VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P2250/2014
PERMIT APPLICATION NO. TPA/42988
CATCHWORDS
Section 82 of the Planning and Environment Act 1987, Monash Planning Scheme, Drainage, Public Use Zone, Neighbourhood
Character, Tree removal, Overshadowing, Overlooking, Traffic.
APPLICANT
Jose Morel – Power of Attorney for Richard
Lionnet
RESPONSIBLE AUTHORITY
Monash City Council
RESPONDENT
Mr Bhaveshkumar Patel
SUBJECT LAND
8 Miller Crescent, Mount Waverley
WHERE HELD
Melbourne
BEFORE
Sue Porter, Member
HEARING TYPE
Hearing
DATE OF HEARING
4 June 2015
DATE OF ORDER
28 October 2015
ORDER
1
The decision of the Responsible Authority is set aside.
2
In permit application TPA/42988 no permit is granted.
Sue Porter
Member
APPEARANCES
For Applicant
Mr Jose Morel.
For Responsible Authority Mr Gerard Gilfedder, Town Planner, Sweett Group.
For Respondent
Mr Bhaveshkumar Patel.
INFORMATION
Description of Proposal
The construction of a three storey dwelling and the
removal of vegetation.
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
General Residential Zone 2 (GRZ2).
Public Use Zone – Transport (PUZ4).
Vegetation Protection Overlay 1.
Permit Requirements
Clause 32.08 – Construct a second dwelling.
Clause 36.01 – Construction and use of a building as a
dwelling and carrying out of works.
Relevant Scheme, Policies Clauses 9, 10, 11, 15, 16, 21.02, 21.03, 21.04, 21.06,
and Provisions
22.01, 22.04, 22.05, 32.08, 36.01, 52.06, 55 and 65.
Land Description
The review site is a rectangular shaped allotment with
a 17.68m frontage, a depth of 58.84m and a total area
of 1,030m2.
It contains a double storey brick veneer dwelling to
the front with vehicular access provided along the
side. A mature sugar gum and pine tree are located at
the rear of the site.
The site is located on the high side (south) of Miller
Crescent and slopes upward towards the rear.
Properties on the north side of Miller Crescent slope
downward, as does Miller Crescent itself, with a low
point in the road located in front of properties at 5-9
Miller Crescent.
The site abuts the rail reserve to the rear.
The surrounding area is residential.
Tribunal Inspection
VCAT Reference No. P2250/2014
7 June 2015.
Page 2 of 11
REASONS1
WHAT IS THIS PROCEEDING ABOUT?
2
Mr Patel applied for permit to construct a three storey second dwelling at
the rear of an existing dwelling on the review site.
3
Council issued a notice of decision to grant a permit subject to conditions.
4
Mr Morel has appealed that decision. At the hearing, he summarised his
main concerns relate to neighbourhood character, vegetation removal,
overshadowing, overlooking, drainage and traffic.
5
The full extent of the drainage issue was not brought to light at the Hearing,
but became clearer afterwards. This issue has a critical bearing on the future
development potential of this site which must be addressed before
considering the merits of the proposal.
6
The site is partly included within a Public Use Zone. Whether the relevant
Public Land Manager consents to the application being made and the
proposal itself have also been critical issues which must be addressed
before considering the merits of the proposal.
7
In making this decision, the key issues I have considered are whether the:
a. proposal contributes to existing drainage problems in Miller
Crescent;
b. Public Land Manager consents to the proposal and whether the
proposed use and development is appropriate on land within a
Public Use Zone; and
c. proposed development is appropriate.
WILL THE PROPOSAL CONTRIBUTE TO EXISTING DRAINAGE
PROBLEMS IN MILLER CRESCENT?
8
At the Hearing, Mr Morel raised concern about the impact this proposal will
have on stormwater flows from the site and whether this will result in
flooding of land to the north. He provided photographs which he submitted
demonstrated the land to the north had historically experienced significant
flooding which had been exacerbated by development on the south side of
Miller Crescent. He expressed concern the proposal would exacerbate this
problem.
9
The site is not included within a Special Building Overlay or a Land
Subject to Inundation Overlay and it has not been identified in the planning
scheme as a site which has or may contribute to flooding in the area.
10
The Officer report did not examine drainage concerns in detail, but rather
relied on the comments of Council’s Drainage Engineer who raised no
1
I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered
by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in
these reasons.
VCAT Reference No. P2250/2014
Page 3 of 11
objection to the proposal subject to the inclusion of conditions and notes on
the permit which specify the need for on-site detention, with the possibility
of an in-lieu drainage contribution as an alternative.
11
Following the Hearing it came to my attention that this is not the first time
drainage concerns associated with the development of land in Miller
Crescent have been considered by Council and the Tribunal.
