VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	
vcat reference No. P11256/2021
Permit Application no. PLP273/20	
CATCHWORDS	
Mitchell Shire Planning Scheme; Application under s. 77 of Planning and Environment Act 1987; Three dwellings; Existing neighbourhood character; Design detailing.	

Applicant	Sutherland Prime Pty Ltd	

Responsible Authority	Mitchell Shire Council	
SUBJECT LAND	27 Sutherland Street
BROADFORD  VIC  3658	
HEARING TYPE	Hearing	
DATE OF HEARING	4 February 2022	
DATE OF ORDER	17 May 2022	
CITATION	Sutherland Prime Pty Ltd v Mitchell SC [2022] VCAT 543   	

Order
Amend name
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:
Sutherland Prime Pty Ltd
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:
Sutherland Prime Pty Ltd
Permit granted
3	In application P11256/2021 the decision of the responsible authority is set aside.
4	In planning permit application PLP273/20 a permit is granted and directed to be issued for the land at 27 Sutherland Street, Broadford in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Development of the land for three dwellings.

Mary-Anne Taranto
Member	
Appearances

For applicant	Mr Peter English, town planner of Peter English and Associates Pty Ltd	
For responsible authority	Mr Fawaaz Price, town planner	

Information
Description of proposal	Construction of two additional dwellings, both single storey, behind an existing single storey dwelling. The new dwellings would each have two bedrooms and a single car garage. The existing dwelling is to remain with three bedrooms and would be provided with a new single car garage to its rear with a second tandem space.  Some modifications to the existing dwelling are necessary.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Zone and overlays	General Residential Zone – Schedule 1 (GRZ1)	
Permit requirements	Clause 32.08-6 – Construction of two or more dwellings on a lot.	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 21, 21.11, 52.06, 55, 65 and 71.02	
Land and surrounds description	Located on the north-west side (north hereafter for brevity) of Sutherland Street, this 961sqm rectangular site has a frontage of 20.12m and depth of 47.78m. The site is relatively flat falling approximately 0.6m from the front to the rear. The site is developed with a modest weatherboard dwelling with a red corrugated iron roof that most likely dates from the town’s early phase of development.  A simple porch and windows have been added to the rear of the dwelling.  A dense hedge of planting is sited along the front boundary, returning partly on its west side.  The stump of a gum tree with epicormic growth is evident in the back yard.  
The site has an abuttal to an unmade Right of Way (ROW) at the rear. There is no kerb, channel or footpath on the north side of the street.
Surrounding land is predominantly developed with single dwellings, mostly single-storey and constructed of weatherboard or brick veneer with gable roof forms and associated outbuildings. The extent and type of landscaping including the presence of canopy trees is variable.	

