VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11391/2021
Permit Application no.23266 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987, width of accessway, visual bulk, location and end of court bowl, street setback	

Applicant	Kyhoom Pty Ltd	

Responsible Authority	Hume City Council	

SUBJECT LAND	8 Bee Court,
CRAIGIEBURN 	

HEARING TYPE	Hearing	

DATE OF HEARING	22 November 2021	

DATE OF ORDER	26 November 2021	

CITATION	Kyhoom Pty Ltd v Hume CC [2021] VCAT 1426	

Order
1	In application P11391/2021 the decision of the responsible authority is set aside.
2	In planning permit application 23266 a permit is granted and directed to be issued for the land at 8 Bee Court, Craigieburn in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of a two storey dwelling and alterations to an existing dwelling on the land

K Birtwistle
Member			

Appearances
For Kyhoom Pty Ltd	Mr M Seach, town planner of Ratio Consultants	
For Hume City Council	Ms F Kennedy, town planner	

Information
Description of proposal	Construction of a two storey dwelling to the front of the existing single storey dwelling on the land. Alterations are also proposed to the existing dwelling including relocation of windows to other walls.  The new dwelling will comprise living, and open-plan dining and kitchen area at ground floor and two bedrooms at first floor. An at-grade car parking space is provided adjacent to the loungeroom. 
The two dwellings are separated by a one metre gap. The new dwelling has access to private open space in the form of secluded private open space (generally sited to the side / east) at ground level, directly accessed from the dining area.  The development is set back between 4.68 and 5.5 metres from Bee Court. External materials for the new dwelling consist of a mixture of brick at ground floor and selected render at first floor. The existing dwelling contains external rendering. Both dwellings have hipped and tiled roofs.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Hume Planning Scheme	
Zone and overlays	Genera Residential Zone – Schedule 1 (GRZ1)	
Permit requirements	Clause 32.08-6 – Construction of two or more dwellings on a lot.	
Land description	The site is located at the end of the court bowl, and at its southern boundary, abuts the Craigieburn Plaza shopping centre.  It is irregular in shape with an overall site area of 645 sq.m. There is a 1.83 metre wide drainage and sewerage easement which runs adjacent to the rear (west) and side (south) property boundaries. 
The site is currently developed with a single storey brick dwelling, with a pitched tiled roof.  The site is relatively flat and does not feature significant vegetation. There is an existing vehicle crossover located at the northern end of the site’s frontage. An accessway extends the length of the northern boundary and provides access to a single garage structure at the rear.	

