Harper v Whitehorse CC [2010] VCAT 673 (14 April 2010)

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Harper v Whitehorse CC [2010] VCAT 673 (14 April 2010)

Last Updated: 17 June 2010

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LIST

VCAT REFERENCE NO. P2498/2009 PERMIT APPLICATION NO. WH/2009/148

CATCHWORDS

Application under Section 79 of the Planning and Environment Act 1987 against failure to grant a permit within the prescribed time. Whitehorse Planning Scheme. Residential 1 Zone. Two dwellings. Neighbourhood character. Vehicle access. Landscaping. Amenity.

APPLICANT FOR REVIEW	Glenn Harper
RESPONSIBLE AUTHORITY	Whitehorse City Council
RESPONDENTS	Lynette Oswald-Jacobs, Ian Niven, Christopher Settle, Anthony Hargreaves
SUBJECT LAND	43 Belgravia Avenue, Mont Albert North
WHERE HELD	Melbourne
BEFORE	Cindy Wilson, Member
HEARING TYPE	Hearing
DATE OF HEARING	11 and 17 February 2010
DATE OF INTERIM ORDER	25 February 2010
DATE OF ORDER	14 April 2010
CITATION	Harper v Whitehorse CC [2010] VCAT 673

ORDER

1. Leave is given to substitute the plans lodged with the application for permit with plans BA-01,BA-ND/1, BA-DR/1, BA-02, BA-03, BA-04, BA-O5 and BA-06 prepared by Premier Projects Pty Ltd dated 14 December 2009.
2. Leave is given to join Lynette Oswald-Jacobs, Ian Niven, Christopher Settle and Anthony Hargreaves as parties to the proceeding.
3. The decision of the Responsible Authority is affirmed. No permit shall issue in respect of Permit Application WH/2009/148.
   

Cindy Wilson Member

APPEARANCES:
For Applicant for Review	Mr Mark Sheehan, town planner He called evidence from: Mr John Patrick, landscape architect
For Responsible Authority	Mr David Song, town planner
For Respondent objectors	Mr Anthony Hargreaves Mr Christopher Settle who spoke for himself and for Ms Oswald-Jacobs and Mr Niven

INFORMATION

Description of Proposal	The proposal is to construct two attached double storey dwellings each with similar layouts comprising the following: At ground level, each dwelling includes a double garage, entry door and porch facing the street with living rooms, a bedroom, kitchen, laundry and bathroom behind. A covered deck is provided to the rear of each dwelling. At upper level each dwelling contains 3 bedrooms, 2 bathrooms, a retreat and a balcony facing the street. Front setbacks vary between 9 and 11 metres and a separate crossing and driveway are provided for each dwelling. To side elevations the garages are located on the boundaries with other ground level side setbacks varying between 1 and 2 metres with the upper level further recessed. Elevations show a contemporary flat roofed design with rendered walls in a variety of colours, a stone feature walls to the front porch and rear deck and feature garage doors.
Nature of Application	Section 79 Planning and Environment Act 1987
Zone and Overlays	Residential 1 Vegetation Protection Overlay Schedule 2 (VPO2)
Reasons Permit Required	Clause 32.01-4 Construction of more than one dwelling on a lot. The Vegetation Protection Overlay Schedule 2 (VPO2) specifies a permit is required to remove, destroy, or lop vegetation having a single trunk circumference of 1 metre or more at a height of one metre above ground level. No vegetation proposed to be removed is subject to a permit under the overlay.[1]
Relevant Scheme Policies and Provisions	Clauses 11, 12, 14, 15.12, 16.02 and 19.03 of the State Planning Policy Framework. Clauses 21, 22.03 and 22.04 of the Local Planning Policy Framework. Clauses 55 and 65
Land and neighbourhood description	The review site is located on the west side of Belgravia Street south of Orchard Crescent in Mont Albert North. The site is rectangular with a frontage of 15.24 metres, a depth of 60.96 metres and an area of 929 square metres. The land falls from the south east corner to the north west corner by just over 2 metres and contains three trees in the rear yard and lawn and shrubs in the front garden. A single storey dwelling currently exists on the land. A 3.05 metre wide drainage and sewerage easement diagonally traverses the rear of the site. Adjoining to the south and north are single storey dwellings with generous front setbacks. Elsewhere in Belgravia Avenue, including opposite the review site, are multi dwelling developments mixed with single houses. Well established front gardens visible to the street are enhanced by attractive street trees. To the rear and north west are properties facing Orchard Crescent with secluded private open space adjoining the review site. The site has good access to existing services and infrastructure.
Inspection	The Tribunal inspected the review site and surrounds, including a view from 41 and 45 Belgravia Avenue, on 15 February 2010.

