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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LISTVCAT REFERENCE NO. P2033/2017

PERMIT APPLICATION NO. TPA/46615

CATCHWORDSMonash Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; General Residential Zone (GRZ2); Six double storey dwellings; Amendment of permit application; Transitional provisions; Garden Area requirement; Compliance with ResCode; Neighbourhood character; Extent of built form; Landscaping; Crossovers.

APPLICANT Maria Kaimakamis

RESPONSIBLE AUTHORITY Monash City Council

RESPONDENT Peter Balassone

SUBJECT LAND 62 & 64 View StreetCLAYTON VIC 3168

WHERE HELD Melbourne

BEFORE J A Bennett, Senior Member

HEARING TYPE Hearing

DATE OF HEARING 27 February 2018

DATES OF INTERIM ORDERS

28 February, 21 March and 2 May 2018

DATE OF ORDER 6 June 2018

CITATION Kaimakamis v Monash CC [2018] VCAT 807

ORDER1 In application P2033/2017 the decision of the Responsible Authority is

varied.

2 In planning permit application TPA/46615 a permit is granted and directed to be issued for the land at 62-64 View Street, Clayton in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

Construction of six (6) two storey dwellings in the General Residential Zone - Schedule 2 (GRZ2).

J A BennettSenior Member

APPEARANCES

For Maria Kaimakamis Mr John Kaimakamis.

For Monash City Council Ms Sally Moser, Town Planner of Moser Planning Services Pty Ltd.

For Peter Balassone Mr Simon Skinner, Town Planner of Planning Sense Town Planning Consultants.

INFORMATION

Description of proposal Construction of six double storey dwellings.

Nature of proceeding Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.

Planning scheme Monash Planning Scheme.

Zone and overlays General Residential Zone - Schedule 2 (GRZ2).

Permit requirements Clause 32.08-6 (construction of two or more dwellings on a lot in GRZ2).

Relevant scheme policies and provisions

Clauses 9, 10, 11, 15, 16, 18, 19, 21.04, 22.01, 22.05, 32.08, 52.06, 55 & 65.

Land description The review site comprises two lots, each containing single storey weatherboard clad dwellings which are to be removed. The two lots have a combined frontage of 31.09 metres, a depth of 46.63 metres and an area of 1,450 square metres.

Tribunal inspection An unaccompanied inspection was undertaken on Thursday 8 March 2018.

VCAT Reference No. P2033/2017 of 19

REASONS1

WHY IS COUNCIL’S DECISION BEING APPEALED BY THE NEIGHBOUR?1 Ms Kaimakamis, who resides in one of the adjoining properties to the

south, has sought to review Council’s decision to support the proposal. Her statement of grounds listed the following five reasons for opposing Council’s decision:

Council did not correctly consider the application of transitional provisions in the new residential zones.

Council has incorrectly assessed the transitional provisions and failed to consider the relevant controls in the GRZ2.

We perceive density/neighbourhood character concerns given the new residential zone district is stricter in relation to these matters:

The proposal is not consistent with (and has not been assessed in relation to) the current General Residential Zone as introduced via VC 110.

The proposal represents an overdevelopment of the site.

Density of the development and amount of garden area is insufficient and not consistent with character of the area.

2 At the hearing, Mr Kaimakamis presented an oral submission which primarily focused on whether the Council has erred in deciding that the permit application benefited from the transitional provisions arising from the gazettal of Amendment VC110 on 27 March 2017. In the absence of the benefit of transitional provisions, he submits that the application must meet the mandatory garden requirement. He submits that it does not, and that the proposal is an overdevelopment. To the extent that he made submissions about the GRZ2, number of crossovers and other design related issues, I deal with these later in my reasons.

3 Both Council and the Permit Applicant disagree with the criticisms raised against the proposal by Ms Kaimakamis. Whilst I have ultimately agreed with Council that a permit should be granted, I have found it necessary to obtain additional material to clarify matters raised in submissions at the hearing or because of subsequent amendments to the Planning Scheme.

