of thirteen (13) single-storey dwellings and a fifteen (15) lot subdivision.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Greater Geelong Planning Scheme	
Zone and overlays	General Residential Zone (GRZ1)	
Permit requirements	Clause 32.08-3 (Permit required to subdivide the land)
Clause 32.08-6 (Permit required to construct two or more dwellings on lot).	
Relevant scheme policies and provisions	Clause 11, 15, 16, 21.06, 22.71, 52.06 and 55. 	
Land description	The subject site known as 212 Bailey Street, Grovedale. The site has a dual to frontage to Bailey Street (50m east boundary) and Pickerall Avenue (50.25m west boundary) with a total area of 3859 square metres.
The site currently contains a  single storey single dwelling with large setbacks from all boundaries, a large shed is located on the south boundary. A swimming pool and outdoor area are located immediately to the west of the dwelling.
The site has residential interface abuttals to the north (194 Bailey Street and 17 Pickerall Avenue) and south boundary (214 Bailey Street and 25 Pickerall Avenue). The site is part of a residential neighbourhood comprising a mix of single detached dwellings and some medium density housing.

Reasons

What is this proceedings about?
1	This is an application for a review against Greater Geelong City Council’s failure to grant a permit in the prescribed time to construct 13 single-storey dwellings and a 15 lot subdivision.
2	After lodgement of the application for review Council determined the proposal should be refused. The grounds cited for refusal relate to inconsistencies with neighbourhood character, energy efficiency objectives, traffic generation and orderly planning of the area. It is noted the decision is contrary to Council officer’s recommendation to approve the development subject to permit conditions.
3	At the commencement of the hearing the planning permit application was amended by substituting plans showing a range of changes to the proposal including trees to be retained, redesign of dwelling 3 and 12, widening the vehicle passing area, increase in landscape buffer width, change of façade materials and colours for selected dwellings, provision of an acoustic fence along the north boundary, reallocation of car spaces, provision of Velux windows to selected dwellings, deletion of the security gate and inclusion of a security system.
4	 A statement of changes was circulated to all parties and filed with the Tribunal on 27 June 2021. The parties to the proceedings did not object to the substitution of the plans. We amended the plans accordingly.
5	The key issues in this matter may be expressed as follows:
•	Is the proposal acceptably respectful of neighbourhood character?
•	Is an acceptable level of on-site and internal amenity achieved?
•	Are the car parking arrangements and generated traffic movements acceptable?
6	At the end of the hearing, we told the parties that it is likely we would undertake an inspection of the site and the neighbourhood.  Because of the Covid-19 public health orders in place since the hearing, we have been unable to undertake that inspection. It is unknown when those public health orders will be lifted.  
7	We are satisfied however that we have sufficient material available to proceed to decide on this matter without undertaking a view.  During the hearing, the Council, the applicant and the respondent objectors provided us with a significant amount of material including photographs, aerial photography, streetscape views, montages and analysis of development patterns and forms within the neighbourhood.  This material, combined with the application plans, design response plans and the written and oral submissions presented by the parties during the hearing has enabled us to make a fully informed decision on this application.  We are satisfied that on review of all the material available to us, an inspection would not further assist us in making our decision.   
8	Having considered the submissions and all relevant matters we have decided to refuse a permit because the proposal does not acceptably respect the character of the area and provides poor on-site and internal amenity.
9	Our reasons are set out below. 
What is the relevant PLANNING context? context?
10	The land is zoned GRZ1, which has a purpose of encouraging development that respects the neighbourhood character and providing a diversity of housing particularly in locations offering good access to services.
11	Clause 15.01S has an objective of creating urban environments that are safe, healthy, functional and enjoyable and contribute to a sense of place and cultural identity. A related strategy requires development to respond to its context in terms of character, cultural identity, natural features, surrounding landscape and climate.
12	Clause 15.01-5S has an objective to recognise, support and protect neighbourhood character, cultural identity and sense of place. A related strategy seeks to support development that respects the existing neighbourhood character or contribute to a preferred neighbourhood character.
13	Clause 16.01-1S has an objective to facilitate well located, integrated and diverse housing that meets community needs. Two related strategies seek to increase the proportion of housing in designated locations in established areas and encourage high density housing development on sites that are well located in relation to jobs, services and public transport.
14	At the local level Clause 21.06 of the Municipal Strategic Statement (MSS) addresses Settlement and Housing. Clause 21.06-1 indicates Geelong will grow by an additional 152,000 people by 2036. It identifies that a greater range of housing types will be required to meet the increased demand for housing generated by the population increase. Targeted infill development is to be supported in areas with access to infrastructure, goods and services. However, it is stated in order for medium and high density housing to be embraced by established communities it needs to deliver high-quality design and achieve a high level of amenity for future resident’s while being appropriate for the site and the neighbourhood.
