VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11926/2021
Permit Application no.PA210113 	
CATCHWORDS	
Section 77 Planning and Environment Act 1987; Hobsons Bay Planning Scheme; Neighbourhood Residential Zone; Neighbourhood Character Overlay; Dwellings; Neighbourhood character.	

Applicants	Joel Chamberlain, Sarah Nichols and Nicholas Parish	

Responsible Authority	Hobsons Bay City Council	
Respondents	Aaron van Winden, Michelle Stirling	

SUBJECT LAND	9 Fenfield Street
ALTONA VIC 3028	

HEARING TYPE	Hearing	

DATE OF HEARING	1 July 2022	

DATE OF ORDER	13 July 2022	
date of written reasons	22 July 2022	
citation	Chamberlain v Hobsons Bay CC [2022] VCAT 887	

Order
1	In application P11926/2021 the decision of the responsible authority is affirmed.
2	In planning permit application PA210113 no permit is granted.

Bill Sibonis
Senior Member			

Appearances
For J Chamberlain, S Nichols & N Parish	M Waldon, Town Planner of St Wise Pty Ltd	
For Hobsons Bay City Council	L Lunn, Town Planner of Louise Lunn Planning Pty Ltd	
M Stirling	In person	

Information
Description of proposal	Demolition of the existing dwelling and the construction of two, two-storey attached dwellings.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Hobsons Bay Planning Scheme (Planning Scheme)	
Zone and overlays	Neighbourhood Residential Zone – Schedule 2, Special Character Area, Altona (NRZ2)
Neighbourhood Character Overlay – Schedule 3, Belmar Avenue Special Character Area, Altona (NCO3)	
Permit requirements	Cl. 32.09-6 (construction of two or more dwellings on a lot in NRZ2)
Cl. 43.05-2 (demolition; the construction of a building; and the construction and carrying out of works on land in NCO3)	
Relevant scheme policies and provisions	Cl. 02, 15, 16, 32.09, 43.05, 52.06, 55 and 65	
Land description	The subject land is located on the west side of Fenfield Street, between Merlow Street and Civic Parade.  It is a regular allotment with 15.24 metre width and 39.62 metre depth, resulting in an area of approximately 604 square metres.
The area is characterised by single-storey detached houses, both double-fronted and triple-fronted, dating from the post-war era.	
Tribunal inspection	A site inspection was undertaken after the hearing.	
reasons
1	Oral reasons for this decision were given on 13 July 2022.  The responsible authority subsequently requested written reasons.  In accordance with that request, following are the oral reasons in written form, with minor editing.
2	This is an application for a review of the Hobson’s Bay City Council’s (Council) decision to refuse a planning permit for the demolition of the existing dwelling at 9 Fenfield Street in Altona, and the construction of two, two-storey attached dwellings on land.
3	The grounds of refusal principally relate to neighbourhood character considerations, with specific reference to non-compliance with the Neighbourhood Character Overlay that applies to the land and to selected objectives of clause 55.
4	Having considered the submissions, with regard to the relevant policies and provisions of the Planning Scheme, assisted by my site inspection, I have determined to affirm the Council’s decision.  My reasons follow.
5	Details of the site and its context were comprehensively set out in the Council’s submission.  I will not repeat them here, other than to provide the following summary:
•	The subject land is located on the west side of Fenfield Street, between Merlow Street and Civic Parade.  It is a regular allotment with a flat topography and dimensions of 15.24 metres width and 39.62 metres depth, resulting in an area of approximately 604 square metres.  A single-storey brick veneer dwelling occupies the site.  A single crossover connects to a driveway extending along the southern boundary, which leads to a garage situated at the rear of the property.
•	The adjoining lots to the north and south similarly support single-storey brick dwellings.  To the west is a medium density housing development comprising two, two-storey dwellings and two, single-storey dwellings which has frontage to Maidstone Street.  On the opposite side of Fenfield Street are further single dwellings, predominantly single-storey.
•	The area is characterised by single-storey detached houses, both double-fronted and triple-fronted, dating from the post-war era (around the 1960s and 1970s).  There is an evident consistency in siting, form, construction materials and front fences.  Dwellings are typically set back in the order of 3.0 metres from one side boundary to accommodate a driveway leading to car accommodation at the rear or, in some instances at the side, of dwellings in the form of garage or carport.  Single crossovers and driveways prevail.  Front gardens are planted with low-level planting.  Street trees comprise the majority of the canopy planting in the neighbourhood.  Low front fences predominate and allow views of both the front gardens and dwellings.
6	The proposal is to demolish the existing dwelling and construct two, two-storey attached dwellings in a side-by-side configuration.  Each is to have its own vehicle crossover, driveway and garage facing the street.  A minimum 7.6 metre front setback is provided.  The minimum setback from the side boundaries is 1.05 metres.  The dwelling entries and study rooms have 4.6 metre setbacks from the side boundaries.  The garages are recessed 2.0 metres behind the front wall of the dwellings (ie at a setback of 9.6 metres from the front boundary).  Secluded private open space is in the form of courtyards located at the rear of the dwellings with access from the living areas.
7	Prior to the hearing, the applicant prepared and circulated amended plans of the proposal.  Modifications included:
•	an increased front setback for the garages and for the first-floor level
•	an increased rear setback
•	a reduction in the size of the first-floor level
•	replacement of the gable-end roofing with hipped roofs
•	changes to construction materials
•	a reduction in site coverage; an increase in permeable area; and an increase in garden area.
8	These plans were substituted for the planning permit application plans by order dated 23 May 2022, arising from a Practice Day Hearing held on 20 May 2022.  The application was also amended to seek permission for demolition of the existing dwelling.
9	Having considered the amended proposal, both the Council and respondents maintain their opposition to the grant of a permit.
10	The submissions detailed the relevant planning policies and controls, which I will summarise.
11	The land is within the NRZ2.  The purpose of the Neighbourhood Residential Zone includes:
To recognise areas of predominantly single and double storey residential development.
To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
12	The neighbourhood character objective of Schedule 2 is to preserve the characteristics of the neighbourhood, comprising intact post-war brick and weatherboard dwellings with established garden settings, generous front and side setbacks and low front fences.