REASONS

Summary

1. A double storey two dwelling development designed in ‘side by side’ style is proposed for this 929 square metre site in Mont Albert North. Whitehorse City Council failed to reach a decision on the application for permit within the prescribed time but subsequently determined that it opposed the application on grounds relating to incompatibility with neighbourhood character, inadequate opportunity for canopy tree planting, creation of visual bulk to the north and south elevations, inappropriate response to streetscape and poor solar efficiency for dwelling 1.
2. Respondent objectors supported Council’s opposition and raised concerns about loss of privacy and outlook, overshadowing, visual bulk, negative impact to neighbourhood character, potential damage to trees on adjoining lots, lack of opportunity for landscaping, increased noise, increased traffic and loss of amenity.
3. Having inspected the review site and surrounds, considered the submissions and evidence, had regard to the policy and provisions of the Whitehorse Planning Scheme, I find the proposal an unacceptable response to the streetscape and inappropriate in terms of neighbourhood character. My reasons follow.

Procedural matters

4. At the hearing Mr Sheehan sought leave to substitute amended plans. The plans had not been circulated in accordance with the Tribunal’s requirements in that parties originally notified of the application for permit had not been given notice of the amended plans.[2] Despite this situation I allowed substitution of plans in this instance having regard to the following:
   • Parties to the application for review and objectors to the application for permit had been notified of the amended plans.
   • I am satisfied that the changes sought create less impact or similar outcomes to those created by the advertised plans in respect of other properties that were originally notified of the application but not of the amended plans.
   • Although the plans incorporate reduced side setbacks, the parties affected by the changed setbacks have been notified of the amended plans and were at the hearing or represented.
   • The parties present at the hearing, including Council, raised no objection to the substitution of the plans.
5. Applications to be joined as party to the proceedings were made by Mr Hargreaves and Mr Settle, whose request included Ms Oswald-Jacobs and Mr Niven. Other parties raised no objection to this application and I allowed these parties to be joined.[3]
6. During the second day of hearing I sought Mr Sheehan’s confirmation that a tree on the review site was not subject to a permit under the Vegetation Protection Overlay Schedule 2 (VPO2). He was unable to confirm this at the hearing but subsequently confirmed that removal of the tree was not subject to a permit under VPO2.

Basis of decision

7. The key issues in this application for review are as follows:
   • Impact on neighbourhood character
   • External amenity impacts
   • Opportunity for landscaping
   • Vehicle access and car parking
   • Internal amenity.