Reasons

nature of proceeding
1	Sutherland Prime Pty Ltd (applicant) is seeking a review of Mitchell Shire Council’s decision to refuse a permit for a three dwelling proposal.
2	The Council’s grounds of refusal primarily relate to the proposal’s response to the existing neighbourhood character, landscaping opportunities and matters of detailed design.
3	The applicant asserts that the proposal would achieve an acceptable neighbourhood character outcome both in the streetscape and back yard realms.  It says and shortcomings with the design can be addressed via conditions on any permit granted.
4	The issues identified by the parties reflect the key issues for determination.
5	I have decided that subject to some further design refinements, the proposal is an acceptable one and a permit is to be granted.
6	My reasons follow. 
overview of contentions
7	In-principle, the Council does not oppose the construction of three dwellings on the site. Rather, it is the particular design response that is said to be unacceptable due to its unsympathetic response to existing neighbourhood character and other detailed design elements. 
8	In support of its submissions, the council refers to previous three dwelling proposals for the site that were either granted a permit (but since expired) or withdrawn as illustrative of alternative designs that are said to be more appropriate than the current proposal. While the current and past proposals involved retention of the existing dwelling at the front of the site, the Council also suggests that the existing house could be demolished and this would provide more flexibility for an enhanced design response.  
9	Council’s concerns more particularly, are said to arise from the:
•	siting of the proposed buildings and the amount of space around them for landscaping which is said to be inadequate; 
•	siting and design of fencing along the driveway for the secluded private open space of the existing dwelling, 
•	materials proposed for the new dwellings which include walls constructed of brick and the use of concrete roof tiles which are said to be uncharacteristic for this location;
•	height, form and proportions of the new dwellings’ roof relative to the existing dwelling and other original housing roof forms that the Council asserts is too imposing in the streetscape and uncharacteristic of prevailing forms; and
•	side-by-side form of Units 2 and 3 and the conjoined siting, visibility and legibility of their entries. Particular concerns were raised with the Unit 2’s front door which is recessed behind Unit 3’s front door and proximity to a garage.
10	The applicant submits that in this township location within the GRZ1 where no varied clause 55 requirements or overlay controls apply, the proposal achieves an acceptable response.  The strategic context for Broadford is said to be one where growth is envisaged by Plan Melbourne albeit within a peri-urban context. 
11	It is asserted that aside from the single storey scale of most dwellings in the area to which this proposal is said to respond acceptably, there is a great diversity of housing styles.  Setbacks, particularly to front and side boundaries and the extent of vegetation cover are also said to be highly variable.
12	With the retention of the existing dwelling, the rear yard location of the proposed dwellings some 30m from the street and their single storey form, the proposal is said to be acceptable in this mixed character setting. 
13	Effects on backyard character are also said to be acceptable and of a lesser issue in this mixed character context. Surrounding features in support of these contentions include the large neighbouring garage close to the east boundary and the ROW to the rear. Space around buildings for landscaping is also said to be acceptable and will lead to an improvement over the current situation despite removal of one tree.  
14	To the extent that the Council has identified deficiencies with the design, the applicant submits that these are relatively minor and are capable of resolution by way of permit conditions. The applicant otherwise refers to developments permitted by the Council elsewhere by the same developer and designer which it says are not dissimilar to this proposal. The Council submits these are contextually distinguishable and do not propose the side-by-side form of this proposal at the rear. 
tribunal’s findings
15	The purposes of the General Residential Zone (GRZ) relevantly refer to the implementation of planning scheme policies, encouragement for development that respects neighbourhood character and for housing diversity and growth, particularly in locations offering good access to services and transport.
16	For Broadford, planning scheme policies for Local Areas at clause 21.11-2 describe the town, amongst other things, as a:
…family friendly rural town with a significant level of local commercial, employment and civic services and civic services. The town should be encouraged to further develop its active rural community with boutique living opportunities to expand within an area constrained by surrounding escarpments, freeway and creek. Broadford links to Kilmore’s educational facilities and excellent transport and access links will provide ongoing potential for development 
