VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P481/2022
Permit Application no.KP-2021/694 	
CATCHWORDS	
Three three-storey townhouses; General Residential Zone; Incremental Change Area; neighbourhood character; streetscape; visual bulk.	

Applicant	Amir Khalil	

Responsible Authority	Kingston City Council	

SUBJECT LAND	1 Albenca Street
MENTONE VIC 3194	

HEARING TYPE	Hearing	

DATE OF HEARING	23 January 2023	

DATE OF ORDER	15 February 2023	

CITATION	Khalil v Kingston CC [2023] VCAT 147	

Order
1	In application P481/2022 the decision of the responsible authority is affirmed.
2	In planning permit application KP-2021/694 no permit is granted.

Michael Nelthorpe
Member			

Appearances
For Mr Khalil	Mr Khalil.	
For Kingston City Council	Mr Gareth Gale, town planner of Gareth Gale Town Planning and Advocacy	
Information
Description of proposal	Three triple-storey dwellings with basement car parking.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Kingston Planning Scheme	
Zone and overlays	General Residential Zone Schedule 3	
Permit requirement	Clause 32.08-4:  to construct two or more dwellings on a lot.	
Relevant scheme policies and provisions	Clauses 2, 15, 16, 32.08, 55, 65 & 71.02.	
Land description	This rectangular site is on the west side of Albenca Street.  It has a 20.12m frontage, a 40.23m depth and an area of 809m2.  A single-storey dwelling occupies the site.  The site falls approximately 1m from front to rear.	
Tribunal inspection	18 January 2023   	

  Reasons
What is this proceeding about?
1	Amir Khalil seeks a permit to construct three attached three-storey townhouses at 1 Albenca Street, Mentone for members of his family.  Mr Khalil accepts that this is not a relevant planning consideration.  Mr Khalil is not a professional advocate or town planner.  He relies on a submission prepared by his architect who was responsible for managing the permit application process.
2	Kingston City Council (‘the Council’) refused to grant a permit.  It says that the proposal is an inappropriate response to local policy expectations and the character of the area.  It advises that the site is in an area where incremental housing change is expected.
3	Mr Khalil questions the validity of the Council’s grounds.  
4	He says that the site’s location has the characteristics of an increased housing diversity area as it is close to shops and public transport.  He encourages me to seriously entertain the Council’s recent Housing Strategy as it has been in gestation for more than five years.  He says that it envisages three-storey dwellings of a maximum 11m height for the area containing the site.
5	He believes that I should proceed with caution on the issues of neighbourhood character and visual bulk because these are subjective matters.  He notes that the proposal complies with the Zone’s maximum height and with Clause 55’s side and rear setback envelope.
What are the key issues?
6	The key issues are:
•	Is the proposal an appropriate response to its strategic and physical context?
•	Is the proposal an acceptable response to the neighbourhood’s character?
•	Are the off-site amenity impacts acceptable?
Summary of findings
7	I find that the proposal is predicated on policy support for increased housing densities in this location.  This is not what the Planning Scheme currently calls for, and it is not certain that any future policies will promote the proposed design response.
8	This is a fatal flaw in Mr Khalil’s approach.  It has led to a design response that does not contribute positively to the neighbourhood’s preferred character as outlined by the Planning Scheme’s existing policies, and it is uncertain as to whether it will positively contribute to any future preferred character.  I have decided to affirm the Council’s decision.  No permit will issue.
the site and surrounds

Figure 1:  The site’s location.
9	The site is in a residential area north-east of Warrigal Road and Nepean Highway, Mentone.  The area appears to have been developed in the 1940s or thereabouts.  Much of its original single-storey housing stock remains.  Infill development has occurred.  Three two-storey townhouses are located south of the site and a two-storey development is on the opposite of the street.  A cluster of three-storey townhouses is found nearby on Savona Street.
10	The Thrift Park Shopping Centre is on the opposite side of Nepean Highway and the Mentone Activity Centre and Railway Station are nearby to the south-west.
the proposal 