15	The Housing and Settlement Plan provided at Clause 21.06 and 21.04 shows the site to be located in Urban Geelong. The review site in this case is not identified to be in a Key Development Area or an Increased Housing Diversity Area.
16	Our consideration of this application must be informed by a balanced application of those planning scheme provisions that encourage increased housing diversity and affordability in established areas against those provisions that require development to be respectful of existing or preferred neighbourhood character.
17	At the outset it is acknowledge the parties to the appeal informed the Tribunal of the comprehensive array of policy and statutory controls that apply. We will not repeat them here but will refer to them as relevant in the following sections of these reasons.
18	All applications for two or more dwellings on a lot must meet the requirements of Clause 55.  The purpose of Clause 55 is to implement the Planning Policy Framework, achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character, encourage residential development that provides reasonable standards of amenity for existing and new residents, and to encourage residential development that is responsive to the site and the neighbourhood.  
19	An application to subdivide land must meet the requirements of Clause 56.  
Is the proposal acceptably respectful of neighbourhood character?
In relation to the current proposal the state and local planning policy framework seeks to:
•	Increase the supply of housing in existing urban areas by facilitating increased housing yield in appropriate locations.  
•	To locate new housing in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport.
•	Encourage residential development that respects the character of the neighbourhood and implements character policy and guidelines.  
•	Encourage the design of energy efficient buildings.
•	Ensure that development improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing.
•	Achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community.
•	Encourage the provision housing to accommodate future housing needs and preferences of the local community.
20	All parties to the hearing spoke to the character of the area and the Tribunal was shown the number of photos of the locality. Having inspected the site and neighbourhood we find in broad terms the character of this area is strongly influenced by the following:
•	Dwellings with a direct frontage to the street;
•	Dwellings built across the frontage with at least one wall on the boundary and a pedestrian access or limited setback from the other boundary;
•	Front setbacks between 5–6 metres occupied by landscaping and driveway.
•	Pitched roofs with gabled or hipped profiles finished in either tile or Colorbond; 
•	Walls constructed with predominantly exposed brick, however dwellings also include render and timber finishing; 
•	Entrances oriented at the front of the building and habitable windows facing the street; 
•	Generally, one single crossover/double crossover providing access to garages (single or double) generally attached to the dwellings and visible from the street; 
•	Secluded private open space to the rear; 
•	Landscaping varied with limited trees within sites. 
21	In addition, Ms Green provided a detailed breakdown of the properties in the immediate locality fronting Bailey Street and Pickerall Avenue identifying their street frontage presentation and lot size.
22	The Council and respondents expressed significant concern the development is out of character with the surrounding area and allied to that submitted the proposed dwelling density is excessive. Principally the matters of concern relate to the proposal not being respectful and reflective of the existing character. Further the design is said to not deliver high-quality outcomes with the dwellings being repetitive in design and of a style that does not reflect the height, frontage, scale, fencing or lot areas of the existing neighbourhood character.
23	In support of the proposal Mr Bruscella submitted there is a need for development of this type given the Greater Geelong Settlement Strategy 2020 estimates a near doubling of the population growth and expected demand for dwellings by 2036.
24	Mr Bruscella also submitted the proposed single storey-dwellings have been designed to incorporate elements of the streetscape character. In particular, it was stated a habitable room window has been provided to the façade of each dwelling with a separate recessed entrance which is defined by a flat roof. Further the dwellings have been grouped together to provide a streetscape rhythm consistent with existing development. 
25	The pitched roof and parapet wall façade elements combined with the red clinker bricks, vertical cladding and colorbond roof was also identified by Mr Bruscella as a design response that matches the character of existing development in the area.
26	The subject site is in an established residential area and as described earlier, development in the area is principally single storey with consistent front setbacks. Further the built form of the single dwelling development in the locality sits across the frontage with some level of articulation manifested by an entry, habitable room windows and garage facing the street in a horizontal form. These sites have varying frontage widths, with a typical width of 16.0m.
27	There is also a contribution to character provided by recent multi-dwelling development. These developments have a range of layouts. However, they generally have a dwelling fronting the street incorporating an entry, habitable room window and garage.
28	The streetscape presentation of the nearby development typically includes a habitable room, entry and garage facing the street in a horizontal form. 
29	It is noteworthy the site is in a GRZ.  The purpose of the zone is, in addition to implementing policy, to encourage development that respects the neighbourhood character of the area. Further an objective of Clause 21.06-5 is to facilitate infill development to increase housing supply. Relevant strategies relate to accommodating medium density housing in residential areas with more intensive development being located closest to the core of activity centres and supporting appropriate medium density housing in GRZ1 areas.