WHY THE DELAY SINCE THE HEARING IN FEBRUARY 2018?4 Three interim orders have been issued to deal with issues raised at the

hearing or because of the subsequent approval of amendments to the Monash Planning Scheme.

5 These orders required comment about transitional provisions affecting the application, calculation of garden areas and any implications arising from

1 The submissions and any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.


the gazettal of Amendment C125 to the Monash Planning Scheme. The last of these orders required written responses by 25 May 2018 and I am now able to finalise the application for review.

6 I deal with these three matters first before undertaking a broader assessment of the planning merits of the application.

DOES THE APPLICATION BENEFIT FROM THE TRANSITIONAL PROVISIONS APPLYING TO GARDEN AREA REQUIREMENTS? 7 The simple answer is yes. Council and the Permit Applicant submit that the

application benefits from the transitional provisions applying to permit applications lodged prior to the gazettal of VC110 on 27 March 2017. Mr Kaimakamis disagrees and submits that the application must be assessed without benefiting from transitional provisions at Clause 32.08-14.

8 At the hearing questions were raised about whether the transitional provisions apply. If they do not apply then a mandatory garden area requirement of 35% in Clause 32.08-4 applies.

9 During the hearing I asked many questions about how Council had processed the proposed development. Upon reviewing all the information submitted by parties, I was still uncertain about what steps had been taken to amend the application and therefore whether the application did benefit from the transitional provisions. My order dated 21 March 2018 asked Council to provide the following information. I also record in italics what answers/information Council provided in response, supplemented by information previously given at the hearing.

i Copies of the two separate Application for Planning Permit forms for No 62 and No 64 View Street which were dated on or about the 22 September 2016.

Council provided the Tribunal with copies of two separate application forms and plans for three dwellings on each site (application Nos TPA/46607 and TPA46615 date stamped 22 Sep 2016 and 23 Sep 2016).

ii A copy of the Request for Further Information (RFI) letter from the Responsible Authority to the Permit Applicant dated 19 October 2016.

Council provided the Tribunal with a separate RFI letter for each application (letters dated 19 October 2016).

iii A copy of the response from the Permit Applicant dated 18 November 2016.

Council provided the Tribunal with a separate written response to each RFI request. The responses from Archimedium Australia Pty Ltd are dated 18 November 2016.


iv Confirmation of the date when advertising of the planning applications, including confirmation as to what application plans were being advertised.

Council provided the Tribunal with the separate Notice of Advertising for each application including sets of plans showing three dwellings on each site. The notices were marked as being posted on 2 December 2016 and stated that the Responsible Authority will not decide on the application before 20 December 2016.

v A copy of the letter dated 16 March 2017 from the Permit Applicant seeking to amend the application pursuant to Section 57A of the Planning and Environment Act 1987. Written confirmation whether the land owner gave written consent to the amendment and whether the prescribed fee was paid must be provided.

vi Council provided a copy of a document from the permit applicant that is headed ‘Town Planning Submission’ and is dated 14 March 2017 (date stamped received 16 March 2017). It refers to both applications but is not the prescribed form to amend an application and Council advises that no fee was paid. It is noted that a meeting took place between the permit applicant and the Council officer on 19 January 2017 which resulted in plans dated 17 February 2017. These plans included a six-dwelling development over the two sites.

A subsequent letter from Council dated 30 March 2017 records that Council approved the request to amend the application TPA/46615 pursuant to Section 57A(1) of the Planning and Environment Act 1987. The letter also states that in accordance with Section 57A(7) of the Planning and Environment Act 1987 the application date is now 16 March 2017 (being the date stamp on the document referred to above).

vii A copy of the application form which amended the application to include both 62 and 64 View Street.

Council advises that no amended application form exists describing the six-dwelling development over the two sites. However, plans dated 17 February 2017 depict the six-dwelling development.

viii Confirmation of the date when advertising took place of the amended application (including confirmation as to what plans were advertised as an email from Council to Ms Kaimakamis suggested the advertised plans were dated 5th June 2017).

