VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1675/2020
Permit Application no. MPS/2020/24	
CATCHWORDS	
Application under Section 82 of the Planning and Environment Act 1987 (the Act). General Residential Zone Schedule 1; Development Contributions Plan Overlay Schedule 1; Construction of four double storey dwellings; Car parking location and access; On street parking reduction; Traffic; Safety; Local Planning Policy Framework; Amenity issues; Neighbourhood character; Daylight to windows; Integration to the street; North facing windows; Fences; Front setback; Shading; Skillion roof; Existing metal screen detail; Design detail.     	

Joint Applicants	Harold (Harry) Strouzas, Jennifer Strouzas & Others	

Responsible Authority	Moreland City Council	
Respondent	Planning & Design Pty Ltd	
SUBJECT LAND	32 Prospect Street, Pascoe Vale, 3044	
HEARING TYPE	Hearing	
DATE OF HEARING	18 June 2021	
DATE OF ORDER	21 March 2022	
CITATION	Strouzas v Moreland CC [2022] VCAT 307	

Order

1	The decision of the responsible authority in relation to permit application no. MPS/2020/24 is varied.
2	In accordance with section 85(1)(e) of the Planning and Environment Act 1987 the Tribunal directs that a permit is granted in relation to land at 32 Prospect Street, Pascoe Vale. The permit will allow 
•	the construction of four double storey dwellings in a General Residential Zone.
all in accordance with the endorsed plans.
3	The permit is subject to the conditions contained in Appendix A to these reasons.

Alison Slattery 
Member

Appearances
For applicants	Fiona McKenzie on behalf of Harry Strouzas, Jenny Strouzas, and Murat Ilanli.  Ms McKenzie also appeared on behalf of the Anglican Parish of Pascoe Vale at Oak Park.  She called Rose Dennis as a lay witness having regard to the operation of the church at 29 Pleasant Street (corner of Gyles Street).  Ms McKenzie also called Mr Strouzas as a witness to give evidence as it related to his experience as a resident in Gyles Street and calling on his expertise in traffic engineering.  	
For Julia and Darrell Davies	Ms Davies in person 	
For responsible authority	Mr Andrew Clarke of Clarke Planning Pty Ltd	
For respondent	Mr and Mrs Aksakal, owners, in person 	

Information
Description of proposal	The existing dwelling will be demolished, for which no planning permission is required. 
The construction of four double storey dwellings with dwelling one and its vehicular access facing Prospect Street and dwellings two to four facing Gyles Street with the existing crossover utilised and a new double width crossover proposed to this elevation.  The construction of a new crossover to this elevation means that the on street parking is reduced in number on the western side of Gyles Street.  The proposed built form includes skillion style roofing.  	
Nature of proceeding	Application under section 82(1) of the Planning and Environment Act 1987 – 	
Planning scheme	Moreland Planning Scheme 	
Zone and overlays	General Residential Zone Schedule 1 (GRZ1)
Development Contribution Overlay Schedule 1 (DCO1) 	
Permit requirements	Clause 32.08-5 (construction of two or more dwellings on a lot) 	
Relevant scheme policies and provisions	Clauses 02.03, 02.04, 11, 15, 16, 18, 32.08, 45.06, 52.06, 55, 65 and 71   	
Land description	The land is located on the north western corner of the intersection of Prospect Street and Gyles Street in Pascoe Vale, around 300 metres to the east of Cumberland Road.  The site is rectilinear in shape, mostly rectangle but with a corner splay.  The site has a frontage to Prospect Street of 17.68 metres and a depth of 42.67 metres for a total site area of 747 square metres.  There is a fall of around two metres from the rear (north) down to Prospect Street.  In the east-west orientation the fall is imperceptible.  Due to the undulating topography of the area and of Prospect Street (and Gyles Street), sites on the northern side of Prospect Street (such as the review site) sit higher on the lot than sites to the southern side of Prospect Street.  Thus development on the northern side of Prospect Street is more readily evident than on its opposite side.  Significant trees or vegetation is not evident, but the site includes a garden setting.
The site is developed with a single storey brick dwelling and outbuildings.  Vehicular access is via a single crossover to the north-east corner of the site facing on to Gyles Street.  Fencing to Prospect Street is low and brick with fencing to Gyles Street higher, around 1.8 metres, with wooden palings.  
The site is located within a residential area, where single dwellings and multi-unit development co-exists.  This is with the exception of the Anglican Church (Holy Trinity) directly to the north of the site and its car park north-east of the site in Gyles Street.  This church building is exquisite and has its own, site specific heritage grading.  Other non-residential uses further afield include the Pascoe Vale outdoor pool and Moreland Toy Library on the southern side of Prospect Street to the east and the adjoining Sussex Neighbourhood House directly to its east. Sites in the area include older dwellings that are gradually being replaced with multi-unit development that generally extends down the length of the lot and face on to side streets.
The area includes some private and public planting that is in line with the robust nature of Pascoe Vale, whereby vegetation is reasonably limited.  
The review site has good access to public transport by way of buses on Northumberland and Cumberland Roads and trains on Gaffney Street around 600 metres to the south-west of the site.  Neighbourhood shopping areas are located to the south on Gaffney Street, either at the train station or at the corner of Cumberland Road.  The site has good access to open spaces, schools and community facilities.     	
Tribunal inspection	The Tribunal conducted a site inspection of the site and the area after the hearing.  	

