VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P397/2021
Permit Application no. P580/2019	
CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Brimbank Planning Scheme; Residential Growth Zone – Schedule 1; Substantial change; Five dwellings; Three storey building; Reverse living; Character; Scale; Visual impact; Daylight to habitable room windows; Traffic and parking; Housing diversity.	

Applicant	Benito Pisano	

Responsible Authority	Brimbank City Council	
Joint RespondentS	Riggo Borg and others	

SUBJECT LAND	29 Poole Street
DEER PARK VIC 3023	

HEARING TYPE	Hearing	

DATE OF HEARING	16 November 2021	

DATE OF ORDER	26 November 2021	

CITATION	Pisano v Brimbank CC [2021] VCAT 1412 	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Petridis Architects	
•	Job No.:	19-39	
•	Drawing numbers:	Sheets TPA 01-03, 03a, 04-07	
•	Revision:	F	
•	Dated:	28 September 2021	

Permit granted
2	In application P397/2021 the decision of the responsible authority is set aside. 

3	In planning permit application P580/2019 a permit is granted and directed to be issued for the land at 29 Poole Street, Deer Park VIC 3023  in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of two or more dwellings on a lot in the Residential Growth Zone – Schedule 1.

Sarah McDonald
Member			

Appearances
For applicant	Andrew Clarke, Director, Clarke Planning Pty Ltd.	
For responsible authority	Jonathan Siotas, town planner, Brimbank City Council.	
For respondent	Riggo Borg and Paula Panetta, in person.	

Information
Description of proposal	Construction of five, triple-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	Brimbank Planning Scheme.	
Zone and overlays	Residential Growth Zone – Schedule 1 (RGZ1), 
Development Contributions Plan Overlay – Schedule 2 (DCPO2).	
Permit requirements	Clause 32.07-5:  To construct two or more dwellings on a lot in the RGZ1.	
Land description	The review site is on the south-eastern corner of Poole Street and Neimur Avenue.  The site has a 12.19 metre frontage to Poole Street, a 42.67 metre depth along Neimur Avenue, and a total area of 692 square metres.  The site is flat, and occupied by a single-storey detached house and associated outbuildings.  
The surrounding area is residential in nature.
Figure 1:  Review site and surrounding context

