VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11474/2021
Permit Application no. 719871	
CATCHWORDS	
Whittlesea Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; General Residential Zone Schedule 5 (GRZ5); Two attached side-by-side single storey dwellings; Planning policy; Suburban Residential Area; Clause 55; Offsite amenity impacts; Car parking; Traffic.	

Applicants	Carolyn Hazel Bonello and Eva Moran	

Responsible Authority	Whittlesea City Council	
respondent	Planning & Design Pty Ltd	
SUBJECT LAND	32 Streeton Circuit  MILL PARK  VIC 3082	
HEARING TYPE	Hearing	
DATE OF HEARING	14 June 2022	
DATE OF ORDER	22 June 2022	
citation 	Bonello v Whittlesea CC [2022] VCAT 700	

Order
1	The request for an adjournment to a date after the 29 June 2022 is refused.
2	In application P11474/2021 the decision of the Responsible Authority is varied. 
3	In planning permit application No 719871 a permit is granted and directed to be issued for the land at 32 Streeton Circuit, Mill Park in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
•	Construction of two dwellings on a lot in the General Residential Zone Schedule 5.

J A Bennett
Senior Member			

Appearances
For Carolyn Hazel Bonello and Eva Moran	Both in person.	
For Whittlesea City Council	Mr Daniel Lendvai, Town Planner.	
For Planning & Design Pty Ltd	Mr Andrew Gray, Town Planner of GrayKinnane.	
Information
Description of proposal	Two attached side-by-side single 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	Whittlesea Planning Scheme (Planning Scheme).	
Zone and overlays	General Residential Zone – Schedule 5 (GRZ5).
Development Contributions Plan Overlay – Schedule 3 (DCPO3).	
Permit requirements	Clause 32.08-6 (Construct two or more dwellings on a lot in GRZ5).	
Relevant scheme policies and provisions	Clauses 02.01, 02.03, 02.04, 11, 15, 16, 18, 32.08, 45.06, 52.06, 55, 65 and 71.02.	
Land description	The review site is located on the western side of the street approximately midway between Sawrey Place to the south and Buvelot Place to the north.
It has a frontage of 17 metres, a depth of 35.5 metres and site area of 599 square metres.
It is currently occupied by a single storey brick clad dwelling with a pitched roof. A crossover and driveway along the southern side of the review site provide access to a garage in the rear yard.	

reasons
Background
1	The permit applicant is seeking approval for two attached, single storey dwellings in Mill Park. The following plan depicts the overall layout of the development. I note that condition 2 a. in the Notice of Decision to Grant a Permit (NoD) requires the northern garage adjacent to the boundary with No 34 Streeton Circuit to be set back one metre from that boundary.  