Reasons
What is this proceeding about?
1	Planning and Design Pty Ltd applied to the Moreland City Council (Council) for a permit to develop the land at 32 Prospect Street, Pascoe Vale for the construction of four double storey dwellings.
2	Council issued a Notice of Decision to Grant the Permit on 10 September 2020.  Council’s view is that the development of the site was a reasonable response to the emerging character of the area as envisaged through policy. Council found that the provision of car parking, including the removal of on-street car parking spaces was reasonable for this area where access to parking is available elsewhere.  Council found that the design was appropriate for a dwelling development in this area and that amenity impacts both of future residents of the development and to surrounding residents would be reasonably minimised.  Council did not hold any concerns with the interaction of the form with the heritage place to the north of the site (the church).  Council found that opportunities for landscaping were appropriate.  
3	The review applicant, through Ms McKenzie disagrees with Council and asserts that the design has not taken into account the constraints of the site and is not site responsive.  She argued that the areas of non-compliance with the standards of ResCode have not been justified and contended that the proposal lacks respect for the character of the area, provides inadequate car parking provision insofar as the reduction of on-street car parking is concerned, and fails to meet the objectives of ResCode, Planning Policy and the Zone.  It was her contention that the Planning Policy Framework (PPF) and local policies lend support to the refusal of the proposed development.  She submitted that car parking was poor and relied on the evidence of Mr Strouzas (10 Gyles Street resident) and Ms Rose Denis (Deacon of Holy Trinity Church directly to the north), having regard to the previous discussions regarding possible amelioration of car parking and also about details of the current car parking pressures of Gyles Street. 
4	In addition to the concerns of Ms McKenzie, Ms Davies also held concerns with impacts of bulk on the character of the area, materiality and roof form, and impacts by way of changes in shading on her property.  Ms Davies raised concerns about the management of the metal screens she has erected, but this is not a matter to which I can have regard.  General construction concerns were raised which are not a relevant planning matter.  
5	The key issues for determination are:
a.	Is the provision of car parking adequate?  Does the construction of vehicle crossings unreasonably impact on the on-street parking network? Will the traffic impacts be reasonable? 
b.	Is the proposal consistent with the PPF of the Moreland Planning Scheme (Scheme)?
c.	Does the development achieve a satisfactory level of compliance with Clause 55 (ResCode)?
6	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions with regard to the applicable policies and provisions of the Moreland Planning Scheme, I have decided to vary the Council’s decision and direct that a permit issue.  My reasons follow.
is the provision of car parking adequate?  Does the construction of vehicle crossings unreasonably impact on the on-street parking network? will the traffic impacts be reasonable? 
7	Reduction of on-street parking and traffic management were raised as being of great concern to residents and parishioners of the church on the corner of Pleasant and Gyles Streets.  
8	It is worthwhile to note that this review is against a decision of the responsible authority.  A decision the responsible authority made having applied the rigours of the Scheme to the proposed development.  As such, it is a decision made by the responsible authority by virtue of the Planning and Environment Act 1987 which is the enacting legislation for the Scheme.  
9	It is also worthwhile to note that the proposal subject to this application for review does not require permission for the reduction of provision of on-street parking.  I understand that the development, if proceeded with, will result in the reduction of on-street parking, particularly to the southern side of the southern-most crossover in Gyles Street (on its western side).  From all accounts, this would perhaps reduce possible traffic conflicts in this part of Gyles Street and allow for greater flow of traffic.  
10	Of particular concern to residents was the reduction of on-street car parking and the inadequacy of the imposition of condition 9 which states:
Prior to the occupation of the dwellings, the applicant must apply to Council to install “No Stopping” parking restriction signs to apply on the west side of Gyles Street between Prospect Street and the new southern vehicle crossing (of 32 Prospect Street).  This is to be arranged at the applicants cost.    
11	I agree with Ms McKenzie that this condition is deficient.  She noted the requirement to ‘apply for’, but no requirement for approval.  I agree.  It is poor wording and leaves open the opportunity for the condition to be satisfied upon receipt of an application only, rather than a proper wording which would include approval.  Ms McKenzie also noted that there is no requirement that these things be done or completed to the satisfaction of the Responsible Authority.  Again, I couldn’t agree more.  If a condition requires action, it should be included how the appropriateness of that action is achieved.  In this instance, the measure ought be to the satisfaction of the responsible authority.  I also find that the onus of the condition ought relate to the owner of the land, rather than the ‘applicant’.  There is no detail as to which type of applicant, nor details of the applicant at which stage of any approval, nor details of to whom this conditional requirement applies should the original permit applicant no longer be involved with the land.  As such, the owner should be the nominated actor within the condition.  As the development includes the construction of four dwellings, which may well be subdivided into the future, the timing of the ownership is also of importance to this condition.  If indeed a subdivision is approved into the future, who is the owner, and does ‘the land’ as it now stands still exist?  To that end, the timing of the requirements of condition 9 ought well be Prior to the issuing of a Statement of Compliance or Certificate of Occupancy.    
12	It was relayed to me that substantial discussions about on-street car parking have occurred, including on-site visits, zoom interactions and submissions of amended car parking layouts from Mr Strouzas.  By the applicants for review’s accounts there had been some level of agreement between the residents, the church and Council.  But this agreement has not translated into condition 9 which relates to on-street parking.  
13	I understand the disappointment that must be felt at such a perceived change in position, especially considering that there appears to have been much work, and work in good faith conducted around providing an on-street parking plan that was adequate to all parties.  This agreed plan was not formally substituted into the array of planning documents.  Unfortunately, as this plan is not formally in front of me, I cannot consider it.  In other words, as there is no formal amendment to the plan to reflect the changes that were purportedly agreed, it is not within my power to require the plan be upheld.  Rather, what I can do, is assess the proposal that is presented to me and assess its appropriateness, particularly in this instance, in relation to on-street parking reduction.  In doing so, I may come to the position that further or amended conditions are required, and these conditions may well include changes that reflect those suggested by Mr Strouzas.  
