VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1807/2020
Permit Application no.D/167/2020 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Darebin Planning Scheme; General Residential Zone Schedule 2; Development Contributions Overlay Schedule 1; Construction of a two dwellings; Planning Policy; Response to Neighbourhood Character; Impact of two crossovers, Amenity impacts.	

Applicant	Leslie Roderick McFarland & Kerry Lee Mahoney	

Responsible Authority	Darebin City Council	

SUBJECT LAND	171 Victoria Road
NORTHCOTE VIC 3070	

HEARING TYPE	Hearing	

DATE OF HEARING	27 January 2022	

DATE OF ORDER	3 February 2022	

CITATION	McFarland v Darebin CC [2022] VCAT 132	

Order
Permit granted
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:	CS Town Planning Pty Ltd	
•	Drawing numbers:	TP01 to TP10 inclusive Rev G	
•	Dated:	26 April 2021	
2	In application P1807/2020 the decision of the responsible authority is affirmed.  No permit is granted. 

Katherine Paterson
Member			

Appearances
For applicant	Mr Paul O’Shea, Town Planner, CS Town Planning Services.  He called the following witnesses:
•	Mr James Dear, Traffic Engineer
•	Mr Patrick Kipping, landscape Architect, John Patrick Architects	
For responsible authority	Ms Louise Lunn, Town Planner, Louise Lunn Planning	

Information
Description of proposal	Construction of two dwellings constructed in a side-by-side configuration.  Each dwelling will contain three bedrooms, with a single car space provided for each dwelling, which is proposed to be accessed via a separate crossover to each dwelling.  The architectural style of the dwellings is contemporary and includes pitched and skillion roofs and a variety of finishes and materials including face brick work and timber vertical cladding.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Darebin Planning Scheme	
Zone and overlays	General Residential Zone Schedule 2, Development Contributions Overlay Schedule 1.  	
Permit requirements	Clause 32.08-6 – Construct two or more dwellings on a lot.  
Clause 52.06-3 – Reduce the number of parking spaces required under Clause 52.06-5.  	
Land description	The subject site has an area of 368.49 square metres and is currently occupied by a single storey dwelling and associated outbuildings and a scattering of trees.  A hedge located within the neighbouring property to the south is located along the southern boundary to the property.  Vehicle access to the site is provided via a shared crossover with the property to the south.  	
Tribunal inspection	31 January 2021   	

  Reasons
What is this proceeding about?
1	Leslie Roderick McFarland & Kerry Lee Mahoney wish to construct two dwellings on the land at 171 Victoria Road Northcote.  Following Council’s refusal to grant a planning permit for the application, they have requested that the Tribunal review this matter.  
2	Darebin City Council refused the application on a number of grounds, but in summary they are concerned that the proposal represents an unacceptable response to the Darebin planning scheme due to its response to the preferred neighbourhood character of the area, the proposed vehicle access arrangements and the potential to affect the amenity of the property to the south through loss of light to existing north facing gazed doors to a dining room.  The Tribunal received a statement of grounds from the owners of the property to the south, which echoes the concerns of Council regarding access to northern light.  They also raised concern regarding impacts on the amenity of this property through overlooking and overshadowing.  
What are the key issues?
3	Having considered all the submissions and evidence and inspected the subject land and its locality I am of the opinion that the key issues in this proceeding are:
•	Is the proposal respectful of the neighbourhood character?
•	Are the vehicle access arrangements acceptable?
•	Does the proposal create unacceptable amenity impacts?
4	I will consider each issue in turn.  
Is the proposal respectful of the neighbourhood character?
5	It was common ground that the site located close to existing services and facilities and within an area designated for incremental housing change.  Whilst on paper this site is a suitable candidate for medium density housing, Council submitted that due to the narrow (12.8 metre) width of the site it is difficult for it to be developed without consolidation with its neighbours.  Council submits that as this proposal is seeking to be developed as a stand-alone parcel of land, the narrow width has resulted in a number of compromises to the design which will have an adverse impact on the neighbourhood character of the area, particularly the use of two crossovers and the extent of hardstand within the front setback, which is in place to allow vehicles to exit the site in a forward direction.  They are also concerned that the overall architectural style of the development fails to respond to the preferred character of the area as it is a departure in style from the existing original housing within the area.  They are particularly concerned that the first-floor level will dominate the streetscape and the  proposed boundary walls is at odds with the preferred character of the area.  
6	The site is included within a General Residential Zone Schedule 2, the purposes of which include:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework. 
•	To encourage development that respects the neighbourhood character of the area. 
•	To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
7	Clause 55.02-1 has the following objectives:
•	To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character. 
•	To ensure that development responds to the features of the site and the surrounding area.
8	Clause 21.03-1 provides the following description of the Incremental Housing change areas:
Residential and commercial areas that have the capacity to accommodate a moderate level of residential development over time. It is expected that the general character of Incremental Change Areas will evolve over time as new yet modest types of development are accommodated. Incremental Change Areas generally display one or more of the following characteristics: 
•	A diversity of housing stock, diversity of lot sizes and a more varied neighbourhood character. Typically areas include some medium density and small apartment development, but the predominant dwelling stock is single to double storey dwellings. 
•	Have some stand-alone or small clusters of heritage sites, including along strategic corridors, however are generally unaffected by extensive heritage recognition. 
•	Are located: 
–	within an 800 metre walkable catchment of an activity centre 
–	generally within an 800 metre walkable catchment of train, tram or Smart Bus services.

