VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11877/2021
Permit Application no.WH/2019/1174 	
CATCHWORDS	
Application under section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Whitehorse Planning Scheme; Neighbourhood Residential Zone – Schedule 4; Significant Landscape Overlay – Schedule 9; Neighbourhood character; Limited Change Area; Bush Suburban 5 character precinct; Landscaping; Amenity.	

Applicant	JM Co Pty Ltd	

Responsible Authority	Whitehorse City Council	
Referral Authority	Melbourne Water	

SUBJECT LAND	12 Efron St,
NUNAWADING VIC 3131	

HEARING TYPE	Hearing	

DATEs OF HEARING	18 July 2022 & 17 August 2022	

DATE OF ORDER	10 January 2023	

CITATION	JM Co Pty Ltd v Whitehorse CC [2023] VCAT 24	

Order
No permit granted
1	In application P11877/2021 the decision of the responsible authority is affirmed.
2	In planning permit application WH/2019/1174 no permit is granted.

Sarah McDonald
Member			

Appearances
For applicant	How Ng, Melbourne Planning Pty Ltd.
He called the following witness:
•	Peter Boyle, landscape architect, Peter Boyle Urban Design + Landscape Architecture.	
For responsible authority	Angus McGuckian, Journeyman Planning.	
For referral authority	No appearance.	

Information
Description of proposal	Construction of three double storey dwellings, removal of trees, and buildings and works within proximity to trees.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Whitehorse Planning Scheme.	
Zone and overlays	Neighbourhood Residential Zone – Schedule 4 (NRZ4); Significant Landscape Overlay – Schedule 9 (SLO9); Special Building Overlay (SBO).	
Permit requirements	Clause 32.09-6: To construct two or more dwellings on a lot in the NRZ4.
Clause 42.03-2: To construct a building and construct and carry out works within 4 metres of trees protected under the provisions of the schedule, and to remove/destroy two trees in the SLO9.
Clause 44.05-2: To construct a building or to construct or carry out works (comprising a fence) in the SBO.	
Relevant scheme policies and provisions	Clauses 11, 12, 15, 16, 21.01, 21.02, 21.03, 21.05, 21.06, 22.03, 22.04, 32.09, 42.03, 44.05, 52.06, 65, and 71.	
Land description	The subject land is located on the southern side of Efron Street, approximately 120 metres east of the intersection with Springvale Road.  It has a frontage width to Efron Street of 15.24 metres.  The land is almost rectangular in shape, with one side boundary slightly longer than the other and an angled rear boundary.  The eastern side boundary is 62.92 metres, and the western side boundary is 65.44 metres.  The land is 978 square metres in area.  The land slopes approximately 10 metres downward from the street frontage to the rear (south).  The slope of the land is not consistent, with flatter sections that have been excavated or filled, and a steep slope at the rear.	
Land description
(continued)	The land is occupied by a detached house, on the front half of the land and a large bungalow/outbuilding on the rear half of the land.  The existing house presents as single storey towards the front, and double storey towards the rear, with the second level being set at the lower ground floor level.  Several trees and shrubs are located adjacent to the front and rear boundaries, and along the eastern side.
A 2.44 metre wide drainage easement extends across the rear portion of the land, adjacent to the rear boundary.  The rear boundary adjoins the Lindsay Avenue linear reserve, which extends from Springvale Road through to Lindsay Avenue, approximately 175 metres to the east.
The surrounding area is residential, predominantly consisting of single detached houses.  Multi-dwelling developments are not common in the immediate environs of Efron Street but are more common to the east of Lindsay Avenue and to the south of the linear reserve.
(See Figure 1).	
Tribunal inspection	Between the two hearing days, the Tribunal undertook an unaccompanied inspection of the subject land and surrounding area.	
Figure 1:  Subject land and surrounding context

  Reasons
What is this proceeding about?
1	JM Co Pty Ltd (applicant) is seeking a planning permit for ‘construction of three double storey dwellings, removal of trees, and buildings and works within proximity to trees’ (proposal) on the land at 12 Efron Street, Nunawading (subject land).
