ViCTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference NO. P11209/2021
Permit Application no. KP-2021/680	

CATCHWORDS	
Kingston Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; General Residential Zone Schedule 3 (GRZ3); Three double storey dwellings; Planning policy; Incremental housing change area; Neighbourhood character; Clause 55.  	
Joint APPLICANTs	Christine and Steven Pearce and Others	
responsible authority	Kingston City Council	
respondent 	Silverpoint Building Designers and Planning Consultants Pty Ltd	
SUBJECT LAND	31 Matilda Road
MOORABBIN  VIC  3195	
WHERE HELD	Melbourne	
HEARING TYPE	Hearing 	
DATE OF HEARING	11 April 2022	
DATE OF ORDER	19 April 2022	
citation 	Pearce v Kingston CC [2022] VCAT 424	

Order
1	In application P11209/2021 the decision of the responsible authority is set aside.
2	In planning permit application KP-2021/680 no permit is granted. 

J A Bennett
Senior Member			

Appearances	
For Christine and Steven Pearce and Others	Ms Effie Tangalakis, Town Planner of Ask Planning Services Pty Ltd.	
For Kingston City Council	Ms Girija Shrestha, Town Planner.	
For Silverpoint Building Designers and Planning Consultants Pty Ltd	Mr Peter Barber, Town Planner of Urban Edge Consultants Pty Ltd. 	

Information
Description of proposal	Construction of three double storey dwellings. 	
Nature of proceeding	Application under Section 82 of the Planning and Environment Act 1987 to review the decision to grant a permit.	
Planning scheme	Kingston Planning Scheme. 	
Zone and overlays	General Residential Zone – Schedule 3 (GRZ3).	
Permit requirements	Clause 32.08 (construct two or more dwellings on a lot in GRZ3).	
Relevant Scheme policies and provisions	Clauses 11, 15, 16, 18, 19, 21.01, 21.02, 21.03, 21.06, 21.07, 21.11, 22.06, 22.12, 22.13, 32.08, 52.06, 55, 65 and 71.02.	
Land description	The review site is located on the north-western corner of Matilda Road and Bulli Street. It has a frontage to Matilda Road of 16.154 metres, a depth along Bulli Street of 28.118 metres and a total area of 595 square metres. It currently contains a single storey brick clad dwelling with a pitched tiled roof. Vehicle access is from Bulli Street. 	
Tribunal inspection	The Tribunal undertook an unaccompanied inspection of the site and locality on Tuesday 12 April 2022.	

reasons
The proposal and what is in Dispute?
1	The applicant is seeking approval for three double storey dwellings on a corner site in an incremental change area in Moorabbin. The following ground floor plan depicts the overall site layout. In summary, Dwelling 1 facing Matilda Road contains 3 bedrooms, including a master bedroom with an ensuite, and a single car garage and a tandem space in front.  Dwellings 2 and 3 fronting Bulli Street each contain 2 bedrooms and a single car garage. In addition to ground floor living areas, each dwelling contains a large upstairs retreat or TV ‘nook’. Secluded private open space for Dwelling 1 is in the front setback facing both Matilda Road and Bulli Street. Dwellings 2 and 3 have north facing secluded open space in the rear yard.  