Council provided the Tribunal with the separate Notice of Advertising for the six-dwelling development including a set of plans dated 17 February 2017 (but also marked Revision RFI Apr 17) which were stamped for advertising. The notices clearly stated that the application was for construction of six (6) two storey dwellings and the land was identified as 62-64 View Street Clayton. The Notice was


marked as being posted on 16 June 2017 and stated that the Responsible Authority will not decide on the application before 4 July 2017. I also record that a Design Response for 62 and 64 View Street which is stamped ‘Advertised Copy’ is attached to the material submitted to the Tribunal by Council in accordance with Practice Note 2.

One objection dated 19 July 2017 was received from Ms Kaimakamis.

10 Although not referred to in Council’s response to the Tribunal’s order dated 21 March 2018, Ms Moser’s submission at the hearing records that on 10 May 2017, a revised application form was received which reflected the revised proposal for six dwellings on the two sites.

11 On 31 August 2017, in response to an enquiry from Ms Kaimakamis about the amended application, the Council officer in an email stated that:

I can confirm that the amended plans as per Section 57A which Council advertised were submitted to Council on the 5th of June 2017.

12 The reference to plans submitted to Council on 5th June 2017 does not correspond with the plans dated 17 February 2017 which were provided to the Tribunal and nominated as the set of plans considered when the Council made its decision. Further confusion arises because in answer to question 1.20 in the Practice Note 2 material required to be submitted by Council the answer NO is given to the question “Have there been any formal amendments to the permit application under the Planning and Environment Act 1987’.

13 Apart from the obvious conclusion that there is a very confusing and potentially misleading paper trail, Council staff have not been diligent in requiring the prescribed document and fees to amend the permit application(s).

14 As I observed at the hearing, even if Council has made errors in formally amending the permit application, Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1997 allows me to disregard failures to comply:

62 Tribunal may disregard failures to comply

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

15 Despite the confusing paper trail and failure by Council to obtain the prescribed form or fee, I am not persuaded that Ms Kaimakamis, or any other person likely to be affected by the proposal, has been disadvantaged by the amendments made to the original applications for three dwellings on each site. To ask the Applicant to submit a new application to overcome the administrative failures by Council would not change my support for the


proposal on its planning merits, even if relatively minor changes to the dwelling footprints were required to meet the 35% Garden Area requirement. Put simply, it would serve no useful planning or public interest purpose and would not be in the interests of justice to do so.

16 The Delegated Planning Report dated 21 July 2017 refers to the 17 February 2017 plans and the construction of six 2 storey dwellings. It also records the one objection about dual crossings/insufficient parking. The Notice of Decision to Grant a Permit is for the development advertised in June/July 2017. In reviewing Ms Kaimakamis’ objection dated 19 July 2017, I note that in addition to the dual crossings/insufficient parking referred to in the delegated planning report, she also raised concerns about refuse storage/bins and overlooking from a south facing window in Bedroom 4 of Unit 6.

17 Whatever the shortcomings and failures in Council’s internal processes, the most important fact is that a second round of advertising took place in June/July 2017 for the six-dwelling development. The Notice of Advertising and the associated plans make it abundantly clear that the application then being advertised was for the construction of six (6) two storey dwellings on land at 62-64 View Street Clayton. Quite correctly, there was no reference to previous applications or amendments to applications. The persons notified at that time had an opportunity to review the proposal then being advertised and to form a view as to whether they would object to the proposal.

IMPLICATIONS ARISING FROM THE GAZETTAL OF AMENDMENT C125 PART 118 Amendment C125 Part 1was gazetted on 19 April 2018. Although Ms

Moser made comment about Amendment C125 in her submission, little attention was given to the proposals contained in the amendment given the length of time it had been with the Minister for Planning for his consideration, and uncertainty about what provisions might be contained in the gazetted amendment.

19 Despite the passage of time since the hearing, parties were asked to provide any comments on the implications of the amendment. No party sought to make comments and, on my assessment, the amendment does not make any changes which affect the permit application I am considering.