12
An application to construct two dwellings at 5 Miller Crescent was refused
by Council. The matter was referred to the Tribunal2, and whilst drainage
concerns were not a ground of refusal, at the hearing Council advised this
was an issue which needed to be addressed. Council’s submitted its
drainage engineer would not support the proposed construction of floor
levels partially underground and required the floor levels to be raised. The
Tribunal ultimately upheld the Council decision and directed that no permit
be issued on the basis that there was potential for overland flows that could
have significant consequences for the proposed development.
13
An application to construct four dwellings at 4 Miller Crescent was also
recently before the Tribunal3. Whilst drainage was not a consideration in
that matter, it is understood the draft conditions proposed by Council in
differ to those in the matter before me.
14
To get a greater understanding of the drainage issues, I issued an order
requesting Council to provide an explanation of the drainage conditions in
Miller Crescent to enable me to be confident that the proposal will not
result in unreasonable drainage impacts on nearby properties, that it will not
experience flooding issues itself; and that the proposed conditions are
appropriate, reasonable and consistent with the approach adopted in relation
to other development in Miller Crescent.
15
Council responded stating:
Council’s stormwater drains are designed to take flows from the more
frequent storm events. Occasionally, however, heavy storms in excess of
such frequencies cause the drainage system to become overloaded for short
periods of time. The result is that water runoff from the storm events
exceeds the capacity of the underground drainage system. When this occurs,
surface ponding (especially at low points) may result in significant overland
flows into private properties and dwellings. To appreciate this it is
important to understand the design convention that has been used to design
the underground drainage system in Victoria and, in particular, Monash.
Historically, the underground drainage system was designed for a 35%
impervious area compared to an average of 65% today. The intention was to
cater for seasonal storm events which typically occur every 5 years or so
2
3
VCAT Reference P874/2014
VCAT Reference P10/2015
VCAT Reference No. P2250/2014
Page 4 of 11
(there is a 20% chance of this storm occurring in any given year). When the
storm event exceeds this, then overland flows often result.
An analysis of the catchment area indicates that there is low point in front of
5, 7 and 9 Miller Crescent and during high intensity storm events the
existing underground drainage system between 12-14 and 5-7 Miller
Crescent is at capacity and cannot handle the high flow rates. During these
storm events ponding of water will occur at the low point which may result
in overland flow into 5 and 7 Miller Crescent and north towards McLeod
Place.
16
I gave all parties an opportunity to make submissions based on Council’s
advice, however, no submissions were made.
17
I have interpreted Council’s advice as saying the drainage infrastructure in
Miller Crescent has not been designed to, and is not capable of
accommodating overland flows associated with high intensity storm events,
and that increased levels of stormwater from development discharged to the
street may result in flooding in the lower areas of Miller Crescent and
towards McLeod Place.
18
I have also interpreted Council’s advice as saying that not only is the
existing infrastructure unlikely to cope with current levels of development,
but this may be exacerbated by increased development with
correspondingly increased impervious surfaces, resulting in increased
stormwater runoff.
19
I consider this raises a significant concern, particularly given Council
recognises this as an area that can accommodate increased densities due to
its proximity to the Mount Waverley train station.
20
It is also of concern recognising the relevant permeability standard4
specifies the minimum area covered by pervious surfaces should be at least
20%, which is far less than the system was designed to accommodate.
21
Council’s approach to solving this issue has been to include conditions on
the permit that require an on-site detention system to allow gradual
discharge to the street. However, the advice from Council’s Drainage
Engineer casts doubts as to the effectiveness of this approach when saying:
The installation of a detention system for the proposed dwellings will not
greatly improve the drainage situation because the detention system would
be designed for a 1 in 10 year storage and 1 in 5 discharge flow. Flows for
storm events in excess of 1 in 5 will discharge into the street.
22
4
Based on this advice, I am not confident the proposed detention system will
adequately address the drainage issues in Miller Crescent.
Clause 55.03-4 – Permeability objective – Standard B9
VCAT Reference No. P2250/2014
Page 5 of 11
23
Council also advised that an in-lieu drainage contribution of $7,600 could
be made as an alternative to the on-site detention system.
24
Similarly I have concerns with this approach. I was not provided with any
explanation as to whether this contribution would go directly towards
improving the drainage issues in Miller Crescent, or whether it would go to
addressing the broader municipal wide drainage issues, and I was given no
indication of timeframes.
25
This leaves me still questioning how the drainage issues associated with the
development of this and other sites in Miller Crescent can be properly
addressed to ensure development does not exacerbate drainage problems in
Miller Crescent and further afield.
26
I am not satisfied the conditions on the permit adequately address this issue.
27
I have therefore come to the conclusion that based on Council advice there
is a very real possibility that this development could contribute to drainage
problems for properties on the northern side of Miller Crescent.