14	An amended condition 9 was mooted via ‘further submissions’ from Mr Strouzas via Ms McKenzie.  It read:
“Condition 9
Prior to commencement of construction of the dwellings, the Council will
impose parking conditions on Gyles St as follows:
a) Two restricted parking spots between the new vehicle crossing of proposed
Unit 2 and Prospect St, on the Western side of Gyles St, allowing 1 hour
parking between 3 pm and 11 pm 7 days, resident permit parking excepted;
and
b) Parking to be prohibited on the Northern end and Western side of Gyles St in front of the Anglican church.”
15	In this instance, I have not deemed the ‘suggested’ changes necessary, despite my understanding of the obvious disappointment of residents at the planning permit process at Council thus far and the lack of formalisation of agreements.  I do however agree with Ms McKenzie that the condition 9 needs work to make it enforceable and to make it meaningful.  To that end I have amended the original condition 9 such that it reads:
Prior to the issuing of a Statement of Compliance or Certificate of Occupancy, the owner must seek and obtain approval from the responsible authority Council to install “No Stopping” parking restriction signs to apply on the west side of Gyles Street between Prospect Street and the new southern vehicle crossing (of 32 Prospect Street).  This is to be arranged at the owners cost.    
16	As it relates to the proposed development, I am satisfied that the vehicular crossings for the proposed development are reasonable.  The development results in an essential reduction in two to three on-street car parking spaces on the western side of Gyles Street.  I find this to be reasonable and say this having regard to the following:
a.	In assessing the appropriateness of the provision of car parking for the proposal I must assess the following:
i.	Has this proposal provided an adequate number of car parking spaces pursuant to Clause 52.06?  To which, the simple answer is, yes it has.  Is visitor car parking required for this development under Clause 52.06?  No it is not.
b.	Therefore, insofar as Clause 52.06 is concerned, my exercise of discretion is limited to the layout of on-site parking spaces and their accessibility.  
c.	I have assessed the layout of the car parking spaces and find that subject to conditions of permit requiring increased splays, they will be accessible.  
d.	I find that the increased splays, in conjunction with the opportunities that naturally derive from the location of a nature strip to the Gyles Street frontage will allow for visibility of passage that is safe for vehicles and pedestrian at the envisaged conflict points. 
e.	As it relates to the construction of vehicle access my discretion is directed to Clause 55.03-9 and Clause 15.01-1L of the Moreland Planning Scheme.  The Vehicle Crossing Policy (Moreland City Council, 2014) is a background document to Clause 15.01-1L.  My assessment is thus directed toward the policy and to ResCode Clause 55.03-9 as it relates to vehicle crossings.
f.	Clause 55.03-9 of ResCode has as an objective ‘To ensure the number and design of vehicle crossovers respects the neighbourhood character.’  The Standard B14 that is included in this Clause requires a frontage of less than 20 metres ion length (Prospect Street frontage) to have an accessway width not exceeding 40% of the frontage.  To Prospect Street, the proposed 3 metres wide crossover complies with Standard B14.  To Gyles Street the width of crossovers (6 metres and 3.175 metres=23.2% of the frontage) complies with Standard B17 which seeks accessways that do not exceed 33% of the frontage.  That said, the Standard is not the only way to achieve the objective and regard must still be had to the decisions guidelines of Clause 55.03-9 in understanding whether the design and number of crossovers respects the character of the neighbourhood.  I have had regard to these decisions guidelines and find that the character of the area is changing, with recent development on Gyles Street and Prospect Street.  Of note, the recent development on the eastern side of Gyles Street includes a double crossover with no intervening nature strip.  Arguably, such development may have changed the character of the streetscape, such that it has a harder edge than previously.  I am satisfied that the proposed crossovers to Gyles Street will sit well within this more recently robust character of crossovers, and in my opinion, due to opportunity for intervening landscape in conjunction with the nature strip, will present a more appropriate, softer edge to the street than buildings on the eastern side of Gyles Street.  In Prospect Street there are recent developments that include a variety of crossover configurations, against which the development compares well and will not offend.  I have not been presented with evidence that suggests that vegetation of significance on the site or footpath area will be unreasonably impacted by the crossovers to either street.  
g.	Whilst it was suggested that Section 62 of the Planning and Environment Act 1987 confers to the responsible authority, and on review the Tribunal, the power to impose planning permit conditions beyond the boundary of the site, there was no persuasive nexus drawn between those conferred powers and the local laws, administered by the responsible authority, that limit the extent of parking on a street.  
h.	To the extent that I can consider traffic related matters in the on-street network, Clause 65.01 of the Scheme provides the following decision guideline that I must consider prior to deciding on a plan:
The impact the use or development will have on the current and future development and operation of the transport system.  
i.	My decision must have regard to how the proposed development will impact on the development and operation of the transport system, and in this instance, I have concentrated on the usability of Gyles Street, and in a broader sense, Prospect Street and Pleasant Street.  I agree with Council’s Development Advisor who suggested that the existing traffic network would accommodate the increase in vehicles (an increase of four vehicles) to the site, with a likely total increase of 24 additional movements for the entire development.  I understand the evidence of Ms Rose Denis regarding the use of the church on the corner of Pleasant Street and Gyles Street and then current difficulties, especially during liturgical services, in providing car parking.  Ms Denis related that the car park to the eastern side of Gyles Street provided around 20 informal car parking spaces for worshippers.  I find that the intermittent parking pressure for this church use (throughout the week with admittedly greater numbers during liturgical services), already creates some pressure on on-street parking ,but not to the extent that I would require the development on the review site to be altered in its provision of crossovers, either in extent or configuration.  I have not been persuaded that as a driver of change, the proposed development would impact on the existing parking and traffic pressures perceptibly above and beyond those that are currently present intermittently.  
j.	No rights to park in front of a dwelling or on street are ordinarily conferred.  Whilst I understand that it has been of benefit to residents in the past, in an exercise of balance, between the benefits of on-street parking versus trafficable roads, I find that the reduction of on-street car parking to the south of the southernmost crossover will aid the safe movement of traffic at the southern entrance to Gyles Street.  