2	The proposed dwellings are arranged one behind the other down the length of the subject land, with unit 3 sited width-ways across the land.  Unit 1 faces and has pedestrian access from the Efron Street frontage.  Units 2 and 3 face a shared driveway (accessway) along the western portion of the land.  The driveway provides vehicle access to all three dwellings and pedestrian access to units 2 and 3 (See Figure 2).  All three dwellings comprise two storeys, with the second level of unit 3 being a lower level, below the ground floor level of the dwelling and the driveway.  All three dwellings comprise four bedrooms.
3	The Whitehorse City Council (Council) has refused to grant a permit for the proposal.  Its grounds of refusal related to, in summary, the proposal not meeting the mandatory ‘garden area’ requirement at clause 32.09-5 of the Whitehorse Planning Scheme (Scheme), neighbourhood character, landscape character, the proposal not meeting various objectives at clause 55 of the Scheme, and the proposal not meeting the design standard for driveway gradients at clause 52.06 of the Scheme.
4	The applicant has sought this review of the Council’s decision.  The grounds for review are, in summary, that the proposal is well designed, site-responsive and complies with the controls with negligible offsite impact, and all grounds of refusal will be contested.
5	Prior to the hearing the applicant gave notice of an application to amend the permit application by substituting amended plans for the permit application plans.  There being no objection from the Council, the amended plans were substituted for the permit application plans and it is on the amended plans that this decision is based.
6	As a result of the amended plans the Council no longer relies on its grounds of refusal relating to the mandatory garden area requirement, objectives at clause 55 of the Scheme relating to side and rear setbacks, private open spaces, and site services, and the proposal not meeting the design standard for driveway gradients.  However, the Council has raised new concerns that the amended proposal does not meet objectives at clause 55 regarding walls on a boundary, solar access to open space, and design detail.
Figure 2:  Proposed ground floor level layout

7	The Council submits that:
…the cumulation of zone, overlay and policy controls makes it clear that this area is intended for more moderate, character sensitive development. The proposed form, siting and overall design of the development is inconsistent with the existing and preferred pattern of development and neighbourhood character and the development has responded poorly to the topography of the site and in the provision of landscaping.
Overall, the development is not respectful of the neighbourhood character … 
8	The applicant submits that:
It would seem that the Council is searching for a perfect application.  The fact is that “perfect” is an absolute term which no one can achieve.  What the Council should look for is whether the proposal is acceptable in the context of the site, the area and the controls…
9	The applicant relies on the evidence of Peter Boyle, a landscape architect, in support of their submissions.
10	Three of the people who objected to the permit application have filed statements of grounds opposing the application.  Their grounds relate to removal of trees, the impact of the double storey building on the bushland setting of Lindsay Avenue linear reserve and overlooking/privacy.  Although they are not parties to this proceeding, I have had regard to their statements.
11	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  In doing so I must consider whether the proposal will produce ‘acceptable outcomes’ in relation to the relevant policies and provisions of the Scheme.
What are the key issues?
12	Based on the relevant policies and provisions of the Scheme and the submissions of the parties, I consider the key issues relate to:
•	whether the proposal provides an acceptable response to the site context and neighbourhood character?
•	whether the proposal provide an acceptable response to the landscape character?
•	whether the proposal provides an acceptable level of amenity for future residents?
13	Having considered the submissions, statements of grounds, evidence, and relevant policies and provisions of the Scheme, and having viewed the subject land and surrounding area, I have decided to affirm the decision of the responsible authority and direct that no planning permit be issued.  My reasons follow.
What is the relevant Planning and Site Context?
Planning context
Neighbourhood Residential Zone
14	The subject land is within the Neighbourhood Residential Zone – Schedule 4 (NRZ4).  The purpose of the NRZ4 includes:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
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.
15	Within the NRZ4, a development for two or more dwelling on a lot must meet the requirements of clause 55.  The NRZ4 schedule includes local variations to the clause 55 standards relating to minimum street setback, site coverage, permeability, landscaping, side and rear setbacks, walls on boundaries, private open space, and front fence height.
16	The NRZ4 schedule applies to ‘Informal Bush Suburban Areas’.  The schedule does not include neighbourhood character objectives but does include the following decision guidelines:
•	Whether the vegetation in the street setback will contribute to the preferred neighbourhood character and the public realm.