2	Whittlesea City Council (Council) has given conditional support for the proposal, but two neighbours have sought to review that decision. In summary, their concerns are:
•	That constructing two dwellings is contrary to what they had been told was a single dwelling per lot area.
•	The dwellings each have four bedrooms which will result in an extra four cars parked in the street if there is a car for each bedroom.
•	The dwellings will create adverse impacts on No 34 Streeton Circuit by allowing overlooking into windows and outdoor areas, causing loss of light, and generating noise from cars and the garage door. 
•	Extra dwellings have already added to congestion in the street and Streeton Circuit was not designed to accommodate so many cars. 
•	There are many elderly residents living in the street and emergency vehicles may not be able to travel along Streeton Circuit because of so many parked cars. 
3	The permit applicant disagrees with these objections and instead submits that the proposal is supported by housing policy and that the siting and design of the two single storey dwellings will not unreasonably impact on adjoining properties or the locality. Furthermore, the proposal provides parking in accordance with clause 55 of the Planning Scheme and Streeton Circuit can cope with the additional traffic.  
Adjournment refused
4	On 8 June 2022, an adjournment request was received from the applicants for review. Because it was received less than one week before the hearing, parties were advised by email that the request would be dealt with at the commencement of the hearing, and that if refused, they should be ready to proceed with the hearing.
5	As foreshadowed, I received oral submissions from parties at the beginning of the hearing. After a brief adjournment, I advised them that I had refused the adjournment request. Oral reasons were given but can be summarised as follows:
•	I have had regard to the correspondence submitted concerning Ms Bonello’s ongoing medical condition. The condition is long standing since 2011. 
•	I accept that the proposal has caused stress but am not persuaded that adjourning the hearing until after the 29 June 2022, or just over 2 weeks away, helps to alleviate that stress. Instead, an adjournment simply prolongs that stress without resolving the issues in dispute. 
•	It is not appropriate to adjourn at this late stage for her to obtain legal or other advice. There has been plenty of time to obtain that advice given the initiating order setting the hearing and compulsory conference dates was dated 21 October 2021. The hearing date was confirmed over 2 months ago on 7 April 2022 following an unsuccessful compulsory conference. 
•	It is not necessary for Ms Bonello to talk to the owner to explain her concerns. He has put forward a proposal and it is now up to the Tribunal to make a decision based on that proposal and on submissions made by parties.
•	My decision must be based on the relevant provisions of the Planning Scheme. Although I understand Ms Bonello’s personal circumstances, I must make my decision based on those provisions.
•	Parties have submitted documents which I have read, together with photos and other material. On that basis I intend to proceed with the hearing on the planning merits of the proposal. 
6	The hearing then proceeded with parties making submissions. For the reasons which follow I have decided to grant a permit.
My assessment of the application
Planning policy and the GRZ5
7	The review site is within a long established and fully serviced area of Mill Park. It is close to the Mill Park activity centre, schools, recreation areas and other community facilities. Bus routes traverse Plenty and Childs Roads and the activity centre provides for an interchange between different bus routes. Planning policies include those that are encouraging more efficient use of serviced land by increasing housing densities, providing more diversity of housing types and more affordable housing.
8	Policies specific to the municipality identify different levels of housing change or areas for an intensification of residential development. The Housing Change Areas Plan at clause 02.04 identifies the land as being within a Suburban Residential Area. Within such areas the preferred housing types are detached dwellings and dual occupancies/duplexes. 
9	Key design principles include low building heights, standard site coverage to facilitate landscape opportunities, an increased area of private open space to allow for significant landscaping, and front setbacks/increased side and rear setbacks to provide for building separation and landscaping, including one canopy tree in the front setback and an extra-large canopy tree in the rear setback. 
10	The land and locality are included in the GRZ5 which seeks to provide for a diversity of housing types and housing growth, particularly in locations offering good access to services and transport. The GRZ5 also seeks to encourage development that respects the neighbourhood character of the area. 
11	As noted above, the preferred housing types in Suburban Residential Areas includes dual occupancies (i.e. two dwellings per lot). There is therefore an expectation in the Planning Scheme that the character will change to some extent, even in this locality where the original development was single dwellings on individual lots.  
12	I therefore consider that the principle of constructing two dwellings is consistent with the outcomes sought in relevant planning policies for this part of Mill Park. Whatever may have been said in the past to Ms Bonello and Ms Moran about limiting development to one dwelling per lot, as I have explained above, that restriction is not found in the current planning scheme. I therefore do not agree with Ms Bonello and Ms Moran that the concept of constructing two dwellings is unacceptable.
Clause 55 and off-site amenity impacts
13	However, it also necessary to assess the proposal against clause 55 since any development of two or more dwellings must meet the requirements of that clause.  Clause 55 is specifically designed to provide guidance as to what might be an acceptable medium density housing development. Requirements are grouped under sub clauses dealing with Neighbourhood and Site Description and Design Response (clause 55.01), Neighbourhood Character and Infrastructure (clause 55.02), Site Layout and Building Massing (clause 55.03), Amenity Impacts (clause 55.04), On-Site Amenity and Facilities (clause 55.05) and Detailed Design (clause 55.06).
14	The requirements dealing with Site Layout and Building Massing (clause 55.03) and Amenity Impacts (clause 55.04) are the most relevant in assessing impacts on neighbouring properties, particularly those concerning overlooking, loss of light, and noise. The relevant requirements include standards B7 (building height), B17 (side and rear setbacks), B18 (walls on boundaries), B19 (daylight to existing windows), B20 (north facing windows), B21 (overshadowing open space), B22 (overlooking) and B24 (noise impacts). 
15	Because the two dwellings are single storey, the opportunities for adverse impacts to neighbours are minimised compared to double storey dwellings where overlooking and overshadowing can often be problematic. 
16	In this application:
