VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	
vcat reference No. P1095/2022
Permit Application no. PP20/0954	
catchwords
Boroondara Planning Scheme; Neighbourhood Residential Zone – Schedule 3; Section 77 of the Planning and Environment Act 1987; Proposal for three 2-storey dwellings; Neighbourhood character; Visual impacts of proposal; Vegetation retention and landscaping. 	

Applicant	Keyi Miao	

Responsible Authority	Boroondara City Council	
Respondents	Nick Mackay, Barry Johnstone & Others
Dene Burgess, Sophie Burgess & Others	
SUBJECT LAND	75 Ashburn Grove
ASHBURTON  VIC  3147	
HEARING TYPE	Hearing	
DATE OF HEARING	1 February 2023	
DATE OF ORDER	15 March 2023	
CITATION	Miao v Boroondara CC [2023] VCAT 238  	

Order
Amend application
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	JS Drafting & Design	
•	Drawing numbers:	Sheets 4, 5, 6, 7, 8 and 9  Revision D	
•	Dated:	12 December 2022 	
No permit granted
2	In application P1095/2022 the decision of the responsible authority is affirmed.
3	In planning permit application PP20/0954 no permit is granted.

Mary-Anne Taranto
Member	
Appearances
For Keyi Miao	Mark Waldon, town planner of ST-Wise Pty Ltd	
For Boroondara City Council	Louise Lunn, town planner of Louise Lunn Planning	
		
For Nick Mackay, Barry Johnstone & Others	Nick Mackay	
For Dene Burgess, Sophie Burgess & Others	Dene Burgess	

Information
Description of proposal	Three 2-storey 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	Boroondara Planning Scheme 	
Zone and overlays	Neighbourhood Residential Zone – Schedule 3 (NRZ3)
No overlay controls apply	
Permit requirements	Clause 32.09-6 – Construct two or more dwellings on a lot	
Key scheme policies and provisions	Clauses 2.02, 2.03, 12, 15, 16, 18, 52.06, 55, 65 and 71.02.	
Land description	Located on the east side of Ashburn Grove, this 855sqm site has a slightly irregular shaped frontage with a dimension of 15.29m, maximum depth of approximately 56.5m and rear boundary dimension of approximately 15.25m.  The site has a cross-fall from the rear (north-east) to the front  (south-west) of about 3.7m. The site is developed with a single storey brick dwelling with a pitched tile roof with a garage/shed to its rear sited on the south boundary.
Established vegetation with mostly exotic vegetation is scattered throughout the site.  	
Tribunal inspection	Unaccompanied after the hearing	