Neighbourhood character

8. Mr Sheehan, for the applicant, submitted that the proposal incorporates two high quality contemporary dwellings that respect neighbourhood character. He made the following points in support of that submission:
   • There is opportunity for landscaping in the front setback, rear yards and side boundaries.
   • The garages are designed with forms and materials that read as architectural elements to the street and are located so that they do not create a dominating effect to the street.
   • The area is characterized by an eclectic mix of dwelling styles and the side by side arrangement is acceptable in that context.
   • The side by side layout responds appropriately to site characteristics including the north facing slope, the presence of a sewer pipe that runs diagonally through the rear yard and the need to protect a large tree that is located on the property to the north.
   • The dwellings are well articulated to the frontage, modulated to side elevations, step down the slope, incorporate upper levels recessed from the lower level and comprise a variety of external colours and materials that will limit any perception of visual bulk.
   • The dwellings are not overly tall reaching a maximum of just over 7 metres, well within the 9-10 metres allowed by clause 55 of the Scheme, in keeping with heights of other dwellings in the area.
   • The style is consistent with newer housing stock in the area displaying flat rood forms and modulated ‘cubist’ elements.
9. Mr Song, for Council, submitted that the design response for the review site is inconsistent with the preferred character statement under Character Area 5 of the Neighbourhood Character Study.[4] Of particular concern to Council in terms of neighbourhood character are the following aspects of the design:
   • Boundary to boundary construction leaving little space for meaningful landscaping to soften the development.
   • Architecturally the design is almost brutal in the austerity of its facades and would present harsh and overbearing elevations to the public realm.
   • The two double garages located forward of the dwelling would visually dominate the streetscape.
   • The expanse of development across the rear of the site would be inconsistent with the ‘backyard character’ of the area.
   • The creation of visual bulk to adjoining properties with minimal opportunity for any meaningful landscaping along side boundaries.
   • The two storey side by side dwellings would have an imposing and dominating impact on the visual amenity of the streetscape.
10. Mr Settle raised concern about intrusion of double storey in a street where single storey dwellings predominate, inappropriate height and mass resulting in unreasonable visual bulk to the street and adjoining properties, inappropriate use of external materials and a built form that is out of character with the area.
11. Mr Hargreaves was not opposed to the modern style proposed but raised concern about the visual bulk created by the excessive extent of two storey built form, the domination of the front elevation by garage doors and the inadequate setbacks resulting in minimal opportunities for landscaping.
12. Various provisions of the Scheme require that development respect the existing or preferred neighbourhood character. The review site is within a Bush Suburban Area as specified in local policy where the statement of desired future character is

Development within the Bush Suburban Area is distinctive for the large native and exotic trees within the public and private realm. The Bush Suburban Area has an openness character created by the lack of fencing or low fences, street tree planting and the provision of space around buildings on site. There is often a layering of landscaping providing a range of vegetation from garden beds to large canopy trees. This character should be encouraged.

13. Within the Bush Suburban Area there are various character areas identified. The review site is included in Character Area 5 where the preferred neighbourhood character[5] is to be achieved by:

Ensuring retention of existing trees and the planting of new trees particularly around the park environs;

Ensuring adequate space is provided in the rear and front yards to retain and accommodate large trees;

Ensuring front setbacks are consistent with others in the street and allow space for garden plantings.

Ensure buildings are offset from both side boundaries;

Ensuring car parking structures do not dominate the streetscape;

Ensuring buildings and impervious site coverage is minimised;

Ensuring new developments, including dwelling extensions, do not dominate or overwhelm the existing built form;

Encouraging the use of timber or a mixture of materials, particularly in streetscapes where weatherboard predominates;

Ensuring buildings are sited and designed to follow the contours of the site;

Encouraging use of open style average height front fencing and the use of vegetation as an alternative.