  Reasons
What is this proceeding about?
1	Benito Pisano (the applicant) has sought a planning permit to develop the land at 29 Poole Street, Deer Park (the review site), with six, triple-storey dwellings.
2	The review site is on the south-eastern corner of Poole Street and Neimur Avenue.
3	The proposed dwellings were designed in an attached form down the length of the land.  The dwellings were a ‘reverse living’ format, with the living areas of all six dwellings at first floor level.
4	The Brimbank City Council received 38 objections to the permit application from surrounding property owners and occupiers.
5	The Council decided to refuse to grant a permit.  Its grounds of refusal relate to the building design not being consistent with the ‘Residential Design’ policy at clause 21.07-3, the Residential Growth Zone – Schedule 1, specified matters under clause 55, and the neighbourhood character.  The clause 55 matters relate to neighbourhood character, street setback, access, overshadowing, and design detail.
6	Mr Pisano sought this review of the Council’s decision.  His grounds for review refute the Council’s grounds of refusal.
7	Mr Riggo Borg and Ms Panetta objected to the permit application along with 33 other people whom Mr Borg represents.  They are the ‘joint respondents’ in this application.  They oppose the proposal on grounds relating to traffic and parking, overlooking, overshadowing, building bulk, character, waste collection, noise impacts, strain on amenities, covenant removal, heat island effect, lack of innovation, potential oversupply of multiple level dwellings, housing diversity, and impact on property values.
8	Prior to the hearing, the applicant gave notice of an application to amend the permit application plans.  These plans include the deletion of one dwelling to reduce the proposal to five dwellings.  The amendments also include changes to some building setbacks and other design details.  There being no objection from the other parties, I have substituted the amended plans for the permit application plans.  It is on these plans that my decision is based.
9	The amended proposal retains the attached building form down the length of the land, and the reverse living format for all five dwellings.  The dwellings are attached at ground and first floor levels, but with two separations in the building form at the second floor level (third storey).
10	Unit 1 has its frontage and vehicle access to Poole Street.  Units 2 to 5 each have their frontages and vehicle access to Neimur Avenue.  Each unit has its primary are of private open space in the form of a balcony at first floor level.
11	Despite the amendments to the plans the Council and the joint respondents maintain their opposition to the proposal.
12	Council acknowledges the amended plans address its concerns regarding access and overshadowing.  However, it raises a new concern regarding the impact on daylight to habitable room windows of the dwelling on the adjoining property to the east (at 27 Poole Street).
What are the key facts and circumstances?
Site context
13	The review site has a 12.19 metre frontage to Poole Street, a 42.67 metre depth along Neimur Avenue, and a total area of 692 square metres.  The site is flat, and occupied by a single-storey detached house and associated outbuildings.  These buildings are to be removed to facilitate the proposal.
14	Along its eastern side the review site adjoins the property at 27 Poole Street.  That land is occupied by a single-storey building arranged in a continuous L shape form along the western side and across the southern (rear) boundary.  That building appears to be divided into four dwellings.
15	Along its southern side, the review site adjoins the property at 24 Neimur Avenue.  It is occupied by a single-storey, detached house.  The review site forms the western third of that property’s northern side boundary.
16	The review site is located within an existing urban residential area with access to a range of services and facilities.  Existing housing within the surrounding area is typically single-storey detached houses with hipped roofs.  More recent development in the area is in the form of multi-dwelling developments.  These include developments of primarily single and double-storey townhouses.  There are some three-storey multi-dwelling developments further to the north.
17	A previous covenant on the land Title, which restricted development on the review site to not more than one dwelling, was removed prior to this permit application.
18	I have not viewed the review site and surrounding area for the purposes of this application.  However, I have some familiarity with this area, having previously visited it in relation to other applications for review of Council decisions regarding other properties.  I have also been provided with a range of photographs, aerial photographs, plans and perspectives which enable me to arrive at a decision about the matters in dispute.
Zoning and overlays
19	The review site and surrounding area is located within the Residential Growth Zone – Schedule 1 (the RGZ1) under the Brimbank Planning Scheme (the planning scheme).  The RGZ1 schedule applies to ‘substantial change areas’.
20	As relevant to this application, the purpose of the RGZ1 seeks:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To provide housing at increased densities in buildings up to and including four storey buildings.
To encourage a diversity of housing types in locations offering good access to services and transport including activity centres and town centres.
To encourage a scale of development that provides a transition between areas of more intensive use and development and other residential areas.
To ensure residential development achieves design objectives specified in a schedule to this zone.
21	A planning permit is required for the proposal under the RGZ1 to construct two or more dwellings on a lot.
22	The RGZ1 provisions require a development to meet the requirements of clause 55.  The RGZ1 schedule includes local variations to the clause 55 standards regarding ‘minimum street setback’, ‘site coverage’, ‘landscaping’, and ‘private open space’.
23	Under the RGZ1, the maximum building height for a dwelling should not exceed 13.5 metres, where no maximum building height is specified in the zone schedule.  The RGZ1 does not specify a maximum building height requirement for a dwelling, so the 13.5 metre height under the zone provision applies.
24	Although the zone purpose, provisions, and decision guidelines refer to ‘design objectives’ specified in the schedule to the zone, the RGZ1 schedule does not include ‘design objectives’ to be achieved.
25	Both the zone provisions and the RGZ1 schedule include ‘Decision Guidelines’ that must be considered as appropriate.  I have had regard to these in reaching my decision.
26	The review site is also within a Development Contributions Plan Overlay – Schedule 2 (the DCPO2).  The requirements of the DCPO2 can be addressed through permit conditions and are not a matter in dispute in this proceeding.
Key planning policies
27	State, metropolitan and local planning policies all seek to ensure that development responds to an area’s context and character, and respects the existing or preferred neighbourhood character.  The neighbourhood character objectives and standard B1 at clause 55.02-1 also seek to ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
28	There are also a range of policy objectives and strategies that encourage the intensification of housing in established areas close to jobs and services, and increasing housing supply and diversity.
29	The Municipal Strategic Statement at clause 21 anticipates housing growth, intensification, and diversification in the existing suburbs of the municipality, particularly in the RGZ1.