•	The dwellings have maximum heights of 4.23 metres and 4.48 metres - much less than the 11-metre maximum height for the GRZ5.
•	Side and rear setbacks comply with standard B17, including the varied 5 metre rear boundary setback. 
•	There is one garage wall on the southern boundary that complies with the standard for height and length. The northern garage wall adjoining No 34 Streeton Circuit is to be set back one metre from the boundary in accordance with condition 2 a. of the NoD.
•	Daylight to existing windows maintains daylight access more than that required by standard B19.
•	There are no north facing windows close to the review site.
•	There is no overshadowing of secluded open space to either of the adjoining properties at Nos 30 or 34 Streeton Circuit when assessed against standard B21.
•	The overlooking standard B22 states that the standard does not apply to a new habitable room window, balcony, terrace, deck or patio which faces a property boundary where there is a visual barrier at least 1.8 metres high and the floor level of the habitable room, balcony, terrace, deck or patio is less than 0.8 metres above ground level at the boundary. Overlooking complies with the standard because the floor levels are less than 800mm above ground level and inclusion of a 1.95 metre high boundary fence will prevent any unreasonable overlooking into habitable room windows and rear secluded open space at Nos 30 and 34 Streeton Circuit. 
•	Setting back the garage wall one metre from the northern boundary will limit noise transmission from the garage door. The movement of cars is limited to the front setback rather than further into the review site adjacent to bedrooms and living areas in the adjoining properties. The noise of vehicles moving in and out of properties is part and parcel of living in a suburban setting and is not unreasonable.  
17	I also record that site coverage is 57% against the maximum 60% in standard B8 and permeability is 34.5 % against the 20% minimum in standard B9. The garden area at 31.9% exceeds the mandatory 30% requirement in clause 32.08-4. 
18	Whilst I acknowledge that meeting all the requirements in clause 55 does not guarantee that a permit will be granted, compliance with all the numeric ResCode standards is a good indication that the proposal is not an overdevelopment and that off-site amenity impacts have been well managed. 
Car parking and traffic
19	On-street parking and traffic congestion were of particular concern to Ms Bonello and Ms Moran.
20	Whilst I agree with Ms Bonello and Ms Moran that more bedrooms per dwelling often equates to a demand for extra car parking, on-site resident parking of two spaces for dwellings with three or more bedrooms complies with the rates specified in clause 52.06 of the Planning Scheme. There is therefore no permit being sought to reduce the required number and I cannot require more spaces than the number required in clause 52.06. Consequently, there is no statutory reliance on kerb side parking to meet the rates set out in Clause 52.06, although some kerb side parking will be available outside the review site and may well occur.
21	Given the compliance with the rates in clause 52.06, I would not require the number of bedrooms to be reduced to three in each dwelling to lessen the possibility of parking occurring in the street. I do note that Mr Gray has suggested that the redesign of Dwelling 1, arising because of the permit condition requiring an additional 1 metre setback from the northern boundary, will likely result in one less bedroom for that dwelling. 
22	I also record that Council’s Traffic Engineers did not identify any concerns about the number of car spaces or adverse impacts on kerb side parking.
23	Ms Bonello and Ms Moran are also concerned about the impact of additional traffic in Streeton Circuit and the congestion caused for emergency vehicles if additional cars are parked in the street. 
24	Council’s Traffic Engineers have measured the road pavement from kerb face to kerb face at 7 metres and noted that it is a standard residential street width that allows for parking on both sides and a vehicle to travel between. I agree with that assessment and do not accept that Streeton Circuit cannot cope with additional traffic or access by emergency vehicles such as ambulances. It is common practice that opposing vehicles need to give way if cars are parked on either side of the street. If one of the opposing vehicles is an emergency vehicle then other vehicles must give way. 
25	As to access by fire trucks and larger vehicles, I am not persuaded that it occurs so frequently that it justifies refusal of this application.  
26	Clause 56.06-8 of the Planning Scheme categorises roads depending on function and design parameters. A street such as Streeton Circuit, with a carriageway width of between 7 and 7.5 metres, would be classified as an Access Street - Level 2 with an environmental capacity of up to 3000 vehicles per day. A lower order Access Street - Level 1 is designed to provide local residential access where traffic is subservient, speed and volume are low, and pedestrian and bicycle movements are facilitated. It would have a 5.5 wide carriageway and daily traffic volume of between 1000-2000 vehicles. An even lower order street would allow traffic volumes of between 300 and 1000 vehicles per day with a pavement width of 5.5 metres and parking on one side. 
27	The development represents a net increase of one dwelling. Even adopting a high-end traffic generation rate of 10 vehicle movements per day would result in a negligible increase in traffic movements along Streeton Circuit and well below its design capacity of 3000 vehicles per day, or even 1000 vehicles per day if it were a lower order, and narrower street.
Conclusion
28	Planning policy supports a modest increase in the number of houses within Suburban Residential Areas. A development comprising two dwellings is consistent with the preferred housing type of dual occupancies/duplexes. 
29	I understand that neighbours are passionate about and highly value their neighbourhood and current living environment and do not support the proposal to construct two new dwellings at No 32 Streeton Circuit.  
30	However, it is because people have different opinions about reasonable/unreasonable impacts that the objectives and standards have been included in clause 55. Compliance does not prevent any loss of amenity; rather it ensures that any loss is within what has been decided by the formulators of the Planning Scheme as reasonable. 
31	I consider that compliance with all the numeric clause 55 standards is a good indication that the proposal is not an overdevelopment and that off-site amenity impacts have been well managed. 
32	I therefore do not agree with submissions that the application for two dwellings on the review site is an overdevelopment. Nor do I agree with submissions that potential adverse off-site impacts, such as overlooking and noise to neighbouring properties, is unacceptable. 
What conditions are appropriate?
33	I have varied Council’s draft decisions to remove reference to use in conditions as the approval is only required of development. I have also included reference to the zone in what the permit allows. 
34	For the reasons given above, the decision of the Responsible Authority is varied. A permit is granted subject to conditions.

