VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO.P579/2015
PERMIT APPLICATION NO.TPA/45304.
CATCHWORDS
Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.
APPLICANT
Jesse Ant Architects
RESPONSIBLE AUTHORITY
Monash City Council
RESPONDENT
Frank & Shirley Blake, Wensheng Lu
INTERESTED PARTY
Vic Roads
SUBJECT LAND
843 High Street Road
GLEN WAVERLEY VIC 3050
WHERE HELD
Melbourne
BEFORE
Laurie Hewet, Senior Member
HEARING TYPE
Hearing
DATE OF HEARING
4 September 2015
DATE OF INTERIM ORDER
6 October 2015
DATE OF ORDER
27 November 2015
CITATION
ORDER
1
The decision of the Responsible Authority is affirmed.
2
In permit application TPA/45304 no permit is granted.
Laurie Hewet
Senior Member
APPEARANCES
For Applicant
Mr J Joyner, town planner
For Responsible Authority Ms S Moser, town planner
VCAT Reference No. P579/2015
Page 2 of 9
INFORMATION
Land Description
The subject site is located on the north side of the
road. The site has an area of 898 m² with a frontage of
18.29 m and a depth of 49.1 m. A single storey
dwelling currently occupies the site. Surrounding the
subject site there is a mix of single and double story
dwellings including some medium density housing.
The site is located close to the Glen Waverley activity
centre. The site also enjoys excellent access to a wide
range of services and facilities including schools and
public open space.
Description of Proposal
It is proposed to demolish the existing dwelling on the
site, remove all existing vegetation and construct
seven three-storey townhouses. The proposed
dwellings are configured in an attached form arranged
down the length of the site. An existing vehicle
crossover adjacent to the south west corner of the site
is proposed to be retained and used for vehicle access.
Nature of Proceeding
Application under Section 77 of the Planning and
Environment Act 1987 – to review the refusal to grant
a permit.
Zone and Overlays
Clause 32.08: General Residential Zone1
Clause 42.02: Vegetation Protection Overlay (VP0 1)
The site abuts a road in a Road Zone Category One
Permit Requirements
Clause 32.08-4: a permit is required to construct two
or more dwellings on a Lot. An application must meet
the requirements of Clause 55.
1
At the time of the hearing, Amendment C125 to the Monash Planning Scheme had been exhibited. The
amendment proposes to introduce the Monash Housing Strategy 2014 as a reference document, update the
local policy framework and apply residential zones based on the Housing Strategy. The Housing
Strategy has been adopted by the council (28 October 2014) and is therefore relevant pursuant to section
60 1A (g) of the Planning and Environment Act 1987. Amendment C125 however has not reached a
point in its approval process where I am prepared to accord it any significant weight.
VCAT Reference No. P579/2015
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REASONS2
WHAT IS THIS PROCEEDING ABOUT?
1
This is an application to review the decision of the Responsible Authority to
refuse permission for the construction of seven dwellings at 843 High Street
Road, Glen Waverley. The Responsible Authority issued a Notice of
Refusal to Grant a Permit for the following reasons:

The proposal is not consistent with the residential development and
character policy of clause 22.01 – 3 of the Monash Planning Scheme.

The proposal does not adequately satisfy the objectives and design
standards of clause 55 of the Monash Planning Scheme in terms of
neighbourhood character, building height, landscaping and dwelling
entries.

The proposed developments is not appropriate for the locality in
regards to its adverse impact on the streetscape and general
neighbourhood character.

The proposal is visually dominant in terms of built form on the
streetscape and surrounding area and does not reflect current
streetscape character.
2
Prior to the hearing the permit applicant circulated amended plans and these
were substituted for the application plans at the commencement of the
hearing. The Council maintains its opposition to the grant of a permit
notwithstanding the preparation of the amended plans.
3
At the commencement of the hearing the Council advised that the review
site has an abuttal to a road in a Road Zone Category 1. Notwithstanding
the fact that it is proposed to use an existing crossover from High Street
Road to provide vehicle access to the site, the council and the applicant
submit that a permit is required under Clause 52.29 of the planning scheme
to alter access to the road because the proposed development of the land
will increase the number of vehicles using that crossover3. They submit
that referral to Vic Roads is therefore required. The application had not
been referred to VicRoads because of an administrative oversight.
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/We do not recite
or refer to all of the contents of those documents in these reasons.
3
Clause 52.29 of the Monash Planning Scheme states:
A permit is required to:
 Create or alter access to:
o A road in a Road Zone, Category 1.
o Land in a Public Acquisition Overlay if the purpose of acquisition is for a Category 1
road.
2
VCAT Reference No. P579/2015
Page 4 of 9
4
Both the Council and the applicant submitted that the hearing should
proceed and the referral to Vic Roads occur subsequent to the hearing and
prior to a decision being made.