20 A more recent State-wide amendment known as VC143 was gazetted on May 2018. Amongst other changes, it varied the garden area requirement and clarified how the garden area was to be calculated. Given I have formed the opinion that the application benefits from the transitional provisions, I do not need to further discuss the Garden Area requirement although I do note that the new definition allows for the inclusion of land under eaves not exceeding 600mm in width, as well as other structures including outbuildings not exceeding 10 square metres in area. These changes would have the effect of increasing the Garden Area calculation,


DO RELEVANT PLANNING PROVISIONS AND SITE CONTEXT SUPPORT COUNCIL’S DECISION TO APPROVE THE PROPOSAL? 21 The land is zoned GRZ2 and not affected by any overlays aimed at

protecting or directing specific built form, landscape or environmental outcomes. Unlike the more restrictive Neighbourhood Residential Zone (NRZ), the GRZ purposes do not seek to recognise areas of predominantly single and double storey residential development. Instead, the GRZ purposes seek to encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport. Purposes also include implementing State and local planning policies and encouraging development that respects the neighbourhood character of the area.

22 Apart from the minimum garden area requirement which impacts on applications lodged after the gazettal of Amendment C110 on 27 March 2017, the amendment also made changes to the purposes of the GRZ by deleting the word ‘moderate’ in relation to housing growth and deleting the reference to ‘implementing neighbourhood character policy and adopted neighbourhood character guidelines’. Whilst these may appear to have been relatively minor adjustments, I consider they represented a shift in emphasis towards allowing more residential development in the GRZ than was previously the case.

23 It is also relevant to take account of the recommendations of the adopted Monash Housing Strategy 2014 (Housing Strategy). Although not yet part of the Planning Scheme, I am entitled to consider it as an adopted strategic plan, policy statement, code or guideline in accordance with s60(1A) (g) of the Planning and Environment Act 1987.

24 The Housing Strategy appears to identify the site as being on the edge of but within the area categorised as being Residential Land in the Monash National Employment Cluster. Residential outcomes for such land include lower density unit and townhouse style development at the interface with surrounding residential areas.

25 I acknowledge that given the somewhat imprecise boundaries between the different categories in the Housing Strategy, the review site may instead be just inside the area categorised as Garden City Suburbs. But falling into a different category does not significantly change the residential outcomes sought, which are predominantly conventional detached houses, units and townhouses including, on larger lots, lower to medium scale apartment developments.

26 Both State and local policies require development to be site responsive, to take account of neighbourhood character, and to respond to any special characteristics identified in the Planning Scheme by way of zones, overlays and specific policies. The tension in policy between urban consolidation objectives and the desire to retain or protect existing and future residential amenity/neighbourhood character is not unique to Monash. It is really a


question of at what point has a development achieved an appropriate or acceptable balance when assessed against the relevant provisions of the Planning Scheme.

27 Local policy at Clause 21.04 (Residential Development) provides commentary about residential development under the headings - Overview, Heritage, Neighbourhood Character and New Residential Development. The following observations are made about New Residential Development:

There is an increasing demand for a variety of different housing styles to cater for changing household sizes and structures. State Government policy encourages higher housing densities near transport hubs and activity centres, such as Glen Waverley and Oakleigh.

Retention of neighbourhood character in residential areas will be enhanced by the identification of preferred areas for medium to high rise residential development within the municipality. These areas are generally within the Principal and Major Activity Centres.

In other areas new residential development will generally be low rise. The exceptions will be where there is an approved Structure Plan, or other planning mechanism in place or where individual circumstances support an alternative height.

28 Clause 21.04-1 identifies seven residential character types and cross references to Clause 22.01. The review site is in Character Precinct B.

29 Clause 22.01 (Residential Development and Character Policy) includes a policy basis, objectives and specific policies grouped under general, building setbacks, built form and scale of development, fences, walls adjacent to boundaries, private open space, landscaping, carparking, stormwater management and environment, together with decision guidelines. The statement of desired future character for Precinct B is that:

The neighbourhood character of this area will, as it develops, retain its modest and unassuming character by ensuring that multi housing developments, including dual occupancies, are appropriate in scale and form to existing dwellings.

The built-form will be unified by a general consistency in building setback. New dwellings will address the street and complement the scale and form of adjacent buildings.