Figure 2: The proposal’s elevations.
11	3 three-storey attached townhouses are proposed for the site.  
12	The western elevation (top right of image) shows the proposal’s rear elevation and the private open space along the northern boundary.  This open space is above the basement despite this detail not being shown on the image.  It also shows the curved third level wall/roof on the proposal’s south side.
13	The northern elevation (top left of the image) shows the deep front setback, including the 2m high fence located 3m from the front boundary, and the 1.5m gaps between the third levels of the townhouses.
14	The southern elevation (bottom right of the image) shows the pedestrian entrances to the townhouses that are accessed from a shared pathway along the south boundary.
15	The eastern elevation (bottom left of the image) shows the front façade with its stepped or shaped form at the second and third levels.  It also shows that the proposal is located centrally on the site, with the pedestrian entry to the south and the basement ramp to the north.
16	Internally, each townhouse is well appointed with living areas on the ground floor (Level 1), three bedrooms and amenities on the first floor (Level 2), and a master bedroom/parents’ retreat and south-facing balcony at the second floor (Level 3).  Each townhouse has a lift that provides access from the basement.
17	Landscaping is proposed through deep soil planting in the first 2.5m of the frontage and along the south boundary.  A feature tree either in a 1m deep planter box or in prepared soil above the basement is proposed in each of the north-facing courtyards.