30	The local strategic ‘Housing’ statement at clause 21.07 seeks, as relevant:
•	To accommodate appropriate residential growth in identified locations.
•	To ensure a range of housing types are available to meet the diverse needs of residents.
•	To promote development that is well designed, innovative and responds to its location and context.
31	Under the Housing Statement at clause 21.07, higher residential densities are encouraged within the Residential Growth Zone’, and the RGZ is applied to land designated for ‘substantial change’.
32	The ‘Residential Design’ statement at clause 21.07-3 includes that:
Council acknowledges that residential areas within the Residential Growth Zone have the potential to experience substantial change over time. The preferred character will consist of high quality design that responds to surrounding housing development in terms of appropriate building setbacks, colours and finishes, design detail, and landscape setting.
33	Clause 65 requires me to consider whether the proposal will produce ‘acceptable outcomes’ in terms of the decision guidelines of this clause.  These decision guidelines include, among other things, the Municipal Planning Strategy and the Planning Policy Framework, the purpose of and any matter required to be considered in the zone, overlay or other provision, the orderly planning of the area, and the effect on the amenity of the area.
34	Clause 71.02-3 of the planning scheme sets out the principles of integrated decision-making that apply when making planning decisions.  These include, in summary, integrating the relevant planning policies and balancing conflicting objective in favour of net community benefit and sustainable development.
Council’s key issues
35	The Council acknowledges the site is appropriately located for an infill development, and that the locality is expected to undergo change that will result in the increased density sought by the RGZ1.
36	The Council’s key issues with the proposal relate to its visual impact on the surrounding streetscapes of Poole Street and Neimur Avenue, and the impact on the daylight to the habitable room windows of the dwelling at 27 Poole Street.
37	Council considers the visual impact of five, attached triple-storey dwellings with reduced street setbacks will be detrimental to the Neimur Avenue and Poole Street streetscapes and contrary to the intent and objectives of the planning scheme.
Joint respondents key issues
38	The key issues of the joint respondents represented by Mr Borg relate to:
•	traffic and parking impacts;
•	access to services;
•	neighbourhood character; and
•	housing diversity.
39	Mr Borg submits that the development brings very little in the way of benefits to the community, but will have a detrimental impact on the amenities, character and people in the area.
Permit applicant’s position
40	Mr Clarke’s submissions for Mr Pisano is that this is a classic case of the tensions between strategic planning and statutory decision making.  He says the proposal is consistent with the strategic vision in the Council’s Housing Strategy but that the Council’s statutory decision is not consistent with the strategic vision.  
41	Mr Clarke submits the Council’s case is one about character, largely a lack of respect for the existing character.  He says the RGZ1 does not seek for development to respect existing character, and that the very essence of the RGZ1 is about encouraging growth and change, and thus the creation of a new built form character.  Mr Clarke also submits that change and growth is to be expected, and that this means taller and broader forms of a larger scale.  He says this will have an impact on character, as a ‘significant change’ is to eventuate.
42	Mr Clarke says there are many clear positives of the proposal which must not be summarily dismissed.
Tribunal decisions referred to
43	Both Mr Siotas for the Council and Mr Clarke refer to previous Tribunal decisions relating to multi-dwelling developments within the RGZ1.  These include:
•	I and F Investments Pty Ltd v Brimbank CC [2021] VCAT 603 in relation to 1 Neimur Avenue, Deer Park.
•	Canterlever Construction Pty Ltd v Brimbank CC [2019] VCAT 535, and Canterlever Construction Pty Ltd v Brimbank CC [2021] VCAT 19, in relation to 1 Woods Street, Deer Park.
•	CitiWest Constructions Pty Ltd v Brimbank CC [2021] VCAT 363, in relation to 4-8 Vincent Street, Deer Park.
•	Gulabovski v Brimbank  CC [2019] VCAT 454, in relation to 132 Power Street, St Albans.
44	I have had regard to these decisions in reaching my findings in this matter.  I note, however, that while the zoning and policy settings of the sites in those decisions are the same as in this case before me, the facts and circumstances of each of the sites and their respective proposals are different.
45	I note that I was the Tribunal member that determined the matters in I and F Investments Pty Ltd v Brimbank CC [2021] and Canterlever Construction Pty Ltd v Brimbank CC [2019].
What are the key issues in dispute?
46	Based on the submissions and relevant policies and provisions of the planning scheme, I consider the key issues to be determined relate to:
•	the suitability for the area to accommodate housing growth;
•	the scale and visual impact of the proposal;
•	impact on daylight to habitable room windows in the adjoining dwelling;
•	traffic and parking impacts; and
•	housing diversity.
47	While other issues with the proposal have been raised, I am satisfied these are not determinative as to whether a planning permit should be issued.  As such I will not elaborate my findings on these other issues.
What are my findings?
48	I agree with the Mr Clarke, that there are many positive aspects of this proposal.
49	I consider these positive aspects to include the following:
i	The proposal supports the objectives of the RGZ that seek:
o	To provide housing at increased densities in buildings up to and including four storey buildings.
o	To encourage a diversity of housing types in locations offering good access to services and transport including activity centres and town centres.
ii	Each dwelling has a frontage to a street and its own distinct entry, along with habitable rooms at ground level providing a sense of identity for each dwelling.
iii	Walls on boundaries are limited to one garage wall, and building setbacks from the western and southern boundaries comply with the side and rear setback standard B17 at clause 55.04-1.
iv	The dwellings provide good opportunities for passive surveillance along both street frontages and dwelling entries.
v	Each dwelling is provided with a balcony that exceeds the minimum area required for private open space under the local variation to standard B28 at clause 55.05-4.  In addition, units 2 to 5 each have a service yard.
vi	Due to their orientation to the street frontages, the dwelling windows and balconies do not require screening to prevent overlooking into adjoining properties.  This provides excellent opportunities for daylight and solar access, and outlook from both internal and external living areas and some bedrooms.
vii	Along the Neimur Avenue frontage, the fronts of the garages are well recessed back from the front walls of the dwellings, minimising their visual impact within the building form and the streetscape more broadly.
viii	The proposed landscaping, including 11 new trees, will provide a marked uplift in landscaping that is currently provided on the review site and in the surrounding area.  The proposed landscaping complies with the local variation to standard B13 at clause 55.03-8 (Landscaping objectives).
ix	The proposed layout of all five units incorporates habitable rooms and bathroom facilities at ground floor level.  This supports access to the dwelling for people of varied abilities, at least for visiting.