Redevelopments will be single storey unless there is a gradated change in height or on-site trees and large shrubs to soften the transition between buildings.

Sympathetically designed buildings will be encouraged. Extensions or alterations to pre-Second World War buildings will be sympathetic to the historic integrity of the building.

Front fences will be low, allowing shrubs and other plants in the front garden to soften the edge between development and street. Fences will


complement the architecture of the building in design, colour and materials.

Gardens will be well planted with, in the majority of cases, both native and exotic plants to create a visually permeable buffer between the house and street. Existing mature vegetation within properties will be retained and additional tree planting within lots and within the public domain will be encouraged to provide an upper canopy and back drop to the buildings.

The ‘soft’ quality of the street that is derived partially from the nature strips and tree planting within them will be maintained by ensuring that there is only one single cross over per lot frontage.

The character of existing public open space within the Character Type will be protected by ensuring that buildings directly adjacent to such areas are set back and buffered with planting that complements the species and size of that within the public open space.

30 Detailed policies in Clause 22.01-3 are grouped under the following topics: General; Building Setback; Vehicle crossings and location of garages, carports and carspaces; Built form and scale of development; Fences; Walls adjacent to side boundaries; Private open space; Landscaping; Car parking; Stormwater Management; and Environment.

31 I do not repeat all the many individual policies under each topic. I acknowledge that the application does not meet some of the outcomes sought in relevant policies but I consider that, on balance, the proposal does achieve an acceptable degree of ‘compliance’ with the whole suite of relevant policies. Policies are not mandatory controls but seek to guide development outcomes. Clause 10.01 acknowledges that there will be a need to balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. It is my experience that these conflicts or tensions between relevant policies invariably arise in all permit applications.

32 It is my assessment that policies under building setbacks, built form, scale of development, fences and landscaping are achieved to an acceptable degree including, but not confined to:

The Garden City character be maintained by providing front garden space in which upper canopy trees can develop.

The number of vehicle crossings be minimised to maintain existing kerb side parking and green spaces in both front setback areas and in naturestrips.

Landscaping in the front setback areas of properties is to be maintained by minimising the number of crossovers provided on larger multi unit sites and placing vehicle parking to the rear on sites accommodating small to medium multi developments.

Garages, carports and associated visitor spaces be designed so that they do not dominate or visually disrupt the streetscape.


A high degree of articulation and detailing be exhibited.

Roof heights and pitches of adjoining development be respected.

Creative and quality design solutions be provided, particularly in relation to bulk of buildings having regard to boundary setbacks.

Articulated and graduated elevations avoiding “box-like” designs be provided.

Higher degrees of articulation be provided where double storey development is sought in streets where the predominant built form is single storey.

No front fences be provided where more than 75% of properties in the immediate neighbourhood do not have front fences.

The visibility of front gardens from the street be maintained, allowing vegetation to ‘soften’ the streetscape.

Open space areas be of sufficient size and distribution that they encourage the planting of new canopy trees.

Minimal pavement areas be provided within the front setback area to maximise landscaping to enhance the Garden City Character of the streetscape.

Landscaping be provided down both sides of driveways to reduce the visual impact of development.

33 Clause 32.08-6 requires that all developments of two or more dwellings on a lot must meet the requirements of Clause 55, which states that a development must meet all the objectives and should meet all the standards. Decision guidelines must also be considered. Where compliance with a numeric standard is not achieved then a judgement needs to be made as to whether the related objective has been met.

34 The use of the word ‘standards’ in Clause 55 has the potential to be somewhat misleading as they are not standards in the way most people understand the word, given they are not mandatory. It is therefore possible to approve a development even though standards have not been met. It is the objectives which must be met.

35 As I have noted on many occasions in previous decisions, I accept that people have different ideas about what constitutes reasonable/unreasonable impacts and I understand that Ms Kaimakamis values her existing amenity and does not accept that she should suffer any adverse changes because of the development on the review site. However, it is because people have different opinions about reasonable/unreasonable impacts that the objectives and standards have been included in Clause 55.