17	Settlement policies under this clause further encourage infill development in advance of urban expansion of this town.  Use or development within Broadford is also required to be generally consistent with the existing Broadford Structure Plan under this policy.  I note that a new structure plan is in preparation but has not reached the stage of ‘seriously entertained’ and it carries little influential weight. Suffice to say I have considered this document, noting that the site falls within the boundaries of the existing township where it is said that there are limited infill opportunities. The structure plan focuses on new growth opportunities beyond the established township area, particularly to the south-west and no directly applicable guidance for this particular location is otherwise provided. 
18	Returning to the planning scheme whose policies I must consider and give effect to, policies for built environment and heritage and the urban environment at clause 21.06-1 identify that the siting and design of development should consider the character and local heritage values of towns. According to this policy, the design of buildings, their mass and scale are important in preserving the character and historical attributes of towns. Streetscape elements are also important to the character of each town and identified streetscape character should be taken into account in the consideration of new use and development.
19	Strategies ask for an improvement in the quality of development through improved design, siting and landscaping and seek to build on the established ‘strong sense of identity and character of each town’. A further strategy is to ‘support respectful development that contributes to the character and identity of towns’.
20	Local housing policies refer to the limited provision of medium density development and the need for housing diversification.  A strategy is to support housing and accommodation for the ageing population.
21	I note there is no expressed statement of preferred character and Schedule 1 to the GRZ does not provide any neighbourhood character objectives, application requirements or decision guidelines. None of the clause 55 standards are varied and nor or any of the other default provisions relating to garden area or building height.  While there are many original housing forms and these make an important contribution to the character of this area, there are no overlay controls such as heritage overlay controls that apply to this location.  
22	Thus, this is a case where a proposal’s response to the existing character and the degree to which it is respectful of that character is required.
23	In my assessment that follows, I appreciate that other design proposals have been sought for this site. However, my task is to consider the design presented to me and its acceptability.  
24	I firstly find that the concept of retaining the existing dwelling on the site is soundly based.  This dwelling’s retention makes a positive contribution to the existing built form character and prevailing development pattern which a rural township feel.  
25	The distance of the proposed dwellings from the street and their single storey forms are other favourable features of this proposal in streetscape character terms.  I find that dwellings of the type proposed with two bedrooms and which are single storey are likely to be attractive to smaller households including the ageing population identified by planning scheme policy as a group whose needs for more diverse housing forms is growing.  I further find that all three dwellings will offer acceptable levels of amenity to future occupants subject to some design refinements that I return to below.
26	I am not troubled by the height of the roof form relative to the existing dwelling on the site or surrounding development.  The variation in height between the new and existing roof forms is 1.5m which is not excessive, noting also that the scale of the proposed dwellings will be mediated by their distance from the street.  In terms of surrounding development, the abutting dwelling at No. 25 Sutherland Street has a similar roof form with a comparable height.
27	I find that the attached form of Units 2 and 3 is acceptable – to the casual observer they will read as one single dwelling.
28	I do however consider that the roof material should be colorbond given the traditional use of metal roofing on other dwellings and outbuildings and the extent to which the roof form of the proposed dwellings will be exposed from neighbouring properties.
29	While I accept that dwellings are also frequently clad in timber, some examples of brick dwellings do exist in the area together with brick feature elements on dwellings, notably chimneys.  The extent to which brickwork of the proposed dwellings are to be exposed from the street is also relatively minor, given their single storey design and setbacks from the front boundary. Thus, I find that the use of this material would be acceptable.
30	In terms of the space around dwellings, I consider that this is acceptable, including the amount of private and secluded private open space for all three dwellings.  While the proposal will present with a greater intensity than neighbouring properties, levels of site coverage and permeability easily meet and exceed the relevant clause 55 standards of 39% and 40% respectively.  The siting of the dwellings and their overall presentation and form more generally would not give rise to unacceptable visual or other amenity impacts for residential neighbours.  