J A Bennett
Senior Member			

Appendix A – Permit Conditions

Permit Application No	719871	
Land	32 Streeton Circuit  MILL PARK  VIC 3082	

What the permit allowS	
In accordance with endorsed plans:
Construction of two dwellings on a lot in the General Residential Zone Schedule 5.	
Payments Required
1	Prior to the endorsement of plans, the permit holder must pay to Council a contribution for drainage pursuant to Clause 45.06 of the Whittlesea Planning Scheme. The drainage contribution will be subject to the Consumer Price Index (CPI) applicable at the time of payment.
Plans Required
2	Before the development hereby permitted starts, three copies of 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 this permit. The plans must be generally in accordance with the plans dated 16 April 2021 and prepared by Planning and Design but modified to show:
(a)	Garage of Dwelling 1 setback a minimum of 1 metre from the northern boundary of the lot;
(b)	Provision of eaves to each dwelling;
(c)	Landscaping as required by Condition 3 of this permit;
(d)	Schedule of external materials, finishes and colours;
(e)	Drainage plans/WSUD techniques; and
(f)	Any alterations required by Condition 4 of this permit.
3	Concurrent with the endorsement of plans under Condition 2 and before the development hereby permitted commences, three copies of a landscape plan prepared by a suitably qualified (or experienced) landscape designer 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 this permit. The landscaping plan must be generally in accordance with the landscape concept plan dated 16 April 2021 and prepared by Planning and Design but modified to show:
(a)	Details of landscaping for the front setback (or other areas as applicable) including a schedule of all proposed trees, shrubs and ground covers;
(b)	Paving, retaining walls, fence design details and other landscape works including areas of cut and fill;
(c)	Stormwater management details as per the STORM/MUSIC report, including the specific sizes and location of the rainwater harvesting tanks, etc; and
(d)	If proposed, a section detail of permeable paving.
4	Before the development hereby permitted starts, Sustainable Design Assessment 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 this Permit. The amended plans and Sustainable Design Assessment must be generally in accordance with the submitted Draft Sustainable Design Assessment dated 19 April 2021 prepared by Planning and Design, but modified to show following –
(a)	Indicate following commitments on plans -
i	Taps in private open space connected to the rainwater tanks.
ii	Provision of 5000L rainwater tanks to each dwelling.
iii	External lighting controlled by sensors.
iv	Power point in the garage to accommodate infrastructure for charging electric vehicles in future.
(b)	Annotate following commitments on plans -
i	Water efficient landscaping - use of native or drought tolerant species wherever possible. If irrigation required, include drip irrigation and mulch.
ii	Rainwater tanks connected to toilets and irrigation.
iii	Double glazing to all windows.
iv	Light/Medium coloured roof with a solar reflectance more than 0.15.
v	Light/Medium coloured paving and driveway.
vi	Pledge 80% of construction and demolition waste to be recycled.
Construction Management Plan
5	Prior to the commencement of works, including demolition and excavation, a Construction Management Plan must be submitted to and endorsed by the Responsible Authority and be in accordance with the Responsible Authority’s Construction Management Plan template and include a detailed Site Management Plan. No works are permitted to occur until the Plan has been endorsed by the Responsible Authority. Once endorsed, the Construction Management Plan will form part of the permit and must be implemented to the satisfaction of the Responsible Authority.
For further information, including submission, please contact Council’s Infrastructure Protection unit on 9217 2170 or info@whittlesea.vic.gov.au.
Layout Not Altered
6	The development allowed by this permit and shown on the plans and/or schedules endorsed to accompany this permit shall not be amended for any reason without the consent of the Responsible Authority.
7	Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Landscaping and Stormwater Management
8	Prior to the occupation of the dwellings hereby approved, landscaping and stormwater management works shown on the endorsed plan must be completed and then maintained to the satisfaction of the Responsible Authority.
Actions Before occupation
9	Prior to the occupation of any building approved under this permit, a compliance inspection and report from the author of the Sustainable Design Assessment (SDA), approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority.
The compliance report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the SDA have been implemented in accordance with the approved documentation.
10	Prior to occupation of the development hereby permitted, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a)	Constructed;
(b)	Properly formed to such levels that they can be used in accordance with the plans;
(c)	Surfaced with an all-weather sealcoat or treated to the satisfaction of the Responsible Authority to prevent dust and gravel being emitted from the site; and