•	The potential for trees and vegetation to be provided between dwellings on the same site.
•	Whether there is sufficient permeable space that is not encumbered by an easement to enable the planting of canopy trees.
•	Development should provide for the retention and/or planting of trees, where these are part of the character of the neighbourhood.
17	The proposed development does not exceed the maximum building height for a dwelling within the NRZ of 9 metres and no more than 2 storeys.
Significant Landscape Overlay
18	The subject land is within the Significant Landscape Overlay – Schedule 9 (SLO9).  The schedule applies to ‘Neighbourhood Character Areas’, and has the following landscape character objectives to be achieved:
To retain and enhance the canopy tree cover of the Garden and Bush Suburban Neighbourhood Character Areas.
To encourage the retention of established and mature trees.
To provide for the planting of new and replacement canopy trees.
To ensure that development is compatible with the landscape character of the area.
19	Under the SLO9 a planning permit is only required for the proposal to build within 4 metres of and to remove two trees that are protected under the provisions of the schedule.  These are a Red Spotted/Brittle gum and a Cherry plum (trees number 2 and 5 on the plans respectively).  The Council does not oppose the removal of these trees.  
20	The SLO9 includes a Statement of nature and key elements of landscape, which includes the following:
The Bush Suburban Neighbourhood Character Area generally has a mix of formal and informal streetscapes with wide nature strips and streets are dominated by vegetation with buildings partially hidden behind tall trees and established planting. …
[Emphasis added].
21	The SLO9 includes Decision guidelines, to which I have had regard.
Special Building Overlay
22	The Special Building Overlay (SBO) applies to very small areas of the subject land at its south-eastern and south-western corners.  A planning permit is required to construct that part of the proposed new fence along the eastern side boundary of the land that is within the SBO area.  The key issues in dispute do not relate to the SBO.
Planning policies and provisions
23	Various policies and provisions of the Scheme seek to ensure development responds to its context and neighbourhood character.  These include clauses 15 (Built environment and heritage), the purpose of the NRZ5, and the neighbourhood character objectives and Standard B1 at Clause 55.02-1.
24	The local Municipal Strategic Statement and various local planning policies place considerable focus on landscape character, canopy trees and other vegetation as being valued and a significant determinant of neighbourhood character.  For example, the local Housing statement at clause 21.06 identifies that:
…Trees and vegetation are considered one of the most significant determinants of neighbourhood character in the municipality, and therefore tree preservation and regeneration is of vital importance if the character of residential areas is to be maintained and enhanced…
25	Under the local Housing statement, the subject land is in a ‘Limited Change Area’, the objectives for which are:
•	Conserve and enhance those elements which contribute to the valued environmental, heritage and neighbourhood character of the place.
•	Ensure new development protects and reinforces the environmental, heritage values and / or preferred future neighbourhood character of the area.
•	Ensure new development mainly takes the form of renovations to existing houses, replacement of single dwellings with new dwellings and some limited medium density development.
[Emphasis added].
26	The Residential Development policy at clause 22.03, seeks:
•	To ensure that residential development within the City of Whitehorse is consistent with the built form envisaged for the three categories of housing change, those being limited, natural and substantial change.
•	To ensure development contributes to the preferred neighbourhood character where specified. …
[Emphasis added].
27	Under this policy, the strategies for Limited Change Areas include:
•	Ensure residential development is of a scale, form and character that is consistent with the surrounding area, and will predominantly comprise:
˗	Detached dwellings
˗	Semi-detached dwellings
•	Provide some diversity of dwelling sizes and tenures, including affordable housing, where feasible.
•	Ensure the scale and appearance of new housing respects the appearance of surrounding development and the environmental, heritage and neighbourhood character values of the area. …
[Emphasis added].
28	The subject land is in a ‘Bush Suburban 5’ character precinct.  The preferred character statement for this precinct is:
Modest, low scale dwellings sit within well-established garden settings, including substantial native shrubs and tall canopy trees. Generous sized front and side setbacks will be maintained, allowing sufficient space for the continued planting and growth of new vegetation. The spaciousness of the area will be further complemented by the absence of front fencing, or low open style front fences, allowing views into front gardens. Properties abutting and close to parklands and the Koonung Creek Trail will reflect and contribute to the landscape character of the creek corridor, incorporating large canopy trees and native vegetation. Street trees further contribute to the vegetation dominated character of the area.