k.	If the responsible authority wishes itself to impose car parking restrictions by way of signage on any road seeking a specified parking regime, that is not something about which this (as constituted) Tribunal has discretion.
l.	I have reviewed the conditions imposed via the Notice of Decision and I am satisfied that a B85 percentile vehicle will have adequate ingress and egress to the site.  I have not been persuaded to apply more stringent requirements to access.  
m.	I have not been persuaded that the construction of vehicle crossings will unreasonably impact the way of emergency vehicles. 
n.	Having regard to the Vehicle Access Design in Moreland Policy at Clause 15.01-1L of the Scheme I note that the objective of this policy includes ‘To ensure provision of vehicle access contributes to an improved urban environment for pedestrians and cyclists.’  Relevant strategies include the prioritisation of pedestrian movement and safety, including good sightlines through active frontages, other than on corner sites (such as the review site) limiting the number of crossovers to a site to one per frontage, retain on-street parking and limit hard surfaces to allow for landscaping.  In addition to my comments above, as it relates to Clause 15.01-1L and the Vehicle Crossing Policy (Moreland City Council, 2014) I am satisfied that the proposed provision of vehicle crossings is reasonable for the following reasons:
i.	The crossings are greater than 9 metres from an intersection.
ii.	The spacing between the existing crossover to the rear (north) of the Gyles Street elevation and the new Gyles Street crossover is 10.585 metres.  This allows for the parking of one vehicle if the no standing signs are removed or replaced.  As the frontage to Gyles Street is greater than 30 metres (39.62 metres less 9 metres deduction 30.62 metres) the Vehicle Crossing Policy (Moreland City Council, 2014) contemplates a third crossing to the site.  
iii.	Council’s internal referrals indicate that street trees that are impacted by the vehicle crossings are not significant. 
iv.	No drainage pits will be unreasonably impacted.
v.	No traffic calming measures will be required and vehicle scraping is not expected.  
vi.	The development will not result in redundant crossovers. 
vii.	The crossovers match the internal driveways in width and location.
o.	The Moreland Parking Management Policy is listed in the Moreland Planning Scheme as a background document with reference to Clause 18.02-4L which has the following Objective and Strategies that are of limited assistance in this proposal due to the adequacy of car parking provision:
i.	Objective To promote the use of sustainable transport through car parking provision. 
ii.	Strategies Support reduced car parking rates in developments: 
1.	Within and close to activity centres. 
2.	With excellent access based on frequency and location to a range of public transport options. 
3.	With increased provision of bicycle parking above the rates specified in Clause 52.34. 
p.	I am satisfied that there is nothing within this policy against which the development offends.  
17	For these reasons I find that, subject to amendments to condition 9, the provision of parking and the construction of vehicle crossings responds appropriately to the provisions of the Scheme, and is reasonable.  
Is the proposal consistent with the planning policy framework of the Moreland Planning Scheme?
18	The proposal is consistent with the PPF that promotes the consolidation of existing urban areas for the efficient use of existing infrastructure and services.  
19	The Scheme includes a Policy Framework that identifies where low, medium and substantial density housing should occur within the municipality.  Clause 2.03-1 of the Scheme seeks to encourage new development, which responds to the character of existing residential areas whilst locating higher density development near transport and activity areas or urban villages. 
20	The subject site is noted as being in the incremental change area where new development will transition to existing development height whilst maintaining an open character with opportunity for landscaping.  A development of two storeys, at a maximum height of 7.9 metres is of a suitable scale, and caters to four dwellings where currently one dwelling exists.  
21	This extent of change is in line with both the PPF, local policy and the General Residential Zone (GRZ) which all seek to locate medium increases in built form in this location.  Additionally, I am satisfied that the context of the area is changing, as evidenced by the property directly to the east at 10 Gyles Street (which returns on to Prospect Street) and the properties at 34 and 36 (approved by the Tribunal) Prospect Street.  These sites and the current site contribute less to the character of the area than will the review site once developed, due to the considered planting scheme proposed by the permit applicants.  
22	It was submitted that the proposed development did not appropriately respond to the scale and character of the area through the implementation of sympathetic styles and scale whilst maintaining and enhancing the landscaped streetscape.  Ms Davies submitted that the development fails to respect the quality and style of surrounding development and is discordant with the neighbourhood character of the area, both existing and preferred character.  She specifically held concerns with the skillion style roofing, bland materials and the resultant visual bulk, especially appreciated from her dwelling to the east.  Ms McKenzie relayed concerns as they related to form and the reduction in setbacks to both street frontages, including limited landscaping opportunities.  She further noted the current character of Gyles Street was that of single form to the rear of a dwelling with limited interaction, by way of the high side fence.  She submitted that this character would be eroded through an increased number of vehicle crossings, the new crossing being double width, and the need to park vehicles in front of garages, further eroding opportunities for appropriate landscaping.  
23	I agree with parties that the PPF, policy, zoning and overlay controls all point to this area as being able to sustain an incremental level of change to accommodate future increases in dwelling stock that include medium density and scale of form that is transitional.  I agree that the policy also seeks to enhance the landscaping opportunities in the streetscape.  I do not find however, that the proposed development offends against these policies and provisions. 
24	As noted above, I am satisfied that the maximum height responds well to both the scale of the buildings on the immediately adjoining property to the east and to the church (hall) to the north, and to the directions for the area.  I noted during my site visit that the area and the Prospect Street streetscape is clearly experiencing change by way of single dwellings being replaced with multi unit style development.  I am satisfied that the scale of the dwellings will not dominate either street frontage.  I find the upper level setback to Prospect Street, whilst limited at 650mm beyond the ground level (7.69 versus 7.04 metres) is sufficiently articulated, in conjunction with the change in materials from ground to first floor.  That said, I agree with Ms Davies that the form of the roof is incongruous in the streetscape.  I will include a condition of permit that requires the skillion roofs both to Prospect and Gyles Street to be pitched in nature without increasing the overall height of the buildings.  This will be more in line with the character of traditional and emerging dwelling stock that includes a preponderance of pitched roof forms.  Such roof forms tie together what might otherwise be disparate dwelling styles.  In Gyles Street the pitched roof form will not ‘fight’ with the style of the church and hall to the north.  In this way, some level of protection is afforded to the heritage place.  