36 Compliance does not prevent any loss of amenity; rather it ensures that any loss is within what has been decided by the formulators of the planning scheme as reasonable. For example, Clause 55.04 deals with amenity impacts where compliance with standards such as B17 (side and rear setbacks) and B20 (north facing windows) ensure that impacts on the


amenity of existing dwellings are limited to what has been deemed acceptable or reasonable.

37 Clause 55 requirements are grouped under sub-clauses and those dealing with Site Layout and Building Massing (Clause 55.03) and Amenity Impacts (Clause 55.04) are the most relevant in assessing impacts on neighbouring properties. These include standards B7 (building height), B17 (side and rear setbacks), B18 (walls on boundaries), B19 (daylight to existing windows), B20 (north facing windows), B21 (overshadowing open space), B22 (overlooking) and B24 (noise).

38 The GRZ2 varies the following four ResCode standards:

i Minimum street setback - B6 Front setback – 7.6 metres.

Side street setbacks as specified in the Tables to Standard A3 and Standard B6 continue to apply.

ii Private open space - B28 A dwelling or residential building should have private open space consisting of:

An area of 75 square metres, with one part of the private open space at the side or the rear of the dwelling or residential building with a minimum area of 35 square metres, a minimum width of 5 metres and convenient access from a living room; or

A balcony of 8 square metres with a minimum width of 1.6 metres and convenient access from a living room; or

A roof top area of 10 square metres with a minimum width of 2 metres and convenient access from a living room.

iii Front fence height – B32 A front fence within 3 metres of a street should not exceed 1.2 metres.

39 In this application, the proposal complies or can be conditioned to comply with all but two of the quantitative standards in Clause 55 (ResCode). These include building height, site coverage, permeability, access, side and rear setbacks, walls on boundaries, north facing windows, areas of private and secluded open space and overlooking. Despite submissions that the proposal is an overdevelopment and out of character with the area, it is important to record that building site coverage is 43% against a 60% maximum in standard B8, permeability is 39% against a minimum 20% in


standard B9 and the private open space for each dwelling exceeds the varied standard in GRZ2 of 75 square metres.

40 Although Mr Kaimakamis was critical about providing three crossovers, I note that they have a total width of 9 metres or 29% of the frontage. They are under the 33% maximum referenced in Standard B14 and therefore meet the related neighbourhood character objective. I accept that local policy clearly has a strong focus on preventing the hardening of the streetscape through the provision of additional crossovers, minimising the number of crossovers, and maintaining kerb-side parking and green spaces in both the front setbacks and in nature strips. In this proposal I am not troubled by the appearance of the development from the street or the provision of three crossovers given the width of the frontage arising from the consolidation of two lots and the considerable unencumbered space available in the front setback for landscaping. Two areas, each approximately 85 square metres in size are available between each driveway for landscaping, including the planting of two canopy trees in each area.

41 Although Ms Kaimakamis originally raised concerns about inadequate on-site car parking, I record that car parking complies with the rates set out in Clause 52.06 for residents and visitors and hence no permit is required for on-site car parking.

42 Overshadowing to the properties adjoining the southern boundary is one amenity standard that is not met. It will be clear from my previous comments about compliance with standards that I am not persuaded that the boundary setbacks need to be increased beyond those required to meet standard B17 or comply with standards concerning daylight to existing windows (B19) and north facing windows (B20).

43 Clause 55.04-5 specifically requires an assessment at the 22 September. Shadow diagrams accompanying the application show that the proposed Dwellings 1 and 6 create some additional shadow to the secluded private open space areas to the south at 1/66 and 2/66 View Street. Although the 2 metre high fence along the boundary already casts shadow on the 22 September, there is some additional shadowing from 12 noon to 3 pm. Most of the additional shadow is a long, thin strip and only slightly extends the shadow cast by the existing fence by approximately 500mm. At its worst at 12 noon, I estimate that the additional area shadowed at 2/66 View Street is approximately 3 square metres. In the case of 1/66 View Street, the open space is currently overshadowed by the boundary fence, the existing dwelling at 64 View Street and the existing brick garage located between 1/66 and 2/66 View Street (the garage also shades the open space at 2/66 View Street in the afternoon). Given the minor extent of additional overshadowing to 1/66 and 2/66 View Street, I consider that the overshadowing objective at Clause 55.04-5 has been met (to ensure buildings do not significantly overshadow existing seclude private open space). (My emphasis)