30	The subject site with an area of 3859m² is suitable for some form of medium density housing. The critical issue is what form that development should take. Strategies outlined in the Planning Scheme clearly call for more intensive development to be located closest to the core of activity centres. The subject site whilst being large in area is not located in a Key Development Area or Increased Housing Diversity Area.  
31	The proposed two-bedroom dwellings present in an attached form in groups of two and three with dwelling 13 having a 1.0 metre setback from the north boundary. Further there is a separation of 1.0 metre between dwellings 10 and 11 and dwellings 8 and 9. These dwellings have a staggered setback varying from 5 to 5.12 metre from the Pickerall Avenue frontage at their nearest point. 
32	Dwelling 1 has a 6.1metre setback from the north boundary and there is a 1.0 metre separation between dwellings 3 and 4. These dwellings have a consistent 5.2 metre setback from the Bailey Street frontage at their nearest point.
33	The dwellings are single-storey and grouped in a manner that seeks to replicate the streetscape presentation of existing dwellings in the locality. However, the modular contemporary design of the dwellings and flat façade with little articulation and lacking recessive setbacks other than dwelling entry fails to present sympathetically to the existing streetscape. The form of each dwelling is quite distinct. The narrow width of the façade coupled with the triangular (pointed) parapet of each dwelling accentuate the vertical nature of the modular design and present in a manner that does not appropriately respect the existing neighbourhood character.
34	The efforts made by Mr Bruscella to alter the external surface materials to include clinker brickwork and the offer to substitute a rendered surface for the proposed vertical board cladding are acknowledged. However, such a change would not be sufficient to satisfactorily address concerns regarding the proposal’s failure to appropriately respect the existing neighbourhood character.
35	Tribunal’s role in this instance is to form a view based on the development’s fit with the existing character. In this context it is important to note the site is in a GRZ1 and not in a zone or policy area that is identified for higher-density development such as GRZ2 or GRZ4. There is no preferred character statement for the neighbourhood. The proposal is therefore required to respect the existing character of the area.
36	Council in not supporting the proposal cited a ground relating to density. However, Council’s submission did not provide any numerical analysis regarding dwelling density but instead addressed character and built form concerns. Density is  not identified in the Planning Scheme as a tool for assessment of applications of this type. Whilst the proposal has been found to be unsympathetic to the character of the area, density has not been a determinative consideration.
37	Mr Bruscella in his submission referred to a previous VCAT decision, Arcibuilt Pty Ltd v Geelong CC [2020]. The matter was raised as that development was said to be similar to the current proposal with similar applicable planning policy and controls. In that instance the application had also been refused by Council contrary to the officer recommendation. The Tribunal ultimately determined to allow the appeal.
38	Whilst the similarities between the two proposals are understood, there is also significant variation between the proposals with respect to design, mix of dwelling types (single and double storey), layout and location. Of note is the fact the site at 45-48 Station Lake Road, Lara is very close to an Increased Housing Diversity Area whilst the review site is not. Having regard to the differences between the proposals, we do not find the decision to be of assistance or determinative in the current appeal.
Is an acceptable level of internal and on-site amenity achieved?
39	The subject site has two street frontages and the layout of the development orientates the dwellings to the street frontages. Seven of the dwellings have frontage to Pickerall Avenue to the west with private open space located to the rear. The remaining six dwellings have frontage to Bailey Street facing east with private open space located to the rear. All the open space areas abut a centrally located open car park accessed via a single driveway from Bailey Street. 
40	The linear grouped design of the dwellings that are oriented east-west results in nine dwellings not having a northern outlook and eight of the dwellings not having a northern or southern outlook. It is noted these eight dwellings are provided with an internal light court (dwellings 2, 3, 5, 6, 7, 8, 11 and 12). Dwellings 2, 3, 5, 6, 7,8, 9, 11 and 12 incorporate Velux roof windows to enable northern sunlight to enter the dwellings.
41	Having regard to the opportunity provided by the large regular site area the proposed layout and dwelling orientation is a poor design response. While the desire to orientate dwellings to street frontages is understood, this site provides opportunity for  more refined design and dwelling layout. The fundamentals of good design seek to provide quality outcomes with respect to the design and orientation of dwellings. This does not mean every dwelling must have a perfect orientation. However, it is reasonable to expect a development on a site of  3859m² that is regular in shape would provide a much better design outcome and more than 4 dwellings would have a northern orientation and opportunity for solar access. 