[Emphasis added].
29	In addition to applying the preferred character statement specified in clause 22.03-5, the Residential Development policy also requires the relevant precinct guidelines within the Whitehorse Neighbourhood Character Study 2014 to be applied.  I have had regard to the precinct guidelines in reaching my decision.
30	The Tree Conservation policy at clause 22.04 seeks:
•	To improve the tree canopy cover in residential areas across the municipality.
•	To protect and strengthen the preferred neighbourhood character of residential areas within the municipality.
•	To recognise the positive contribution of tree canopy to development and built form outcomes. …
[Emphasis added].
31	The policies for tree replanting include:
•	New upper canopy trees be planted and significant trees that are unable to be retained be replaced to ensure that the treed canopy of the City is maintained in the long term.
•	New trees have sufficient space and separation from buildings and impervious areas to successfully obtain their optimum height, avoid any damage to property in the future and to minimise competition from other tree canopies. …
[Emphasis added].
Physical context
32	The properties on the northern side of Efron Street are at a higher elevation than those on the southern side.  The front fence lines are typically formed by retaining walls, beyond which the land slopes further upwards.  The houses typically present as single storey, often with floor levels elevated above natural ground level, some with garages set underneath.
33	The properties on the southern side of Efron Street are typically large lots of similar size to the subject land, each with a single, detached house sited on the front (north) part of each lot.  The dwellings are a mix of single and double storeys, often with the second level comprising a lower level under the rear part of house, taking advantage of the slope of the land down to the rear.  Along their rear interface to the Lindsay Avenue linear reserve, properties are typically free of buildings, including outbuildings.  Varied landscaping, comprising a mix of trees and shrubs, is typically in the front setbacks, and along the side property boundaries.
34	The land adjoining the subject land to the west, at 10 and 8 Efron Street, have their rear fences set well back from their rear boundaries to the linear reserve.  From those fence lines these lots slope steeply down to the reserve and are planted with trees and shrubs.  This results in the rear portions of those lots appearing to form part of the reserve.  Along the boundary of number 10 and the subject land, the land slopes steeply down across the rear of number 10 from the high point on the subject land.
35	The adjoining land to the east, 14-16 Efron Street, has a planning permit that allows the construction of eight, double storey dwellings on that land.  The permitted development includes two, double storey dwellings with setbacks from the rear boundary to the linear reserve ranging from 2.48 metres to 3.44 metres.  Development in accordance with that permit has not yet commenced.
36	The Lindsay Avenue linear reserve varies in width and features a gravel path winding through undulating lawn with canopy trees and shrubs planted along the sides.  Dwellings on properties on the northern side of the reserve (those with frontage to Efron Street) are not readily visible from within the reserve due to the setbacks of dwellings from the rear boundary and the buildings typically being screened from view by trees and shrubs.  Along the southern side of the reserve dwellings (those with frontage to Beryl Street and Lindsay Avenue) are more visible as they are set closer to their boundary with the reserve, and the path through the reserve is set closer to the boundaries of those properties.
What are the Tribunal’s findings?
The amended application plans do not assist the assessment of the proposal
37	Before addressing my findings on the merits of this application it is important to point out that neither the Tribunal nor the parties have been assisted by the amended application plans.  There are various issues with these plans that have made understanding the site context and the proposal more difficult than it should be.  These include the following:
i	I agree with the Council’s submissions that the plans do not give a true understanding of the existing topography, nor do they provide sufficient detail to provide a clear understanding of how the site will need to be modified (cut and filled) to accommodate the proposed development.  While there are various indications on various plans that there are to be level changes, cut, fill, and new retaining walls, not all of these are annotated and there are inconsistencies across the layout plans and elevation plans in regard to these aspects.
ii	The plans do not provide a correct depiction of the existing site context in relation to the land at 14-16 Efron Street.  While the plans purport to show the permitted development on those properties, that development has not yet commenced.  As such, there is no certainty that the permitted development will proceed.  The plans should show the existing site context, or otherwise both the existing site context and the permitted development.  Furthermore, the plans show an earlier version of the permitted development, not the current approved development.