50	I consider these design elements contribute to a high quality design, as sought by the Residential Design statement at clause 21.07-3.
51	I will now outline my findings on the specific key issues.
Suitability for the area to accommodate housing growth
52	I am not persuaded by the Mr Borg’s submissions that the infrastructure and amenities in this area makes it unsuitable to support intensification of housing.  
53	I agree with Mr Clarke that the issues raised by Mr Borg is fundamentally an opposition to the strategic policy position that has been pursued and delivered by the Council.
54	The strategic decision has been made by the Council for this area to accommodate substantial housing change.  The area has previously been rezoned to the RGZ1, at which time the matter as to whether appropriate infrastructure is available or can otherwise be provided would have been considered.
55	I am satisfied that the location and zoning of the review site reflects the locations within which housing growth and diversification is anticipated and supported by the planning policies and provisions.  It is within an existing urban residential area, zoned RGZ1, with access to public transport (including the Deer Park train station, and buses along Ballarat Road to the north and Station Road to the east) and the Deer Park Village Major Activity Centre.  It is also in proximity to  the Deer Park West primary school and the Bon Thomas reserve (which includes sports fields and a playground).  The review site is within 400 to 500 metres of each of these services and facilities.
Scale and visual impact
56	The Council’s key issue with this proposal relates to the scale and visual impact of the building within the Poole Street and Neimur Avenue streetscapes.  Its submission focuses on the Neimur Avenue frontage.  Specific issues raised by the Council relate to:
•	The setbacks of the balconies and the cantilevered second floor level above.
•	The continuous form of the balconies across the Neimur Avenue frontage.
•	The cumulative impact of the height, scale, and bulk of the building within the streetscape.
•	The interface of the building with the dwelling on the adjoining property to the south, with the proposed building sitting forward of the setback of the existing dwelling and any future development.
57	The Council submits that the proposal will have an overbearing and visually intrusive form within the Neimur Avenue streetscape.
58	Mr Borg submits that the proposal’s street frontage along Neimur Avenue will detract from the rhythm of the street, with a near vertical 3 storey dominance.  He says very few developments have been approved in this area and nothing of this scale has been approved.
59	In relation to how the planning policies and provisions that seek to ensure development responds to an area’s context and character, and respects the existing or preferred neighbourhood character should be applied in the circumstances, I rely on my comments in I and F Investments Pty Ltd v Brimbank CC [2021]:
In having regard to the policy statements, objectives, strategies and policy guidance at clause 21.07, I note that these apply broadly to land within ‘Residential Growth’, ‘General Residential’ and ‘Neighbourhood Residential’ areas. As such, I consider that these policy statements, objectives, strategies and policy guidance, need to be interpreted in the strategic context and the zone provisions that support denser housing and housing growth and substantial change in this location. To not interpret these policy statements in such a way would make a nonsense of the Council having identified different residential areas and applied different residential zones with different purposes and provisions to those different areas.
… the purpose of the RGZ1 anticipates increased densities, buildings up to and including four storeys, and a diversity of housing types.  While it’s purpose also includes ‘to ensure residential development achieves design objectives specified in a schedule to this zone’, the RGZ1 schedule does not include design objectives. It is notable that the RGZ1 purpose does not include to ‘respect the neighbourhood character’.
In this context, it is to be expected that the form, scale and appearance of developments will be different from the low scale detached housing that currently dominates the existing character of the area. As such, I place greater emphasis on the expectation of a new character emerging in this RGZ1 area over time than the need to respect the existing character.
60	I also rely on my comments in I and F Investments Pty Ltd v Brimbank CC [2021] regarding the need for development within the RGZ1 to provide a transition in scale, as follows:
It is notable that the decision guidelines at clause 4.0 of the RGZ1 schedule require consideration of ‘Whether the development provides for an appropriate built form, scale and height transition to an adjoining Neighbourhood Residential Zone, General Residential Zone or commercial zoning’. This indicates to me that consideration of issues regarding built form, scale and height transition are focussed on developments that have an interface with land in a different zone, rather than the interfaces between individual lots in RGZ1.
61	It is in this context that I am satisfied that the scale and visual impact of this proposal will be acceptable, for the reasons outlined below.
Relevance of previous Tribunal decisions
62	The decisions of the various divisions of the Tribunal referred to above have found other proposals for two and three storey reverse living dwelling developments in this RGZ1 area to be unacceptable for reasons relating to scale, bulk, setbacks and cantilevered form.  Despite this, those decisions do not persuade me that the proposal before me in this application is unacceptable.
63	Those other decisions, relate to sites with different physical contexts and circumstances to this review site, and different design proposals.  I must consider this proposal on the particular facts and circumstances of the review site and the proposal.
64	Distinguishing aspects of the review site and proposal in this application include that:
•	the review site is on a corner;
•	this site does not have an interface to secluded private open spaces of dwellings on adjoining properties;
•	the design proposal does not include a long driveway within the site;
•	there is no need to screen the balconies to avoid overlooking of adjoining properties; and
•	there are meaningful opportunities for landscaping along all boundaries.
Scale and visual impact in Neimur Avenue
65	As a starting point, the proposed 10.66 metre height of the proposed building is almost 3 metres less than the 13.5 maximum height specified under the RGZ1.  While this metric alone is not the only factor relevant to my consideration of the building scale and visual impact, it provides an indication that the building is within the parameters of what is expected within this RGZ1.
66	Having regard to the proposed building as a whole, I am satisfied its overall scale and bulk is moderated by other design elements.  These design elements include the roof forms (including gabled roofs at the upper level and flat roofs), variations in building setbacks from the streets and other property boundaries, the recess of the first floor level from the ground floor level below and second floor level above, the separations between dwellings at the second floor level, variations in setbacks of wall planes, extensive window fenestration, and the selection and variations in materials, finishes and colours.  These elements are evident in the Neimur Avenue elevation at Figure 2.
Figure 2:  Neimur Avenue (western) perspective

