VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1433/2020
Permit Application no. 86/2020/P	
CATCHWORDS	
Section 77, Planning and Environment Act 1987; General Residential Zone; corner site; car parking; open 
space, space for landscaping; accessibility; overdevelopment.  	

APPLICANT	Mary Zlomislic	
responsible authority	Frankston City Council	
RESPONDENT	Niamh O’Malley and Thomas O’Malley	
SUBJECT LAND	6 Boston Avenue,
SEAFORD VIC 3198	
HEARING TYPE	Hearing (online)	
DATE OF HEARING	5 May 2021	
DATE OF ORDER	14 December 2021	
CITATION	Zlomislic v Frankston CC [2021] VCAT 1516	

Order

1	Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following persons are joined as parties to this proceeding: 
Niamh O’Malley and Thomas O’Malley.
2	In application P1433/2020 the decision of the responsible authority is affirmed. 
3	In planning permit application number 86/2020/P, no permit is granted.   

Frank Dawson
Member			

Appearances
For applicant	Mr Luka Mrkonjic, town planner of Luka Mrkonjic Town Planning Services.	
For responsible authority	Ms Justine Aldersley, town planner.	
For respondents	Ms Niamh O’Malley in person, representing Mr Thomas O’Malley.	

Information
Description of proposal	Construction of three attached double storey dwellings. Proposed dwelling 1 faces Boston Avenue and dwellings 2 and 3 face Haslam Street. Car access is from Boston Avenue for dwellings 1 and 2 and from Haslam Street for dwelling 3. Dwelling 1 has a single garage and tandem car space in the front driveway. Dwelling 2 has a single garage and dwelling 3 has a single car space in the front driveway.
All dwellings have a living and meals area on the ground floor. Dwelling1 has a bedroom on the ground floor and two bedrooms on the first floor. Dwellings 2 and 3 each have two bedrooms on the first floor. At the first floor, there is a separation of building form of approximately 2.23 metres between dwelling 1 and dwellings 2 and 3.
External materials consist of face brickwork for the garages, rendered finishes for the dwellings, including sections of stone and horizontal line cement sheet cladding at the first floor.
The buildings have a pitched roof form clad with corrugated colorbond iron.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Frankston Planning Scheme	
Zone and overlays	General Residential Zone (GRZ)	
Permit requirements	Clause 32.08-6 (a permit is required to construct two or more dwellings on a lot).	
Land description	The land is located on the south west corner of Boston Avenue and Haslam Street approximately 90 metres south of Seaford Road in Seaford. The frontage to Boston Avenue is 25.91 metres and 14.05 metres to Haslam Street (both dimensions exclude a corner splay of 4.31 metres length). The site area is 534.45m2.
The land is occupied by a single storey dwelling with a pitched concrete tiled roof.
Surrounding development consists of a single storey brick dwelling in Haslam Street to the west and a brick single storey dwelling in Boston Avenue to the south. The general area is characterised by single detached dwellings with some large multi-dwelling sites 50 metres to the west.	
Tribunal inspection	The Tribunal inspected the subject land and the surrounding area.   	