5
I advised the parties that the hearing would proceed and on the basis that
both parties consent to the application being referred to VicRoads, I would
direct that such referral occur.
6
My Order directing referral of the application, was made on the basis that
both parties consent to that course of action and that I had formed the view
that this is an application in which the views of VicRoads as the road
management authority for High Street Road should be sought. I further
commented that I made no finding as to whether a permit is required under
Clause 52.29 of the planning scheme in circumstances where an existing
crossover is proposed to be used to provide access from High Street Road.
7
VicRoads has now responded to the referral. VicRoads does not object to
the application but seeks to have conditions imposed on any permit issued.
The applicant has advised that it does not dispute those conditions.
VicRoads has also advised that any permit issued should include permission
to alter access to a road in a Road Zone Category 1.
8
Had I been predisposed to grant a permit for the proposal I would have
imposed the conditions sought by VicRoads because the conditions are
relevant and reasonably relate to the development of the land. With respect
to the request by VicRoads that any permit issued include a permission to
alter access to a road in a Road Zone Category 1, I make the observation
that it is not necessary for a permit to be issued under Clause 52.29 in order
for those conditions to be imposed4.
9
Having considered the submissions and having inspected the site, I consider
that the principal issue in this case is whether the scale and built form of
this proposal is acceptable having regard to the policy framework and the
site’s physical context5.
4
Deputy President Gibson has commented recently in Peninsula Blue Developments Pty Ltd v Frankston
CC (Revised) (Red Dot) [2015] VCAT 571 that in Clause 52.29 the phrase “create or alter access to a
road in a Road Zone Category 1” means “……. Any change to the use or development of land that may
result in changes to the opportunity for traffic to approach or enter a road in a Road Zone Category 1 in
terms of the volume, frequency or type of traffic whether this is more or less than the existing situation”.
This comment was made by the Deputy President in the context of a Declaration made under section 124
of the Victorian Civil and Administrative Tribunal Act 1998 that a permit is not required under Clause
52.29 in circumstances where access to a site from a Category 1 Road is obtained indirectly via an
intermediary road. The Deputy President’s comments in Peninsula Blue quoted above were not directly
related to the question before the Deputy President in that matter, and I do not regard them as binding on
my decision as to whether a permit is required under Clause 52.29 in circumstances where an existing
crossover is proposed to be used to provide access from the Category 1 Road.
5
While the council raised concerns regarding the impact of the proposal on the amenity of neighbouring
properties, I advised the parties at the hearing that I did not regard those impacts as being sufficient to
warrant a refusal of the application.
VCAT Reference No. P579/2015
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10
I have concluded that while the site exhibits attributes that make it suitable
for a medium density housing development, the proposal before me is not
acceptable because the form, style and scale of the proposal fails to respond
to the outcomes encouraged by the planning scheme for this site.
11
My reasons are set out below.
BASIS OF DECISION
12
The proposal in this case involves the construction of seven dwellings
arranged in an attached form extending down the depth of the review site.
The building provides car parking in the form of double garages at the
ground level, with living areas on the first four and bedrooms on the second
floor. An existing vehicle crossover provides access to a driveway which
runs along the length of the western boundary of the site.
13
The building rises to a height of about 9.2 m above natural ground level,
and is setback 7.7 m from the street frontage. The building provides a
continuous built form over a distance of about 37 m. It is setback 2.47 m
from the eastern boundary, 4.2 m from the northern boundary and 6.5 m
from the western boundary, a setback which incorporates the common
driveway.
14
Secluded private open space for each of the dwellings is provided by way of
east facing first floor balconies. Landscaping is limited to the front setback,
narrow strips along the east, west and north boundaries and a separate
isolated area in the north east corner of the site.
15
The proposed building adopts a contemporary architectural style with flat a
roof and a mix of brick, rendered foam, painted cement sheet and timber
cladding.
16
In broad terms, because of its height, continuous built form, reliance on the
first floor balconies, secluded private open space and limited landscaping
opportunities, the building presents as a large visually prominent structure
in a neighbourhood otherwise characterised by relatively modest single and
double story dwellings.
17
The applicant submits that the proposal is an acceptable outcome having
regard to the site’s physical and strategic context. With respect to the site’s
physical context the applicant emphasises the following considerations:
 The review site is a generously proportioned and regularly
configured lot with an area of 898 m², a frontage of 18.29 m and a
depth of 49.1 m. There is no significant vegetation on the site. No
permit is required under the vegetation protection overlay to
remove vegetation from site.
 The site is located in close proximity to the Glen Waverley activity
centre. The Glen Waverley railway station is about 1 km from the
review site.
VCAT Reference No. P579/2015
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 Site is located on a main road and there are schools, parks, retail
and commercial facilities within close proximity of the site.
18
In relation to the current proposal the applicant emphasises those aspects of
state and local planning policy that seeks to:
 Increase the supply of housing in existing urban areas by
facilitating increased housing yield in appropriate locations.
