VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST

/ vcat reference No. P493/2017
Permit Application no. TPA/46494

CATCHWORDS

Section 82 of the Planning & Environment Act 1987; Monash Planning Scheme;
Neighbourhood character
APPLICANT / Jia Sun and Others
RESPONSIBLE AUTHORITY / Monash City Council
RESPONDENT / Compfam Pty Ltd
SUBJECT LAND / 317 Gallaghers Road, Glen Waverley
WHERE HELD / Melbourne
BEFORE / Tracy Watson, Member
HEARING TYPE / Hearing
DATE OF HEARING / 1 August 2017
DATE OF ORDER / 31 August 2017
CITATION / Sun v Monash CC [2017] VCAT 1394

Order

1  The decision of the Responsible Authority is varied.

2  In permit application TPA/46494 a permit is granted and directed to be issued for the land at 317 Gallaghers Road, Glen Waverley in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:

·  Construction of three dwellings and removal of one tree.

Tracy Watson
Member

APPEARANCES

For Applicant / Peter Katz, in person
For Responsible Authority / Adrianne Kellock, town planner
For Respondent / Nicola McGowan, town planner

INFORMATION

Description of Proposal / It is proposed to construct three dwellings on the subject site. Vehicular access to Dwelling 1 will be from Gallaghers Road, whilst vehicular access to Dwellings 2 and 3 will be from Gwingana Crescent.
Nature of Proceeding / Application under Section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.
Zone and Overlays / Clause 32.08 – General Residential Zone, Schedule 2
Clause 42.02 – Vegetation Protection Overlay, Schedule 1
Permit Requirements / Clause 32.08-6 – To construct two or more dwellings on a lot.
Clause 42.02-2 – To remove Tree No. 6 (as identified in the Arboricultural Report).
Relevant Scheme, policies and provisions / Includes Clauses 11, 15, 16, 21.03, 21.04, 22.01, 22.05, 32.08, 42.02, 52.06, 55 and 65.
Land Description / The subject site is a sloping allotment located on the north west corner of Gallaghers Road and Gwingana Crescent in Glen Waverley. The site has a frontage of 16.76 metres and a depth of 36.57 metres (excluding the corner splay), which yields a site area of 957m2. The subject site is currently developed with a single dwelling, and is located in an established residential area.
Tribunal Inspection / 22 August 2017

REASONS[1]

What is this proceeding about?

1  The Monash City Council issued a Notice of Decision to Grant a Permit for the proposed development in February 2017. It is a decision which a number of residents have requested be reviewed by the Tribunal.

2  Based on the hearing process and all the relevant associated documentation, I consider that the key issue relates to whether the proposal respects the neighbourhood character of the area.

3  The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and statements of grounds, together with the applicable policies and provisions of the Monash Planning Scheme, I have decided to vary the decision of the Responsible Authority. My reasons follow.

Is the proposal respectful of neighbourhood character?

4  Mr Katz submitted that the proposed development is not respectful of the neighbourhood character of the area as the:

·  original intent of rezoning the land to the Neighbourhood Residential Zone under proposed Amendment C125 was to limit redevelopment in this area to a maximum of two dwellings per lot.

·  rear setbacks are less than 5 metres.

·  front setback to Gwingana Crescent is not 7.6 metres.

·  garage to Dwelling 3 is located on the boundary.

·  materials contravene the restrictive covenant.

5  Monash City Council has adopted Amendment C125 to the planning scheme and submitted it to the Minister for Planning requesting its approval. This Amendment proposes to rezone the subject site to the Neighbourhood Residential Zone, Schedule 4. Notably, the Neighbourhood Residential Zone no longer limits redevelopment to two dwellings per allotment, and accordingly a three-dwelling development is permissible under the proposed Neighbourhood Residential Zone provisions.

6  The proposed ground floor rear setbacks to the northern boundary of the subject site are predominantly 5 metres. However, there are two lesser setbacks to the meals area of Dwellings 2 and 3 which are proposed to have a northern boundary setback of 3.08 metres and 3.56 metres respectively.

7  The current planning scheme provisions (that is, Schedule 2 to the General Residential Zone) do not include a local side and rear setbacks variation to Standard B17 of Clause 55.04-1 of the planning scheme. The proposal complies with Standard B17 of the planning scheme. However, proposed Amendment C125 includes a 5 metres rear setback local variation to Standard B17 (contained in the adopted Schedule 4 to the Neighbourhood Residential Zone). Proposed Schedule 4 does not include a local variation to the side setbacks of Standard B17. The existing planning scheme includes a local variation to the private open space Standard B28. This local variation is to provide a total private open space area of 75m2 with one part of the private open space at the side or rear of the dwelling with a minimum area of 35m2 and a minimum width of 5 metres. The amounts specified in the existing Standard B28 local variation are maintained in the proposed Schedule 4 to the Neighbourhood Residential Zone.

8  The proposed rear 5 metres minimum setback will not be a mandatory standard and can still be varied under the provisions of Clause 55.04-1 provided I am satisfied that (having had regard to the applicable decision guidelines), the associated objective is met. I note that localised Zone Schedules can only vary the Clause 55 standards, and not the objectives of this Clause. The Clause 55.04-1 objective is, “To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.” Similarly, the local variation to Standard B28 can also be varied provided its associated objective, “To provide adequate private open space for the reasonable recreation and service needs of residents” is also met. The visual impact of the proposed walls with the reduced rear setback and the amount of proposed private open space provided for Dwellings 2 and 3 are acceptable as:

·  Each wall is limited to 4 metres in length, with the longer walls to the proposed sitting areas being setback 5 metres.

