VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P666/2021
Permit Application no.P/2019/7444 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987, Knox planning scheme, Neighbourhood Residential Zone, Neighbourhood Character, Landscaping, Amenity	

Applicant	D and K Elliot	

Responsible Authority	Knox City Council	
RespondentS	Andrew Froude, Gregory Ross Parnaby, Ka Chung Wo, Richard O'Sullivan, Vinko Jorgic	

SUBJECT LAND	6 Gilda Court
ROWVILLE VIC 3178	

HEARING TYPE	Hearing	

DATE OF HEARING	22 & 23 November 2021	

DATE OF ORDER	16 December 2021	

CITATION	Elliot v Knox CC [2021] VCAT 1517 	
Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Architectural Plans:	Line Design
Revision C
07.10.2021	
•	Landscape Plan:	Aret Designs
October 2021	
2	In application P666/2021 the decision of the responsible authority is affirmed.
3	In planning permit application P/2019/7444 no permit is granted.

Tracey Bilston-McGillen
Member			
Appearances
For applicant	Mr Michael Meyer, town planning consultant, Urbis.  He called the following witness:

•	Mr Matthew Nees, arborist. Treespace.	
For responsible authority	Mr John Klarica, town planning consultant, Calibre Planning.	
For respondents	Mr Andrew Froude, Mr Nelson (Ka Chung) Wo, Mr Vinko Jorgic, Mr Richard O’Sullivan and Mr Ross (Gregory) Parnaby all appeared in person.	

Information
Description of proposal	Construction of four double storey and six single storey dwellings.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Knox Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 4 [NRZ4].  	
Permit requirements	Clause 32.09-6.  A permit is required to construct two or more dwellings on a lot.  	
Key scheme policies and provisions	Clauses 11, 15, 16, 21.01, 21.02, 21.03, 21.05, 21.06, 21.09, 22.04, 22.07, 32.08, 52.06 and 65.   	
Land description	The subject site is located to the western end of Gilda Court. It is irregular in shape, with a curved frontage of approximately 13.3 metres, depths of 73.91 metres (north east) and 114.67 metres (south west) and an area of approximately 4047 square metres. 
The site contains a single storey brick dwelling, with a pitched and hipped tile roof.  The site has vehicle access via a single width crossover to Gilda Court. 
The site has a fall of approximately 1.7 metres from the south east (rear) corner to the north west (rear). The site is informally landscaped, with a number of trees and shrubs to the side, front and rear yards. 
There is a 3 metre wide drainage and sewerage easement along the northern and western boundaries (rear).

Figure 1: Location of site.
	
Tribunal inspection	I inspected the site and surrounds.   	

  Reasons
What is this proceeding about?
1	The applicant for review (applicant) proposes to demolish the existing dwelling and construct ten dwellings including four two storey and six single storey.  The dwellings are a combination of two and three bedrooms.  The dwellings are located around a central driveway accessed via Gilda Court.  The applicant submitted that the proposed development is appropriate having regard to the policy and zoning framework, an assessment against clause 55 ResCode and neighbourhood character.
2	Council refused the proposed development on a number of grounds relating to neighbourhood character, the impact of the proposed development on the amenity of neighbouring properties, the impact of the increase in number of vehicles accessing the site and insufficient area for the storage and collection of waste within the site.  
3	Council’s Planning Officers supported the proposed development recommending that a permit be issued subject to conditions including the deletion of dwelling 5 located in the north west corner of the site and the relocation of dwelling 6.  I make the observation that, in this case, it is not particularly helpful when a Council suggests a condition that alters the layout of the proposed development without fully understanding the implications of the amended layout (as a consequence of the condition).  I say this as in order to understand the implications of the condition noted, I enquired if there had been any discussions between Council and the applicant regarding the proposed condition and how the layout of the development would change.  I was advised that discussions had not occurred.  The issue here is, whilst the proposed conditions states increase the setback of dwelling 6 from the south western boundary to 4 metres and relocate its garage to the north, what are the implications from this to the remaining built form layout?  Would it be a better outcome to require further spacing between other dwellings?  How much open space does dwelling 6 have?  Is there room for a turning circle for waste trucks or visitor parking?  Are there any implications for adjoining properties as a result of the change? As I stated in the hearing, my decision is made on the proposed development before me of ten dwellings. 
4	A number of objectors opposed the proposed development noting that development of the site is more difficult and should be tempered due to its location within a court.  It was put that in principle redevelopment of the site is not opposed but ten dwellings are an overdevelopment of the site.  