  Reasons
What is this proceeding about?
1	Kyhoom Pty Ltd (the applicant) proposes to develop a new two storey dwelling to the front of an existing single storey dwelling (which is proposed to have minor alterations made to it) at 8 Bee Court, Craigieburn. In June 2021, Hume City Council (the Council) determined to refuse to grant a planning permit for the proposed development. The permit applicant has requested the Tribunal to review Council’s decision.
2	Council refused the proposal on the following grounds:
•	The proposed development does not meet the requirements of Clause 52.06 of the Hume Planning Scheme (Car Parking).
•	The proposed development does not meet numerous objectives and standards contained within Clause 55 of the Hume Planning Scheme (Two or more Dwellings on a lot and Residential Buildings.)  The non-compliant sections are listed below:
o	Standard B1 of Clause 55.06-1 – Design Detail
o	Standard B6 of Clause 55.03-1 – Street Setback
o	Standard B12 of Clause 55.03-7 – Safety
o	Standard B13 of Clause 55.09-8 – Landscaping
o	Standard B28 of Clause 55.05-4 – Private Open Space
o	Standard B32 of Clause 55.06-2 – Front Fences 
•	The application for the proposed second dwelling is not supported by adequate information responding to the Hume Planning Scheme including under Clause 53.18 – Stormwater Management in Urban Development and Clause 55.04-6 – Overlooking objective outlined in the Hume Planning Scheme.
3	The applicant says the site represents an appropriate candidate for urban consolidation of the order proposed, and it considers this to be an important factor in weighing up other competing policy objectives.
4	Council acknowledges that both state and local policy are supportive of increased densities in this area, with the site located in the ‘moderate change area’ under Council’s Housing Diversity Strategy which informs future housing directions within the municipality. However, it says that increased density should not be achieved at the expense of other important elements such as neighbourhood character, safe and efficient vehicle movements, and appropriate private open space provision.   
5	I 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 Hume Planning Scheme, I have decided to set aside the decision of the responsible authority and direct that a permit be granted subject to a number of plan changes that are necessary to achieve an acceptable outcome.
6	My detailed reasons follow.
conduct of the hearing
7	While the Council has refused the application, assisted by Discussion Plans provided by the applicant’s representative and forming part of its submission, the hearing was conducted in the spirit of achieving an amended design that would satisfy Council’s substantive concerns. The Discussion Plans, whilst not formally substituted, address a number of concerns of Council including those relating to front fencing and the location of secluded private open space within the front setback. Other matters identified by Council including stormwater management and landscape as agreed between the parties, can be dealt with via planning permit conditions.
summary of parties positions
8	There is no dispute that the site is well located with respect to achieving housing outcomes, being located adjacent an Activity Centre and in an area identified for moderate change by Council’s policy framework.  I agree that locationally, the principle of developing two dwellings on a lot that immediately abuts an Activity Centre and has no other planning constraints such as overlays or covenants makes it a suitable candidate for development of this nature.
9	But this does not mean that a proposal should not recognise and respond to its existing context (particularly where preferred neighbourhood character outcomes are promoted via local policy provisions).  The application seeks to construct a modestly sized two storey dwelling in the front setback of a single storey dwelling, in an older part of Craigieburn.  As the siting of the proposed dwelling is constrained by the presence of the existing dwelling on the land, by necessity, the dwelling has a modest footprint, with minimal upper storey articulation.  
10	As an outcome of this constraint, the Council identifies specific design concerns.  I address each of these as follows.
The accessway width
11	The proposed dwelling will be provided with an open car space adjacent the dwelling.  However, the siting of this car space then only allows a minimum accessway width of 2.7 metres for the section of the accessway that adjoins this car parking bay to the car parking of the rear existing dwelling.   
12	The Council says that vehicle access and car parking is unsatisfactory, as Clause 52.06-9, Design Standard 1 – Accessways states that accessways must be at least 3 metres wide.  Plans prepared in accordance with Clause 52.06-8 must meet the design standards of Clause 52.06-9 unless the responsible authority agrees otherwise.
13	I agree with these concerns.  The arrangement relies on the occupants of the proposed dwelling accurately parking within the prescribed car parking space to then allow a minimum accessway width of 2.7 metres, to allow the two cars associated with the rear dwelling to be able to reverse down past a parked vehicle belonging to the other dwelling.
14	Whilst the swept paths provided in the applicant’s submission attempt to show this is practically possible, in a real sense I have concerns that there is the potential for safety conflicts arising from this arrangement.