·  The proposed walls have an interface with the large rear secluded private open space area of no. 315 Gallaghers Road which is screened by dense vegetation such that views of the proposed ground level walls will be limited.

·  The proposed walls will be imperceptible from the public realm.

·  The overall area of proposed rear secluded private open space of Dwellings 2 and 3 is 73m2 and 65m2 respectively. These areas are well in excess of the 35m2 under the local variation to Standard B28 which forms part of both the existing planning scheme, as well as the proposed Schedule 4 to the Neighbourhood Residential Zone. Furthermore, a condition of the permit requires that a landscape plan be prepared to the satisfaction of the responsible authority to provide for canopy trees with spreading crowns located throughout the site including the major open space areas. These proposed secluded private open space areas will both meet the recreation and service needs of future occupants, as well as being a respectful response to the desired future character of the Dandenong Valley Escarpment Areas to provide spacious garden settings and sufficient areas for the planting of canopy trees.

9  I am therefore satisfied that the proposal meets the objectives at Clauses 55.04-1 and 55.05-4 of the planning scheme.

10  The proposed development includes a front setback to Dwelling 1 of 7.6 metres which complies with the front setback local variation to Standard B6 under the existing provisions of the planning scheme as well as the proposed Schedule 4 to the Neighbourhood Residential Zone. The planning scheme allows for smaller setbacks to the Gwingana Crescent interface, and does not require a 7.6 metres setback to this street. The existing planning scheme does not include a local variation to the side setbacks standard. However, the proposed Schedule 4 to the Neighbourhood Residential Zone includes a local variation that:

Where a new development is located on a corner site the setback to the side street is the same distance as the setback of the front wall of any existing building on the abutting allotment facing the side street or 3 metres, whichever is the lesser.

11  Proposed Dwelling 3 has setbacks of either 5.51 metres or 3.35 metres from Gwingana Crescent (which is the side street); and proposed Dwelling 2 has setbacks of either 3.11 metres or 5.51 metres. These setbacks exceed the proposed local variation. The proposed ground level setback to the southern wall of Dwelling 3 is 2.51 metres which is 490mm less than the proposed local variation. The proposed upper level setbacks of Dwelling 1 as it presents to Gwingana Crescent exceed the proposed local variation by either 1.07 metres or 3.11 metres. I consider that this Dwelling 1 section of reduced setback is acceptable in the Gwingana Crescent streetscape as it was evident from my site inspection that the dwellings located along the southern side of Gwingana Crescent feature small side setbacks to the street. I am satisfied that the proposed Gwingana Crescent streetscape presentation is a comfortable fit in its context and that the objective at Clause 55.03-1 of the planning scheme, “To ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site” has been met.

12  The proposed development only includes one boundary wall, which is the garage wall to Dwelling 3. Neither the existing planning scheme nor the proposed Schedule 4 to the Neighbourhood Residential Zone include a local variation to Standard B18 at Clause 55.04-2 of the planning scheme. The objective of this Clause is, “To ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.”

13  The proposed garage boundary wall abuts the non-sensitive driveway interface of the property at no. 1 Gwingana Crescent and will therefore not have any unacceptable amenity impacts on this property. I also note that Jia Sun (one of the applicants for review) advised the Tribunal that she has sold the property at no. 1 Gwingana Crescent and therefore no longer wishes to contest this matter. It is also a characteristic of the streetscape of the northern side of Gwingana Crescent to feature visually prominent garages. There is a nearby example of a garage constructed on or near to a side boundary at no. 3 Gwingana Crescent. Furthermore, the proposed garage is well recessed behind the proposed front walls and porch of Dwelling 3. I therefore find that in this context, the proposed garage boundary wall will not be a visually dominant feature in the streetscape and will not result in any unacceptable off-site amenity impacts. Therefore the objective at Clause 55.04-2 of the planning scheme has been met.

14  As part of its assessment, the Council obtained legal advice from Maddocks regarding the implications of the restrictive covenant on the proposed development. As a consequence of this advice, the permit applicant prepared amended plans prior to the statutory notification of the permit application. The Council are satisfied that the proposed materials do not contravene the restrictive covenant and I accept their position in this regard. Moreover, the proposed materials will assist in creating well-modulated and articulated buildings which will sit comfortably within the streetscape.

15  Overall, I find that the proposed development is appropriate in terms of being respectful of both the existing and desired future character of the area and meets the overarching neighbourhood character objectives at Clause 55.02-1 of the planning scheme.

Other matters

16  Mr Katz also raised concerns regarding the proposal’s impact on the availability of on-street parking and the increased traffic volumes generated by the three dwellings.

17  The proposal complies with the number of on-site car spaces and parking layout provisions of Clause 52.06 of the planning scheme. This means that there is no permit trigger in relation to parking matters arising from the proposed development, and consequently this issue falls outside of my ambit of decision-making discretion.

18  Furthermore, I agree with the Council’s position that the amount of additional traffic generated by a net gain of two dwellings can be readily accommodated by the existing road network.

What conditions are appropriate?

19  The permit will contain the same conditions included in the Council’s Notice of Decision to Grant a Permit. The only variation I have made to the Council’s decision is a modification to the permit preamble to allow the removal of the Silver birch tree currently located in the front garden of the subject site. I note that the removal of this tree was not in dispute.

Conclusion

20  For the reasons explained above, the decision of the Responsible Authority is varied. A permit is issued subject to conditions.