25	I am also satisfied that the development is placed on site such that appropriate landscaping can be provided in line with expectations from the zone, PPF and local policy.  The landscape plan prepared and submitted with the application shows not only a willingness to consider landscaping as a part of the application rather than leave it to the ‘never never’, but is thoughtful in its inclusion of eight canopy trees capable of growing to a height of 7 metres at maturity (3x Native Frangipanni 10 metres max height and 5x Dwarf Lemon Scented Gum 7 metres max height).  This, in conjunction with lower order planting throughout the site serves to soften the appearance of form over time, in a manner that far outstrips the current landscaping offer on the site.   
26	Prospect Street is well located and is an area where older style dwellings are coming to the end of their effectiveness.  As a result, recent development has been intensified and the trend appears to be towards more and more infill style development of a greater height, presumably in response to both the provisions of the Scheme and the good locational attributes of the site.  I am satisfied that, subject to conditions requiring changes to the roof form, the proposed development is appropriately graduated both down the length of the site and within the streetscape in response to this recent emerging construction typology.  
27	The development responds well to the Decision Guidelines of the General Residential Zone Schedule 1.  I am also satisfied that the proposal represents an appropriate response to the preferred character of the area and the applicable objectives and policy in Clause 02.03.  I say this for the following reasons:
•	The location is appropriate for increases in density due to its location close to Gaffney Street, which caters to daily shopping and community needs, including providing good public transport options.  
•	The existing building is not heritage graded and its loss will not impact on the character of the street.
•	I am satisfied that subject to conditions requiring the change in roof form, the significance if the heritage place to the north will not be detrimentally impacted.  
•	There is no impact on places of environmental significance
•	The development siting allows for reasonable levels of planting to the front, side and rear elevations.  This will serve to soften the appearance of the buildings from the streetscape an in the rear private realms.  
•	The development will not detract from the character of the area where dwelling typology is changing from single dwellings to multi-unit development of up to two storeys as can be seen in both Prospect and Gyles Streets.  .
•	I am satisfied that the extent of form to the rear does not impinge on any pristine understanding of a green spine in the area.  This is an area where built form at ground level is often located to the rear, and is an area of varied cadastral pattern (due to recent approvals) whereby built form extends well into the lots.  
•	I am satisfied that appropriate provision of car parking is provided amid an area that has good access to public transport.  The parking facilities are not overly dominant in the streetscape and do not visually disrupt the streetscape.
•	Building materials include grey face bricks, rendered finishes (white and concrete), Monument coloured Axon panels, Colorbond and Kilplok roofing, and timber fencing.  These materials reflect the emerging built form in the area.  These external surfaces include low reflectivity materials.
•	Continuous building lines and blank walls facing directly on to private open spaces are avoided.  Walls to each elevation include reasonable levels of fenestration, which, in combination with the use of a variety of materials creates an impression of articulation.  This serves to minimise the appearance of sheerness in walls.  
•	No walls are located on boundary opposite secluded private open space, minimising unreasonable impacts on open spaces and habitable room windows.
28	I am persuaded that the development is positioned on the site so as to respond to the preferred siting and scale characteristics of the area in allowing adequate spacing for the planting of trees and low scale planting that contributes to the character of the site and the area.  I find that the scale of the development represents a good transition to the one to two storey surrounding built form and note there is adequate spacing to accommodate the planting of screening vegetation.  To this end, I am satisfied that the proposed development responds wells to the local policy that seeks to maximise tree planting whilst ensuring that built form responds to the preferred outcomes sought for the area within Clause 02.03.
Does the development achieve a satisfactory level of compliance with Clause 55 (ResCode)? 
29	Several areas of ResCode compliance were included as grounds of concerns for residents.  These include Neighbourhood character, Daylight to Windows, Integration to the Street, North Facing Windows, Fences, Front Setback, Shading, and Design Detail.  Further concerns were relayed with regard to matters that I highlighted during the hearing, over which I have no discretion.  These matters related to construction management noise and matters relating to fencing (such as the protection of the existing metal screens to Ms Davies property).     
30	It is worthwhile noting at this point that while there have been many varied decisions of this Tribunal relating to ResCode as to the status of complying with a standard and whether or not standard compliance means that the objective is automatically complied with, consistently, this Tribunal has held that the assessment of the decision guidelines within each standard is not only proper, but essential, even in the face of compliance with the standard.  To that end, it is reasonable to make the case that even if a development is in compliance with a standard, if the assessment against the decision guideline is that the development does not satisfy these guidelines, further assessment must be conducted to ascertain if the objective is met.  Categorically, if the objective is not met, a permit should not issue.  That said, just because a standard or decision guideline is not met, does not mean that the objective is not met.  ResCode includes opportunity for discretionary assessment, and the tools provided for the exercise of such discretion are the decision guidelines, the standards and the objectives themselves.  
31	I am satisfied that the proposed development responds satisfactorily well to the objectives of Clause 55 (ResCode).  I say this for the following reasons:
•	The proposal responds well to the PPF and local planning policy as noted previously.
•	Subject to condition of permit requiring changes to the roof form, the built form reflects the emerging residential typology in that contemporary forms are employed with materials readily found in the streetscape.  The built form is sited to respond to the front, side and rear setbacks emerging in the area.  The cue for the development has been taken from the policy and provisions relating to the site, and from the physical context.