2	Council supported the application but required an amended plans condition incorporating several changes including conversion of laundries to studies and enlargement of first floor bedrooms in Dwellings 2 and 3. 
3	Neighbours disagree with Council’s decision and have sought to have it set aside. In summary they consider three dwellings is an overdevelopment and inconsistent with policy for incremental housing change areas, that there are inadequate setbacks with high front fencing and minimal landscaping and compromised internal amenity. 
4	The Council and permit applicant disagree with the neighbours and instead submit that the proposal is consistent with and has a high level of compliance with the GRZ3, relevant policies and clause 55, and that there are no unreasonable off-site amenity impacts.
5	Whilst I acknowledge that construction of additional dwellings on the review site is not unreasonable, I have concluded that this proposal for three dwellings is not an acceptable outcome for the reasons which follow. In reaching this conclusion I have had regard to the relevant planning controls and policies, submissions, and my site inspection.
My Assessment
6	The site is conveniently located to facilities such as parkland and schools and is within a Principal Public Transport Network (PPTN) accessible area. It is in a GRZ3 and is not affected by any overlays designed to protect valued character, heritage attributes or guide future design and built form. Planning policies support additional development within such areas provided it respects neighbourhood character and is site responsive. 
7	The purposes of the General Residential Zone (GRZ) seek to encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport. Purposes also include implementing the Municipal Planning Strategy and Planning Policy Framework and encouraging development that respects the neighbourhood character of the area. 
8	When these purposes are considered along with the State and local policies supporting additional housing in well serviced, established areas, it is apparent that the concept of constructing two or more dwellings on a site of nearly 600 square metres in area is, in principle, a reasonable proposition. However, local policy is encouraging a more tempered intensity of development. 
9	Despite being in the GRZ3, the review site is identified in local policy at clause 21.07 as being in an Incremental Housing Change Area. Five housing change areas are identified but the housing outcome for incremental change areas is that:
The type of housing change anticipated in these areas will take the form of extensions to existing houses, new single dwellings or the equivalent of new two dwelling developments on average sized lots. The existing single dwelling character of these areas is to be retained.   
10	In considering the question of neighbourhood character, it is necessary to consider the character that exists now rather than at some time in the past. The reference to the retention of the existing single dwelling character of these areas does not consider the way in which these areas have evolved over the past twenty years or so since the neighbourhood character assessments were undertaken. 
11	As I observed in a recent decision for a site in Clayton South: 
[13]	Policies, particularly those concerning neighbourhood character, are designed to provide guidance about future built form. The Kingston Neighbourhood Character Study 2003, the Clayton South Urban Design Framework Plan 2003 and the Clayton South Medium Density Housing Development Guidelines, May 2003 are now nearly 20 years old. They were formulated at a particular point in time and have become less relevant as areas have evolved and new or revised planning provisions have come into effect. Given the physical and environmental changes that have occurred in the intervening 20 years, they often read as historical records of what existed at that time.   
[14]	Not only were the residential zones replaced in 2014 but the provisions within the new zones have also changed. The GRZ objectives now refer to housing growth rather than moderate housing growth and there is now only one neighbourhood character objective rather than the previous two.
[15]	Some local policies have been updated but not those of relevance to neighbourhood character. Council has recognised the need to revisit local policies and amongst other studies, has undertaken a Kingston Housing Strategy to inform and update new Planning Scheme provisions. Amongst other recommendations it includes changes to zones and housing change areas.  
16	I am informed that in October 2021, Council adopted the Kingston Housing Strategy 2020 which has proposed including this part of Clayton South in an increased housing growth area. If that change occurs, then encouragement is given to townhouses and apartment developments up to 3 storeys in height.  
12	I understand that the Housing Strategy does not propose changes to the area around the review site and it remains in an incremental housing change area. 
13	The neighbourhood character guidelines which are a reference document in clause 22.06 include the land and the locality in Area 1. Parties referred to these guidelines, but I find them of only limited assistance given the type of development that has been occurring in this area since the guidelines were prepared. The new development provides a more accurate picture of the existing neighbourhood character and that is what is required to be considered. What is that character?
14	Except for the three-dwelling development at No 44 Bulli Street referred to by Mr Barber, all the medium density developments in this incremental change area proximate to the review site comprise two dwellings. My inspection confirmed that on mid-block sites the approach has been to construct two side-by-side double storey dwellings, whilst on corner sites one dwelling is orientated to the front street and the other to the side street. The dual occupancy opposite at No 32 Matilda Road and another on the corner of Royena Road and Narooma Street are just two such examples. 
