VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P582/2021
Permit Application no.P20/1446 	
CATCHWORDS	
	
Applicant	Richard Ivica Palahinjak	

Responsible Authority	Mornington Peninsula Shire Council	

SUBJECT LAND	12 Jacaranda Drive
BAXTER VIC 3911	

HEARING TYPE	Hearing	

DATE OF HEARING	10 November 2021	

DATE OF ORDER	16 November 2021	

CITATION	Palahinjak v Mornington Peninsula SC [2021] VCAT 1367	
Order
1	In application P582/2021 the decision of the responsible authority is set aside.
2	In planning permit application P20/1446 a permit is granted and directed to be issued for the land at 12 Jacaranda Drive BAXTER VIC 3911 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	The construction of three dwellings.

Michael Nelthorpe
Member			
Appearances
For applicant	Mr Palahinjak, in person.	
For responsible authority	Mr Gerard Gilfedder, town planner of Currie & Brown (Australia).	

Information
Description of proposal	Three single-storey dwellings	
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 Schedule 1	
Permit requirements	Clause 32.08-6:  to construct three dwellings on a lot.	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 21.07, 22.13, 32.08, 52.06, 55, 65 and 71.02.	
Land description	This wedge-shaped site is on the east side of the street and is next to a park.  It has a 11.5m frontage, a maximum depth of 58.5m and an area of 829.33m2.  A single-storey dwelling occupies the site.	

  Reasons
What is this proceeding about?
1	Mr Palahinjak (‘the Applicant’) proposes to construct three single-storey dwellings at 12 Jacaranda Drive, Baxter.  Mornington Peninsula Shire Council (‘the Council’) refused to grant a permit on grounds relating to neighbourhood character policy, the design standards for car parking and several objectives of clause 55 (ResCode).
2	This is a ‘correcting’ repeat appeal.  In 2019, a different division of the Tribunal affirmed the Council’s decision that a permit should not be granted for an earlier iteration of the proposal.
What are the key issues?
3	The key issues are:
•	Do the plans respond to the previous decision?
•	Does the proposal respect the neighbourhood’s character?
4	Having heard and considered the submissions, I find that the proposal is an acceptable planning outcome.  Several flaws with the previous design have been rectified and it is otherwise acceptable.  I find that the design and height of the proposal respects the neighbourhood’s character, and that the objectives of clause 55 are met.
do the plans respond to the previous decision?
5	It was previously found that the proposal fails to provide an acceptable design response due to:
•	The attached built form through the depth of the site; and
•	The interface with the adjoining public park.
Opening the site to the park
6	In response, the proposal before me introduces a 1.5m break between Dwellings 1 and 2 and provides a 1200mm picket fence with 50% transparency on most of the boundary with the park.
7	I find that the decision to open the site up to the park reduces the sense of enclosure around the driveway and the south-facing built form.  Along with minor changes to the porches, this satisfactorily addresses the concern raised in the previous decision regarding the limited variations in building setbacks and substantial lengths of single-plane walls along the southern side.  It does this by widening the aperture in which this side of the development will be seen, and this allows these aspects of the development to be more easily absorbed in its context.
8	This change also addresses the previous concern regarding passive surveillance along the driveway as any pedestrian visiting the site would be seen from the park as well as from windows in the development.  Of those windows, Mr Palahinjak points out that the views to the driveway are available from the courtyard and living area of Dwelling 1, the master bedroom of Dwelling 2 and the second bedroom of Dwelling 3.  This provides a degree of passive surveillance that is enhanced by the openness to the park.
Improving the presentation to the street
9	The previous iteration of the plans showed a 1800mm high solid fence around Dwelling 1’s front courtyard.  This has been corrected to show a 1200mm fence around this area with a planting strip against the footpath and along the driveway.
10	This integrates the courtyard, yet it does not provide the courtyard with the level of privacy sought by the ResCode standard.  I find that this can be satisfactorily rectified by increasing the fence height to 1500mm.  While it does not meet the ResCode standard on secluded private open space, it will provide a degree of privacy, which can be enhanced by the landscaping of this area.
11	Providing this fencing next to the driveway also increases the surveillance of this space and the integration with the park, as discussed earlier.
Compliance with the design standards for car parking and access
12	The additional 500mm required to provide a 3000mm wide driveway has been achieved for most of the driveway’s length.  This has been done by reducing some of the development’s internal dimensions.  
13	There are two ‘pinch points’ where the driveway reduces to 2700mm wide.  The first is outside the bathroom of Dwelling 2.  I find this is satisfactory as it is a minor discrepancy.  The second is in the reversing area of the garage for Dwelling 3.  Mr Palahinjak offered to delete this area past the apex of the reversing manoeuvre, but I find it is satisfactory as it stands.  It will only be used by vehicles associated with Dwelling 3that are travelling at low speeds.  Future residents of that dwelling will become familiar with the driveway’s width at this point.
14	The garages have all been extended to depths of over 6000mm.  In combination with the widening of the driveway, this rectifies the concern regarding vehicle access and circulation on the site.
Maximising solar access to Dwelling 1
15	The previous Tribunal’s concern has been rectified by increasing the setback of part of the family/kitchen area of Dwelling 1 to 1800mm.  This will increase the amount of sunlight entering this room and will complement the daylight and sunlight received through the west-facing sliding doors of this space.
The lack of a porch or canopy to the dwelling entries
16	The previous Tribunal criticised the lack of a porch or canopy at the entrances to the dwellings.  The elevations now show a ‘porch entrance with two columns’ in front of each front door, with a roof detail that suggests that these porches have canopies.  This detail satisfies the previous concern.  It needs to be transposed onto the site and garden area plan (A104).  This can be done by a condition of permit.
17	I do not share the concern of the previous Tribunal about the porch of Dwelling 3 being adjacent to the driveway, as this section of the driveway only serves Dwelling 3.  I find that this provides a sufficient level of safety for future occupants of this dwelling.
Non-compliance with Standard B29 – solar access to private open space
18	I do not share with previous Tribunal’s concern on this issue.  Dwelling 2 has 49.7m2 of secluded private open space.  This comfortably exceeds the minimum requirement of 25m2.  The area with good solar access is adjacent to the family/kitchen area of this dwelling, while the shaded area is where services such as a clothesline is proposed.  I find that this open space arrangement provides good solar access for this compact two-bedroom dwelling.  
Lack of eaves on the dwellings
19	The previous Tribunal raised this issue as being inconsistent with the neighbourhood’s character.  I am not persuaded that it is a fatal flaw.  While eaves are found on the original dwelling stock, many new developments do not have this feature.  I find that the overall impression of the development, being three small units, is not significantly altered by the lack of eaves.  
A storage shed in the front setback area
20	The storage shed has been removed from the front setback area and replaced with a notation that storage occurs in the garages.  At the hearing, Mr Palahinjak explained that the increased depth of the garages allowed for more than 6m3 of storage space in front of cars parked in the garages.
21	I accept his explanation and note that ResCode purposefully requires 6000mm deep garages to allow for storage as well as car parking.  I do not believe that such storage is inconvenient, as it is typical of many garages.
Does the proposal respect the neighbourhood’s character?
22	I find that the proposal’s response to the neighbourhood’s character is addressed through the conventional form of these dwellings, their modest scale, and the compliant front setback.
23	Apart from that, providing a 1500mm gap between Dwellings 1 and 2 echoes the layout of the two-dwelling development to the north.  Providing this gap along with opening the development to the park and reducing the impact of the front fence are positive changes that show a greater respect for the neighbourhood’s character.
Are there any other issues?
24	I do not believe that an outdoor bin area is a good outcome for the site.  I expect that the bins can be stored in each dwelling’s garages as this is more convenient and less unsightly than what is proposed.  I will require the bin area next to the driveway to be deleted. 
What conditions are appropriate?
25	Mr Palahinjak has no objection to the draft conditions at the hearing.  On my review, I have deleted draft conditions 1a) and 1b) and included a condition requiring the height of the western and southern fences around the secluded private open space of Dwelling 1 to be increased to 1.5m to increase the privacy of this space.  In draft condition 1e) for the landscaping plan, I have deleted 1e)(i) requiring a survey of existing vegetation and (v) requiring the fencing of retained vegetation because no vegetation is being retained.  I have deleted draft condition 7 on tree retention for the same reason.
Conclusion
26	I am aware that the site is constrained by its relatively narrow width.  This limits the space available for driveways and courtyards in a one-behind-the-other development such as this.  I find that the Applicant has addressed this to an acceptable degree by limiting the size of the dwellings and generally complying with ResCode’s standards.
27	I find that the benefit of providing these small dwellings, along with the corrections made since the previous decision, result in an acceptable planning outcome.
28	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Michael Nelthorpe
Member			

