VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1570/2020
Permit Application no. 2020-19 	
CATCHWORDS	
Application under Section 79 Planning and Environment Act 1987; Greater Shepparton Planning Scheme; General Residential Zone (GRZ1); Multi-dwelling development; Neighbourhood character; Internal amenity; Traffic; Reduction in car-parking.	

Applicant	Sessions Builders Pty Ltd	

Responsible Authority	Greater Shepparton City Council	
Respondents	Ryan Daniel McGowan & Darren Metzke & Others	
referral authority	Goulburn Valley Water	

SUBJECT LAND	7 Alamein Street
SHEPPARTON VIC 3630	

HEARING TYPE	Hearing 	

DATE OF HEARING	11 March 2022	

DATE OF ORDER	3 June 2022	

CITATION	Sessions Builders Pty Ltd v Greater Shepparton CC [2022] VCAT 595	
Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans:
Prepared by:	1.	Webster Designs	
Drawing numbers:	2.	2019-020, Sheets 1 to 20 (all revision E) and 2019-020, Sheet 10 titled Waste Management Plan (revision E)	
Dated:	3.	17 May 2021	
2	In application P1570/2020 the decision of the responsible authority is affirmed.

3	In planning permit application 2020-19 no permit is granted.

Shiran Wickramasinghe
Member			

Appearances
For applicant	Ms B Hemeter, Pre-construction administrator of Session Builders	
For responsible authority	Mr J Monaghan, solicitor of Holding Redlich Lawyers	
For respondents	Mr R Mc Gowan	
For referral authority	No appearance	

Information
Description of proposal	The construction of eight single-storey dwellings and reduction of one visitor car space.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Greater Shepparton Planning Scheme (Planning Scheme)	
Zone and overlays	General Residential Zone (GRZ1)	
Permit requirements	Clause 32.08-6 – Permit required to construct two or more dwellings on lot in GRZ1.
Clause 52.06-3 – Permit required to reduce the car parking requirement.	
Key scheme policies and provisions	Clause 02, 11, 15.01, 16, 52.06, 55, 65 and 72.08	
Land description	The site has frontage of 20.12 metres, a depth of 83.97 metres and a total area of 1689 square metres.
The site was previously developed and used as a church with associated buildings that have since been demolished. It is currently vacant.
The site is part of a residential neighbourhood comprising a mix of single, detached dwellings and some medium density housing.

  Reasons
What is this proceeding about?
1.	This is an application for a review of the Greater Shepparton City Council’s (Council) failure to grant a permit in the prescribed time for the construction of eight single-storey dwellings on the land and reduction of one car space. 
2.	The permit application originally proposed buildings and works for an 11 dwelling development. Subsequent amendments have culminated in the current eight dwelling proposal. 
3.	Council supports proposal for the following reasons. 
•	The proposal is consistent with the provisions and requirements of the General Residential Zone.
•	The proposal is consistent with the requirements of clause 55 (ResCode) under the Greater Shepparton Planning Scheme (Scheme).
•	The proposal is consistent with the relevant provisions of the Local Planning Policy Framework under the Scheme, namely, under clause 21.04-2 the proposal is of a scale that is respectful of neighbourhood character and is appropriate in an area of Incremental Change.
4.	The respondents are opposed to the proposal and have concerns relating to overdevelopment, neighbourhood character, the reduction in car parking, non-compliance with clause 55 of the Planning Scheme, waste collection arrangements and community benefit.
5.	At the commencement of the hearing the planning permit application was amended by substituting plans showing a number of changes to the proposal including the reduction in the number of dwellings to eight and improving the provision of private open space and vehicle manoeuvrability. A waste management plan was also provided.
6.	The parties consented to the substitution of the plans. The planning permit application was amended accordingly.
7.	Having considered the submissions and all relevant matters I have decided to refuse a permit because the proposal does not respect the existing neighbourhood character.