44 Overlooking and loss of privacy is also a concern to adjoining neighbours and I took particular note during my inspection of the location of windows and open space areas to the south to gauge whether overlooking would be unreasonable having regard to the 9 metres ‘test’ in standard B22. Except for the south facing window of Bedroom 4 in Dwelling 6, the substituted plans have provided screening or highlight windows to achieve the standard. I agree with Mr Skinner that it would be desirable to include a condition to require screening of this window to 1.7 metres above finished floor level. There is also a south facing window to the stairs of Dwelling 6 which would also benefit from screening, even though not serving a habitable room. The window is within 3.5 metres of the boundary and opposite the secluded open space of 2/66 View Street. In such circumstances I intend to adopt Mr Skinner’s suggestion that the window be treated with obscure glazing to 1.7 metres above finished floor level. Because of the rising stairs it will necessitate angled obscure glazing.

45 At the hearing I indicated that I was concerned about the porches to Dwellings 2 and 3 being accessed directly off the driveway. Mr Skinner agreed that a short pathway west of the porches could overcome this potential source of conflict between vehicles and pedestrians. I have included a condition requiring this minor change.

46 At the hearing I also indicated that the habitable windows of Dwellings 2 and 3 facing onto the driveway did not meet the sill height and setback dimensions in standard B15. Two windows in each dwelling would be affected. These windows are set back 500mm from the driveway behind garden beds and have sill heights approximately 450mm above the driveway. The standard would require a one metre setback for habitable windows with a sill height of 1.4 metres. The objective seeks to protect residents from vehicle noise within a development and I consider that raising sill heights to 1.4 metres will most effectively limit noise impacts. I consider that requiring an additional 500mm set back to achieve a one metre setback would have limited benefit for noise attenuation, even if combined with raising sill heights. I have included a condition requiring sill heights in habitable rooms to be raised.

47 Although Mr Kaimakamis submitted that the proposal is an over development, I do not agree. Various divisions of the Tribunal have, over many years, commentated that a good indicator of overdevelopment is the number of the quantitative standards of Clause 55 that are not met and the extent of non-compliance. Whilst it is also necessary to consider the specific site context and relevant policies and controls applying to a particular site or locality, Clause 55 does provide an objective set of standards to assist in assessing what might be an acceptable development.

DECISION48 Having regard to all the above, I therefore support Council’s decision to

grant a permit but will vary the decision by making some changes/additions


to the conditions as discussed in my reasons. I have also made some minor changes to words in other conditions including those concerning drainage and permit expiry.

J A BennettSenior Member


APPENDIX A – PERMIT CONDITIONS

PERMIT APPLICATION NO: TPA/46615

LAND: 62 & 64 View StreetCLAYTON VIC 3168

WHAT THE PERMIT ALLOWSIn accordance with the endorsed plans:

Construction of six (6) two storey dwellings in the General Residential Zone - Schedule 2 (GRZ2).

CONDITIONS:

Amended Plans1 Before the development starts, three copies of plans drawn to scale and

dimensioned must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) Notation to the existing redundant section of crossing to read ‘to be removed and replaced with kerb and channel. The footpath and nature strip are to be reinstated to the satisfaction of Council’.

(b) The on-site visitor parking space clearly marked.

(c) The visitor parking space provided in accordance with the Design Standards for car parking set out in Clause 52.06-8 of the Monash Planning Scheme. The space is to be provided at a width of 3.2 metres (a minimum of 2.6 metres wide with a 300mm clearance to walls on each side).

(d) The location and design of any proposed electricity supply meter boxes. The electricity supply meter boxes must be located at a distance from the street which is at or behind the setback alignment of buildings on the site or in compliance with Council’s “Guide to Electricity Supply Meter Boxes in Monash”.