13	The land is also within the NCO3.  The relevant Statement of Neighbourhood Character is:
The significance of this area is derived from the consistent streetscape of post-war orange and cream brick, or weatherboard dwellings set in garden surrounds. This area is characterised by single-storey dwellings with consistent front setbacks, side setbacks and low front fences. The consistent characteristics include the low scale horizontal form and rhythm of the dwellings, the proportion and style of the dwellings and use of materials.
14	The preferred neighbourhood character of the Belmar Avenue Special Character Area is defined by preserving the original dwellings, and supporting new buildings that include and exhibit the key characteristics of the streetscape including:
•	Double and triple-fronted single-storey dwellings.
•	Use of brick (orange or cream coloured brick, often with decorative trim brickwork) or weatherboard building materials.
•	Hipped roof design.
•	Tiled roofs and chimneys.
•	Generous front setbacks.
•	Side setbacks that provide one side for car access with car structures at the rear.
•	Low, matching orange and cream brick front fences, wrought iron fencing, or an absence of front fencing.
•	Lawns dotted with trees and bushes.
15	The Neighbourhood Character objective is:
To encourage the retention of original dwellings and building features that contribute to the preferred neighbourhood character of the area.
To ensure that new dwellings, or extensions to existing dwellings complement the characteristics pattern of front and side setbacks, low-scale horizontal built form, design and building materials.
To ensure permeable garden space for lawn and vegetation within front setbacks.
16	The schedule specifies that a permit is required to demolish or remove a building.  The schedule also modifies clause 54 and clause 55 standards, which I will refer to, as relevant, in my reasons below.
17	The Council does not oppose the demolition of the existing dwelling, provided the replacement development represents an acceptable neighbourhood character outcome.
18	In the Council’s view, the proposal does not achieve such an outcome.
19	The Council submitted that the siting of the development relative to the front and side boundaries is not an acceptable response to the existing or preferred neighbourhood character.  In support of this position, it referred to the prevailing pattern of development where dwellings have an approximate 3.0 metre setback from one side boundary within which the driveway is accommodated, and an approximate 1.0 metre setback from the other side boundary.
20	The Council also referred to the proposal’s non-compliance with the varied standards in the schedule to NCO3.
21	The varied standard B6 states that carports and garages should be set back at least 3.0 metres behind the front wall of the dwelling, and the varied standard B17 states that a new building within 11 metres of the frontage should be set back at least 1.0 metre from one side boundary and at least 3.0 metres from the other side boundary.
22	In this instance, what is proposed is a siting which places the garages 2.0 metres behind the front wall of the dwellings and provides a 4.6 metre side setback at a distance of 9.6 metres from the frontage.  Beyond this, the side setback reduces to 1.05 metres.
23	In response, the applicant submitted that the siting of the garages is acceptable as they are recessed behind the front wall of the dwellings and are sited in a manner which reflects the established pattern of development.  That said, the applicant submitted that, if required, the garages could be recessed a further 1.0 metre to comply with the standard B6 although this is not a preferred option.
24	A further related concern is the provision of two crossovers and driveways, and the presentation of two garages in the streetscape.  The Council submitted that this neighbourhood is characterised by single crossovers and driveways, with garages sited so as not to be dominant elements in the streetscape.
25	A strategy at Clause 15.01-2L is to minimise the loss of front garden space by avoiding the creation of additional vehicular crossings, and require vehicle access from adjacent laneways if available.  By inference, in the Council’s view, this means that only one garage should present to the street, and it should be recessed.
26	The Council went on to submit that, in respect of the development’s front elevation, only a small proportion of the ground floor is comprised of the dwellings themselves (meaning the study room windows and the dwelling entrances) relative to the garages.
27	The applicant noted that this was not a concern of the Council’s planning officers when they recommended support of the proposal in the first instance.  However, at that time the land was not included in the NCO3.  There has been a significant change in the planning controls that apply to the site.
28	I agree with the Council.  The area is characterised by detached, single-storey dwellings with single crossovers, a single driveway extending along one side boundary and car accommodation in the form of garages and/or carports located to the rear or side of dwellings in a manner which makes them recessive elements in the streetscape.  This character is recognised in, and sought to be respected by, the provisions of the NCO3.
29	The development is not in keeping with this character.  It will not integrate acceptably into either the streetscape or the broader neighbourhood.  It will stand as a discordant built form and planning outcome in its immediate and wider context.
30	This is not an area which is characterised by two crossovers and driveways, or by two garages facing the street.  These elements of themselves will detract from the existing pattern of development and that which is envisaged by the Planning Scheme.  It is not an acceptable response to the prevailing presence of single crossovers, driveways and recessive car accommodation.
31	The development will be an anomalous form with no apparent justification in either the applicable planning, or relevant physical, context.
32	Pursuant to NCO3, the preferred neighbourhood character is defined, in part, by supporting new buildings which include and display the key characteristics of the streetscape.  Notably one of these is identified as side setbacks that provide one side for car access with car structures at the rear.  The proposal to provide car access to both sides leading to garages that are proximate to the frontage is not one that will contribute to this preferred character.  Consequently, it is not an outcome which is supported by the Planning Scheme.
33	This is sufficient basis for me to affirm the Council’s decision and I will do so.  No permit is granted.

Bill Sibonis
Senior Member