What is the relevant PLANNING context?
8.	The land is zoned GRZ1, which has a purpose of encouraging development that respects the neighbourhood character and a diversity of housing particularly in locations offering good access to services.
9.	Local Planning Policy in the Planning Scheme was revised through Amendment C210, after the Council’s consideration of this application. Council advised the changes comprised a policy neutral translation of the Planning Scheme’s policy framework and no submissions to the contrary were provided by the other parties.
10.	The previous clause 21.04-2, that identified the Housing Change Areas is now located at clause 16 and clause 72.08 that includes the Greater Shepparton Housing Strategy (Updated 2011) as a reference document. This change is relevant as Council’s reasons for support of the proposal refer to clause 21.02-2 as it was prior to the approval of Amendment C210.
11.	Clause 15.01-5S has an objective of creating urban environments that are safe, healthy, functional and enjoyable and contribute to a sense of place and cultural identity. A related strategy requires development to respond to its context in terms of character, cultural identity, natural features, surrounding landscape and climate.
12.	Clause 15.01-5S has an objective to recognise, support and protect neighbourhood character, cultural identity and sense of place. Related strategies include support for development that respects the existing neighbourhood character or contribute to a preferred neighbourhood character.
13.	Clause 16.01-1S has an objective to deliver housing that is well located, integrated and diverse that meets the needs of the community. Two related strategies seek to increase the proportion of housing in designated locations in established areas and encourage high density housing development on sites that are well located in relation to jobs, services and public transport.
14.	At the local level clause 02.03 addresses Strategic Directions for Greater Shepparton. Clause 02.03-1 indicates Shepparton’s population will grow to 71,509 by 2026. It identifies that there will need to be a corresponding growth in the number of dwellings in Shepparton and the outlying townships. It is expected the urban areas of Shepparton, Mooroopna and Kialla will accommodate the majority of new residential development. 
15.	In facilitating the future growth and development of its towns, Council is said to be committed to achieving urban consolidation. In proximity to the Shepparton CBD and other key activity centres, Council is encouraging its community to live at higher densities. Council is also encouraging the provision of additional medium density and apartment style accommodation including shop-top housing within the Shepparton, Mooroopna and Kialla urban areas.
16.	Consideration of this application must be informed by a balanced application of those Planning Scheme policies and provisions that encourage increased housing diversity and affordability in established areas against those provisions that require development to be respectful of existing or preferred neighbourhood character.
Does the proposal respect the existing neighbourhood character?
17.	In relation to the current proposal the policy framework seeks to:
•	Increase the supply of housing in existing urban areas by facilitating increased housing yield in appropriate locations.  
•	Locate new housing in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport.
•	Encourage residential development that respects the character of the neighbourhood and implements character policy and guidelines.  
•	Encourage the design of energy efficient buildings.
•	Ensure that development improves housing choice, makes better use of existing infrastructure and improves energy efficiency of housing.
•	Achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community.
•	Encourage the provision housing to accommodate future housing needs and preferences of the local community.
18.	Parties spoke to the character of the area and provided photos of the locality. Proximate development in Alamein Street can be broadly characterised to include predominantly single-storey development that includes some multi-dwelling development. The dwellings have pitched roofs with gabled or hipped profiles finished in either tile or Colorbond.
19.	The dwellings have frontage to the street and a driveway located along one of the side boundaries. Entrances are generally oriented at the front of the dwelling and habitable windows face the street. Generally dwellings have a single crossover providing access to the site. 
20.	Secluded private open space is typically located to the rear of the dwellings. There is some front fencing. Where the site is located on a corner there is high solid fencing to the side street.

21.	The respondents expressed significant concern the development is out of character with the surrounding area, non-compliance with clause 55 of the Planning Scheme and submitted the proposed dwelling density is excessive. 
22.	In support of the proposal the applicant submitted the existing houses in Alamein Street and the surrounding area are a mixture of brick and weatherboard dwellings with tile and metal roofs. Therefore, they say the design will complement the existing dwellings and enhance the appeal of the street. Further they say there is a high demand for housing in this location as it is ‘within a block from Goulbourn Valley Hospital’.
23.	It is noteworthy the site is in the GRZ1, a relevant purpose of which was detailed earlier in these reasons. Further, Council’s Housing Strategy identifies the site to be located in an area identified for Incremental Change in the Shepparton North Housing Change Area Plan.

Source: Council Delegate Report
24.	The Housing Strategy identifies Incremental Change Areas as established residential areas that over time have the capacity to accommodate a moderate level of residential development. Development is said to likely include extensions to existing dwellings, new single or double-storey dwellings on existing lots, and low rise medium density housing. It is expected that the general character of Incremental Change Areas will evolve over time as new types and more intense development is accommodated.
25.	With respect to the identification of Incremental Change Areas, the Housing Strategy states:
Incremental Change Areas have generally been designated in locations that:
•	are unaffected by significant development constraints;
•	have lot layouts which may potentially constrain substantial development; 
•	have reasonable access to a range of local shops, facilities, services and amenities; 
•	provide residential uses in conjunction with other uses in small town settings; and
•	greenfield residential development sites.
26.	The site has an area of 1689 square metres and having regard to Council’s Housing Strategy, is situated in a location that makes it suitable for some form of medium density housing. 
27.	The site area with a frontage of 20.12 metres and a depth of 83.97 metres facilitates a linear pattern of development. The proposed dwellings are sited down the length of the site with a driveway to be located along the south boundary.
28.	Dwelling 1 has a 4.0 metre setback from the front (west) boundary and is built to the north boundary with its secluded private open space (SPOS) located within the frontage. The garage and SPOS, associated with dwelling 2 abut the east elevation of dwelling 1.
29.	Dwelling 1 has a single-storey presentation to the street frontage. However the proposal seeks to utilise the front setback for SPOS. This results in the provision of a 1.8 metre high front fence across part of the frontage as shown below.