Reasons
Introduction
1	Keyi Miao (the applicant) has sought a review of the Boroondara City Council’s decision to refuse a permit for three 2-storey dwellings at 75 Ashburn Grove, Ashburton. 
2	During my inspection I went into the back yard of the review site and into  adjoining properties to the north, south and west at 73 and 77 Ashburn Grove and 20A Ambon Street. I also viewed the site and the surrounding area on foot and by car from public areas.
3	Much of the original housing stock found in this area is single storey, modest in scale and set within spacious gardens on deep lots.
4	This area is also undergoing some change with the emergence of larger dwellings, comprising both single and multi-dwellings that are frequently two storeys in scale. Examples of both nearby in Ashburn Grove can be seen at 79 and 81 Ashburn Grove.
5	Front setbacks of both new and more established housing in Ashburn Grove are generous, typically about 9m except in the case of the single storey front unit of 75 Ashburn Grove whose front setback reduces to 7.5m on its south side.
6	The back yard realm generally has an open spacious feel despite the presence of multi-dwellings nearby – particularly to the north which are predominantly single storey in scale – and the emergence of more recent two storey built form on some surrounding lots (such as 81 Ashburn Grove and 20 and 20A Ambon Street).
7	Canopy trees frequently rise above and between buildings, in front and back yards and on public land.  The character of the portion of Ashburn Grove between Alamein Avenue and Markham Avenue has a particularly leafy spacious feel where vegetation rather than built form usually dominates.  Native vegetation along the Anniversary Outer Circle Trail opposite contributes to this character. This leafy character is less evident in Ambon Street where a different subdivision pattern exists with wider lots and where a tighter development pattern is apparent in terms of front and side setbacks. The character of Markham Avenue is more diverse due in large part to the larger forms of housing nearing completion in the differently zoned (GRZ4) public/private development on the south side of this street.
8	The site is well located relative to the Ashburton Neighbourhood Activity Centre on High Street, Alamein train station, schools and open space.  There is no real dispute that the site is suited to some form of additional housing.
overview of submissions
9	Council’s reasons for refusing the proposal are primarily based on the proposal’s visual impacts and neighbourhood character concerns. It submits that the proposal has a mass, form, bulk and poor levels of articulation such that the development would have adverse visual impacts when viewed from surrounding land, particularly from the south.  It says the proposal has inadequate front, side and rear setbacks and that the space for an acceptable landscaping response is too constrained or is otherwise inadequate. Concerns are also raised about the impacts on a street tree in the nature strip.
10	These submissions are largely supported by the respondents supplemented by other more particular concerns.  These include the size and impact of some proposed tree species (Ficus Hilli), the dimensions and location of external stores, residential noise impacts, external building materials and traffic safety in submissions variously made by Mr Burgess and Mr Mackay.
11	It is contended for the applicant that the proposed front setback is within the realm of those found nearby and is acceptable at this location proximate to a bend in the street. The design of the proposed dwellings is said to include a variety of materials, finishes, colours and changes to wall planes that provide visual interest and suitable articulation that will limit perceptions of building bulk. The variety of building forms including the two storey scale and forms of more recent development was highlighted together with the amount and type of landscaping around built form to which this proposal is said to respond acceptably.  The narrow width of the site was said to be a factor that limits landscaping along both sides of the common driveway while the size of courtyards for each dwelling was referred to as a positive feature in which vegetation including some new trees are proposed.
The key issues
12	The key issues in this case relate to the acceptability of the design response in terms of:
•	Neighbourhood character considerations and visual impacts from neighbouring residential properties; and
•	Landscaping adequacy and impacts on existing vegetation.
13	Although concerns were raised about the adequacy of the number of car parking spaces and increased traffic by respondent objectors, I am not persuaded that these matters warrant refusal of a permit. There is no evidence before me to support a conclusion that additional traffic generated by this proposal cannot be absorbed safely into the local street network. The number of car parking spaces would also satisfy the standard requirement in the planning scheme at clause 52.06. 
14	The proposal’s impacts on a street tree in front of the site, attracted considerable debate at the hearing. I make no conclusive findings as to whether the cross-over for Unit 1 in the location proposed would lead to the loss of the street tree. If this tree’s removal is necessary, this is a matter that is subject to a separate administrative process with the council that is not before me.
15	I record that while a number of other matters were variously raised by the parties, I have not found it necessary to address them in these reasons as doing so would not alter my substantive findings in any way.
The planning context
16	The site and surrounding land are within the NRZ3. Land in the NRZ3 is described as a ‘traditional suburban precinct’ and is designated for ‘minimal change’ by the strategic framework plans in the planning scheme at clauses 2.04-1 and 2.04-3.
17	None of the requirements of clause 55 are varied in the NRZ3. 
18	Neighbourhood character objectives are set out in Schedule 3 to the NRZ which emphasise the importance of landscaping. These seek to:
•	maintain the detached, one to two storey scale and spacious suburban character; 
•	protect and enhance the area’s leafy feel and garden setting of dwellings;
•	maintain the fine grain rhythm of streetscapes and enhance the landscape character.
19	A preferred character statement and design guidelines in the Boroondara Neighbourhood Character Precinct Statements 2013 require consideration and the site and surrounding land are within Precinct 67.
20	Amongst other things, the preferred character statement seeks to enhance the consistency and character of streetscapes; and to maintain the spacious, one and two storey suburban feel of the area and the garden setting of dwellings.
21	Importantly, unlike the General Residential Zone, the purposes of the NRZ do not include encouragement for housing growth and diversity.  Rather, the NRZ purposes seek to recognise areas of predominantly single and double storey development and to manage and to ensure development respects neighbourhood character and other identified characteristics of an area. I therefore give greater weight to neighbourhood character considerations than competing policy outcomes for housing growth and diversity in my assessment of this proposal.