Figure 3:  The proposal’s ground floor layout.
Is the proposal an appropriate response to its strategic and physical context? 
The strategic context
18	Mr Khalil and the Council have a difference of opinion regarding the locality’s strategic context.  
19	Mr Khalil says that the locality has the characteristics of an Increased Housing Diversity Area, while the Council says that local housing policy locates the site in an Incremental Housing Change Area.
20	Mr Khalil’s submission on the strategic context is in two parts:
a	There is incompatibility between the definition of Increased Housing Diversity in Clause 22.06-1 and the designation of the site in an Incremental Housing Change Area in Clause 21.01-4; and
b	The Council’s adopted Housing Strategy identifies the locality containing the site as being in an Increased Change Housing Area.
21	In response, the Council says that:
a	The site is in an Incremental Housing Change Area as shown on the Residential Land Use Framework Plan at Clause 16.01-1L; and
b	The Housing Strategy has little weight because significant uncertainty exists regarding its translation into future Planning Scheme provisions.
22	I am not greatly assisted by Mr Khalil’s first submission.  The Council chose to place the area containing the site in an Incremental Housing Change Area and that designation remains in place.  It creates an expectation amongst community members of the change that is envisaged, and this must carry some weight.
23	I am more assisted by Mr Khalil’s second submission.  The Housing Strategy expresses the Council’s current housing and character intentions whereas the previous Residential Strategy and Neighbourhood Character Guidelines are very dated.  Mr Khalil tendered the Tribunal decision in Bot v Kingston, which made findings about the interplay between the existing planning policies and the recent Housing Strategy.  
24	Relevantly, the Tribunal said:
[18]	It is appropriate that I have regard to the recommendations of this latest housing strategy given its adopted status and the fact that the existing policies in the Planning Scheme are so dated and do not reflect neighbourhood character as it has evolved, or the more recent Planning Scheme provisions.  It would seem counter-productive, if not nonsensical, to ignore Council’s latest adopted housing strategy and instead rely on documents nearly 20 years old.
[19]	Given the support for redevelopment of the site, the fundamental issue concerns the design response and whether, as concluded by Council, the proposal fails to achieve an appropriate built form outcome for this site.
25	On this basis, Mr Khalil asks me to ignore the existing Planning Scheme policies and rely solely on the recent Housing Strategy.  
26	I will not do that.  The Tribunal in Bot says it will ‘have regard’ to the Housing Strategy’s recommendations rather than rely on them exclusively.
27	I give weight to the Council’s submission that the final form of the Housing Strategy’s recommendations is uncertain.  In March, an independent Planning Panel will hear submissions regarding the Strategy and will report its findings to the Minister for Planning.  The Council will then consider the Panel’s report and advise the Minister of its final position.  If it decides to proceed with the implementation of the Strategy, the Minister for Planning will decide on its final form.
28	Given that these steps must occur, I find that it would be reckless to rely solely on the Housing Strategy’s current recommendations.  Rather, I will follow the Tribunal’s decision in Bot, which is to acknowledge that:
a	there is support for the redevelopment of the site; 
b	the existing planning policies do not carry much weight; and
c	the fundamental issue is whether the design response is appropriate for the site.
29	In effect, this is a first principles assessment where a balance must be struck between planning policy’s broad support for additional housing and the proposal’s response to the neighbourhood’s character.
30	The issue of balance is a matter of degree.  One could readily expect two-storey development on the site given that it has occurred nearby.  Three-storey development is less certain and really depends on the design response.
The physical context
31	The site’s physical context is a relevant factor in this assessment.
32	Mr Khalil emphasises the site’s proximity to the Mentone activity centre and railway station and the Thrift Park Shopping Centre.  He highlights the two-storey townhouses immediately to the south and east, and some three-storey development nearby.  He notes that the townhouses opposite the site have a similar height to the proposal.
33	The Council highlights the single dwellings with open rear yards to the north and west of the site.  It says that the two-storey townhouses to the south are on a corner site with a main road frontage, and that the two-storey townhouses to the east (opposite the site) have a highly articulated form with only the roof ridge of their pitched roofs being as high as the proposal.
34	I find that all these factors are relevant.  They suggest that the neighbouring properties to the north and west are sensitive to the proposed three-storey height.
35	Separately, I find that the value of the site’s proximity to the activity nodes is reduced by the significant barriers of the main roads.  Ideally, increased housing densities are encouraged where walking is convenient and reasonably pleasant.  I am not persuaded that crossing these main roads on foot falls into this category.  I can envisage commuters walking to the station but believe that shopping on foot would be done by necessity rather than by choice.
Is the proposal an acceptable response to the neighbourhood’s character?
The Council’s submissions
36	The Council contends that the proposal is overly aggressive in its presentation to the street and its neighbours.  It says that the proposal’s presentation to the street is not respectful because:
a	The three-storey scale fails to successfully mediate between the two-storey and one-storey developments on adjoining sites;
b	The lack of articulation on the front façade, the lack of a meaningful third level setback, and its front setback, which is forward of its northern neighbour, makes the proposal prominent in the streetscape; and
c	The 2m high brick fence enclosing the front yard of Townhouse 1 obscures the front façade and garden space of that dwelling to the detriment of the streetscape.
37	Regarding the proposal’s presentation to its neighbours, it says that:
a	Its attached form at the ground and first floors creates a continuous mass down the length of the site which is not alleviated by the small recesses on these levels;
b	The 1.6m gaps between the townhouses at the second floor are too narrow to allow appreciable visual relief;
c	The ground to first floor ratio of 89% is inconsistent with the more recessed form of nearby development, while the first to second floor ratio of 74% is at odds with the one and two-storey streetscape character;
d	The northern elevation, which faces a single-storey neighbour is relatively austere, as is the rear elevation; and
e	The rear setback of 1.75m to the first floor and 3.76m to the second floor is insufficient given the mass of Townhouse 3.
38	Regarding issues of design, it says that the orientation of the entry areas along the southern side of the site is not typical of the street.
39	Regarding landscaping, the Council says that:
a	Limited space is available given that the basement occupies approximately 80% of the site;
b	The 700mm depth of soil over the basement is insufficient for appropriate anchorage and structural support for full-grown trees;
c	Even with an adequate depth (750mm to 1.25m), only small trees could be planted in this area and they would not effectively break up the building mass;