•	The dwellings orient themselves to both streets which is appropriate for a corner lot.  
•	High front fencing is avoided.  One new 1.8 metre fence is proposed to Gyles Street to dwelling one private open space.  I am satisfied that this relates well to the existing side fencing on this elevation, albeit reduced in length.  This serves to allow better integration with the street than currently exists.  
•	The front setback to Prospect Street is appropriate at 7.04 metres.  This matches the adjoining property to the west and does not interrupt the understanding of street setbacks.  To Gyles Street the porches intrude into the front setback of 3 metres and are constructed to a height greater than 3.6 metres.  This does not comply with the Standard B6.  I am satisfied that the character of the streetscape is not detrimentally impacted by this non-compliance of height of the porch and note there are no other dwellings on this side of Gyles Street.  I must take into account the experience of the front setback to the hall to the north of the site, but do not rely on this as it is clearly not a residential building.  Its character and that of the church is reasonably standalone.  Where dwellings are located on the opposite side of the street, their setbacks are small.  The proposed porches do not detract from the residential character of this part of Gyles Street as set out by the property at 10 Gyles Street.  I have not been persuaded that the height of the porches and the setback of the rear dwellings facing on to Gyles Street will have a disruptive impact when viewed from the street or from other properties.  
•	The pedestrian access is readily visible and identifiable.  There are no areas that are unsafe for pedestrian access.
•	The maximum height of the proposed development is 7.9 metres in height.  This two storey form provides a good response to the prevailing and preferred scale readily found in the street.  
•	Reasonable opportunities for landscaping in line with the prevailing character are available.  The proposal will allow for the planting of canopy trees to the frontage, side and rear bolstered by lower order vegetation.  The area is not overly vegetated and most sites, with some exceptions, include limited planting around dwellings.  The proposed planting does not detract from that character. 
•	I am satisfied that the proposed side and rear setbacks respect the existing neighbourhood character and limit the impact on the amenity of existing dwellings.
•	One wall on the northern boundary and one wall on the western boundary is proposed.  These walls are appropriately located to limit unreasonable impacts on amenity in that; to the west the wall is located adjacent to an existing wall and to the north the wall is located opposite a laneway.  These interfaces are not sensitive and the wall heights are limited such that they respect the existing neighbourhood character and limit the impact on the amenity of existing dwellings.  
•	There are no north facing windows within 3 metres of the site that are unreasonably impacted.
•	The site coverage is 53% in line with recent multi unit development approvals.
•	The permeability is 38.9% which is reasonable in this inner urban context.   
•	Infrastructure is readily available with the area having been well established for residential development over many decades.  The site is not located in an area that is specified as being susceptible to flooding by Melbourne Water.   
•	As noted in the previous section I am satisfied that parking access arrangements are appropriate.  I am satisfied that appropriate vehicular links have been provided to the site that are safe and minimise interruption to the streetscape.  
•	Cross ventilation is reasonable.  Windows are provided to each elevation.  Grey water will be utilised.  Water storage is located at basement level.  
•	Provision has been made for storage of at least 6 cubic metres for each dwelling.  
•	Bins can be stored in the rear open spaces with mailboxes provided to the frontage.  
•	The parking spaces provide good access to dwellings. The number of car parking spaces is a reasonable provision for dwellings of this size, in an area where there is good access to public transport and daily shopping needs.  
•	I am satisfied that the style of development of the dwellings does not unreasonably impact on adjoining properties through increased bulk, or overlooking.   
•	Shading is appropriately minimised.  Although concerns were relayed regarding 3.00pm shading to the east, I note that five clear hours without shading impacts were experienced for the eastern properties.  Similarly, to the west shade will fall mostly over built form with morning shade increased to the frontage with the side light court currently experiencing shade, beyond which the development will not increase.  In this way I am satisfied that the extent of shading is not significant and is not experienced within secluded private open space.    
•	Similarly, the windows of adjoining properties are properly protected and receive adequate light, including no increased in shading. 
•	Overlooking is minimised with screening and sill heights at first floor to 1.7 metres above finished floor level (FFL) where required.  
•	Private open spaces are provided by way of gardens and decking at ground level.  I am satisfied that the provision of secluded private open space is reasonable and meets the objective of Clause 55.05-4 which seeks “to provide adequate private open space for the reasonable recreation and service needs of residents”.  I say this observing that each dwelling has sufficient secluded private open space (SPOS) and also private open space (POS).  Dwelling one has POS 152.6 square metres, of which 27.5 square metres is SPOS.  Dwelling two has POS 71 square metres, of which 34.7 square metres is SPOS.  Dwelling three has POS 69.9 square metres, of which 34.6 square metres is SPOS.  Dwelling four has POS 72.2 square metres, of which 35.5 square metres is SPOS.  All dwellings have their open space accessible from a living area, and are within close proximity of James Reserve, Austin Crescent Reserve, and Pascoe Vale Outdoor Pool.  In this way, the reasonable recreation needs of residents will be served..    
•	Open spaces have either good morning or afternoon sunlight access.  
•	Dwelling one includes a bedroom and living area at ground level for the use of persons of limited mobility.  
•	New windows have good access to sun and day light. 
•	I see no sources of noise that are located close to boundaries, such as mechanical devices.  Noise in the form of voices is a reasonable expectation in a residential area such as this.  
•	I find that, subject to the inclusion of a condition that seeks the roofs to be pitched, the development incorporates a reasonable design that adequately protects the amenity of the surrounding properties.
32	I am satisfied that the proposed dwellings are reasonably articulated, sited and designed in a manner that is in keeping with the scale and typology of dwellings in the neighbourhood now and into the future.  In this way, I am satisfied that the objectives of Clause 55 have been satisfied.
Conclusion
33	In conclusion, having regard to the context of the review site and the relevant policies and provisions of the Scheme, I consider that the proposal will represent an acceptable planning outcome.  I will vary the decision of the Responsible Authority and direct grant of a permit, subject to conditions.