Tribunal’s findings
22	In-principle, there is nothing intrinsically unacceptable about the provision of two storey dwellings on this site. However, the particular design response proposed would not acceptably respond to the preferred character of this precinct or the features of the site and its surrounds.  
23	More particularly I find that the proposal would not protect and enhance the leafy and spacious feel of the area and garden setting of dwellings as sought by the neighbourhood character objectives for the NRZ3.
24	There are a number of features of the proposal that when combined lead me to this conclusion. They are as follows. 
25	First, the proposed front setbacks to the street at ground and first floor level would be inconsistent with the prevailing and otherwise generally consistent larger front setbacks of dwellings nearby. The proposed provision of two driveways and a tandem car space for Unit 1 that is likely to attract a high level of use for this four bedroom dwelling also contribute to my concerns with the proposal’s streetscape presentation. The preferred character seeks to maintain the spacious quality of this area and to enhance the garden setting of dwellings which I find is heavily influenced by the consistent and generous front setback pattern that prevails. The numeric requirements of standard B6 are not met and importantly, nor would the corresponding objective for front setbacks be met.
26	Second, I find that the degree to which the upper level footprint of the dwellings are recessed from the ground level footprint is, in many locations too limited and would result in two storey building forms that are bulky and visually dominant from the street – in oblique views across the frontages of adjoining properties to the north and south – and in the private realm from the front yards of 1/73 and 77 Ashburn Grove. 
27	The bulk and visual dominance of Unit 1 would be accentuated by the: 
•	elevated nature of Unit 1 above street level;
•	proposed landscape response along both driveways where vegetation is low lying and bereft of trees and shrubs in the narrow spaces available; and
•	proposed siting of Unit 1’s garage on the north boundary.
28	Third, I find that the amenity of the internal streetscape along the common driveway would be poor.  This is a consequence of several factors, namely:
•	the proposed landscape response in the common driveway where no landscaping is proposed along the south side of the common driveway spanning a distance of some 35m;
•	limited upper level setbacks of Units 2 and 3 relative to the ground floor on the south side;
•	the size and nature of windows which offer little activation and engagement with the internal streetscape; and 
•	the siting and design of front entries for Units 2 and 3, particularly the latter. 
29	While I agree with Mr Waldon’s suggestions that the addition of new windows or changes to the design of highlight windows at ground level would improve surveillance of the internal streetscape, such modifications would not fully resolve my overall concerns with the appearance and visual amenity experienced within this part of the site.
30	Fourth, I find that the combined siting of Unit 3’s garage on the south boundary together with the setbacks of the upper level footprint, absence of space for landscaping in this location and along the south side of the common driveway would result in a development that is inconsistent with the surrounding development pattern. This particular response would not be respectful of the prevailing open feel and landscaped setting that is otherwise a prevalent backyard character feature.  Consequently, I find that Unit 3 would have a dominant and visually intrusive appearance from the backyard of 77 Ashburn Grove.
31	Although I acknowledge that outbuildings are presently sited close to the south boundary on the review site, these are modest single storey weatherboard structures sited closer to the street that partially abut the existing garage of this neighbouring site. Even if the garage was offset from this boundary by up 150mm as suggested in submissions for the applicant, this would not change my findings about this element of the proposal.
32	Fifth, I find that in addition to the absence of a suitable landscape response within the driveway areas on both sides of the site, the proposed landscaping response is poorly resolved and does not acceptably take into account the extent of excavation and retaining walls required along the north and east boundaries. Nor does the landscape response acceptably respond to the features of the site and surrounds. The limited information depicting proposed finished site levels contributes to my concerns with the proposal’s ability to demonstrate that an acceptable landscape response can be achieved in the spaces provided.  Further:
•	insufficient information has been provided to demonstrate that the row of ornamental pear trees along the rear site boundary can be retained. In saying this I also note that the extent of excavation that would seem to be necessary along the east boundary (based on the elevation plans) extends southwards well beyond the proposed termination of the retaining wall depicted on the ground floor layout plan along this boundary; 
•	no arboricultural assessment has been undertaken of the proposal’s impacts upon the neighbouring hedge of pittosporum trees close to and along the north boundary.  This is an unfortunate oversight as excavation is proposed within approximately 0.3m to 0.5m of this boundary and Unit 1’s garage is also proposed to be sited on the north boundary; and
•	I agree with submissions for the council that given the particular policy and zone context, Tree 2 is a suitable candidate for retention.  This tree in the front yard is a mature crepe myrtle in good health with a moderate retention value, a height and spread of 6m and whose useful life expectancy is estimated at 15 to 40 years. I find that this tree makes a very positive streetscape contribution and has a good shape and form. I am not persuaded that the proposed vegetation replacement strategy nor the development as a whole provides a sound justification for its removal at the present time.
33	Overall, I conclude that the design response endeavours to squeeze too much development onto this site with too little space for an acceptable landscape response. It would fail to meet the neighbourhood character objectives of the NRZ3 and those at clause 55.02-1; the street setback objective at clause 55.03-1 and landscaping objectives at clause 55.03-8. I am not persuaded that these shortcomings of the proposal are outweighed by the benefits this proposal would bring in terms of its response to urban consolidation and housing diversity objectives. 
conclusion
34	I will affirm the council’s decision. 
35	No permit is to be granted.

Mary-Anne Taranto
Member