31	While I acknowledge that removal of the existing tree in the back yard is unfortunate, this tree has a poor form having been lopped in the past. It presents with epicormic growth from a stump.  I consider that it’s replacement with new vegetation will produce a better long term landscaping outcome.  I also find that retention of existing planting along the street frontage and along part of the west site boundary is a positive design response.
32	In terms of other issues raise, these relate to matters of detailed design that I find can be resolved with some further plan modifications.
33	First, I agree that more space for landscaping should be provided on the west side of the driveway adjacent to the existing dwelling’s proposed fence. I will require this fence to be set back 1m from the west edge of the driveway pavement. I will also require the provision of a splay to the fence in its south-eastern corner to allow for greater landscaping.
34	The fence to the perimeter of the existing dwelling’s SPOS is to be colorbond mini-orb with timber posts or otherwise comprise timber pickets spaced to achieve no more than 25% transparency and with a maximum height of 1.6m as discussed at the hearing. I consider that such fencing will strike an appropriate balance between the privacy needs of residents, the modest proportions of this dwelling and the desirability of maintaining an open feel to the internal and external streetscapes.
35	Third, I find that the vertical form and proposed rendering of the parapet style portico feature at the entry to Units 2 and 3 is not contextually suitable having regard to the character and style of surrounding development.  I will require a redesign of this element.  Its vertical rectilinear form is to be replaced with a hipped or gable roof form integrated with the main roof form of these dwellings.  The revised design is to incorporate eaves with a pitch that is sympathetic to traditional roofing forms of dwellings in the area and is to incorporate timber support posts.
36	Fourth, I agree with the Council that the design of the front entries to Units 2 and 3 is poorly resolved.  I will require modifications to both entries to achieve better visibility and legibility from within the driveway. I consider that Unit 2’s front door should extend further forward than Unit 3’s front door.  This may necessitate some pushing back to the north of Unit 3’s front door and moving forward (southwards) of Unit 2’s front door.  Scope exists to move Unit 2’s porch forward to the south if required with the objective of providing an offset between the two doors to create some differentiation between them.
37	Overall I find that while there will be some change to the character of this area as a consequence of this proposal, this change is within acceptable limits.  The proposal will maintain the relatively open, rural township feel of surrounding residential development in both the streetscape and backyard character contexts. In doing so, I find that the proposal will meet the standards of  clause 55 including those that relate to neighbourhood character, landscaping and design detailing. 
38	For these reasons I conclude that a permit is to be granted.
what conditions are appropriate?
39	Conditions were discussed at the hearing and any changes to the permit conditions contained in Appendix A of this order reflect those discussions plus further consideration by the Tribunal.
40	I have also refined the wording of some conditions for grammatical reasons, consistency and the like, without changing their intent. For example, in the expiry condition, I have amended the phrase ‘date of this permit’ to ‘issue date of this permit’ to avoid uncertainty about the applicable date of the permit in the event that the permit is amended.
41	A number of other matters about permit conditions were raised at the hearing. With respect to those matters or as a consequence of them upon my further review, other than those already addressed above, I summarise my conclusions as follows:
•	Condition 1 – as discussed at the hearing I will require a plan notation as a condition of permit that provides for retention of the existing planting along the site’s frontage and where this planting exists partly along the west side. I will also require the repair of the front fence or its replacement with a fence of a similar scale and design.
•	Condition 1 – Details of existing dwelling features (including windows and doors) together with any modifications to them and the provision of a door for convenient access from the living/dining room to the main area of SPOS are required.  Weather protection (small porch or similar) is to be provided to this door.
•	Condition 9 proposes the construction of a 1.5m wide footpath along the frontage of this site.  It is preferable that the requirement for the provision of footpaths in the street should be undertaken in a co-ordinated and strategic fashion rather than on an ad-hoc basis.  I will delete this condition.
•	Condition 10 requires the provision of a constructed cross-over. This condition is reasonable and will limit maintenance requirements associated with an unconstructed cross-over.
conclusion
42	For the reasons set out above, I will set aside the Council’s decision and direct the grant of a permit subject to conditions.