67	I note that, despite the Council’s planning department assessing this proposal as an unacceptable design outcome, its urban design department found the proposed design acceptable.  The urban design comments include the following:
The proposed development is generally consistent with the existing and desired character for the area. The building presents an acceptable quality finish and is generally articulated to express the function of the internal spaces. The building has appropriate setbacks with non-intrusive shade and materiality to suit the neighbourhood character……
68	While Council says that the urban design unit’s comments are not based on an assessment of the ‘ResCode’ (clause 55) standards, I find the urban design unit’s comments useful in understanding the acceptability of the overall form and design of the proposed building and how it fits in its context.
69	In relation to the Council’s concerns regarding the proposal’s compliance with the street setback standard B6 at clause 55.03-1, I am satisfied the proposal provides an acceptable outcome.  I am satisfied the extent to which the balconies encroach within the minimum 3 metre side street setback required under standard B6 is acceptable.  The 2.6 metre setback is consistent with the encroachment of porches, pergolas and verandahs, allowable under standard B6.  Even though the balcony is not technically a porch, it has the effect of creating a porch across the ground floor level below.  The height of the solid element of the balcony is also consistent with the maximum 3.6 metre height for such encroachments allowed under standard B6.  Even though the rails above extend higher than 3.6 metres, these do not form a solid element, and comprise a design detail that is not visually dominant.
70	The dividing nib walls between the balconies at first floor level will provide separation between the balconies and a vertical element in a contrasting colour.  This will provide vertical articulation in the otherwise continuous form of the face of the balconies.  To the extent these nib walls are less than 3 metres back from the Neimur Avenue frontage, it is a minor encroachment.  Furthermore, these walls are perpendicular to the street frontage, and three of the four are only 1.8 metres high and as such will not be visually dominant within the streetscape.
71	I am satisfied that the extent to which side walls of the second floor levels encroach into the minimum 3 metre side street setback is also acceptable.  The extent of the encroachment is approximately 200 millimetres.  The side walls are an extension of the roof eave, and form a frame around the western walls of the bedrooms at the second floor level.  They are a design element that provides articulation of these facades and contributes to the overall quality of the design.  I do not consider this minor encroachment to be of such magnitude as to contribute to a building scale or bulk that results in an unacceptable visual impact.  If these elements were to be set back to be flush with the wall face this design detail will be lost.  I also consider increasing the overall setback of the second floor western facades to achieve technical compliance with standard B6 will not provide a meaningful difference to the appearance of the building within the Neimur Avenue streetscape.
72	In addition to these findings, I am also satisfied the appearance of the building from the street will be softened by landscaping, including canopy trees proposed in the front setback of each of units 2 to 5 along the Neimur Avenue frontages.  The proposed canopy trees will assist in the transition to existing development surrounding the site.
73	Despite these findings I do have some concerns with the visual impact of unit 5.  My concerns relate to the visual impact of the second floor level element within the Neimur Avenue streetscape as it will be viewed from the south.  Although this upper storey is set well back from the southern boundary to 24 Neimur Avenue, it will sit substantially forward of the street setback of the existing dwelling.  It is also likely to sit substantially forward of any future development on that adjoining lot, due to the street setback standard B6 at clause 55.03-1 as varied by the RGZ1 schedule.
74	The nature of the proposed building design is that the second floor level of unit 2 will appear as a bulky, cantilevered black box form, when viewed from the south.  This is  due to its solid wall form with no window and its projection forward of the first floor level below.  This is evident in the southern elevation shown at Figure 3.
Figure 3: Southern elevation