28
On that basis, I do not consider it appropriate to support this development
and therefore refuse to grant a permit.
29
I also consider this is an issue that warrants further consideration by
Council. This is not the first time this issue has arisen, and given Miller
Crescent is in an area recognised as appropriate for increased residential
development it is not likely to be the last. I consider a more holistic
approach to the drainage issues in this location needs to considered, rather
than dealing with drainage issues on an application by application basis.
HAS THE PUBLIC LAND MANAGER CONSENTED TO THE PROPOSAL
AND IS THE PROPOSED USE AND DEVELOPMENT OF LAND WITHIN THE
PUBLIC USE ZONE APPROPRIATE?
30
This site is unique as it is within two zones, these being the General
Residential Zone 2 and the Public Use Zone 4 - Transport.
31
The purpose of the Public Use Zone is “To recognise public land use for
public utility and community services and facilities.” and “To provide for
associated uses that are consistent with the intent of the public land
reservation or purpose.” A private dwelling would not normally be
consistent with the purposes of the zone.
32
Under the provisions5 of this zone a permit is required for the use of land
for the purpose of a dwelling, to construct the dwellings and to construct
and carry out works, including vegetation and tree removal. An application
for a permit by a person other than the relevant public land manager must
be accompanied by the written consent of the public land manager,
indicating the public land manager consents generally or conditionally to
5
Clause 36.01-3
VCAT Reference No. P2250/2014
Page 6 of 11
the application for permit being made and to the proposed use and/or
development for which a permit is sought.
33
No consent was provided with the application and this matter was not
considered by Council in assessing this application. Similarly it was not
addressed in Council’s submission to the Tribunal.
34
Accordingly, I issued an order requiring the necessary consent be obtained.
35
As a result, VicTrack advised it no longer owns the land and therefore does
not consider itself the public land manager, however, given the zoning of
the land accepted it is still the designated public land manager.
Accordingly, VicTrack advised it conditionally consents to the application
being made and has no objection to the grant of a permit subject to
conditions or notes being included on any permit issued.
36
I also gave parties a chance to respond to VicTrack’s comments, however,
no further submissions were made. I have interpreted that to mean no
parties object to the conditions proposed.
37
I am now satisfied the necessary consent of the Public Land Manager has
been obtained to make the application and that a permit could be granted
subject to the conditions specified by VicTrack.
38
Had the drainage issues not been of such a concern, I would have granted a
permit subject to the conditions stipulated by VicTrack.
39
In terms of the zoning of the land, I note this is not the only site on the
south side of Miller Crescent that is partly included within a Public Use
Zone and a General Residential Zone 2.
40
Based the advice from VicTrack, it is clear the authority no longer has an
interest in this land and there is no longer a need for the Public Use Zoning.
This is therefore clearly an anomaly in the planning scheme which should
be address through a planning scheme amendment.
IS THE PROPOSED DEVELOPMENT APPROPRIATE?
41
In addition to drainage, Mr Morel raised a number of other issues relating to
neighbourhood character and off-site amenity impacts.
42
Whilst I have not issued a permit due to the drainage concerns, I will make
some comments about these issues.
Neighbourhood character
43
Mr Morel submitted the proposed three storey dwelling will dominate the
landscape and dramatically alter the character of the area, having a negative
visual impact when viewed from the adjoining properties and the street.
44
In considering whether the proposal respects neighbourhood character, I
have had regard to the Residential Development and Character Policy6.
6
Clause 22.01
VCAT Reference No. P2250/2014
Page 7 of 11
This policy recognises the importance of protecting the garden character of
the municipality and seeks to encourage development in this location that is
generally low rise and has regard to the desired future character. Under this
policy, this site is located within the Residential Character Type C, which
identifies the desired future character as a pleasant leafy framework of wellplanted front gardens and large canopy trees. It recognises that two storey
built form will become more predominant, but seeks to buffer views from
the street by well planted front gardens that contain large trees and shrubs.
45
This is a proposal for two dwellings, one in front of the other, and as such it
will still largely appear as a single dwelling from the street. Whilst the
proposed dwelling is three storeys, it is to be cut into the slope of the land
and will have a maximum building height of 8.5m, which is less than the
existing dwelling. Views from the street will be largely obscured by the
existing two storey dwelling at the front of the site. Due to this cut, the
proposed dwelling will also largely appear as a two storey from
neighbouring properties.
46
In terms of heights and setbacks, the proposal is reasonable and complies
with the relevant standards7.
47
Whilst the proposal seeks to remove two existing mature trees, five new
canopy trees are to be planted on site, both within the front setback as well
as through the rear of the site.
48
For these reasons, I consider the proposal to be consistent with the
identified desired future character for the area.
Tree removal
49
The proposal seeks to remove four trees from the site, two along the
accessway and two at the rear of the site, most notably a mature sugar gum.