14. I consider the proposed development achieves a number of acceptable outcomes in terms of neighbourhood character including:
    • Although forward of adjoining development the front setbacks proposed comply with the clause 55 standard, present with some variation and are acceptable in the streetscape.
    • The double storey height will not be intrusive in an area where both single and two storey dwellings exist.
    • Contrary to Council’s view I think the relatively generous setbacks from the rear boundary respect the ‘backyard space’ common in the area.
    • Upper levels are generally recessed from the lower levels avoiding sheer walls and I consider a contemporary design approach is acceptable in an area which contains a mix of dwelling styles.
    • There is opportunity in the front and rear setbacks for planting of trees as sought in local policy.
    • The design incorporates different levels responding to the fall of the land.
15. The development will result in significantly greater built form at ground and upper level extending into the site and that will impact on the adjoining properties. I am not persuaded however that the impact is unreasonable. The upper level setbacks that vary between 2 and 3 metres comply with clause 55 standards and the varied setbacks at both ground and upper levels together with the variety of external materials proposed will provide articulation that avoids a continuous mass of building. I agree there is minimal opportunity for planting of canopy trees in the side setbacks but do not consider this fatal to the application, a matter I address in more detail later.
16. Despite the acceptable attributes identified, there are several aspects of the design that I find in combination would result in a design response that fails to sufficiently respect the preferred neighbourhood character and the policy direction contained in the Scheme. These aspects include the following:
    • The boundary to boundary construction facing the street fails to provide the space around buildings and respect the rhythm of dwelling spacing, as sought in local policy.
    • The two garages dominate the street elevation with 12 metres of the 15.24 metre frontage consumed by the garage doors and supporting structures.
    • The absence of windows facing the street at ground level further reinforces the garages presenting as the dominant elements and is exacerbated by the recessed nature of the front doors.
    • The lack of windows to the street elevation at ground level and the enclosed nature of the balconies at upper level results in recessed bedroom windows and creates a street presentation that is not respectful of the façade detailing common in the neighbourhood and fails to provide integration with the street.
    • The upper level balconies are enclosed by side walls and roofed. This design combined with a small projection over the garage facades at ground level creates a dominating effect to the street elevations.
    • The extent of hard surface in the front setback is excessive and although there is opportunity to plant canopy trees I am not persuaded that the amount of unpaved area will allow for planting that will ameliorate the dominating effect of the garages and the hard paving.
17. The Scheme provides direction for development to provide space around buildings and to avoid front setbacks being dominated by garages. It is my view that the development has not achieved the appropriate design response to these elements of preferred neighbourhood character. I acknowledge there are examples of car parking structures forward of dwellings and some recent dwellings in the nearby area that exhibit lack of side setbacks and street views dominated by garages. These dwellings and car parking structures may not have been subject to a planning permit and in the context of the review site do not justify a variation from what is sought in the Scheme.

Vehicle access and parking

18. It was Council’s submission that the proposed dual crossovers to Belgravia Street are inappropriate in terms of streetscape character and loss of onstreet parking. The two driveways, in Council’s view, will inappropriately limit opportunity for landscaping contrary to the Bush Suburban character and the narrow width of the site results in garaging dominating the frontage.
19. Mr Settle submitted that the narrow width of the site does not support two driveways and there is insufficient onsite parking to cater for likely demand resulting in unacceptable onstreet parking and congestion. Increased fumes and odours from additional vehicles was also a concern to Mr Settle.
20. Mr Sheehan on behalf of the applicant for review submitted that the side by side design of the development allows for a reduced extent of hard surface given there is no need for a driveway to extend deep into the site. Furthermore it was his submission that the double garage, opportunity for tandem car parking and space for an onstreet car park between the two driveways means that provision for car parking is appropriate.
21. I accept that the proposed two driveways each of 3 metres width at the frontage widening adjacent to the double garages comply with the clause 55 standard that allows up to 40% of the street frontage to be devoted to crossings[6] and the relatively short length of each driveway avoids the extent of hard surface required for a longer driveway.
22. I find that there is sufficient car parking provision on site and there is opportunity for an onstreet car space between the two crossings. I am not persuaded that noise, fumes and traffic movements from vehicles generated by an additional dwelling on the review site will generate unacceptable impacts to neighbours or the road system.
23. The presentation to the dual driveways to the street however I find unacceptable in terms of neighbourhood character, a matter I have referred to above. The layout results in a high proportion of the front setback being devoted to paving that is contrary to the design guidelines for Character Area 5 that seeks to minimise the loss of front garden space and minimise paving in the front garden. I estimate that the paving proposed comprises approximately 52% of the front setback area and I find that excessive in a policy context which seeks to avoid domination of front setbacks by impervious surfaces.