5	Having regard to the submissions, the evidence, the provisions of the planning scheme and my site inspection, I have decided to affirm the decision of the Council and refuse to grant a planning permit.  I find the proposed development is ambitious and too much for the site.  The site can clearly be developed for more than one dwelling but ten is too many.  My reasons for the refusal follow.
Context
Physical context
6	The review site is unusually large in its context.  The site sits at the end of the court bowl which has 13 properties fronting it (noting two dwellings front Trisha Drive).  
7	The review site currently accommodates a single storey dwelling with swimming pool and tennis court.  All dwellings within the court are detached dwellings with garages and open space in rear yards.  The level of vegetation and tree canopy varies on each site.  The form is predominantly single storey but there is limited two storey development (additions to houses).  Front fences are generally low with the exception of the review site that has a higher brick front fence.  Houses are generally brick.

Figure 2 Location of review site.

8	It was put to me that because the site is located within a court, development must be tempered as courts have a special character that warrants ‘special considerations’.  It was put to me that the location is a court which makes the site more sensitive to issues such as access and increase in traffic.  
9	I understand that the objectors/residents are passionate about their court environment where everyone knows each other and there is an assumed level of safety.  I also agree that there are limited parking opportunities in courts.  However, the site being located at the end of the court does not mean that it can’t be fully developed for more than one dwelling.  Any development of the site for more than one dwelling will result in increased traffic and increased on street parking and these matters are part of the consideration of any proposal.
10	One of the key issues of the court location is the number of sensitive interfaces the site has.  This site shares a boundary with 11 properties.  The physical location is an important consideration.  
11	I am not discounting that a court offers many benefits to residents that ‘through’ streets do not.  However, in this case, the site is of a size that it is expected that it would be redeveloped for more than one dwelling.
Policy context
12	The site is zoned NRZ that sets a purpose to “manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics”.  The schedule to the zone varies some requirements of the general clause 55 provisions by requiring, amongst other things the provision of one canopy tree per 175 square metres, increased private open space areas and front setback variations.
13	I was referred to the policies 21.06 Housing and 22.07 Development in Residential Areas and Neighbourhood Character.  The Knox Planning Scheme outlines a scaled approach to residential development and nominates four distinct residential areas Bush Suburban, Knox Neighbourhood, Local Living Areas and Activity Areas.  The review site is located within a Knox Neighbourhood area.  The desired future character for this area reads:
Knox Neighbourhood Areas represent the majority of Knox’s residential areas and have a sense of spaciousness within the public and private realm. These areas will continue to be low-scale neighbourhoods, characterised by detached dwellings with large backyards which contribute to the area’s green and leafy character.
14	Clause 21.06-3 sets the objective to support high quality housing design that responds to the City’s ‘green and leafy’ character.  
15	At clause 22.07-4, the Preferred Future Character of Knox Neighbourhood Centres is identified as:
Knox Neighbourhood areas will: 
•	Continue to be low-scale neighbourhoods, characterised by detached houses and dual occupancies; with some villa unit developments on larger blocks. 
•	Retain their green and leafy identity and character through the retention of front and back yards, and the establishment of a garden setting that includes canopy trees. 

Preferred Dwelling Typologies 
•	In Knox Neighbourhood areas, it is policy to support detached dwellings, dual occupancies and villa unit developments (more than two dwellings) on lots greater than 1,000 square metres.
16	The design guidelines further encourage development that is responsive to the ‘green and leafy’ character of Knox and responsive to the desired future character of the area.
17	The site is of such a large size that more than one dwelling can be accommodated and it is my view that policy supports the redevelopment of the site.  Whilst the site is not located in an area such as an activity centre that has access to more services and public transport, it is of such a size that redevelopment for more than one dwelling is acceptable in principle.  In this case however, whilst development in principle is supported, I am persuaded by Council and the objectors that there are too many dwellings attempted to be accommodated on the site.
Neighbourhood character

Figure 3 Outline of proposed development.

18	It is policy at clause 22.07-4 to support detached dwellings, dual occupancies and villa unit developments (more than two dwellings) on lots greater than 1,000 square metres.  As can be seen from the plan, the proposed ten dwellings are located around the perimeter of the site with access from a central driveway.  The landscape plan details the provision of canopy trees within the site, generally around the perimeter of the site. 
19	On the face of it, it could be said that the proposal ticks many of the provisions of clause 55 and therefore a permit should issue.  However, an assessment against the provisions of clause 55 is not a tick the box exercise.  The purpose of clause 55 includes:

To implement the Municipal Planning Strategy and the Planning Policy Framework. 
To achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character. 
To encourage residential development that provides reasonable standards of amenity for existing and new residents. 
To encourage residential development that is responsive to the site and the neighbourhood.
20	I find the proposed development has failed to achieve the following purpose:
To encourage residential development that is responsive to the site and the neighbourhood.
21	I also find that the proposed development has failed to be responsive to the constraints of the site.  Specifically, I have the following concerns with the proposed development.
22	As stated above, policy calls for the continuation of a low-scale neighbourhood character by, on large lots, villa unit developments.  It also calls for a garden setting including canopy trees.  Also, as described above, the location of the site and surrounding properties is detached dwellings with front yards and backyards.  
23	I make the observation that respecting neighbourhood character does not mean replicating what is existing but ensuring that any new development ‘is a comfortable fit’ in its context.  In considering how the development sits within its context, it is necessary to identify what are the features of the neighbourhood:
•	Relatively large, detached dwellings on a lot.
•	Predominately single storey but there is limited two storey form.
•	Tiled roofs.
•	Use of brick.
•	Low or no front fence.
•	Well maintained front gardens with small shrubs and trees.
24	I was referred to two Tribunal decisions in Belle Xu Investments Pty Ltd v Knox CC where the Tribunal refused the proposed development because it failed to respond to the policies, design objectives and design guidelines detailed in the Planning Scheme, in respect of neighbourhood character. The Tribunal made the observation that the proposal would not contribute to the preferred character of a low-scale neighbourhood with a garden setting.  I was also referred to Mu v Knox CC where the Tribunal refused a permit for the construction of four dwellings stating that the proposal did not respond acceptably to the preferred neighbourhood character that refers to the retention of the ‘green and leafy identity and character through the retention of front and back yards’.

Figure 6 Location of trees on site.

25	It was put to me that the proposed development has inadequate spacing between the dwellings or in other words the development looks squeezed on to the site.  I share these concerns.  Policy encourages housing diversity but also seeks development that is low-scale neighbourhoods with some villa unit developments on larger lots and development to retain their green and leafy identity.  
26	This is an area where there are large detached single storey dwellings on reasonable suburban sized lots.  There is spacing around the dwellings and each dwelling has a back yard.  What is proposed is an intense form of development that is different to the surrounding built form.  This is to be expected given the size of the lot.  However, as noted above, when assessing neighbourhood character new development is not required to replicate or mimic what is existing, but to ‘sit comfortably’ within the context.  
27	The proposed development extends along the side boundaries with a central driveway.  Each dwelling is detached with a separation of either a side setback or visitor car spaces but there is limited softening of the development due to the absence of any area for meaningful landscaping.  There is also limited spacing between the dwellings when considering the context and neighbourhood character of large, detached dwellings on surrounding lots.  Dwelling 5 also appears squashed in at the end of the site, in what appears to be an attempt to locate one more dwelling.  This is a large lot and I have no issue with some form of two storey development.  However, as it is designed currently, the level of built form and lack of spacing around the built form, is at odds with neighbourhood character and is too intense.  There needs to be a greater level of spacing around the built form, increased landscaping opportunities offering the ability to soften the proposed built form.  
28	Clause 55.03-8 Landscaping sets a number of objectives including:
•	To encourage development that respects the landscape character of the neighbourhood. 
•	To encourage development that maintains and enhances habitat for plants and animals in locations of habitat importance. 
•	To provide appropriate landscaping. 
•	To encourage the retention of mature vegetation on the site
29	The planning scheme also encourages or seeks development to retain and enhance the green leafy environment of the area.  There are no vegetation or significant landscape protection controls over the land and it is proposed to retain the following trees:
•	tree 17 located in the north west corner of the site, 
•	tree 14 located close to the western boundary,
•	one of the trees in group 10 located in the south east corner of the site, 
•	tree 4 located on the eastern boundary and 
•	group 2 located on the southern/frontage of the site.  
30	There was quite a discussion regarding the retention of trees.  It is fair to say that some lots within the court and surrounds have little vegetation or canopy trees and the site accommodates a number of trees which provide a pleasant outlook to adjoining properties.  During the hearing, under cross examination, Mr Nees who provided arboricultural evidence, submitted that, putting aside the proposed layout of the development, a number of other trees could be retained onsite including tree 3 located close to tree 4, tree 12 located close to the western boundary, tree 15 located in the centre of the site and tree 16 located in the western portion of the site.  On a site where policy encourages the retention of trees and the further enhancement of canopy trees and vegetation, there should be further consideration of the retention of more trees on the site particularly given Mr Nees indicated that further trees could be retained on the site.  
31	It is acknowledged that the site can’t be fully developed without the loss of some trees but there are opportunities for further trees to be retained that should be considered.  This is an example where the proposed layout of the built form has not responded to the existing and preferred future neighbourhood character.  Policy calls for a garden setting that retains trees, but I find that the proposed development would not contribute to the preferred character of a low-scale neighbourhood in a garden setting.  
Waste management
32	Matters of waste management were raised as an issue of concern.  A revised waste management plan was prepared by Melbourne Energy Rating Pty Ltd dated 7 October 2021.  It is proposed that each dwelling has its own bins with two communal bin storage locations between dwellings 3 and 4 and 9 and 10.  It is proposed that these bins will be served by a private collection company.  It was confirmed during the hearing, that as with Council collection, there will be three or four different bin collection trucks for general waste, recycling, garden waste and possibly in the future glass.  
33	The applicant submitted swept path plans detailing how a waste truck would service the site.  It appears that to service the bin storage location between dwellings 3 and 4 and in order to exit the site in a forward manner, the bin trucks need to use the two visitor parking spaces.  See Figure 4 below.