15	While there may be particular contexts where this reduced accessway width is supportable (for example where vehicles are capable of exiting in a forwards direction), I find that the design results in an overly complex reversing arrangement for the rear dwelling. I will require that the accessway width be a minimum 3.0 metres for the entirety of its length.
 Building spacing
16	Council says that the proposed building spacing is inconsistent with the existing neighbourhood character.  Where no preferred neighbourhood character is asserted (in this case, Council has no preferred neighbourhood character policy), Council says the development should takes its cues from the existing context.  
17	It says that the proposed dwelling will appear bulky because of:
•	the size of the upper storey when compared to the ground floor footprint and the lack of articulation at the upper storey.  
•	the open nature of the driveway to the site and its neighbour.
•	the reduced front setback to the street.
•	the one metre ground level separation between the existing and proposed dwellings.
18	The applicant acknowledges that the proposal does not provide a meaningful break between the existing and proposed dwelling but says that it does not need to under neither the local planning policy context nor the established character within the immediate environs.  It points to the modest size of the dwelling, being only 120 sq.m.  and its backdrop against a high blank wall of the Shopping Centre to its south.
19	Visual bulk is a planning term that although not defined, is commonly thought to be a combination of a building’s setback, height, articulation and composition relevant to a site’s physical context.
20	I am not persuaded that the proposed dwelling is overly bulky.  While it will be visible, so are other examples of two storey developments in the immediate area.  Further, it has a relatively narrow upper level footprint (only two rooms wide), than when viewed from the north, will sit in front of a backdrop of the imposing Shopping Centre wall at its rear.  There is no dispute that the building setbacks exceed Standard B17 Side and rear setbacks objective, nor that the building will result in off-site amenity impacts by reason of overlooking or overshadowing.
21	While the proposal does not satisfy Standard B6 this is largely due to the site’s location at the end of a court bowl, which means there is a “non standard” lot alignment.  While the building will project forward of its neighbour, this partially arises as a result of the curvature of the court bowl, and the varied setbacks of the building frontage provides an acceptable level of articulation in this context.
Landscaping response
22	Council is critical that there is no landscaping proposed along the northern property boundary, adjacent to the accessway.  Whilst the application plans do not show this, the Discussion Plan offered by the applicant indicate an ability to provide a small landscape strip between the common accessway and the side fenceline, and I find this to be satisfactory based on the immediate neighbourhood context.
23	Council acknowledges that landscaping opportunities across most of the site are acceptable, and I agree that subject to the conditions provided by Council, that spatially, there is sufficient ability plant at least 3 canopy trees within the site.  Further, the Discussion Plan removes part of a large porch at the entrance to the existing dwelling which will allow this space to accommodate additional planting within the site.
Location of private open space
24	Based on the application plans, while the quantum of secluded private open space (spos) meets the relevant Standard, its siting does not.  The spos for the proposed second dwelling is located within the front setback and does not comply with Standard B28, which requires that spos be located to the side or rear of a dwelling. Further, Council says that spos within the front setback is not appropriate largely due to the 1.8 metre high front fence that will be required along the majority of the front property boundary to enclose the space and ensure its privacy. 
25	The Discussion Plans prepared by the applicant alter the proposed fencing arrangement such that a large part of the site’s frontage will not be enclosed.  I am satisfied with this alteration.  I do not agree with Council that front fencing in the surrounding area is limited and for those sites that do include front fencing the fencing is generally low and visually permeable. There are examples of high front fencing in the street, and in that context a partial enclosure of the front of the site (as show in the Discussion Plans) is acceptable.
conditions
26	Conditions were discussed at the conclusion of the hearing and reflect these discussions and further consideration by the Tribunal.
27	I have required that the dwellings be attached at ground level. Where a 1.0 metre gap is proposed in the plans, I agree with Council that when viewed from the street this break in built form is unlikely to be discernible. As I have required the accessway width be increased to a minimum of 3 metres, this will reduce the footprint of the proposed dwelling along its northern elevation.  By allowing this dwelling to be attached to the existing dwelling, the “loss” that arises from the northern side of the dwelling will be compensated for by extending the footprint to the west.
conclusion
28	In conclusion and having regard to the requirements of Clauses 65 and 71.02, I consider that the proposal is an acceptable outcome, and that when assessed against all relevant policies it does, on balance, achieve a net community benefit.  The decision of the responsible authority is set aside and a permit is granted.  