iii	The plans include inaccuracies.  For example:
o	The roof form of unit 3 is shown to include a gable end along its eastern side in proposed internal elevation C-C, however the roof plan shown in the First Floor Plan drawing (TP-29007/103) show a hipped roof.
o	The annotated finished floor levels on the layout plans show the unit 2 garage floor to be above that of the interior of the dwelling.  The finished floor level of the patio of the lower level of unit 3 is shown to be above that the interior of that dwelling.  The elevation plans depict the opposite.
o	Some retaining walls shown on layout plans are not shown on elevation plans, and vice versa.
iv	The plans do not include clear or relevant information to assist in assessing the proposal against the policies and provisions of the Scheme.  For example:
o	The plans do not label the reference points for various height measurements, so it is unclear whether the heights are measured from natural ground level, or a proposed modified (cut or filled) ground level.
o	The plans do not include dimensioned heights of walls to the north of the secluded private open space of units 2 and 3.
38	I accept that some of these may be minor matters, that can be worked around by scaling from the plans or could be addressed through minor amendments to the plans.  However, given the range of issues with the plans it raises questions about their accuracy, and whether there may be other issues and inaccuracies not identified by the Tribunal or the Council.  
39	In reaching my determination, in addition to the amended application plans, I have relied on the written and oral submissions of the parties that clarify some aspects of the plans, scaling from the plans, and the additional plan providing the south elevation of unit 2 provided by the applicant prior to the second hearing day.
40	Any future application should ensure that the plans are accurate and provide sufficient detail to provide a clear understanding of the topography, cut and fill and how the proposed dwellings will sit relative to the surrounding land and development.
The proposal does not provide an acceptable response to the site context and neighbourhood character
41	The applicant submits that neighbourhood character is “the usual ‘trump card’ of local Councils when no specific grounds could be found to reject otherwise acceptable proposals”.  The applicant cites various decisions of the Victorian Civil and Administrative Tribunal and former planning review tribunals and boards in support of its submissions regarding the relevance and weight to be attributed to neighbourhood character, to which I have had regard.   It submits that the preferred character statement for the Bush Suburban 5 character precinct is “more like a description of what the area is like”, and was based on a study prepared in 2014, and that many things have evolved and changed.  The applicant says that the Council’s refusal based on neighbourhood character is inept.  It argues that the Council’s attitude on neighbourhood character on similar land and similar architectural design was tested before and dismissed by the Tribunal in the “One Studio Melbourne” case  on the adjoining land to the east (14-16 Efron street), which permitted construction of seven, double storey dwellings.
42	The starting point for consideration of neighbourhood character is the NRZ4 objective ‘To manage and ensure that development respects the identified neighbourhood character…’.  Respecting character does not mean preventing change; rather, respect for the character of a neighbourhood means that the development should try to ‘fit in’. 
43	In the absence of there being neighbourhood character objectives to be achieved set out in the NRZ4 schedule, the preferred character statement for the Bush Suburban 5 character precinct at clause 22.03 provides the primary reference for the ‘identified neighbourhood character’, while having regard to the existing context.  The NRZ4 and the Bush Suburban 5 character statement clearly set out an expectation for landscaping, including tall canopy trees, to be a key element of the neighbourhood character.
44	I am not persuaded by the applicant’s arguments that the preferred character statement is simply more like a description of what the area is like, and that many things have evolved and changed since the neighbourhood character study was prepared.  It is clear from the planning framework that applies to the subject land that this area is expected to experience limited change, and the NRZ4 provisions, local Residential Development policy, and preferred character statement set the expectation for the outcome of new development.  It is also apparent that the immediate neighbourhood around the subject land has experienced little change, with many properties retaining their original, single detached houses, and varied landscaping and canopy trees.
45	In principle, I am satisfied that a development of three, double storey dwellings could ‘fit in’ to the neighbourhood character context of the subject land.  This is particularly so when having regard to the permitted development of eight double storey dwellings on 14-16 Efron Street.  That permitted development provides a similar layout with double storey dwellings arranged down the length of the land and with a similar setback from the rear boundary with the linear reserve.