75	I am satisfied this issue can be resolved by increasing the setback of the second floor level of unit 5 from the Neimur Avenue frontage to 4 metres.  This will reduce the extent of the cantilever of this floor over the first floor level balcony and recess this level from the line of the ground floor level.  I am satisfied this design change will reduce the visual impact of this element of the building.  This design change can be addressed through a permit condition requiring an amendment to the plans.
76	I acknowledge this increased setback will impact the size of the bedroom along the western side of the second floor level of this unit 5, and may result in this room being too small to be used as a bedroom.  However, I am satisfied this area could be reconfigured into usable space, such as a study.  The dwelling will retain at least two bedrooms.  I am satisfied this outcome will strike an acceptable balance between providing an acceptable design response and a functional dwelling, and will provide further dwelling diversity.
Visual impact on the amenity of the adjoining properties
77	Along its eastern and southern interfaces to adjoining residential properties, the building steps down in height.  At both interfaces with the adjoining properties the proposal complies with the side and rear setbacks required by standard B17 at clause 55.04-1.  In fact, other than at the roof edges, the walls and roof elements are set back more than the minimum setback required under standard B17.  This is evident, for example, in the southern elevation at Figure 3.
78	While there are apparently four dwellings on the adjoining property to the east (at number 27 Poole Street), it does not appear that there are any secluded private open spaces along the boundary with the review site.  I am not persuaded by the Council’s submissions that the approximately 1 metre setback of the building on that property from the shared boundary with the review site comprises an area of ‘secluded private open space’ that is used for outdoor living activities or recreation.  In any case, the proposed building on the review site is to be set back from most of the shared boundary by a minimum of 1.8 metres.  I address the interface of a proposed boundary wall with habitable room windows of that adjoining property later in these reasons.
79	I do have some concern regarding the eastern elevation of the first floor level of the building.  The use of a single wall finish and colour will have the effect of presenting a continuous wall along the full length of the building.  However, I am satisfied that this can be addressed by applying a different material, finish or colour to the inset elements along the facade to provide vertical articulation to break up the visual mass of this wall.
80	I am not concerned about the visual impact on the amenity of the adjoining property to the south (24 Neimur Avenue).  The review site’s interface with that property is to its side driveway and toward the front portion of that site.  It does not have an interface with any habitable room windows or secluded private open space of that dwelling.  The change to the setback of the second floor level of unit 5, as outlined above, will reduce the visual impact of the proposed building on this adjoining property.
Summary
81	Overall, I find the proposal provides a high quality design that responds to surrounding housing development in terms of appropriate building setbacks, colours and finishes, design detail, and landscape setting, and is consistent with the Residential Design objectives and strategies at clause 21.07-3.
82	Subject to the amendments to some design elements as outlined, I am satisfied that the scale and visual impact of the proposal will be acceptable.
Impact on daylight to habitable room windows in the adjoining dwelling
83	The Council takes issue with the location of the eastern wall of the garage to unit 1 opposite two habitable room windows in one of the dwellings at 27 Poole Street.
84	Mr Clarke disputes the Council’s interpretation of standard B19 at clause 55.04-3 in relation to the ‘Daylight to existing windows objective’.  The part of the standard in dispute is:
Buildings opposite an existing habitable room window should provide for a light court to the existing window that has a minimum area of 3 square metres and minimum dimension of 1 metre clear to the sky. The calculation of the area may include land on the abutting lot.
85	The issue relates to whether the requirement for the minimum dimension of 1 metre clear to the sky can include the roof eave of the affected dwelling.  While the proposed garage is set back 1 metre from the two habitable room windows of the adjoining dwelling, approximately 300-400 millimetres of this 1 metre setback includes the area under the roof eave of that dwelling.
86	In interpreting the standard I am inclined to place some emphasis on the reference to “clear to the sky”.  It implies that the 1 metre dimension of the light court is to be ‘open’ or ‘unobstructed’.  Including a section of roof eave in this 1 metre minimum dimension would be inconsistent with this.
87	Irrespective of the correct or intended interpretation of the standard, the Daylight to existing windows objective seeks ‘To allow adequate daylight into existing habitable room windows’.  It is this objective that must be achieved.
88	I am not satisfied that the proposal will provide an acceptable outcome in relation to this objective.  This is due to the propose boundary wall being opposite the full width of the two habitable room windows and the extent of the eave encroachment into the 1 metre dimension of the light court opposite these windows.
89	Despite this, I am satisfied this issue can be addressed by amendments to the plans.  For example, the eastern wall of the garage could be set off the boundary to comply with the standard B19, or the wall and roof of the garage could be removed to create an open sided carport.  It may also be possible for the garage wall to be lowered to a height not exceeding the height of the existing boundary fence and the roof stepped or angled back from the boundary.  I am satisfied this can be addressed by a permit condition.
Traffic and parking impacts
90	In relation to the joint respondents concerns about traffic, I reiterate my findings in I and F Investments Pty Ltd v Brimbank CC [2021] as follows.  I note that decision relates to a property at the southern end of Neimur Avenue.
I am not persuaded that the development of six dwelling on the review site will have a discernible or unacceptable impact on the traffic volumes in the Neimur Avenue or the surrounding streets. Nor is there information or evidence before me that indicates that any increase in traffic will exceed the capacity of Neimur Avenue or the surrounding street network. Rather, I rely on the fact that the Council’s traffic engineering unit did not raise concerns regarding this and supported the application.
While the proximity of the Deer Park railway station no doubts generates increased traffic in the surrounding streets from time to time, this is an insufficient reason to warrant refusal of this application. The management of traffic within the local street network is a matter for the Council.
91	In relation to this current proposal, I am reassured by the fact that Council’s traffic unit has not raised any concerns with this proposal.
92	In relation to parking, each proposed dwelling is provided with two car parking spaces, as required for each dwelling under the ‘Car parking’ provisions at clause 52.06.
Housing diversity
93	I understand the concerns raised by Mr Borg in relation to housing diversity, and in particular the extent to which the three-storey, reverse living dwellings will provide for people of varied abilities or older persons to live in them.
94	It is possible that alternative designs could have provided a variety of housing sizes and configurations within the development.  However, I must consider whether the proposal provides ‘acceptable’ outcomes, rather than preferable or optimal outcomes.  In this context I am satisfied the proposal provides an acceptable response to contributing to housing diversity.
95	A key consideration is that the ‘Dwelling diversity objective’ at clause 55.02-3 and standard B3 does not apply to this proposal.  Rather, the objective and standard apply to developments of ten dwellings or more.
96	Despite this, even though the reverse-living layout of the dwellings does not provide for people with limited mobility to reside in the dwellings, all five of the dwellings will be visitable by people with limited mobility.  This is because each of the dwellings has a habitable room, bedroom and bathroom at ground floor level.
Are there any other issues?
97	Mr Borg’s submission raises a range of other issues including, overshadowing, overlooking, the unsightliness of multiple rubbish bins on nature strips, additional noise in collecting the extra bins, precedent for future covenant removals, adding to the heat island effect, and effect on property values.
98	In relation to overshadowing and overlooking, I am satisfied that this proposal complies with the requirements of clause 55.04-5 (Overshadowing open space objective) and 55.04-6 (Overlooking objective).  Although the Council submits that the east facing windows at second floor level of dwellings 4 and 5 are not screened to prevent unreasonable overlooking, there are no habitable room windows or secluded private open spaces within 9 metres of these windows.
99	In relation to the other matters raised by Mr Borg, I note he raised similar issues in relation the application in I and F Investments Pty Ltd v Brimbank CC [2021].  Other than in respect to the matters of overlooking and overshadowing (which I have addressed above), I rely on my comments at paragraph [73] in that decision, which I do not repeat here.
Conclusion
100	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.
101	The permit conditions contained in this Order reflect those proposed by the Responsible Authority, the submissions of the parties, and the further consideration of the Tribunal.