Landscaping

24. Mr Settle raised concern about the negative impact the development may have on vegetation on the adjoining properties, the high site coverage resulting in minimal opportunity for retention of existing trees or planting new trees and the failure to meet Council’s policy relating to Tree Conservation.
25. Mr Hargeaves was concerned to ensure that the large lemon scented gum on his property was protected. He pointed out that landscaping is an important element in the area and questioned whether the proposal was respectful of this element.
26. Mr Song submitted that the opportunity to provide new trees and adequate landscaping is an important character element particularly within a Bush Suburban environment and for sites covered by a VPO. It is Council’s view that the proposal fails to respond to that character or meet the Scheme landscape objectives due to the size of the building envelopes and the boundary to boundary layout.
27. Mr Sheehan submitted that the proposal incorporates substantial landscape areas in the front and rear setbacks, allows for some planting to side setbacks and is designed to reflect arborist advice on protecting the lemon scented gum on the adjoining land. He relied on Mr Patrick’s evidence that:
    • Use of selected hedging shrubs and canopy trees will ameliorate the effect of the development on the streetscape and contribute to the existing character of gardens in the street. Planting in this area includes 5 trees capable of reaching heights of between 7 and 10 metres and a hedge to the front boundary.
    • Two canopy trees capable of reaching a height of 18 metres together with three smaller trees are proposed in the rear setback.
    • Boundary trees are proposed to side setbacks with a Capital pear tree located opposite the stair well of each house and adjacent to the dining room to the south elevation. These will be supplemented by evergreen climbers and ground covers.
    • The overall planting will allow for establishment of 13 new trees that will provide a green effect into the future and be augmented by use of shrubs, ground covers and climbers to provide a complete garden effect.
    • Provided the specifications put forward in the arborist report that accompanied the application for permit, the lemon scented gum on the adjoining site will be effectively retained.
28. Local policy[7] identifies tree preservation and regeneration of vital importance in maintaining and enhancing the character of residential areas. Strategies to achieve this outcome include retaining adequate areas of open space to provide for planting of upper canopy trees and identifying areas where tree protection is essential to retain the character of the area. The review site is covered by a Vegetation Protection Overlay reflecting the value of existing vegetation to the area although consideration of that overlay is not triggered given there is no vegetation subject to a permit proposed to be removed.
29. I am satisfied that there is no loss of valued, mature trees and that the proposal will allow for planting of canopy trees consistent with the landscape character of the area although I have reservations about the amount of garden space in the front setback. I say this for the following reasons.
30. I have found that paved surfaces dominate the front setback due to the width of the driveways but I nevertheless accept that there is opportunity to plant canopy trees of varying sizes as shown on the landscape plan included as part of Mr Patrick’s evidence. I am not persuaded however that the amount of space provided will allow for the layering of landscaping sought under local policy in the Bush Suburban Area and nor that the resultant landscaping will achieve a screen that avoids the dominance of the car parking structures and paved area to the streetscape.
31. I am satisfied that the rear gardens of both dwellings will provide sufficient space for the planting of canopy trees and other landscaping that will, in time, contribute to the landscape of the area.
32. I acknowledge that the side setbacks are limited and the planting will only comprise three small trees, ground covers and climbers but I do not find this fatal to the application. Two dwellings replacing one dwelling will usually result in increased site cover and it is unrealistic, in balancing the competing aims of providing increased numbers and diversity of dwellings with respect for landscape character, to expect replication of the side setbacks that older style singe dwellings sometimes achieve on larger lots.
33. Finally in relation to landscaping I am satisfied that provided appropriate methods of construction and tree protection occur, the lemon scented gum on the adjoining land would be protected. This finding accords with the arborist report submitted with the application for permit, advice from Council’s arborist and Mr Patrick’s evidence.