46	However, having regard to preferred character statement, and the associated precinct guidelines, I am not satisfied that the proposal in this proceeding will provide an acceptable response to the neighbourhood character, or the Residential Development policy at clause 22.03.  I say this for the following reasons:
i	I am not satisfied that the siting and design of unit 3 provides the ‘modest, low scale dwellings sit(ing) within well-established garden settings’ sought.  Rather, unit 3 will present a substantial building mass in close proximity to the rear boundary with the linear reserve.  The mass and visual impact of the form of unit 3 will be accentuated by:
o	sheer, two storey wall planes, along the southern rear and western side elevations; 
o	the western side wall of unit 3 being built along that part of the side boundary with number 10 Efron Street is open to the linear reserve; this wall is up to approximately 4.4 metres high above the existing boundary contour at its closest point to the linear reserve.
ii	As a result of these siting and design elements, the proposed unit 3 will be visually dominant when viewed from within the sensitive landscape area along the linear reserve, rather than contributing to the landscape character of that parkland.
iii	The siting of the dwellings and driveway on the land does not provide generous sized side setbacks to allow sufficient space for the continued planting and growth of new vegetation.  (I make further comment on the proposed landscaping and landscape character below).
iv	The detailed design of this proposal can be distinguished from the permitted development at 14-16 Efron Street.  In that permitted development the walls of the rear units are set back from the side boundaries a greater distance than in this proposal, the units at the rear do not extend to or along the side boundaries, and the upper floor levels of the rear units are set back from their respective ground floor levels below so that they do not present sheer walls.
47	For these same reasons I am not satisfied that the proposal is consistent with the strategy for Limited Change Areas at clause 22.03 that seeks to ‘ensure the scale and appearance of new housing respects the appearance of surrounding development and the environmental, heritage and neighbourhood character values of the area’.
The proposal does not provide an acceptable response to the landscape character
48	The applicant submits that the main objective of the SLO is to try to retain or conserve trees, and in this regard the Council’s arborist has no issue with the insignificant and diseased trees on site so there is no issue regarding tree retention.  It says the second objective is to provide for the planning of new and replacement trees, and that Mr Boyle has done an admirable job with providing 35 trees, 32 large to medium shrubs and 237 low growing and tufting plants.
49	I accept that the landscape plan prepared by Peter Boyle provides a well-considered landscape design for the proposal incorporating a range of canopy trees and shrubs across the land.
50	Based on Mr Boyle’s evidence and landscape plan, I am also satisfied that the proposal provides adequate space within the front setback for offset planting of trees and other landscaping that can grow to a mature height similar to the Red Spotted / Brittle Gum tree that is to be removed.  The loss of this tree is unfortunate, given its attractive canopy and the significant visual impact it has within Efron Street.  However, I am persuaded by Mr Boyle’s affirmation of the arboricultural assessment that formed part of the permit application, that the tree has a fungal infection that compromises its health and structural integrity, and that the tree will have to be removed.
51	Mr Boyle’s landscape plan proposes four new trees (three Yellow Gums and one Dwarf Lemon Scented Gum) and other understory planting within the front setback.  Subject to at least one of these trees being replaced with a tree that will have a mature height of 12 metres or more, similar to the height of the tree to be removed, I am satisfied the replacement tree planting within the front setback will achieve an outcome that reflects a streetscape presentation ‘dominated by vegetation with buildings partially hidden behind tall trees and established planting’,  consistent with the Statement of nature and key elements of landscape of the SLO9.
52	Despite these findings, I am not satisfied that the spaces available across the remainder of the subject land allow for landscaping consistent with the expectations in the preferred character statement, the SLO9, or the landscaping standard B13 at clause 55.03-8, as varied by the NRZ4 schedule.