 To locate new housing in or close to activity centres and
employment corridors and at other strategic redevelopment sites
that offer good access to services and transport
 Encourage the design of energy efficient buildings;
 Ensure that development improves housing choice, makes better
use of existing infrastructure and improves energy efficiency of
housing;
 Encourage the provision housing to accommodate future housing
needs and preferences of the local community;
19
The applicant refers to and relies on the decision of the Tribunal6 in which a
three storey apartment building was approved on the site at 831 High Street
Road, a site that is about 100 m to the west of the review site. The Tribunal
in that case commented on the level of policy support for a development of
the type and scale proposed in that case. The Tribunal was also satisfied
that the proposal was acceptable from a neighbourhood character
perspective. The Tribunal commented that the character considerations in
that case were influenced by the site’s proximity to the Glen Waverley
activity centre and the character referred to in the council’s character study
commenced to the east of Hammence Street.
20
The review site in the current case is located between the activity centre and
Hammence Street.
21
I agree with the Tribunal’s findings in the case referred to above especially
with respect to the applicable policy framework and the character relating to
that site. There are characteristics of the site considered by the Tribunal in
that case which are distinguishable from the context of the review site in the
present case. I note in particular that the site in the earlier case abuts the car
park of the Mountain View Hotel which is at the north-east corner of the
intersection of High Street and Springvale Roads. The current review site is
located to the east of that site in what is best described as a mid block
location and has a number of direct residential interfaces. The robust
physical environment that characterised the site in the earlier application is
not replicated in this case.
6
Lim v Monash CC & Ors [2012] VCAT 788
VCAT Reference No. P579/2015
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22
I also agree with the applicant’s submission that the review site does exhibit
a number of attributes that make it eminently suitable for a medium density
housing development of some type. The site proximity to the activity
centre, public transport, schools and other services and facilities are
important considerations in this respect. The site’s main road location is
another relevant factor. The proposal would also make a contribution
toward the achievement of housing affordability and diversity policies and
urban consolidation policies in general.
23
I am not persuaded however that the proposal in its current form represents
a design that achieves the appropriate balance between those policies that
seek to advance housing affordability and diversity on sites in and around
activity centres, and those planning scheme provisions that emphasise the
importance of new developments respecting existing or preferred
neighbourhood character. In this respect the Council’s adopted Housing
Strategy includes the review site in an area in which incremental residential
change is encouraged, providing for modest housing growth with an
emphasis on preserving the character of the neighbourhood. The site is also
located In Neighbourhood Character Area Type C. The desired future
character of these areas places emphasis on new buildings respecting the
height and scale of existing development, the provision of landscaping and
the provision of generous setbacks. In general terms buildings are
encouraged to subservient to vegetation.
24
This proposal does not achieve the appropriate balance that I referred to
above. My primary concerns in this respect relate to the combination of the
buildings height (three storeys), continuous built form extending down the
length of the site at a three story height, the lack of any meaningful
landscaping opportunities which arises primarily out of the attached nature
of the dwellings and the adoption of a reverse living typology in which
there is very little ground level open space. The reliance on upper-level
balconies for open space minimises the prospect of providing meaningful
landscaping including canopy trees on any part of the site except in the
front setback and in the isolated pocket in the north-east corner of the site.
25
It is appropriate that I observe that my concerns with this proposal do not
relate to the adoption of the reverse living typology per se, but rather with
its application to this site in this neighbourhood. There are certainly
circumstances in which this form of development is appropriate. On the
appropriate site this form of development does have the potential to provide
significant benefits in terms of for example, access to daylight and outlook
for residents of the development. These benefits however are often
achieved at the expense of ground level open space and the consequent
opportunities for effective landscaping within those open space areas. In
forming a conclusion about the acceptability of this form of building to a
site, that conclusion must be informed by the applicable policy framework
VCAT Reference No. P579/2015
Page 8 of 9
and the site’s physical context. I have not been persuaded that the design of
this proposal is acceptable having regard to these matters.
26
As I stated above the review site constitutes a mid-block location with one
and two storey residential interfaces. I reiterate my earlier observation that
the site has a very different physical context to the site which for which
approval has been granted by the Tribunal for a three story apartment
building. The council’s neighbourhood character and housing policies
similarly do not encourage a development of the height, scale, and form of
this proposal in this locality. The building if approved would not constitute
a comfortable fit in this neighbourhood. The lack of landscaping
opportunities is an important consideration in this respect. The building
cannot be successfully integrated into the neighbourhood because its height,
bulk and scale cannot be offset or minimised by the use of landscaping. As
I’ve indicated above the proposal fails to provide sufficient space within the
site for the provision of meaningful landscaping.
CONCLUSION
27
For the reasons explained above, the decision of the Responsible Authority
is affirmed. No permit is to issue.
Laurie Hewet
Senior Member
VCAT Reference No. P579/2015
Page 9 of 9