Alison Slattery 
Member

Appendix A – Permit Conditions

Permit Application No:	MPS/2020/24	
Land:	32 Prospect Street, Pascoe Vale, 3044

What the permit allows	
In accordance with the endorsed plans:
•	The construction of four double storey dwellings in a General Residential Zone.	

Conditions:
1	Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans advertised 7 May but modified to show:
(a)	Skillion Roof forms changed to pitched roof forms without increasing the overall height of the buildings.
(b)	Porch roofs reduced in thickness by 2/3. 
(c)	Porch support posts doubled in width. 
(d)	Gas and water meters shown on all relevant plans. Where meters would be visible from the public realm, they must not be stacked or placed vertically, and must be screened from view using either landscaping or fixed screening, unless otherwise agreed to in writing by the Responsible Authority.
(e)	A schedule of all proposed exterior decorations, materials, finishes and colours, including colour samples. 
(f)	Crossover splays for dwelling 2-3 be at a 45-degree angle, or a maximum 2m width – whichever results in the lesser splay width. (E.g. if this nature strip is 1.5m wide, the splay can then also be 1.5m, therefore forming a 45-degree angle.) 
(g)	A screen diagram drawn at a scale of 1:50 which details the screening associated with west facing first floor habitable room windows.  This diagram must include:
i	All dimensions, including the width of slats and the gap between slats.
ii	All side screens
iii	How compliance is achieved with the standard of Clause 55.04-6 (overlooking) of the Moreland Planning Scheme.
(h)	Initiatives contained within the Sustainable Design Assessment along with the proposed changes, including:
i	Show either deciduous vines with trellis and or vertical shade cloth or screens in conjunction with the east and west facing pergolas to provide shading from peak summer sun;
ii	External operable sun shading devices including a product diagram of the proposed device to east facing glazing of first floor bedrooms in units 2, 3 and 4 to block peak summer afternoon sun; and
iii	Permeable paving annotated on plans including a section detail.
(i)	The ground floor and landscape plans amended to show:
i	Both trees shown either side of the dwelling 1 crossover shown as removed.
ii	Both trees shown either side of the dwelling 2-3 crossover shown as removed.
iii	All other trees within the nature strips shown with Tree Protection Zones (TPZ). 
2	The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority. This does not apply to any exemption specified in Clauses 62.02-1 and 62.02-2 of the Moreland Planning Scheme unless specifically noted as a permit condition.
3	Prior to the issue of a Building Permit in relation to the development approved by this permit, a Development Infrastructure Levy and Community Infrastructure Levy must be paid to Moreland City Council in accordance with the approved Development Contributions Plan. 
If an application for subdivision of the land in accordance with the development approved by this permit is submitted to Council, payment of the Development Infrastructure Levy can be delayed to a date being whichever is the sooner of the following: 
•	For a maximum of 12 months from the date of issue of the Building Permit for the development hereby approved; or 
•	Prior to the issue of a Statement of Compliance for the subdivision; 
When a staged subdivision is sought, the Development Infrastructure Levy must be paid prior to the issue of a Statement of Compliance for each stage of subdivision in accordance with a Schedule of Development Contributions approved as part of the subdivision.
4	Prior to the endorsement of plans, a Sustainable Design Assessment (SDA) must be submitted to and approved to the satisfaction by the Responsible Authority. The SDA must demonstrate a best practice standard of environmentally sustainable design and be generally in accordance with the SDA prepared by Planning and Design dated on 6th March 2020, but modified to include the following changes:
i	provide updated NatHERS energy assessments and preview energy rating certificates for all dwellings; specifying double glazing to all habitable room glazing so that the preliminary NatHERS is in line with the BESS IEQ double glazing commitments and double-glazing annotations on plans. 
Where alternative ESD initiatives are proposed to those specified in conditions above, the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes in association with the development.
5	Prior to the issue of a Statement of Compliance or Certificate(s) of Occupancy whichever occurs first, all works must be undertaken in accordance with the endorsed Sustainable Design Assessment report to the satisfaction of the Responsible Authority.  No alterations to these plans may occur without the written consent of the Responsible Authority
6	All planting must be maintained in accordance with the endorsed landscape plan with any dead, diseased or damaged plants replaced with a suitable species to the satisfaction of the Responsible Authority.
7	Prior to development commencing (including any demolition, excavations, tree removal, delivery of building/construction materials and/or temporary buildings), all council trees and the trees marked on the endorsed plans as being retained must have a Tree Protection Zone (TPZ) in accordance with AS4970 Protection of Trees on Development Sites to the satisfaction of the Responsible Authority. The TPZ must meet the following requirements:
(a)	Tree Protection Fencing