53	As I have already mentioned, the proposal does not provide generous side setbacks to allow sufficient space for the continued planting and growth of new vegetation.  The area available for landscaping along the eastern side boundary ranges between 2.0 metres and up to 5.0 metres.  Much of the narrower side setback areas are set aside as service yards (accommodating sheds, water tanks, clotheslines, and bin storage), pedestrian access, steps and retaining walls.  Along the western side boundary, the landscaping strip along the side of the driveway is only 0.65 metres wide.  Most of the side setback areas are inconsistent with the performance standards for tree replanting at clause 22.04-4.  The performance standards seek for trees to be separated from a building by a minimum distance of 3 metres and situated in a minimum area of 35 square metres of open ground with a minimum dimension of 5 metres that is free of buildings and impervious surfaces and of other tree canopies.
54	While these setbacks do allow for some landscaping, including trees as evidenced by Mr Boyle’s landscape plan, I am not satisfied the setbacks provide sufficient space for the landscaping sought by the local variation to standard B13 under the NRZ4 schedule.  That local variation requires the following:
Provision of at least two canopy trees per dwelling that have the potential of reaching a minimum mature height of 12 metres. At least one of those trees should be in the secluded private open space of the dwelling. The species of canopy trees should be native, preferably indigenous.
[Emphasis added].
55	While Mr Boyle’s landscape plan provides 19 canopy trees, which is well in excess of the six canopy trees required, the proposed trees have maximum heights of only 8 metres.  Mr Boyle’s plan does not include any trees with a maximum height of 12 metres as required by the location variation to standard B13.
56	I accept that the proposed trees will contribute to increasing the tree canopy on the land and contribute to the landscape character of the surrounding area.  However, having regard to the trees’ maximum height of 8 metres, the height of the proposed buildings and slope of the land, I am not satisfied the proposed trees will support an outcome where the development will present as ‘modest, low scale dwellings (siting) within well-established garden settings’ as sought for this area under the preferred character statement.
57	Along the western side boundary, the landscape plan proposes upright crab apple trees.  I do not take issues with the proposal to plant upright trees along this boundary, as much of the boundary and proposed planting is alongside the existing dwelling on the adjoining property where there is currently no landscaping on either side of the boundary fence.  However, I consider that there should be a larger canopy tree where the proposal interfaces with the open rear yard of that adjoining property and the area that interfaces with the linear reserve to the rear.
58	In response to questions put by the Council, Mr Boyle stated that the subject land is a constrained site, and agreed that the only unconstrained area that could contain 12 metre high trees is the front yard (setback) of unit 1.
59	While planting taller trees in the front setback could be required by a permit condition and may be an acceptable outcome in many settings, in the context of the planning policies and provisions that apply to the subject land, and where this land has an interface to the linear reserve to the rear, I consider this an unacceptable landscape response.  Given the policies and provisions regarding the landscape character outcome sought, and the large size of the subject land, I find that the design response should provide for planting of taller trees in other locations across the site, and particularly adjacent to the rear boundary interface with the linear reserve.
60	Based on Mr Boyle’s evidence, I am not satisfied that the issue with the height of the proposed trees can be simply resolved through a permit condition requiring taller trees, other than within the front setback area.  Based on Mr Boyle’s evidence, space that is less constrained by buildings is required to enable the provision of trees with heights in the order of 12 metres.
61	By comparison, I note that in the permitted development at 14-16 Efron Street most of the side boundary setbacks are at least 3.0 metres and up to or in excess of 5.0 metres.
The proposal does not provide an acceptable level of amenity for future residents
Dwelling entry & safety
62	The siting and design of the development does not provide for the safety and security of residents and property as sought by the Safety objective at clause 55.03-7.  The proposal does not comply with the associated standard B10 that seeks the following:
Developments should be designed to provide good lighting, visibility and surveillance of car parks and internal accessways.
63	None of the windows at ground level along the western side of the dwellings, facing the vehicle and pedestrian accessway, have clear glazing to provide opportunities for visibility and surveillance of the accessway.  At the upper levels of units 1 and 2 the clear glazed windows are either highlight windows or the window to a stairwell, and also do not provide opportunities for visibility and surveillance.
64	This issue cannot be readily resolved through changing the obscure glazed windows to clear glazed windows due to the proximity of the ground floor level windows to the driveway, being only 0.5 metres, and the need to provide a degree of privacy and internal amenity for these dwellings.