50
I note from the Arborist report submitted with the application that all of
these trees are considered to be of low retention value and of little or no
retention viability.
51
In considering the proposed vegetation removal, I note the permit triggers
relating to the site vary based on whether the land is included within the
Vegetation Protection Overlay or the Public Use Zone.
52
Trees 8 and 9 are located along the accessway at the front of the site within
the Vegetation Protection Overlay. A permit is only required for the
removal of Tree 8 due to its height. Also Council’s decision in relation to
the removal of this tree is exempt from the review requirements. This
means that removal of these trees is not an issue for review before the
Tribunal.
53
Trees 2 and 6 are located at the rear of the site within the Public Use Zone
and a permit is required for their removal; and there are no exemptions for
7
Standard B17
VCAT Reference No. P2250/2014
Page 8 of 11
review under the zone provisions. Therefore the removal of these trees is
an issue before the Tribunal for review.
54
Tree 2 is a mature 20m high pine tree which has been identified in the
Arborist’s report as having fair health and a below average structure. The
Arborist recommended its removal.
55
Tree 6 is a semi mature 16m high sugar gum which has been identified in
the Arborist’s report as having a below average health with a poor structure.
The Arborist recommended its removal.
56
In considering this issue I have had regard to Council’s Tree Conservation
Policy8 and Residential Development and Character Policy9.
57
In doing so, I note these policies seek to retain mature canopy trees
wherever possible, and to plant semi-mature canopy trees with spreading
crowns throughout a site as part of any new development to reinforce the
Garden City Character of the area.
58
Given the size and canopy spread of Tree 6, I consider it does make a
contribution to the garden landscape character of the area, however, the tree
is not in good condition and the Arborist considers it not worthy of
retention. On that basis, I support its removal. Similarly, as Tree 2 is a
pine tree which is not in good health, I also support its removal.
59
In supporting the removal of these trees, I acknowledge the proposal
includes the planting of five new canopy trees on the site. I consider this is
consistent with the policy and appropriate.
60
I also consider it appropriate that the proposal incorporate tree protection
measures to ensure trees on the neighbouring properties are not adversely
impacted upon during the construction process.
Overshadowing of adjoining open space
61
Mr Morel raised concern that the proposed dwelling would result in
overshadowing into his secluded private open space.
62
Given the review site’s location to the east of Mr Morel’s property, the rise
of the land and its size, it is clear that whilst there may be some early
morning overshadowing, at least 40m2 secluded private open space will still
receive five hours of sunlight, which is consistent with the relevant
standard10. For this reason I consider the proposal achieves the relevant
objective which is “To ensure buildings do not significantly overshadow
existing secluded private open space.”11
8
Clause 22.05
Clause 22.01
10
Standard B21
11
Clause 55.04-5
9
VCAT Reference No. P2250/2014
Page 9 of 11
Overlooking of adjoining open space
63
Mr Morel raised concern that the proposed dwelling would result in
overlooking into his secluded private open space.
64
In terms of overlooking, I agree with Mr Morel that the proposal does
present some overlooking issues, particularly in relation to the ground floor
easterly facing kitchen window and the two westerly facing family room
windows. This overlooking is exacerbated by the height of the floors above
ground level.
65
I consider that views from these windows should be screened. I am not
satisfied that trellis on the fence alone would be an appropriate outcome in
this location as it would require a fence with a height in excess of 2.5m,
which I consider to be excessive in this context. This may be part of the
solution, but other screening measures within the site will also be required.
66
If I had been inclined to issue permit, I would not have specified as type of
screening, rather leaving this up to the applicant and Council to determine,
in consultation with Mr Morel.
67
In addition, the plans need to be amended to show obscure glazing to
bathroom windows.
Traffic
68
Mr Morel raised concern with the impact that additional cars would have on
the surrounding street network.
69
The proposal is for a single dwelling and it provides a double garage to
meet its parking requirements.
70
I do not consider the proposal would place an unreasonable burden on the
surrounding street network.
71
Whilst Mr Morel raised concern about commuters using the Mt Waverley
railway station parking in the nearby streets, this is not a reason to refuse
this application.
72
On that basis, I consider the proposal would not have unreasonable traffic
impacts on the surrounding street network.
CONCLUSION
73
I consider there are many positive aspects to this development, and had the
drainage concerns in Miller Crescent been adequately addressed, I would
have issued a permit subject to conditions. But the drainage issues have not
been resolved and therefore I have concluded that I cannot support this
application.
74
For the reasons explained above, the decision of the Responsible Authority
is disallowed. No permit is to issue.
VCAT Reference No. P2250/2014
Page 10 of 11
Sue Porter
Member
VCAT Reference No. P2250/2014
Page 11 of 11