Tree Protection Fencing (TPF) is to be provided to the extent of the TPZ, calculated as being a radius of 12 x Diameter at Breast Height (DBH – measured at 1.4 metres above ground level as defined by the Australian Standard AS 4970.2009). The TPF may be aligned with roadways, footpaths and boundary fences where they intersect the TPZ.
If works are shown on any endorsed plan of this permit within the confines of the calculated TPZ, then the TPF must be taken in to only the minimum amount necessary to allow the works to be completed.
The TPF must be erected to form a visual and physical barrier, be a minimum height of 1.5 metres above ground level and of mesh panels, chain mesh or similar material. A top line of high visibility plastic tape must be erected around the perimeter of the fence. 
(b)	Signage
Fixed signs are to be provided on all visible sides of the TPF clearly stating “Tree Protection Zone – No entry. No excavation or trenching. No storage of materials or waste”.  The TPF signage must be complied with at all times.
(c)	Irrigation
The area within the TPZ and TPF must be irrigated during the summer months with 1 litre of clean water for every 1cm of trunk girth measured at the soil/trunk interface on a weekly basis.
(d)	Provision of Services
All services (including water, electricity, gas and telephone) must be installed underground, and located outside of any TPZ, wherever practically possible.  If underground services are to be routed within an established TPZ, this must occur in accordance with Australian Standard AS4970. 
8	Prior to the issuing of a Statement of Compliance or Certificate of Occupancy, whichever occurs first, the owner must pay Council the amenity value, removal, replacement and establishment costs in accordance with the Moreland Urban Forest Strategy 2017 for each street tree removed or damaged through the building works, to the satisfaction of the Responsible Authority. 
9	Prior to the issuing of a Statement of Compliance or Certificate of Occupancy, the owner must seek and obtain approval from the responsible authority Council to install “No Stopping” parking restriction signs to apply on the west side of Gyles Street between Prospect Street and the new southern vehicle crossing (of 32 Prospect Street).  This is to be arranged at the owner’s cost.
10	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, the garage roller doors must be automatic and remote controlled.
11	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, lighting no higher than 1.2 metres above ground level is to be installed and maintained on the land to automatically illuminate pedestrian access from the building to the car parking spaces on-site between dusk and dawn with no direct light emitted onto adjoining property to the satisfaction of the Responsible Authority.
12	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, all boundary walls must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.
13	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, all visual screening measures shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority.  All visual screening and measures to prevent overlooking must be maintained to the satisfaction of the Responsible Authority. Any screening measure that is removed or unsatisfactorily maintained must be replaced to the satisfaction of the Responsible Authority.
14	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, a vehicle crossing must be constructed in every location shown on the endorsed plans to a standard satisfactory to the Responsible Authority (Moreland City Council, City Infrastructure Department).
15	All stormwater from the land, where it is not collected in rainwater tanks for re-use, must be collected by an underground pipe drain approved by and to the satisfaction of the Responsible Authority (Note: Please contact Moreland City Council, City Infrastructure Department).
16	Prior to the commencement of the development, a legal point of discharge is to be obtained, and, where required, a stormwater drainage plan showing how the site will be drained from the property boundary to the stated point of discharge must be submitted to and approved by the Responsible Authority.
17	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, all boundary walls must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.
18	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, all telecommunications and power connections (where by means of a cable) and associated infrastructure to the land (including all existing and new buildings) must be underground to the satisfaction of the Responsible Authority.
19	Prior to the issue of an Occupancy Permit or issue of a Statement of Compliance, whichever comes first, any Council or service authority pole or pit within 1 metre of a proposed vehicle crossing, including the 1 metre splays on the crossing, must be relocated or modified at the expense of the permit holder to the satisfaction of the Responsible Authority and the relevant service authority.
20	This permit will expire if one of the following circumstances applies:
(a)	the development is not commenced within two (2) years from the date of issue of this permit;
(b)	the development is not completed within four (4) years from the date of issue of this permit.
The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or;

•	within six months after the permit expires to extend the commencement date.
•	within 12 months after the permit expires to extend the completion date of the development if the development has lawfully commenced.

- End of conditions -