Reasons
Introduction
1	In August 2020, the Frankston City Council determined to refuse a planning application for three double storey dwellings on a 534.45m2 corner site at 6 Boston Avenue, Seaford. The permit applicant requests the Tribunal to review the Council decision.
2	Council considers the proposal will result in overdevelopment of the site and point to issues concerning the visual bulk of the proposed building, setbacks from the street, limited space for landscaping and car parking. For example, Council identifies the location of secluded private open space for dwelling 2 within the front setback from Boston Avenue and reliance on the front driveway of dwelling 3 for car parking as indications of overdevelopment. 
3	In a broader context, Council considers the proposed development does not reflect the preferred neighbourhood character of this part of Seaford (Neighbourhood Character Precinct SF3), described as:
An area with an openness to the streetscape created by generous front setbacks and low or absent front fences. There is a consistent low scale, horizontal emphasis of dwelling form that contributes to the openness. More consistent street tree planting could be used to enhance the vegetation of the streetscape. 
4	In his submission for the permit applicant, Mr Mrkonjic submits the proposal is an appropriate response to housing policy, being on a corner site and in an area with good access to public transport and reasonable access to shops and community services. Mr Mrkonjic considers the proposal responds to the local settlement policies at Clause 21.04 of the planning scheme by providing additional housing to meet increasing housing demand, particularly in the context of smaller household size and the increasing proportion of the population in the 65+ age group.
5	I find there is local policy support for increased medium density housing in this part of Seaford, provided new housing respects the scale of existing development and the amenity of surrounding residents. 
6	Equally, my reading of local policy points to providing new housing that is appropriate in design and affordability to meet the needs of a diverse housing market. In this case, I find that while the location is well suited to accommodating a proportion of medium density housing, the proposed design falls short in providing an acceptable outcome. Specifically, my key issues of concern are the location of private open space, the ‘tightness’ of the internal design, accessibility for the older population and the capacity of the outdoor spaces to accommodate landscaping.  
7	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Frankston Planning Scheme, I have decided to affirm the Council decision and refuse the grant of a permit.  My reasons follow.
8	The proposal centres three double storey dwellings on the site, attached at the ground floor with some separation at the first floor between dwelling 1 and dwellings 2 and 3, which remain attached at the ground and first floor. The only construction to a boundary occurs on the southern boundary, with the garage for dwelling 1 constructed adjacent to another garage at number 8 Boston Avenue.