d	The 2.5m width of deep soil at the frontage cannot sustain large canopy trees; and
e	All bar one proposed canopy trees are within 0.5m of proposed structures thus their growth is likely to be compromised.
Mr Khalil’s submissions
40	Mr Khalil says that the proposal has responded to the existing and evolving character through a high standard of architecture and innovate design including articulated roofing (curved in part), modulated building form and a lack of unnecessary repetition of elements and forms.
41	He says the design was refined in response to the Council’s concerns by:
a	Increasing the second-floor northern setback by 2m;
b	Proposing a 1.6m gap between the townhouses at the second floor;
c	Proposing grey-coloured reflective glazing at the second floor on the north elevation to reflect the sky in most weather conditions;
d	Progressively increasing the rear setback to diminish the impact on the neighbour to the rear;
e	Re-shaping the stairwell towers on the southern elevation so that it fits under the curved roof form; and
f	Increasing the second-floor setback at the front façade by 800mm so that it will be a recessive element.
42	He suggests that these changes make the third level appear more like an attic than a storey.  He submits that I should consider the screening effect of large street trees in front of the northern and southern neighbours and in one of the neighbours’ rear yards.
43	Finally, he notes that the proposal will appear as one dwelling in the streetscape and that the use of a basement significantly reduces the impact of car parking associated with the site.
44	He says that the 2m fence in the frontage is intended to provide security for future residents, including young children, but can be reduced in height if I find it is fatal to the proposal.
45	Regarding landscaping, he submits that:
a	The use of bored piers in the basement will limit any adverse impact on the sole neighbouring tree on the boundary (to the north);
b	The 10 canopy trees proposed for the site exceeds the number required under the Council’s policies; and 
c	Appropriate species can be chosen to suit the spaces and soil volumes that are available.
46	More generally, he notes that the ResCode standard for side and rear boundaries setback is largely met, as are the varied ResCode standards for front setbacks and maximum building height.
My findings
47	The compliance with the standards mentioned above gives weight to Mr Khalil’s submission that the mass of the proposal is acceptable in neighbourhood character terms.
48	However, ResCode is a multi-faceted guideline that requires attention to matters such as integration with the street, design detail and landscaping and amenity issues such as visual bulk in addition to overall massing.
49	In this instance, I find that the proposal has paid insufficient attention to these matters, and that this is a fatal flaw.
50	Regarding integration to the street, the neighbourhood has not been redeveloped to any substantial degree thus single storey, pitched roofed dwellings with open front yards and private rear yards is still a strong neighbourhood characteristic.  It must be given some regard given that the preferred character seeks new development that incrementally adds to this characteristic.
51	The redevelopment that has occurred has been guided by local policy for Incremental Change Areas thus is generally two storeys in scale with the front dwelling facing the street.  
52	The proposal departs from this typology by presenting the side wall of Townhouse 1 to the street and by enclosing its front yard with a 2m high brick fence.  This departs from the preferred character and offers little in return.  There is good reason to suggest that Townhouse 1 should face the street given that this is the consistent pattern in the neighbourhood.
53	Apart from this, the front façade has a considerable mass relative to its neighbours.  I am not persuaded that the marginal recessing of the first and second floors or the coherent use of architectural details alleviates this.  
54	Separately, I consider that the second floor looks like a storey rather than an attic.  It is marginally recessed from the floors below and is not a small space.  In this regard, the changes to the plans in response to the Council’s concerns makes little difference to the streetscape presentation.  Overall, the proposal presents too strongly to the street to be an acceptable response.
55	Regarding landscaping, I find that it is not appropriate in the context of this proposal and its surrounds.  The ‘rear yards’ of the townhouses (along the northern boundary) need a reasonable level of landscaping to be responsive to the open backyards of the neighbours to the north and west.  I am not persuaded that the plantings above the basement will provide this.  I accept the Council’s advice that the proposed depth of soil is not adequate for some of the proposed trees and is otherwise at the minimum acceptable depth for small trees.  I find that this is unlikely to deliver a level of vegetation will soften the appearance of the proposal from the neighbour to the north.
56	I also find it inappropriate to bunch the ‘required’ canopy trees in a 2.5m strip across the frontage.  This does not deliver the intended outcome, which is to complement the built form with landscaped areas.  I hold the same view with the proposed tree in the south-west corner of the site.  This is not a location where a canopy tree will thrive.
57	Conversely, I accept Mr Khalil’s submission that species can be chosen to suit the available spaces.  However, I am not persuaded that such species will effectively soften or screen the townhouses when viewed from the neighbouring property to the north.
58	I find that Mr Khalil is misguided in relying on street trees and an established tree in a neighbour’s back yard in submitting that the proposal is adequately screened.  It is well established that a proposal should make an appropriate response within its property boundaries rather than relying on vegetation outside the site.
59	In summary, the proposed balance between built form and landscaping is not respectful of the neighbourhood’s existing character.
Are the off-site amenity impacts acceptable?
60	The Council notes that the built form sits only marginally within the setback envelope along the side boundary to the south and at the rear.  It contends that it presents an unacceptable degree of mass and bulk towards all the adjoining rear yards.
61	I agree with the Council.  Regarding the backyard behind the site, the rear façade presents as a considerable mass in the same way as I described when discussing the front façade.  The marginal changes in size from the ground floor to the second floor are a contributing factor, as is the proximity to the rear boundary.
62	Separately, I find that the rear yard of the property to the north is unduly affected by the limited articulation of the northern elevation.  In the northern elevation, the second floor is barely recessive above the floors below, and this contributes to the proposal’s considerable mass.
63	I am not persuaded that the bulk of the proposal when viewed from these neighbours is reasonably expected or appropriate.

Conclusion
64	I consider that the design response for this proposal is predicated on policy support for increased housing densities in this location.  This is not what the Planning Scheme currently calls for, and it is not certain that any future policies will promote a density of development that is as unfettered as this proposal.
65	I have found that this design response is not an appropriate response to the neighbourhood’s character.  For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Michael Nelthorpe
Member