30.	Development in Alamein Street typically has front setback areas that are visible from the street and provide a visible garden character. The SPOS is typically located to the rear and side of the dwellings. Where there are taller solid fences that front Alamein Street, they usually have some visual permeability such as the fences at 4 and 8 Alamein Street. Where there is solid fencing to Alamein Street, the fence is usually located along a side street setback of corner sites such as 1 Litani Street and 111 and 113 Balaclava Road. Notably these sites do not front Alamein Street. Further, there is a section of taller fence across part of the frontage of 5 Alamein Street, however the greater portion of the front setback and associated garden is visible from the street.
31.	In this context the provision of SPOS within the 4.0 metre front setback and a 1.8 metre high front fence is not sympathetic to the existing streetscape and is an unacceptable response from a neighbourhood character perspective. Therefore, the proposal fails to satisfy the provisions of clause 55.02-1, Standard B1, Neighbourhood character objectives that seeks to ensure the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
32.	Further, the design by locating the SPOS within the front setback orientates the dwelling entry to the driveway, effectively presenting the side of the dwelling to the street. This design fails to integrate the development with the street and fails to satisfy the provisions of clause 55.02-5, Standard B5, Integration with the street objective that seeks the avoidance of high front fencing if practicable. 
33.	The solid front fence will present a ‘hard edge’ to the street and limit the opportunity for the site to make a landscape contribution to the streetscape. Further, as this is the only area of SPOS for dwelling 1, utilities including a clothes line and bin storage are proposed to be located with the front setback. Having regard to the existing character and pattern of development in Alamein Street, the location of these utility areas within the front setback will detract from the existing streetscape and is unacceptable.
34.	The respondents raised concerns relating to the density of the proposal. A numerical analysis was provided. The proposed development was said to be at a density of 1 dwelling per 211 square metres of site area whilst the developments at 1-3 Kilpatrick Avenue, 35 Kilpatrick Avenue and 43-45 Kilpatrick Avenue were said to have densities of 1 dwelling per 251, 398 and 300 square metres of site area respectively. Density is not identified in the Planning Scheme as a tool for assessment of applications of this type. Whilst the proposal has been found to be unsympathetic to the character of the area, density has not been a determinative consideration.
35.	Having regard to the above, I find the development is unacceptable having regard to the existing neighbourhood character and permit will not be granted.
other matters
36.	As detailed earlier a number of other matters of concern were raised by the respondents. These include site coverage, private open space, storage, provision of front fencing and daylight to new windows. For completeness I will briefly address these matters. 
•	The proposal has a site permeability of 20.8.% which exceeds the minimum 20 % required by clause 55.03-4, Standard B9, Permeability and stormwater management objectives. Further a site coverage of 41.15% is proposed which is less than the maximum 60% specified at Standard B8 at clause 55.03-3, Site coverage objective. Therefore, the requirements of Standard B8 and B9 are met. 
•	Clause 55.05-3, Standard B27, Daylight to new windows objective seeks to allow adequate daylight into new habitable room windows. A skylight is provided for bedroom 3 of dwelling 1 as the source of natural ventilation and light. The design sites the dwelling to the north title boundary and abuts the SPOS and garage associated to dwelling 2. A window is not provided. The design of the dwelling does not provide for there to be light shared from other parts of the dwelling and is a poor design response that will detract from the liveability of the dwelling. I find the lack of a window to this bedroom will provide poor internal amenity for any future resident and an unacceptable design outcome.

•	Dwellings 5 and 8 are each provided with approximately 35.5 square meters of SPOS. The respondents say this falls short of the total 40 square metres required in clause 55.05-4, Standard B28, Private open space objective. The applicant submits the Standard is satisfied as a minimum 25 square meters of SPOS with a 3.0 metre dimension is provided and there is garden area provided along the driveway. The  provision of open space is not determinative to my decision. Had I decided to grant a permit, the matter could have been addressed by a condition.
•	Clause 55.05-6, Standard B30, Storage objective and clause 55.06-4, Standard B34, Site services objectives seek to ensure there are adequate storage facilities and utility areas for things such as bins and mailboxes. The respondents raised concerns regarding the plans not showing the location of storage areas and plan inconsistencies relating to the provision of site services such as mailboxes. These matters have not been determinative in my decision. Had I decided to grant a permit, the matter could have been addressed by a condition.
•	The respondents raised concern regarding the reduction of one visitor car space. They submitted on-street parking was already well utilised by staff of the Goulbourn Valley Hospital and there is a high volume of traffic on Alamein Street. Council did not raise any concerns related to traffic and car parking. No evidence was  provided to show one car space could not be accommodated on-street or that traffic volumes were beyond the design capacity of Alamein Street. In this context, the shortfall of one car space is not a reason to refuse a permit.

Source; Respondents submission.
•	Access to the 35.5 square metres of SPOS associated to dwelling 5 is proposed to be through the dwelling and the SPOS associated to dwelling 4. Whilst a landscape plan has not been provided the SPOS contributes to the mandatory minimum 35% garden area requirement. The design effectively ‘land locks’ the SPOS of dwelling five and requires any material intended for the SPOS to be taken through the dwelling or the open space associated to dwelling 4. I find the design outcome that relies on access through the SPOS of a neighbouring dwelling to be unacceptable, or through dwelling 4 to be impractical. Accordingly the design outcome is unacceptable and as proposed would have created poor internal amenity for any future resident. 
Conclusion
37.	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Shiran Wickramasinghe
Member