9	As can been seen from the above extract from Melways Online, the subject site is located approximately 750 metres from the Northcote Activity Centre, which includes a railway station.  Victoria Road forms part of the Principal Public Transport Network (PPTN) as the buses that operate along the road directly link the site with Northland and Melbourne’s CBD.  Clause 21.03-2 states within incremental change areas low scale medium density housing development that respects existing neighbourhood character will be supported, particularly on sites, such as this one, that are in proximity to shops, facilities, services and transport.  
10	Clause 22.02 divides the municipality into various character precincts, with the subject site included within Precinct E1, Interwar/Post War mix.  The preferred character statement for this precinct is:
This precinct will retain its characteristic mix of Interwar and Postwar period buildings, including Californian Bungalows, Arts and Crafts style dwellings and 1950s weatherboard homes, interspersed with well designed modern buildings. New dwellings or extensions to existing dwellings will acknowledge the form, scale, siting and materials of Interwar or Postwar buildings where these are a feature of the streetscape. The area will retain its spacious and low-scale character by maintaining low and/or transparent front fencing and the existing pattern of front and side setbacks in streets. Where streets are lacking in vegetation, regular planting will help create a leafier atmosphere for the precinct.
11	The preferred character statement is accompanied by designed guidelines. The guidelines seek to maintain, where they are present the consistency of frontage widths and building heights and forms.  They state that subdivisions and multi-dwelling developments should be designed to maintain, when viewed from the street, the predominant scale and form of a dwelling.  The guidelines go on to state that lengthways subdivisions, such as that proposed may be allowed, provided all other siting and design requirements are met.  Under the ‘avoid’ column the design guidelines state:
Subdivisions that appear to reduce the predominant frontage width evident in the street. 
Lengthways subdivisions with prominent boundary treatments through the middle of the site (e.g. fencing). 
Lengthways subdivisions that result in multiple vehicular crossings on narrow sites and substantial loss of nature strip planting.

12	As can be seen from the above VicPlan map, the western side of Victoria Street has a remarkable consistent pattern in the width of the existing lot frontages, of approximately 12 metres.  The design guidelines are clearly seeking the retention of this pattern and would discourage the development of a side by side development on this site.  
13	Further indications of the site’s unsuitability to be redeveloped for a side-by-side development is the fact that due to the narrow width of the site, 44% of the frontage would be used for access, greater than the 40% specified in Standard B14 of clause 55.03-9.  The objective of the standard is ‘to ensure the number and design of vehicle crossovers respects the neighbourhood character’.  In addition to the driveways, a significant portion of the front setback, as shown in the extract from evidence of Mr Dean is required to be used as a vehicle turning area, to enable vehicles to enter and exit the site in a forward direction.  It was Mr Dean’s evidence that this was necessary given the site’s location on Victoria Road.  

14	The proposed treatment of the front setback is contrary to a number of the design outcomes specified in the Precinct Statement which specifically seek to avoid:
•	Large areas of impervious surfaces. 
•	Loss of front garden space.
•	Lack of garden space for landscaping. 
•	Car parking structures that dominate the façade or view of the dwelling. 
•	Creation of new crossovers. 
•	Creation of wide driveways or crossovers. 
•	Front setbacks dominated by impervious surfaces.
15	Mr O’Shea submitted that whilst the proposed design was not an ideal outcome, he submitted that it was acceptable, particularly having regard to the existing dwellings on the street, many of which have large areas of hard paving and/or car parking structures within the front setback.  I disagree.  