(a) The development must be provided with a corner splay or area at least 50% clear of visual obstruction (or with a height of less than 1.2 metres) extending at least 2.0 metres long x 2.5 metres deep (within the property) on both sides of each vehicle crossing to provide a clear view of pedestrians on the footpath of the frontage road.


(b) The first-floor, south facing windows to Bedroom 4 and the stairwell to Dwelling 6 to be fixed and obscured to 1.7 metres above finished floor level. The window pane above that height can be openable and clear if desired.

(c) The porches to Dwellings 2 and 3 to be accessed from the west rather than directly off the driveway (a short length of path/paving to the west of each porch is to be provided to facilitate access to the porch).

(d) The ground level north facing habitable room windows of Dwelling 2 and the ground level south facing habitable room windows of Dwelling 3 provided with sill heights of at least 1.4 metres above the level of the driveway.

No Alteration or Changes2 The development as shown on the endorsed plans must not be altered

without the prior written consent of the Responsible Authority.

Common Boundary Fences3 All common boundary fences are to be a minimum of 1.8 metres above the

finished ground level to the satisfaction of the Responsible Authority. The fence heights must be measured above the highest point on the subject or adjoining site, within 3 metres of the fence line.

Landscaping4 Before the commencement of buildings and works, a landscape plan

prepared by a Landscape Architect or a suitably qualified or experienced landscape designer, drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority prior to the commencement of any works. The plan must show the proposed landscape treatment of the site including:

(a) The location of all existing trees and other vegetation to be retained on site

(b) Provision of canopy trees with spreading crowns located throughout the site including the major open space areas of the development

(c) Planting to soften the appearance of hard surface areas such as driveways and other paved areas

(d) A schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material

(e) The location and details of all fencing

(f) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site


(g) Details of all proposed hard surface materials including pathways, patio or decked areas

When approved the plan will be endorsed and will then form part of the permit.

Tree Protection5 Prior to the commencement of any works that are permitted by this permit,

all trees that are to be retained, or are located within or adjacent to any works area, shall be marked and provided with a protective barricade and verified by an authorised officer of the Responsible Authority.

6 No building material, demolition material or earthworks shall be stored or stockpiled under the canopy line of any tree to be retained during the construction period of the development hereby permitted

Landscaping Prior to Occupation7 Before the occupation of the buildings allowed by this permit, landscaping

works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

Drainage8 All on-site stormwater is to be collected from hard surface areas and must

not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from the driveway onto the footpath. Such a system may include either:

(a) A trench grate (150mm minimum internal width) located within the property; and/or

(b) Shaping the driveway so that water is collected in a grated pit on the property; and/or

(c) Another Council approved equivalent.

9 The nominated point of stormwater connection for the site is to the east of the property where the entire site's stormwater drainage must be collected and free drained via a pipe to 300mm Council Drain in the nature strip via a 900 x 600mm Junction Pit to be constructed to Council Standards.

10 Any new drainage work within the road reserve requires the approval of the Council’s Engineering Division prior to the works commencing. Please refer to the notes section of this permit for additional details. A refundable security deposit of $500 is to be paid prior to the drainage works commencing.

11 Engineering permits must be obtained for altered vehicle crossings and to the Council drain and these works are to be inspected by Council.


Vehicle Crossovers12 Approval of each proposed crossing, and a permit for installation or

modification of any vehicle crossing is required from Council’s Engineering Department.

13 All proposed crossings are to be constructed in accordance with the City of Monash standards.

Urban Design14 The walls on the boundary of adjoining properties must be cleaned and

finished in a manner to the satisfaction of the Responsible Authority.

Completion of Buildings and Works15 Once the development has started it must be continued and completed to the

satisfaction of the Responsible Authority.

Permit Expiry 16 This permit will expire in accordance with section 68 of the Planning and

Environment Act 1987, if one of the following circumstances applies:

(a) The development has not started before two (2) years from the date of issue.

(b) The development is not completed before four (4) years from the date of issue.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

- End of conditions -


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