Sarah McDonald
Member			

Appendix A – Permit Conditions

Permit Application No	P580/2019	
Land	29 Poole Street
DEER PARK  VIC  3023	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of two or more dwellings on a lot in the Residential Growth Zone – Schedule 1.	

Conditions
Amended plans
1	Before the use and/or development start(s), 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 three copies must be provided. The plans must be generally in accordance with the plans prepared by Petridis Architects, Job No. 19-39, Sheets TPA 01-03, 03a, 04-07, Revision F, dated 28 September 2021, but modified to show:
(a)	The setback of unit 5 second floor level along Neimur Avenue increased by 1 metre so that the face of the wall is set back a minimum of 4 metres from the western (Neimur Avenue) boundary.
(b)	The walls of the inset sections at first floor level of the eastern wall of the building to have a different material, finish and/or colour to the remainder of that wall to provide vertical articulation.
(c)	The eastern wall of the garage to unit 1 either:
i	set off the boundary to comply with standard B19 at clause 55.04-3; or 
ii	the wall on the eastern boundary and the roof of the garage within 1 metre of the western edge of the eave of the dwelling on the adjoining property to the east removed; or
iii	the wall on the eastern boundary lowered to a height not exceeding 1.8 metres (i.e. the height of the existing boundary fence), with the garage roof stepped or angled back from the wall to provide a light court to the existing habitable room windows of the dwelling on the adjoining property opposite the wall.  The light court must have a minimum area of 3 square metres and minimum dimension of 1 metre clear to the sky from the western edge of the roof eave of the adjoining dwelling.  
The northern wall (facade) and southern walls of the garage may remain unchanged.
(d)	Provide a fence along the boundaries to Poole Street and Neimur Avenue.  The fence should:
i	be constructed of brick, masonry, or timber, but not colour-bonded metal;
ii	designed to integrate with the design of the building;
iii	include integrated letterboxes and newspaper receptacles adjacent to the front entry path to each dwelling; and
iv	not exceed 900mm in height.
(e)	The schedule of construction materials, external finishes and colours amended to:
i	reflect any changes relating to conditions 1(b) and 1(d); and
ii	replace the photo sample for material/finish number ‘4’ with a sample that correctly reflects the proposed ‘rendered finish, select integral colour, Dulux colour specifier ‘Raku’’ (i.e. replace the photo sample of stacked stone).
(f)	The storage sheds for units 2, 3 and 4 relocated to the opposite side of their respective service yards, so that the storage sheds do not abut or are not opposite the windows of the guest bedroom of each unit.
(g)	The area between the external wall of the guest bedroom and the eastern boundary of units 2, 3, 4 and 5 set aside as a landscaped garden area.
(h)	The storage shed for unit 5 relocated to be a minimum of 4 metres to the east of the front wall of unit 5, and the area of the previous location of the shed set aside for landscaping.
(i)	A pedestrian gate provided in the western fence between the southern wall of unit 5 and the southern boundary.
(j)	The location of service metres and location and design details of electrical meter boxes so that they do not require bollards or other similar barrier to protect them from vehicles using the driveways within the front set back of each unit.  Any electrical meter box located within the front setback of a unit should be designed to integrate with the design of the building and/or fencing and should not exceed 1.5 metres in height.
(k)	All vehicle crossovers shown to current Council standards with 1200mm splays and provide a minimum of 5.5 metres between crossovers (kerbside). 
(l)	A notation that the existing vehicle crossover along Neimur Avenue is re-instated to the satisfaction of the Responsible Authority.  
(m)	A notation that all windows can be locked open, extent of double glazing, and the thermal performance star rating (to be consistent with the Sustainable Design Assessment).
(n)	Provision of appropriate, effective, external shading to protect sun-exposed glazed doors and windows from summer sun to the satisfaction of the responsible authority, in particular glazing in all habitable rooms facing west and north. (NB: eaves may not provide sufficient protection for low-angle summer sun from the west, and may only provide partial protection from northern sun. Metal roll-down shutters are not considered appropriate)
(o)	Alterations to the Sustainable Design Assessment generally in accordance with the report received by Council on 7/7/2021 but showing:
i	Water Inputs – Revise BESS report to note ‘Default or unrated' if dishwashers, and washing machines are not committed to be provided with the build (but likely to be used by occupants).
ii	Irrigation provision – Un-claim the Urban Ecology Credit 2.4 – ‘Private Open Space - Balcony / Courtyard Ecology’ which is reserved for apartment developments.
iii	Stormwater management – Best practice in stormwater management is to be demonstrated with a stormwater site plan and STORM Calculator assessment, to the satisfaction of the responsible authority. Permeable paving is not supported in driveways or areas exposed to vehicular traffic, and neither are split ‘tyre-track’ driveway formats. The use of proprietary stormwater treatment devices is also not supported. If vegetated swales or raingardens are to be utilised, clear details of their construction (including description of soil/filter media, species etc.) are to be submitted as well as a maintenance regime to ensure the on-going effectiveness of any devices.
iv	Stormwater management during construction – Erosion and sediment controls measures to be employed during construction are to be provided to the satisfaction of the responsible authority.
(p)	Any amendments to the plans arising from the landscape plan required by condition 3 of the permit. 
2	The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Landscaping
3	Prior to the endorsement of plans under condition 1 and commencement of works, a landscape plan prepared by a landscape architect or a suitably qualified or experienced person to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plan will be endorsed and will then form part of the permit.  The plan must be drawn to scale with dimensions and one digital copy must be provided.  The plan must be generally in accordance with the plan prepared by Species Landscape Architecture, drawing 21.054_L1.mcd, dated November 2021.  The plan must:
(a)	be consistent with the ground floor plan approved in accordance with condition 1;