Mary-Anne Taranto
Member	
Appendix A – Permit Conditions

Permit Application No:	PLP273/20	
Land:	27 Sutherland Street
BROADFORD  VIC  3658	

What the permit allows	
Development of the land for three dwellings, in accordance with the endorsed plans	

Conditions:
Amended Plans
1	Before the development starts, amended plans and documents 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 three copies must be provided.  The plans must be generally in accordance with the advertised plans but further modified to show:
(a)	The proposed fence to the existing dwelling set-back 1m from the west edge of the driveway and the provision of a splay at its south-eastern corner to allow for a larger landscaping area;
(b)	Modifications to the parapet style portico feature at the entry to units 2 and 3 by deleting the vertical rectilinear form in favour of a hipped or gable roof form integrated with the main roof form of these dwellings.  The revised design is to incorporate eaves with a pitch that is sympathetic to the pitch of traditional roofing forms of dwellings in the area and is to incorporate timber support posts;
(c)	All elevations of the existing dwelling which detail:
i	Existing conditions including the location and size of all doors and windows.
ii	All modifications proposed, including any demolition works and deletion of all windows from the north elevation adjacent to the proposed garage.
iii	The proposed location of new windows and doors including provision of a door with weather protection (such a simple porch) integrated into the building design on the east elevation between the living/dining area and main area of secluded private open space. The location of any steps, decks, landings and the like is also to be shown.
(d)	Reconfiguration of both front entries of Units 2 and 3 so that Unit 2’s front door is set further south and further forward of Unit 3’s front door (to achieve an offset of at least 0.8m) so to provide a better level of visibility to Unit 2’s entry from within the driveway.  If necessary, a decrease in the setback of Unit 2’s front porch from the north face of its garage wall is permitted so that the south edge of Unit 2’s porch aligns with the edge of the entry canopy. Unit 3’s front door may be shifted northwards if necessary to achieve an appropriate 0.8m minimum offset between the two doors. 
(e)	A revised materials and colour schedule that is sympathetic to the surrounding area including:
i	the use of colorbond roofing in lieu of tiles to both proposed dwellings;
ii	the use of mini-orb fencing with timber posts or timber pickets spaced no more than with 25% transparency and with a maximum height of 1.6m to the fence surrounding the secluded private open space of the existing dwelling. 
(f)	Swept path diagrams shown on the plans in accordance with Condition 14.
(g)	Plan notations showing retention of existing vegetation along the front boundary and where returning along the west side boundary.
(h)	A landscaping plan in accordance with Condition 17.
(i)	Plan notations showing that the front picket fence is to be retained, repaired and painted or otherwise replaced with a fence that is of a similar design, materials and height to the satisfaction of the Responsible Authority. 
Layout not to be altered
2	The development as shown on the endorsed plans must not be altered or modified unless otherwise agreed in writing by the Responsible Authority. 
General
3	Construction activities must be managed so that the amenity of the area is not detrimentally affected through the:
(a)	transport of materials, goods or commodities to or from the land;
(b)	inappropriate storage of any works or construction materials;
(c)	hours of construction activity; and
(d)	emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, reflection or glare, steam, soot, ash, dust, waste and storm water runoff, waste products, grit or oil;
to the satisfaction of the Responsible Authority.
4	All new walls on or facing the boundary of an adjoining property must be cleaned and finished to the satisfaction of the Responsible Authority.
5	All areas of disturbed ground must be stabilised and revegetated at the completion of the development to the satisfaction of the Responsible Authority
6	All piping and ducting (excluding down pipes, guttering and rainwater heads) must be concealed from public view to the satisfaction of the Responsible Authority.
Car parking
7	Car spaces, access lanes and driveways must be kept available for these purposes at all times and maintained to the satisfaction of the Responsible Authority.
Waste Management
8	Provision must be made on the land for the storage and collection of waste and recyclables. This area must be graded and drained  to the satisfaction of the Responsible Authority.
Access Requirements
9	Prior to the issue of the Occupancy Permit, the permit holder must construct vehicle crossings to a Residential Standard in accordance with Council’s adopted design manual and to the satisfaction of the Responsible Authority.
10	Prior to the issue of the Occupancy Permit, the permit holder must provide suitable vehicle manoeuvrability that facilitates forward moving ingress and egress from the development site to the satisfaction of the Responsible Authority.
11	Prior to the issue of the Occupancy Permit, the internal common driveway must be constructed to a concrete finish with a minimum width of 3 metres with drainage provided to adequately drain the internal driveway to the satisfaction of the Responsible Authority.
Drainage Requirements
12	Prior to the issue of the Occupancy Permit, the permit holder must construct at no cost to Council, drainage works between each of the proposed lots and the Council nominated point of discharge, to the satisfaction of the Responsible Authority.
13	Prior to the issue of the Occupancy Permit, the subject site must be connected to an underground drainage system including an on-site detention system to control flows to pre-development levels and treat stormwater wholly within the boundaries of the subject land, to the satisfaction of the Responsible Authority. 
Construction Plan Requirements
14	Prior to works taking place, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  The construction plans must be drawn to scale with dimensions.  The plans must include:
(a)	Crossover details;
(b)	Turning movements demonstrating forward motion ingress & egress;
(c)	Driveway construction and drainage details including driveway grades and indication of fall; and
(d)	Underground drainage details, Overland flow path and supporting calculations.
15	All works shown on the approved construction plans must be constructed or carried out in accordance with the plans to the satisfaction of the Responsible Authority before the issue of the Occupancy Permit.
Reinstatement Requirements
16	Prior to issue of the Occupancy Permit, unless otherwise agreed to in writing by the Responsible Authority, all reinstatement works must be completed, and Asset Protection Permit must be finalised to the satisfaction of the Responsible Authority.
Landscaping
17	In conjunction with the submission of plans for endorsement under Condition 1 of this permit, a detailed landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved the plan will be endorsed and will then form part of the permit.  The landscape plan must be prepared by a person suitably qualified or experienced in landscape design and must be drawn to scale with dimensions and an electronic copy must be provided.  The landscape plan must show:
(a)	the locations of all landscaping works to be provided on the land;
(b)	the locations of any trees to be retained or removed from the land (including details of species and size); 
(c)	a detailed schedule of all proposed trees, shrubs and groundcovers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant;
(d)	details of the proposed surface finishes of pathways and driveways; and
(e)	details of the irrigation system to be used on land following completion of the landscaping works.
18	Before the dwellings are occupied, all landscaping works as shown on the endorsed plan must be carried out and completed to the satisfaction of the Responsible Authority.  When the landscaping works have been completed, written confirmation must be provided to the satisfaction of the Responsible Authority that landscaping of the land has been undertaken in accordance with the endorsed landscaping plans.
19	The landscaping is to be maintained for a period of 24 months including at least two full summer periods from practical completion of the landscaping. During this period, any dead, diseased or damaged plants or landscaped areas are to be replaced to the satisfaction of the Responsible Authority.
Permit expiry
20	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two years of the issue date of this permit.
(b)	The development is not completed within four years of the issue date of this permit.
The Responsible Authority may extend the permit if a request is made in writing in accordance with Section 69 of Planning and Environment Act 1987.
- End of conditions -