Figure 4 Proposed swept path of waste truck using the visitor spaces to turn.

34	As to the storage location between dwellings 9 and 10, the swept path detailed using the area in front of garage for dwelling 10.  

Figure 5 Swept path of waste truck.

35	I share the concerns of the objectors that this issue has not been well resolved.  The applicant submitted that the trucks may be able to turn around at the rear of the site in front of dwellings 5 and 6 but there were no swept paths or details of this option.  
36	Collection of waste is a service that is to be provided on site and was subject to discussion during the hearing.  Clause 55.06-4 Site services objectives seeks to ensure that site facilities are accessible, adequate and attractive.  I have the following concerns with the proposed arrangement:
•	Visitor parking is provided at a surplus.  However, with three or four different waste trucks having to access the site and needing to use the visitor parking area as a turning circle, how are the visitor spaces managed so that they are free during collection times and days and what happens if the spaces are utilised at the time of collection, how would the waste truck exit the site?  Is it a reasonable expectation that waste trucks rely on the visitor car spaces as their turning circle?  If it is a matter of four trucks each week, does that restrict the visitor car spaces for an hour, a day?
•	I am concerned about the safety of using the entrance to the garage to dwelling 10 for truck turnaround.  The swept paths detail that this area needs to be fully utilised.  Is this safe?  I did not have the benefit of any traffic engineering evidence or supporting report therefore, I am concerned with the safety aspect of this option.  
•	At the time of collection, due to the proposed arrangement, all cars will be prevented from exiting the site and may be prevented from entering and parking depending on where the truck is located and what dwelling it is.  
37	It is inevitable that waste collection will occur within the site due to the length of the site and how it will be redeveloped.  In this case however, there needs to be more detail as to how it will occur.  As proposed, I share the concerns of the residents that the collection may lead to conflict within the site, there is no detail regarding how the use of the visitor parking spaces will be managed and no detail as to the frequency of the collection and number of trucks anticipated, that is how they potential conflict between the visitor car spaces and collection would be managed.  I find the proposed development fails to satisfy the objective of clause 55.06-4.
Other matters
Amenity impacts
38	Council refused the proposed development on the ground that the proposed two-storey built form will have a detrimental impact on the amenity of neighbouring properties.  
39	Amenity impacts were raised from adjoining properties.  Amenity impacts generally include matters of visual bulk, overshadowing, overlooking and in this case, amenity impacts from increased traffic.  It was put to me that the proposed form including a two storey house is located directly opposite the north facing outdoor deck of the adjoining property at 7 Gilda Court.  
40	I am not refusing the proposed development because of amenity impacts such as overlooking or overshadowing.  In any future proposal, these matters are to be considered.  I make the observation that the outlook from the adjoining residential properties to the review site will change and this is to be expected.  At present the adjoining properties benefit from a largely undeveloped lot with canopy trees scattered around the site.  Built form will be visible but a view of built form, in itself, is not a reason for refusal.  It is the potential impacts from the built form that is to be considered.
Parking and traffic
41	Concern was raised that the intensity of the proposed development will have a detrimental impact on the amenity of properties within Gilda Court due to the noticeable increase in the number of vehicles using Gilda Court.  
42	The proposed development satisfies and exceeds the statutory requirements of parking provision of clause 52.06.  
43	Gilda Court provides access to only 13 dwellings (noting two of these dwellings front Trisha Drive).  It was submitted that Gilda Court is a quiet court that has parking issues due to the limited on street parking opportunities.  It was further submitted that there is a concern that the development will result in further on street parking which has the potential to restrict access to emergency vehicles.  
44	Any development of the site will result in an increase in traffic and potential for on parking demand within the street.  As I stated during the hearing, if a proposal complies with clause 52.06, I cannot require the provision of further onsite parking.  The proposed development has obviously recognised the limited parking within Gilda Court and provided visitor parking in excess of the requirement.  Having said that, I am not refusing the proposed development for reasons of parking or traffic.  In any future proposed development, an assessment of parking and traffic against the provisions of clause 52.06 will need to be undertaken.
Stormwater and drainage
45	Matters of stormwater and drainage issues were raised.  I was advised that Melbourne Water were conducting testing of the suitability of services.  The site is not subject to any flooding overlays in the planning scheme.  I therefore make no comment regarding this issue.

Conclusion
46	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Tracey Bilston-McGillen
Member