16	As can be seen from the above Nearmap image, whilst many dwellings do have car parking facilities such as areas of hard stand within the front setback, none have more than one crossover.  Many of the front gardens are hidden by high fences, however there is an impression of mature gardens within the front setbacks.  On the eastern side, the character is somewhat different.  The 7 Eleven which is located on the corner of Victoria Road and Separation Street has a significant amount of hard stand, with the two apartments located directly opposite the site having a double crossover to access a basement car park, with a further area provided between the apartments for services, mailboxes and bicycle parking.  Some Landscaping has been provided to the apartments in ground floor courtyards with some additional planting provided within the narrow frontage of the development.  
17	Landscape evidence was provided to the Tribunal by Mr Patrick Kipping. The landscape plan submitted with this evidence illustrates the extent of hard stand required to accommodate the vehicle access requirements:

18	Whilst frontage can accommodate four canopy trees these will be surrounded by impervious pavers.  During the hearing I explored with the parties, and with Mr Kipping whether an alternative, such as “grasscrete” could be used to lessen the extent of hardstand proposed for the site.  Mr Kipping’s evidence was that if an alternative product was used it would need to be robust enough to accommodate the vehicle movements expected for the development.  Based on the evidence I am not satisfied that an alternative would be robust enough to accommodate the vehicle movements that would be generated by the development.  I also find that the proposed arrangements, which is reflected in the landscaping plan will result in an unacceptable level of hardstand which is contrary to the preferred neighbourhood character for the area.  
19	In finding that the development is contrary to the preferred neighbourhood character of the area, it should be noted that I have not refused this on the basis of the proposed contemporary design.  I find that given the context of this site, whilst the design is a departure from the predominant form of the existing dwellings found within the area it would be absorbed within the streetscape without difficulty.  I do not share Council’s concern with respect to the dominance of the first floor or the proposed cantilevered elements.  Similarly, I do not share Council’s concerns with respect to proposed laundries which are proposed to be constructed on each side boundary.  The construction of buildings to one or both side boundaries is part of the character of this area, and therefore I find this element to be acceptable.  
Are there any other issues?
20	As I have refused this application on the basis of the proposal’s response to the neighbourhood character of the area, there is no need for me to consider the other key issues in detail.  However, for completeness I make the following findings:
Traffic impacts
21	Council was not opposed to the waiver of parking associated with the dwellings, nor the provision of parking using an open car spaces for this development.  However, they were concerned that the construction of two crossovers would result in the loss of an on street parking space and this was unacceptable particularly given the demands for on street parking in the area.  They were also concerned that a sightline triangle could not be provided on site due to the presence of a hedge on the neighbouring property.  
22	They Tribunal had the benefit of evidence of Mr Dear.  Based on his evidence, I am satisfied that due to the presence of the fire hydrant the proposal would not result in the loss of an on street car parking space.  I am also satisfied that as vehicles would be able to enter and exit the site in a forward direction the parking spaces could be used in a safe manner, despite the presence of the existing hedge on the property to the south.  I have not refused this application on the basis of its traffic impacts.
Amenity impacts
23	An extract of the floor plan of the dwelling at 169 Victoria Road was provided to the Tribunal at the hearing, which I have included below:

24	In response to the statement of ground’s I agree with the submissions of both Ms Lunn and Mr O’Shea that the proposed development will not unreasonably affect the amenity of the adjoining property to the south through overlooking or overshadowing.  
25	I agree with Ms Lunn that the glazed double doors which provide northern light to the dining room of the dwelling at 169 Victoria Road, should be assessed as a habitable room window.  I therefore agree that the application is seeking a variation to standard B20 of Clause 55.04-4.  However, I agree with Mr O’Shea that the proposed development will not result in a loss of light to the glazed door, particularly as there is a pergola which has been constructed above the doors to the boundary which restricts light to the room.  As the proposed ground floor laundry will be constructed lower than the pergola and the setbacks of the proposed first floor of the development complies with the standard, I am satisfied the amenity of the room will not be adversely affected through loss of light.  
Conclusion
26	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Katherine Paterson
Member