Figure 1: Extract from proposed ground floor plan - 6 Boston Avenue. Source: Drawn to Scale Building Design.
Open space
9	The private open space areas for dwellings 1 and 3 are along the western side boundary, with building setbacks ranging from approximately 4.7 metres down to 2.9 metres due to the angle of the boundary. While these setback spaces are compliant with the standard for private open space in ResCode at Clause 55.05-4, taking into consideration that dwellings 1 and 3 contain three bedrooms and two bedrooms respectively, they have a relatively ‘tight’ configuration with limited space for outdoor activity. This is particularly the case for dwelling 1, which is double storey and provides 3 bedrooms.
10	Proposed dwelling 2 relies on the Boston Avenue front setback for private open space, secluded by means of a 1.8 metres high enclosed area facing the street. The front boundary fence screening the secluded private open space does not occupy a large proportion of the street frontage, however, the internal amenity is in my assessment diminished considerably by the street front location, particularly as the secluded private open space area includes an outdoor ‘alfresco’ deck.
11	In summary, I find the provision of secluded private open space for a development of three double storey dwellings to be inadequate for the reasons of size for dwellings 1 and 3 and location for dwelling 2.
Car parking
12	The proposed development allocates a single car garage for dwellings 1 and 2, combined with a tandem car space in the driveway for dwelling 1. Dwelling 3 has one open car space located on the driveway within the front setback to Haslam Street.
13	The subject land has reasonable access to local shopping and a primary school. A bus route is located along nearby Seaford Road, however, the closest railway stations at Seaford or Kananook are approximately 2.5 to 2.9  kilometres by road. Taking all of the above observations into account, I consider residents in this part of Seaford are likely to prefer travelling by private car for work and shopping trips. During my inspection, I observed that convenient on-site parking is generally evident in this area.
14	In this proposal, on-site parking is minimal and not well accommodated. For example, the use of a tandem car space for dwelling 1 is problematic in my assessment, given this is proposed as a three bedroom dwelling and access to the single garage may require multiple vehicle movements into the street. Further, I consider the single open car space within the front setback for unit 3 is poorly planned and indicative of trying to achieve too much accommodation on a relatively small site. 
Landscaping
15	There is no landscaping plan associated with the application material, however, it is evident from the extent of the building footprint that the space for any canopy trees (either the retained tree and/or a new tree) is confined to the Haslam Street front setback, most likely at the front (northern side) of dwelling 2.
16	Council’s assessment of the landscaping potential for the site is at paragraphs 62 and 63 of Ms Aldersey’s submission for the Council:
62.	The opportunities for planting within the private open spaces of each dwelling is constrained due to the size and as the areas seeking to serve both landscaping and functional purposes. As a result, each area of Secluded Private Open Space contains a number of structures and services including a paving, water tank, clothes line and a storage shed (required by condition) that will restrict the ability to plant vegetation. This is specifically evident for dwellings 1 and 3.
63. 	The SPOS of dwelling 1 provides an easement and location of site services which occupy a large portion of the garden. This reduces the ability as discussed to provide for meaningful landscaping and canopy trees.
17	Mr Mrkonjic points to the retention of an existing tree in the front setback to Haslam Street, and submits at paragraph 3.22 of his submission:
Indicative planting is shown on the layout plans effectively demonstrates that an appropriate level of landscaping that can be achieved throughout the development, which includes the provision of new canopy tree planting throughout the site.
18	 I can accept that some landscaping can be accommodated within the open space areas around the dwellings, however, I agree with Council’s view that the opportunity for landscaping within the proposal is constricted.
Accessibility
19	All of the proposed dwellings have bedrooms on the first floor, with the single exception of a bedroom on the ground floor of dwelling 1. Mr Mrkonjic refers to the availability of a ground floor bedroom, which;
.. would be suited to an older occupant/s or an occupant with limited mobility. 
20	Drawing on the strategy at Clause 21.07-2 in the planning scheme, Mr Mrkonjic submits the design of the proposed development will;
.. ensure that this residential development incorporates a variety of housing types, sizes and costs. This proposal will provide the desired diversity that includes three dwellings that are different to one another in terms of types, size and costs, delivering the recommended housing outcome sought by the Frankston Planning Scheme.
21	The intent to contribute to housing diversity and affordability is to be supported and aligns with local housing policy at Clause 21.07-2 to:
Encourage the development of medium density housing in a variety of forms in appropriate locations within close proximity to commercial centres, transport and education facilities.
22	Providing medium density housing in a variety of forms, including affordable and accessible housing, is a laudable objective and Mr Mrkonjic advances the arguments for the suitability of the proposal to meet this objective in his submission at paragraphs 2.32-2.34 as follows:
2.32 	Proposed Unit 1 is the largest of the three proposed dwellings. Unit 1 has the provision of three bedrooms, including one at ground level which would be suited to an older occupant/s or an occupant with limited mobility. Unit 1 includes a first floor retreat and study nook and having three bedrooms and two on-site car spaces (one in the form of a garage) would be highly suitable to a wide range of household types. A single parent with older children (as each bedroom has their own bathroom), would find this type of dwelling highly desirable. One parent families comprise of 21.9% of Seaford’s family composition according to 2016 Census figures.
2.33 	Proposed Units 2 and 3 both have the provision of two bedrooms and are quite compact in size. However, both have different attributes that could better serve different household types. One has more of an ‘open’ ground floor plan, whilst the other has a separate meals area. One has a conventional laundry, the other has a European laundry. One has a ‘lock- up garage’ whilst the other has an on-site ‘open’ car space.
2.34 	Based on the varying attributes and features of the respective dwellings being proposed, all three would attract a different cost, as recommended by the Council policy. The three-bedroom Unit 1 being the most expensive, whilst Unit 3 having two bedrooms and an ‘open’ car space would be the most affordable.
23	I have some sympathy for Mr Mrkonjic’s approach, however, I am not convinced that this proposal, while potentially affordable, will satisfactorily meet the living requirements of the market he describes. Liveability is also important.  I find the internal ‘tightness’, restricted open space and minimal on-site parking offered in this proposal fails to achieve an acceptable housing outcome.
24	As mentioned earlier in my reasons, I consider there is local policy support for increased medium density housing in this part of Seaford. In this case however, my support for a medium density proposal may have been stronger if, for example, the development comprised one single storey and one double storey dwelling, addressing both accessibility and housing diversity. 
Conclusion
25	For the reasons given above, my decision is to affirm the Council decision. No permit is granted.

Frank Dawson
Member