15	Whilst Council is correct in identifying numerous three dwelling developments in Baker and Fiddes Streets to the west, these developments are close to the Moorabbin activity centre and train station, appear to be on mostly larger sites, and date from an earlier development period. I am not persuaded they offer much helpful guidance as to the character emerging east of Rowans Road in the vicinity of the review site. 
16	It is often the case that the construction of new development will result in neighbourhood character becoming very eclectic without a dominant theme or characteristic. But that is not the case here. Instead, the consistent neighbourhood character which is emerging is one that accords very closely to the two dwelling developments on average sized lots sought for incremental housing change areas. 
17	Even leaving aside the detailed design aspects of the proposal which I discuss next, I consider that three dwellings on this site does not respect the emerging, and largely consistent character of this neighbourhood, where individual dwellings are being replaced with new dual occupancies consistent with the directions set by local policy. Indeed, given the apparent success in achieving development outcomes in accordance with policy at clause 21.07, I find Council’s support for this proposal surprising.
18	Clause 32.08-6 of the GRZ requires that all developments of two or more dwellings on a lot must meet the requirements of Clause 55. Clause 55 states that a development must meet all the objectives and should meet all the standards. Decision guidelines must also be considered. 
19	The GRZ3 varies three Clause 55 standards concerning:
i	site coverage - a maximum of 50%,
ii	private open space - an area of 40 square metres, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with a minimum area of 40 square metres, a minimum dimension of 5 metres and convenient access from a living room. If a dwelling has more than 2 bedrooms an additional ground level private open space area of 20 square metres with a minimum width of 3 metres is required to be provided for each additional bedroom, with a maximum of 80 square metres of private open space required for the dwelling,
iii	front fence height - within 3 metres of a street should not exceed 2 metres for streets in a Transport Zone 2 or 1.2 metres for other streets. 
20	The applicants for review submit that the proposal fails to meet the requirements for front setback, landscaping, activation to the street, front fence, and private open space. 
21	Council and the permit applicant acknowledge that the proposal does not achieve the front setback standard (B6), the minimum dimension of the private open space for Dwelling 2 (standard B28) and front fence (standard B32). However, it is submitted that the front setback responds to the variable nearby setbacks, that the open space can be widened to achieve the minimum dimension and the high front fence is characteristic of the area.
22	I note the site coverage is 45% against the varied standard of 50%, permeability at 47.8% is well beyond the minimum of 20% in standard B9 and that the garden area of 41.1% is well more than the mandatory 35% requirement. 
23	I have already made it clear that I do not support the proposal for neighbourhood character reasons. In addition, I consider that the desire to construct three dwellings has compromised the site layout to a point where it is unacceptable. 
24	Whilst I would not oppose some high front fencing, the reduction in front setback to 6.2 metres rather than the 7.6 metres required by standard B6 and the provision of all secluded open space in the front yard rather than to the side or rear of Dwelling 1 are symptomatic of a site layout that has been compromised by seeking to construct three dwellings. 
25	Put simply, I do not support the proposed location of the secluded open space for Dwelling 1 in the front setback to Matilda Road and the high front fence required to provide privacy to that area. 
26	Whilst I agree with Mr Barber that high front fences are not uncommon in the area, including on the two sites to the north in Matilda Road, those fences are not required as a necessity to screen the primary areas of secluded private open space. 
27	I do acknowledge that the dual occupancy development opposite at No 32 Matilda Road includes a section of high slated timber fence to provide privacy for the secluded open space of Dwelling 1. Unlike the proposal for the review site, the open space for that dwelling is mostly on the northern side of the dwelling and not directly in front of the dwelling. Although I do not want to make direct comparisons, it seems to me that the overall layout of the development at No 32 Matilda Road provides a helpful and proximate example of a dual occupancy on a corner site that achieves the built form outcomes sought for incremental housing change areas whilst providing north facing secluded open space to the side or rear of the dwelling facing Matilda Road. 
28	In addition to my concerns about the location of the secluded open space in the front setback and construction of a high fence, I do not support a reduction in the front setback to Matilda Road. I do not agree with submissions that suggest there is no prevailing setback rhythm. Instead, I agree with Ms Tangalakis that there is a prevailing setback along Matilda Road of approximately 7.6 metres and that the proposal falls short by approximately 1.4 metres. Construction of two dwellings in accordance with policy would allow a setback reflective of the prevailing setbacks.    
29	In making these comments I acknowledge that the proposal has a high level of compliance with the quantitative standards in Clause 55. However, that level of compliance does not automatically mean that the proposal is an acceptable response to the specific site context and the character of this corner site.
30	The presentation to Bulli Street is potentially more successful with Dwellings 2 and 3 designed so they appear as one dwelling without an obvious physical separation between the two dwellings. However, the two crossovers, two garages and two front paths are clear indicators of two dwellings. Whilst Council’s submission explained in some detail the length of built form along Bulli Street and compared it favourably with other dual occupancies approved in the area, I am not persuaded it provides support for approving two dwellings along Bulli Street. Every proposal will have a different design response with different lengths of built form and separation distances between dwellings when viewed from the adjoining street. There is no reason that two dwellings on the review site should not provide similar or greater wall lengths and separation distances to what is proposed here. 