Impacts on internal amenity due to proximity to driveway
65	The siting and design of the proposed dwellings places the habitable room windows of units 1 and 2 in very close proximity to driveway.  The living room and ground floor level bedroom of unit 1, and the dining room and kitchen of unit 2 all have west facing windows set at 0.5 metres from the eastern edge of the driveway.
66	This does not comply with standard B15 at clause 55.03-10 (Parking Location objectives) which seeks the following to protect residents from vehicular noise within developments:
Shared accessways or car parks of other dwellings and residential buildings should be located at least 1.5 metres from the windows of habitable rooms. This setback may be reduced to 1 metre where there is a fence at least 1.5 metres high or where window sills are at least 1.4 metres above the accessway.
[Emphasis added]
67	Although the west facing window to the living room of unit 1 could be deleted, as it also has a north facing window, there are no alternative windows or opportunities for windows for the ground floor level bedroom of unit 1 or the dining room and kitchen of unit 2.  These rooms rely on the west facing windows as their primary source of light and ventilation.
68	Converting these windows to ‘highlight’ windows, with sill heights of 1.7 metres or more above the internal floor levels, will not resolve the issue as they will still not comply with standard B15 as they are set back from the accessway only 0.5 metres.
Private open space amenity
69	While the siting and layout of the proposed dwellings has achieved a northern orientation for their respective areas of ‘secluded private open space’ (SPOS), I find that the proposal will result in a poor amenity for the SPOS area of unit 2.
70	I am not satisfied that the SPOS of unit 2 is consistent with the Solar access to open space objective at clause 55.05-5, which seeks:
To allow solar access into the secluded private open space of new dwellings and residential buildings.
71	The proposal does not comply with the associated standard B29, which requires:
The southern boundary of secluded private open space should be set back from any wall on the north of the space at least (2 + 0.9h) metres, where ‘h’ is the height of the wall.
72	The southern wall of the garage of unit 1, which forms the northern wall of the courtyard SPOS of unit 2 will be approximately 5 metres high as measured from the finished ground level of the courtyard.  The approximately 5 metre width of the SPOS is 1.5 metres less than what is required by standard B29.
73	The amenity of this SPOS will be further impacted by the combination of the height of the retaining wall and fence above along the western side of the SPOS, the height of which ranges between 3.0 – 3.5 metres.
74	I consider the heights of the walls to the north and west will visually enclose the courtyard space and result in excessive overshadowing of the space.
Impacts on amenity due to layout of unit 3
75	I am not satisfied that the internal layout of unit 3 provides an acceptable amenity.  Unit 3 has only one living room, which has dimensions of only 3.2 metres by 3.0 metres (or 3.2 metres by 4.7 metres including the hallway space).  Proportional to the size of the dwelling, comprising four bedrooms, the living space is very small.  By comparison, the living area is a similar size to two of the bedrooms and smaller than two of the bedrooms.
76	At the lower level of unit 3, there is an external patio area of open space that is not directly accessible from an internal living room.  There is no living room on the lower level, and the patio is accessed from a single door off a corridor.
77	While I do not rely on these matters as a reason to refuse the application, they are indicative of a poorly conceived design response.
78	I note that there is an opportunity to redesign the internal layout of unit 3 to improve the amount of internal living space proportional to the size of household the dwelling could accommodate.  These opportunities include removing the bedroom (and associated ensuite bathroom) from the ground floor level and incorporating that space into a larger living space, and/or converting either bedroom 3 or 4 on the lower level to a living room by opening it up to the corridor space, which would also provide direct access to the patio from that newly created living room.  Had I determined to grant a permit for the proposal I would have required such amendments to the plans through a permit condition.
Are there any other issues?
79	In addition to the issues with the plans that I have detailed above, I also note that there are some practical layout issues associated with the placement of services and facilities due to the slope of land and the location of steps and retaining walls.  Any future proposal should consider how services and facilities locations such as storage sheds and bin storage can be located where they can be conveniently accessed from the dwellings and/or garages and without the need to traverse steps, which is impractical and inconvenient when moving bins and bulky items.
Conclusion
80	There is potential for the subject land to be redeveloped with a multi-dwelling development.  However, it is the detailed design of this proposal that results in it not providing an acceptable design response to the policies and provisions of the Scheme.
81	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Sarah McDonald
Member