42	The layout divides the site in a north/south orientation with an area of front yard followed by the row of dwellings, area of secluded open space and a large car park. The pattern then repeats. Surrounding development generally has some space around the dwellings allowing for ease of access and internal connection between the dwelling, open space and car parking. The layout results in nine of the dwellings having a segmented layout with poor connection through the site. The outcome is an unacceptable design and layout that creates practical problems for residents. 
43	Further, provision has not been made for connectivity through the site from Bailey Street to Pickerall Avenue. On such a large site connectivity through the site would be beneficial for future residents.
44	We agree with Council’s submission that not being able to take your lawnmower or bins from the rear open space to the front yard without going through the house or walking through the car park along the driveway and subsequently along the footpath is a poor response. At the hearing Mr Bruscella suggested the front yards could be planted out instead of being lawn. While this may negate the need for a lawnmower to be used in the front yard, this change does not satisfy  the substantive concern regarding the poor design outcome created by the lack of integration and connectivity.
45	Bin storage is provided within the front setback. Whilst it is acknowledged the location of bin storage on adjoining sites is not regulated, the proposed outcome is not desirable. It is noted bins are not commonly stored in front yards in the surrounding area.
46	The proposed layout creates a central car parking area accommodating 19 car spaces while 15 spaces are required (13 spaces for the dwellings and 2 visitor spaces). The central car park has few redeeming features. It has little vegetation and a substantial hard surface that is uncharacteristic of the neighbourhood and visually detracts from the amenity residents should experience on site. In addition, the entire carpark is separated from the dwellings by fencing and does not provide convenient access to the dwellings. There is also little opportunity for passive surveillance of the car park from the dwellings through the proposed fence. 
47	Whilst it is acknowledged Mr Bruscella had considered providing 15 car spaces with the area equivalent to the additional 4 spaces to be landscaped, that is not what is proposed. Converting four of the proposed car spaces to landscaping would be an improvement, however such a change would not sufficiently address the poor design outcome of the large open car park that is proposed. 
48	The offer to provide a video surveillance system of the car park does not compensate for the poorly designed proposal.
49	Have regard to the above considerations the level of internal and on-site amenity is unacceptable.
Are the car parking arrangements and associated traffic movement acceptable?
50	Both Council and the respondents raised concerns with respect to car parking and vehicle movement. In particular, concerns were raised with respect to the capacity of Bailey Street to carry additional vehicle movement, car parking in surrounding streets and ingress/egress from the site to Bailey Street.
51	As previously stated, the development includes 19 on-site car spaces (17 spaces for the dwellings and 2 visitor spaces while 15 spaces are required pursuant to the provisions of Clause 52.06. 
52	The site has a frontage of approximately 50 metres to both Bailey Street and Pickerall Avenue and we note there are no on street parking restrictions.
53	Mr Bruscella circulated a traffic report to all parties prepared by Traffix Group as part of his submission. The report has not been accepted as expert evidence as the author did not present the report nor were they available to be cross-examined. As such we give it the same weight as a submission only.
54	The provision of car parking exceeds the statutory requirement and we find no reason the car spaces would not be used by residents or visitors. The entry to the car park is identifiable and configured for ease of use.
55	The internal driveway located along the north boundary has a length of approximately 30 metres and is designed to enable two vehicles to pass at the point of entry to the site. We note Council’s traffic engineers have not objected to the proposal subject to the common property driveway being a minimum 4 metre wide at the road reserve with a 1 metre offset from the northern boundary and removal of the proposed gate within the common property. These requirements have been satisfied on the substituted plans considered by the Tribunal.
56	With respect to traffic generation from the proposed development Mr Bruscella indicated conservatively the development would generate 10 vehicle movements per dwelling equating to 130 daily traffic movements from the site. Further, it was indicated Bailey Street currently carries approximately 1000 vehicles per day and has a capacity of up to 3000 vehicle movements per day. The additional traffic can be accommodated within the surrounding network without any unacceptable impact on its operation.
57	We are satisfied the proposal appropriately provides for car parking and would not generate unacceptable traffic movement.
Other matters
58	The principle of estoppel was raised by Mr Juhasz. Essentially it was stated there was a past contract of sorts with owners of surrounding properties that fetters the development of this site for multi-dwellings. There is no information submitted with respect to the existence of a contract or restriction to evidence this claim. We note there are no covenants or restrictions on title that prevent a multi-dwelling development occurring on this site. In the absence of any verifiable information or  evidence relating to this matter there is no basis to conclude the site cannot be redeveloped for medium density housing.
59	The application proposed a 15 lot subdivision. Given our findings in relation to the unacceptable development it is not necessary for us to proceed with an assessment regarding the subdivision. 
Conclusion
60	For the reasons given above, the Council’s decision is affirmed. No permit is granted. 

Laurie Hewet
Senior Member		Shiran Wickramasinghe
Member