(d)	Drained and maintained;
to the satisfaction of the Responsible Authority. Car spaces, access lanes and driveways must be kept available for these purposes at all times, to the satisfaction of the Responsible Authority.
11	A minimum of four (4) car spaces must be provided on the land for the development permitted, to the satisfaction of the Responsible Authority.
12	In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.
13	Vehicular access to the site must be by way of a vehicle crossing constructed in accordance with Council’s Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will be using the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused or redundant crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Responsible Authority. All vehicle crossing works are to be carried out with Council supervision under a ‘Infrastructure Protection Permit.’
14	The permit holder shall be responsible to meet all costs associated with reinstatement and/or alterations to Council or other Public Authority assets deemed necessary by such Authorities as a result of the development. The permit holder shall be responsible for obtaining prior specific written approval for any works involving the alteration of Council or other Public Authority assets.
15	Prior to occupation of any dwelling on the subject site, a letter box and house number to the satisfaction of the Responsible Authority shall be provided for each dwelling.
16	At all times during the construction phase of the development, the permit holder shall take measures to ensure that pedestrians are able to use with safety any footpath along the boundaries of the site.
17	Upon completion of all buildings and works authorised by this permit the permit holder must notify the Responsible Authority of the satisfactory completion of the development and compliance with all relevant conditions.
Drainage Management
18	Before starting any buildings or works, engineering plans showing a properly prepared design (with computations) for the internal drainage and method of disposal of stormwater from all roofed and sealed areas, including the use of an on-site detention system (if required), must be submitted to the Responsible Authority for approval. These internal drainage works must be completed to the Responsible Authority’s satisfaction prior to using or occupying any building on the site.
19	Prior to the occupation of the dwellings hereby approved, the permit holder is required to construct at no cost to Council, drainage works between the subject site and the Council nominated point of discharge. Such drainage works must be designed by a qualified engineer and submitted to and approved by Council. Computations will also be required to demonstrate that the drainage system will not be overloaded by the new development. Construction of the drainage system must be carried out in accordance with Council specifications and under Council supervision.
20	Prior to the occupation of the dwellings hereby approved, reticulated (water, sewerage, gas and electricity) services must be constructed and available to the satisfaction of the Responsible Authority.
21	Discharge of stormwater from the land is required by means of an underground pipe drainage system designed to the satisfaction of the Responsible Authority and discharging to the legal point of discharge in a street or an underground pipe drain to the requirements of the Responsible Authority. In this regard no water must be discharged from any pipe or paved area onto the surface of any adjacent land. Stormwater flows in excess of the approved capacity of the pipe drainage system must not be trapped by any construction but must be permitted to flow over the finished surface of the site to the street or drainage easement.
General Amenity – Construction works
22	Any litter generated by building activities on the site shall be collected and stored in an appropriate enclosure which complies with Council’s Code of Practice for building/development sites. The enclosures shall be regularly emptied and maintained such that no litter overspills onto adjoining land. Prior to occupation and/or use of the building, all litter shall be completely removed from the site.
23	During the construction phase, vehicles leaving the site must not deposit mud or other materials on roadways. Any mud or other materials deposited on roadways as a result of construction works on the site must be cleaned to the satisfaction of the Responsible Authority within two hours of it being deposited. 
Permit expiry
24	In accordance with the Planning and Environment Act 1987 a permit for the development expires:
(a)	The approved development does not start within 2 years of the date of this permit; or
(b)	The approved development is not completed within 4 years of the date of this permit.
The Responsible Authority may extend the periods referred to above if a request is made in writing. This request must be made before or within 6 months after the permit expiry date where the development has not yet started and within 12 months after the permit expiry date where the development allowed by the permit has lawfully started before the permit expires.
---End of conditions---