Amenity impacts

34. Adjoining neighbours raised concerns about loss of privacy, overshadowing, loss of light, increased noise, visual bulk and loss of outlook. Council submitted that the development would result in loss of amenity to adjoining neighbours due to visual bulk and raised concern about poor internal amenity for dwelling 1 arising from poor northern aspect.
35. I address these issues as follows.
36. Although there will be overshadowing of the patio and one north facing habitable room window of 41 Belgravia Avenue at the equinox in the mornings, the extent of shadow I consider acceptable given:
    • The patio and window will be without shadow by early afternoon at the equinox.
    • Although the patio provides valued outdoor open space for the dwelling at 41 Belgravia Avenue, it is not the only area of secluded private open space. There is a substantial rear yard which will not be affected by shadows from the development.
    • The standards of clause 55 relating to north facing windows, daylight to existing windows and shadow to existing open space are met.
37. All upper level windows in the side elevations are treated adequately, in my opinion, to limit overlooking. The treatments include windows with sill heights or external screens 1.8 metres above floor level or obscure glazing. Views from lower level windows would be effectively limited by side fencing that is indicated on the plans to include a 600 mm lattice above to both the south and north boundaries. There are rear facing upper level bedroom windows that would allow angled views of adjoining secluded private open space but this could be addressed by wing walls that limit side views. I am satisfied that the design would not result in unreasonable loss of privacy to adjoining dwellings.
38. I am not persuaded that the noise likely to be generated by one additional dwelling on the land would be unreasonable or that the noise would be more than what is associated with normal residential use of land.
39. The issue of visual bulk to side elevations I have addressed in my discussion of neighbourhood character. I make the following additional comments. The excessive extent of the built form into the lot combined with the limited articulation was criticised for its impact on the adjoining properties. I do not agree with this criticism. At ground level the visual impact of the development will be limited by the side fences. At upper level the dwellings extend for a distance of some 30 metres and although this will be a significant change to the outlook from the adjoining properties I think it is acceptable. The length is not excessive when considered in the context of a 60.96 metre depth of lot. There are three different upper level setbacks to each side elevation and a number of different external finishes that I consider articulate the building and avoid a continuous unrelieved mass.
40. The orientation of the site and the side by side design makes provision of north facing windows for dwelling 1 difficult to achieve. The attached design does provide some energy efficiency and had I supported the proposal I would have included a condition that required the west facing living room window of dwelling 1 to be angled to capture some northern aspect, similar to the design of the living room window for dwelling 2.

Conclusion

41. Although the proposal for the review site presents some positive aspects, I find the presentation to the street unacceptable. The boundary to boundary construction that prevents the sense of space around buildings sought in local policy, the limited connection with the street arising from lack of windows at ground level and enclosed balconies at upper level and the domination of the street elevation by garages and driveway is, in my view, unacceptable in this neighbourhood.
42. For the reasons set out above, I conclude that the proposal is unacceptable having regard to the policies and provisions of the Whitehorse Planning Scheme and I will direct that no permit be granted
    

Cindy Wilson Member

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[1] I issued an Order on 25 February directing that advice be provided as to whether tree 17 on the site (as designated in the Arboricultural Construction Impact Assessment prepared by Greenwood Consulting dated March 2009) was subject to a permit. Subsequent advice from the applicant for permit confirmed that no permit is required for removal of the tree.

[2] As contained in Clause 11 of Practice Note No 1 Planning and Environment List that specifies a number of requirements in relation to amendment of plans including that all parties to the application for review, all objectors to the application for permit and all persons originally notified of the application for permit must be notified of the amended plans.

[3] Pursuant to s. 60 of the Victorian Civil and Administrative Act 1998.

[4] Whitehorse Neighbourhood Character Study 2002/2003, a reference document in the Scheme.

[5] As included in the City of Whitehorse brochure Whitehorse Neighbourhood Character Study 2002/2003 Character Area 5, which is part of a reference document in the Scheme.

[6] If the frontage is less than 20 metres width.

[7] At clauses 21.06, 22.03 and 22.04 of the Scheme.