31	Inadequacies in the internal layout of Dwellings 2 and 3 were also discussed by parties. These shortcomings, including the location of laundries in Dwellings 2 and 3, were identified by Council and amended plan conditions included in the Notice of Decision to Grant a Permit (NoD). Ms Tangalakis and Mr Barber also discussed these in their submissions. At the hearing, Mr Barber tabled an amended ground floor layout plan responding to Council’s NoD condition to relocate the laundries in Dwellings 2 and 3 and instead replace them with studies. Whilst Ms Tangalakis was critical about the position of the relocated laundries and their impact on the living/meals area in each dwelling, it is not necessary for me to decide whether the changes are acceptable given I am refusing the three-dwelling proposal. 
32	Nevertheless, I do want to make some general comments about the proposed layout of Dwellings 2 and 3 and the submissions made about the size and dimensions of rooms when assessed against clause 58. In making the following observations, I emphasise that the proposal does not need to meet the dimensions specified in Clause 58. However, I fail to see sense or accept a situation where the minimums applying to a dwelling in an apartment style building should not be used to gain an understanding of the acceptability of internal amenity for a three-dwelling development. 
33	The requirements in Clause 58 were introduced because of the widespread criticism of the design and layout of apartment developments. Clause 58.07-1 concerns internal amenity. It provides a useful tool to assess whether room sizes are adequate and suggests that main bedrooms should have minimum dimensions of 3 metres by 3.4 metres, whilst other bedrooms should have minimum dimensions of 3 metres by 3 metres. The minimum width of living areas for dwellings with two or more bedrooms is 3.6 metres and the minimum area is 12 square metres. 
34	I note that the first-floor plans for Dwellings 2 and 3 do not nominate a main bedroom but none of the bedrooms achieve the minimum dimensions referred to above. Council’s NoD required these bedrooms to be redesigned to achieve the minimum dimensions referred to above. 
35	Ms Tangalakis was also critical about the size of the ‘TV nook’ in Dwelling 2 and ‘retreat’ in Dwelling 3 which are both larger than the bedrooms. She submitted they could be converted to bedrooms which would then require an additional off-street car space for each dwelling. I agree these spaces are very large and bigger than the bedrooms. The enlargement of the bedrooms required by the amended plans condition in the NoD would reduce the size of these spaces and I accept they are not depicted as bedrooms. I agree with Mr Barber that if they were to be converted to bedrooms then approval would need to be sought including a reassessment of car parking. There would also be implications for the adequacy of open space, which is higher for three-bedroom dwellings. 
36	The secluded open space for Dwelling 2 has a section outside the kitchen that does not meet the minimum 5 metre dimension. It falls short by 500mm. Mr Barber submitted that it would be a relatively easy matter to increase the width to 5 metres by reducing the size of the kitchen. He also submitted that such a change was not necessary because of the northern orientation of the space and its size being compliant with the minimum area requirement. Whilst the suggested change to enlarge the dimension may seem relatively insignificant it does reduce the length of the kitchen to 2.693 metres.   
37	Ms Tangalakis was also critical about the adequacy of the space available for landscaping, particularly along Bulli Street because of the area given over to driveways, porches, and pedestrian paths. The landscape plan includes the planting of 8 metre high canopy trees in the front setbacks of Dwellings 2 and 3. I consider that these planting spaces are relatively confined and are bound on all sides by paving or porch structures. In the case of Dwelling 2 the area unencumbered by paving and built form, including eaves, measures approximately 2 by 1.5 metres. It is a moot point whether an 8 metre high tree can grow to maturity in such a confined space, but my refusal of this proposal means that areas set aside for landscaping can be reconsidered in any new application.   
Conclusion and decision
38	Whilst it may be tempting to give great weight to a largely favourable assessment against the requirements of Clause 55 and compliance with the numeric standards such as those for height, site coverage, permeability, side and rear setbacks, walls on boundaries and so forth, the proposal also needs to respond to and ‘fit in’ with the neighbourhood character and the physical setting of the site. 
39	Council has been very successful in ensuring that new medium developments in this neighbourhood almost exclusively comprise of two dwellings per lot. I am not persuaded that the proposal to construct three dwellings is acceptable given the emerging character, where medium density developments comprising two dwellings on a lot are largely consistent with the policy outcome sought for incremental change areas. 
40	It is often the case that a proposal which has shortcomings can be ‘fixed’ so that it becomes an acceptable response to site context and planning policies and controls. In this instance, I consider that the initial starting point of seeking to construct three dwellings is contrary to the policy for incremental hosing change areas and I have indicated that two dwellings would represent a much more acceptable ‘fit’ in terms of neighbourhood character and internal amenity.
41	Having regard to all the above, I will therefore order that the decision of the Responsible Authority be set aside and that no permit issue.

J A Bennett
Senior Member