K Birtwistle
Member			

Appendix A – Permit Conditions

Permit Application No	23266	
Land	8 Bee Court,
CRAIGIEBURN   	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of a two storey dwelling and alterations to an existing dwelling on the land	

1	Before the development permitted by this permit commences, 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 be generally in accordance with the plans submitted with the application and identified as drawings prepared by A1 drafting, Drawing No. A105-19, sheets 3 to 6 of 9 dated October 2020 but modified to show:
(a)	The accessway width to be 3.0 metres along its entire length and clear of any obstructions.
(b)	Reduction in size of the porch and removal of the entry steps to the existing Dwelling 1 as shown in the Discussion Plans provided at Appendix C forming part of the VCAT submission prepared by Ratio Consultants.
(c)	The attachment of Dwellings 1 and 2 at ground level.
(d)	A swapping of the dining and living room to proposed Dwelling 2.
(e)	Lighting at the front entrance to each of the dwellings.
(f)	The proposed dwelling labelled as ‘proposed Dwelling 2’.
(g)	The existing dwelling labelled as ‘existing Dwelling 1’.
(h)	A 1.8 metre high boundary fence extending along the property boundary adjacent to the accessway.  The fence must taper to a height of 0.9 metres at the sites frontage in line with the visibility splay requirements outlined within Clause 52.06 of the Hume Planning Scheme.
(i)	The finished floor levels to both dwellings to a height of not more than 0.8 metres above natural ground level at the boundary of the site.
(j)	Solar shading devices or eaves along the northern and western elevations of the dwellings at the ground floor.
(k)	Updated swept path to demonstrate that a vehicle can access the proposed car parking space to Dwelling 1 without impacting on the garden area.
(l)	Any works/alterations required arising from condition 1(k).
(m)	Line marking to the car parking bay to proposed Dwelling 2.
(n)	The letterboxes and visibility splay moved further south to respond to any alterations required in response to condition 1(k) above.
(o)	The size of the smaller galvanized iron shed within the private open space of existing Dwelling 1.  This must have a minimum size of 6 cubic metres.
(p)	A tandem car parking space in accordance with the dimensions outlined in clause 52.06 of the Hume Planning Scheme shown to the east of the galvanised iron garage.
(q)	An open entrance, roller door or similar to the existing galvanised iron garage
(r)	The fence to the private open space of proposed Dwelling 2 relocated as shown in the Discussion Plans provided as Appendix C forming part of the VCAT submission prepared by Ratio Consultants.
(s)	A stormwater management plan and STORM Report in accordance with the requirements of Condition 6.
(t)	A landscaping plan in accordance with the requirements of Condition 4.
2	The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the responsible authority.
3	Once the approved development has started, it must be continued and completed to the satisfaction of the responsible authority except with prior consent of the responsible authority.
4	Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The plan must be prepared by a suitably qualified person and drawn to a scale with dimensions.  It must show:
(a)	A 0.3 metre landscaping strip adjacent to the northern property boundary for the length of the accessway.
(b)	Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.
(c)	Details of surface finishes of pathways and driveways.
(d)	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.
(e)	Landscaping and planting within all open areas.
(f)	One large canopy trees (minimum two metres tall when planted) in the site frontage to Bee Court and understorey landscaping.
(g)	One large canopy tree in the private open space area to proposed Dwelling 2. 
(h)	One large canopy tree within the private open space area of existing Dwelling 1 as well as screen planting on side and rear boundaries.
(i)	One medium canopy tree to be located in the area adjacent Dwelling 1 where the porch and entry steps are shown as being removed, and understorey planting.
(j)	Screen planting along the street facing edge of the fence enclosing the private open space to proposed dwelling 2.
5	Before development allowed by this permit is occupied, landscaping works as shown on the endorsed plan(s) must be completed to the satisfaction of the responsible authority.
6	A stormwater management plan incorporating a ‘Deemed to Comply Report’ (STORM Report) which shows how the development (both the existing and proposed dwellings) will achieve the requirements of Clause 55.03-4 and 53.18 of the Hume Planning Scheme including:
(a)	Details of how stormwater will be drained to the proposed stormwater treatment devices.
(b)	The location of the proposed stormwater treatment or reuse devices.
(c)	Areas (in square metres) of impervious surface catchments.
(d)	Capacities of each rainwater tank.
(e)	How stormwater treatment devices will be connected to reuse facilities or legal points of discharge.
(f)	A minimum rating of 100%.
7	The measures within the approved Stormwater Management Plan must be implemented and maintained to the satisfaction of the responsible authority.
8	The landscape area(s) shown on the endorsed plan(s) must be planted and maintained to the satisfaction of the responsible authority and once landscaped must not be used for any other purpose. Maintenance must include the removal of weeds and the replacement of any dead plants in accordance with the endorsed landscape planting schedule.
9	The measures within the approved Stormwater Management Plan must be implemented and maintained to the satisfaction of the responsible authority.
10	Outdoor lighting must not be located other than that which is normal to a private dwelling or shown on the endorsed plans, except with prior written consent to the responsible authority.
11	Any equipment required for refrigeration, air-conditioning, heating and the like must be located on the subject land or premises and/or must be suitably insulated for the purpose of reducing noise emissions, to the satisfaction of the responsible authority.
12	All external materials, finishes and paint colours are to be to the satisfaction of the responsible authority.
13	All external cladding and roofing of the buildings hereby permitted must be of a non-reflective nature and must be coloured or painted in muted shades or in colours satisfactory to the Responsible Authority.
14	The development permitted by this permit must not, in the opinion of the responsible authority, adversely affect the amenity of the locality.
15	Areas set aside for parking of vehicles, together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all-weather seal coat. The areas must be constructed, drained and provided and maintained in a continuously useable condition to the satisfaction of the responsible authority.
16	Mail boxes shall be provided to the proposed dwelling/s to the satisfaction of the Responsible Authority and Australia Post.
17	All plumbing work, sewer pipes etc (except for spouting and stormwater pipes) associated with the new dwelling shall be concealed from general view.
18	Stormwater from all paved areas must be retained within the property and drained to the sites underground stormwater system.
19	Any cut or fill must not interfere with the natural overland stormwater flow.
20	No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council’s drains or watercourses during construction.
21	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.

– End of conditions –