Appendix A – Permit Conditions
Permit Application No	P20/1446	
Land	12 Jacaranda Drive, Baxter	

What the permit allowS	
In accordance with the endorsed plans:
•	The construction of three dwellings.	
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 and must be generally in accordance with the plans submitted with the application but modified to show:
(a)	the height of the western and southern fences around the secluded private open space of Dwelling 1 to be increased to 1.5m;
(b)	The detail of the ‘porch entrance with two columns’ as shown on the elevations transposed to the Site and Garden Plan (A104);
(c)	The provision of 6 cubic metres of storage for each dwelling;
(d)	Deletion of the waste bin storage next to the driveway, and waste bins shown inside each garage; and
(e)	A landscaping plan prepared by a suitable landscape professional, that must show to the satisfaction of the Responsible Authority:
i	Details of surface finishes of pathways and driveways;
ii	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 2 canopy trees and at least 4 small trees and/or shrubs);
iii	Landscaping and planting within all open areas of the site;
iv	50% of species selection by type and number must be indigenous to the Mornington Peninsula.
Colours/Materials
2	The materials and colours of the exterior finish of the approved development must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.
Finishes 
3	Prior to the occupation of the dwelling additions, external finishes must be completed to a professional standard to the satisfaction of the Responsible Authority.
Landscaping
4	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.
5	Within 6 months of the practical completion of the development (or other time agreed to in writing by the Responsible Authority), the landscaping works shown on the endorsed plans must be carried out and completed, to the satisfaction of the Responsible Authority.
6	The landscaping referred to in Condition 1 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.
7	Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
Screening
8	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.
Engineering Plans
9	After the endorsement of Condition 1 plans and before any works associated with the development starts, 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 may 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 100-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 and be connected to the existing underground drainage system within the rear south-east corner via a minimum 150mm diameter PVC drainage pipe. 
(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 common driveway within the site.
(f)	The reinforced concrete vehicle crossing being a minimum width of 3.0 metres at the property boundary.
(g)	The design of all vehicle movements entering and exiting the property being in a forward direction.
(h)	Reinforced concrete vehicular crossings to Council standards, with any redundant crossing or vehicle laybacks being removed and replaced with kerb and channel, 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.
10	Before any works associated with the development commences, drainage computations are required for the proposed drainage system, including consideration of any drainage catchment external to the development that may drain to the proposed drainage system.
11	Before the initial occupation of the development drainage works associated with the development must be constructed in accordance with approved engineering plans, and to the satisfaction of the Responsible Authority.
12	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.
13	Car spaces, access lanes and driveways must be kept available for these purposes at all times.
Expiry
14	This permit will expire, in relation to the construction of the two dwellings, 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.
– End of conditions –