(b)		show the details of surface finishes of pathways and driveways;
(c)	include 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;
(d)		provide landscaping and planting within all open areas of the site excluding areas set aside as driveways, paths and service yards;
(e)	provide a mix of evergreen and deciduous canopy trees along both street frontages;
(f)	provide a minimum of 2 medium-sized trees (minimum 2 metres tall when planted and 6-12 metres tall at maturity) and 1 large-sized tree (minimum 2 metres tall when planted and more than 12 metres at maturity) within the front setback of unit 1;
(g)	provide a minimum of 1 medium-sized tree (minimum 2 metres tall when planted and 6-12 metres tall at maturity) within the front setbacks of each of units 2 to 5;
(h)	provide shrubs and/or small-sized trees (minimum 2 metres tall when planted and 4–6 metres tall at maturity) along the setback area between unit 5 and the southern boundary;
(i)		include an appropriate irrigation system connected to the rainwater tanks to be provided for each unit;
All species selected must be to the satisfaction of the Responsible Authority.
4	Prior to the Occupancy Permit being issued for the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.
5	The landscaping shown on the endorsed plan must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
6	A cash bond for $2500, plus a non-refundable 5% service charge of $125 (Total of $2625), shall be lodged with the Responsible Authority prior to the collection of endorsed plans to ensure the completion and establishment of landscaped areas.  This cash bond will only be refunded after a 13-week establishment period beginning when the Responsible Authority is satisfied with the completed landscaping works, provided that the landscape is being maintained to the satisfaction of the Responsible Authority.
Street Tree Protection
7	The following measures must be adhered to for the protection of the street tree(s):
(a)	A fenced tree protection zone must be established and maintained using methods set out in AS4970-2009 “Protection of Trees on a Development Site” for the entire duration of the works onsite at the cost of the permit holder/developer.
(b)	No pruning of the existing street tree located within the nature strip within the Garnet Street frontage of the site shall be undertaken by any party other than Brimbank Tree Services.
(c)	No building materials are to be stacked and/or dumped on any nature strip during construction.
Development Contribution Levy
8	A Development Contribution in accordance with the approved Development Contributions Plan must be paid to Brimbank City Council.
Payment of the Development Infrastructure Levy (DIL) must:
(a)	be paid prior to the issue of a building permit for the land or prior to Statement of Compliance (SOC) for the subdivision of the land associated with the development permit, whichever comes first; OR
(b)	when a staged subdivision is sought, be paid prior to the issue of a Statement of Compliance based on the net increase in the number of new dwellings within each stage.
The Community Infrastructure Levy (CIL) must be paid prior to the issue of a building permit under the Building Act 1993.
General
9	During the construction phase of the development, the following conditions shall be met:
(a)	Only clean rainwater shall be discharged to the stormwater drainage system.
(b)	Stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises, enters the stormwater drainage system.
(c)	Vehicle borne materials shall not accumulate on the roads, nature strips and footpaths abutting the site.
(d)	All machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;
(e)	All litter (including items such as cement bags, food packaging and plastic stripping) must be disposed of responsibly.
Car Parking
10	Before the occupation of the development starts, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a)	constructed in concrete or asphalt;
(b)	properly formed to such levels that they can be used in accordance with the plans;
(c)	drained; and
(d)	maintained;
to the satisfaction of the Responsible Authority.
Car spaces, access lanes and driveways must be kept available for these purposes at all times.
11	Prior to any works being undertaken on the site, new vehicle crossover(s) must be located and constructed to the satisfaction of the Responsible Authority in accordance with plans approved by the Responsible Authority.
12	Prior to the commencement of occupation, all disused or redundant vehicle crossings must be removed and replaced with kerb and channel, nature strip and footpath to the satisfaction of the Responsible Authority.
13	The owner/developer is responsible for determining the location of any road infrastructure or non-road infrastructure in the road reserve (e.g. pits, poles, water mains, gas mains, telecommunications cables etc.) that could be affected by the installation of the new crossover(s) or related works.  Any existing road infrastructure or non-road infrastructure located within or adjacent to the new crossover(s) must be altered, relocated or reconstructed to the satisfaction of the Responsible Authority and/or the relevant utility provider or infrastructure manager at the expense of the owner/developer.
Engineering
14	Access to the site and ancillary road works must be constructed in accordance with the requirement of the Responsible Authority.
15	An on-site stormwater drainage retention/detention system must be installed on the subject land to the satisfaction of the Responsible Authority.  The system should be designed so that any grated pits that form part of the system are located within driveways or service yards.
16	The entire development site must be connected to the existing underground drainage and sewerage systems to the satisfaction of the Responsible Authority.
Multi-Unit Residential Development
17	All service meters must be located in the front of the units in a location easily accessible to the various authorities.
18	The electrical meter box(es) must be within a suitable structure treated with appropriate materials to positively contribute to the amenity of the area and be to the satisfaction of the Responsible Authority. Any electrical meter box located within the front setback must be incorporated into the mail box enclosure with a maximum height of 1.5 metres.
19	All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
20	The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
21	Provision must be made on the land for the storage of waste and recycling bins in a location that is not visible from the street to the satisfaction of the Responsible Authority.
Expiry of permit for development
22	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 –