VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P2390/2014
PERMIT APPLICATION NO. TPA/42606
CATCHWORDS
Monash Planning Scheme; Section 82 of Planning and Environment Act 1987; General Residential Zone; Impact on Amenity; Two Storey
Development; Backyard Context; Impact on Courtyard and Rear Open Space; Overshadowing; Visual Bulk; Vehicle Access; Tree Protection.
APPLICANT
Kerri & Steven Bann
RESPONSIBLE AUTHORITY
Monash City Council
RESPONDENT
Qi Yong
SUBJECT LAND
No. 10 Avondale Grove, Mount Waverley
WHERE HELD
Melbourne
BEFORE
Margaret Baird, Senior Member
HEARING TYPE
Hearing
DATE OF HEARING
6 May 2015
DATE OF INTERIM ORDER
7 May 2015
DATE OF FINAL ORDER
10 July 2015
ORDER
1
The decision of the Responsible Authority is varied.
2
In permit application no. TPA/42606, a permit is granted and directed to be
issued for the land at No. 10 Avondale Grove, Mount Waverley in
accordance with the endorsed plans and on the conditions set out in the
Notice of Decision to Grant a Permit dated 10 December 2014 subject to
the following variations:
(a)
In Condition 1, delete part a) and replace it with the following:
a)
The following changes to the east elevation of Unit 3:
i.
The setback of the ground floor level from the common
boundary with No. 12 Avondale Grove increased to 1.2
metres for a length of 2 metres (being the pantry and
northern end of the kitchen).
ii.
The boundary wall reduced in height to 3.0 metres and
setback no less than 200mm from the common boundary
with No. 12 Avondale Grove with the addition of an
annotation showing the existing boundary fence retained.
iii. The first floor setback of bedroom 4 increased to 4 metres
from the common boundary with No. 12 Avondale Grove
with no changes to other upper level setbacks.
(b)
In Condition 1, add a new part e) as follows:
e)
(c)
East facing ground level family room window in Unit 1 and ensuite window in Unit 3 screened in a manner to limit
overlooking from the raised rear deck at No. 12 Avondale
Grove.
In Condition 3, add a new dot point as follows:

(d)
3
Tree protection zones, works and measures required to ensure the
retention of trees shown as being retained.
Correct the spelling of “stormwater” in Condition 5.
The permit allows:

The construction of three double storey dwellings.
Margaret Baird
Senior Member
APPEARANCES
For Applicant
Mr D Bowden, Song Bowden Planning.
For Responsible Authority Ms S Moser of Moser Planning Services.
For Permit Applicant
VCAT Reference No. P2390/2014
Mr S Skinner, Planning Sense.
Page 2 of 12
INFORMATION
Description of Proposal
Construct three, two storey, dwellings. Two units face
Avondale Grove, with a shared driveway leading to
basement garages. Unit 3, also double storey, is at the
rear using a separate driveway access.
Nature of Application
Application under Section 82 of the Planning and
Environment Act 1987 – to review a decision to grant
a permit.
Zone and Overlays
General Residential Zone Schedule 2 [GRZ2].
Permit Requirements
Clause 32.08-4 – to construct two or more dwellings
on a lot.
Relevant Scheme Policies
and Provisions
Clauses 9, 10, 15, 16, 21, 22.01, 22.04, 22.05, 32.08,
52.06, 55 and 65.
Land Description
The subject land is on the south side of Avondale
Grove. It has a frontage of 29.35 metres, a depth of
43.45 – 51.32 metres and tapers to 8.29 metres at the
rear. It abuts two storey dwellings on all boundaries.
Tribunal Inspection
12 May 2015 (unaccompanied) including the subject
land and property at No. 12 Avondale Grove.
REASONS1
WHAT IS THIS PROCEEDING ABOUT?
1
Mr and Mrs Bann, the applicants for review, live next door to the subject
land. Their two storey dwelling has a covered deck, spa and secluded
private open space (with pool) adjacent to the eastern boundary of the
subject land. They seek review of a decision by the Monash City Council
to allow the subject land to be developed with three, two storey, dwellings,
one of which is at the interface with these sensitive private open spaces.
2
The applicants contend that the proposal will result in an unreasonable level
of visual bulk to their private open space. They further argue that there is
not enough space for appropriate landscaping opportunities at the interface
and that the proposal is at odds with the backyard character and less
intensive development at the rear of lots in the area. Through Mr Bowden,
they also argue that there has been little regard to existing vegetation and
that vehicle access is not sufficiently resolved.
1
I have considered the submissions of all parties, all the written and oral evidence, all the exhibits tendered by the parties, and all the
statements of grounds filed. I have also considered supplementary submissions filed with my leave as provided for in my order of 7
May 2015 that identified a staged process for these submissions. The submissions addressed overshadowing. They were directed
by me as a consequence of the case presented by the applicants for review that included overshadowing, which I regarded as a
relevant matter, but had not been expressly foreshadowed in the statement of grounds filed with the application for review. I do not
recite or refer to all of the contents of all of the documents tendered and relied upon by the parties in these reasons.
VCAT Reference No. P2390/2014
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3
The Council and permit applicant challenge all grounds argued by the
applicants. This includes through supplementary submissions filed after the
hearing, with my leave, to address overshadowing and whether the proposal
complies with Standard B21 of Clause 55 of the Monash Planning Scheme.
4
I must decide whether the proposal achieves an acceptable outcome having
regard to the relevant provisions and policies of the Scheme.
WHAT ARE THE RELEVANT PHYSICAL AND PLANNING CONTEXTS?
Physical setting
5
The subject land is within a residential area with curvilinear roads and
undulating topography. The area has experienced considerable change
including through the development of large, detached, two storey dwellings
and multi-unit developments of one and two storeys. Some of the unit
development is two storeys where adjoining the rear of adjacent lots.
6
This brief overview is apposite to the immediate setting of the subject land.
It abuts a large two storey to its west (No. 8 Avondale Grove), with a tennis
court and little landscaping in the rear of that property. To the rear of the
subject land is the north side of a two storey dwelling that is the front unit at
No. 1/21 Cheviot Road. To the east2 is the property owned and occupied by
the applicants in this proceeding. This property, at No. 12 Avondale Grove,
is at a corner with Cheviot Road. It is single storey in part with a large two
storey extension along the eastern portion of the lot. The large double storey
wing, together with the side of the double storey dwelling at No. 1/21
Cheviot Road, have a substantial visual impact on the rear of the subject
land. None of these interfaces currently present with any significant
landscaping, nor do the tennis court and surrounds to the west associated
with No. 8 Avondale Grove.
7
A key matter in this case is the relationship of the proposed development
with the rear private open space at No. 12 Avondale Grove. While there are
two other smaller areas of private open space associated with the dwelling at
No. 12 Avondale Grove, the principal secluded open space is to the northwest/west of the dwelling abutting the rear portion of the subject land. This
secluded open space associated with No. 12 Avondale Grove comprises a
roofed deck with partly roofed spa. The dwelling’s main living area enjoys a
strong relationship with the deck, spa and an in-ground pool. The deck/spa
area is elevated above ground level. Further to the rear of the lot is a small
service yard that is served by several steps. As a consequence of the
topography, the ground level of No. 12 Avondale Grove is higher than the
subject land. A boundary fence between this part of Nos. 10 and 12
Avondale Grove varies in height on each side of the fence because of the
different ground levels. A lattice trellis addition to the fence has a relatively
dense weave. There is some vegetation notably fence creeper.
2
I have simplified directional references for ease but have taken the off-set orientation from north-south.
VCAT Reference No. P2390/2014
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Planning context
Existing Scheme provisions
8
Under the Monash Planning Scheme, the subject land is:


To recognise areas of predominantly single and double storey
residential development.

To limit opportunities for increased residential development.

To manage and ensure that development respects the identified
neighbourhood character, heritage, environmental or landscape
characteristics. To implement neighbourhood character policy
and adopted neighbourhood character guidelines.

Not affected by any Overlays.

Within Character Area ‘C’ through Clause 22.01 where the
achievement of a Garden City character is pursued, where general and
Character Area policies are relevant (including policies relating to
building form, vehicle crossings and landscaping) and the desired
future character is articulated. I do not recite the lengthy character
statement but have considered it fully. Mr Bowden drew attention to
several of the general built form and scale policies in Clause 22.01
including:

9
In a General Residential Zone Schedule 2 that includes variations to
Standards B6, B28 and B32 of Clause 55. The Zone purpose includes:

Building spacings and setbacks off side boundaries maintain the
spacing and rhythm of existing dwellings to respect the built
form character of the streetscape.

A high degree of articulation and detailing be exhibited.

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.

The scale and bulk of double storey buildings at the rear of
properties, adjacent to single storey dwellings, be low key. This
can be achieved by generous upper floor articulation and
setbacks off site boundaries sufficient to allow new landscaping
incorporating canopy trees.
Is affected by other local policies notably Clauses 22.04 and 22.05.
The applicants do not argue that the subject land is unsuitable for multi-unit
development. Having regard to the existing physical context, I agree the
development of the land for three units is acceptable in principle.
VCAT Reference No. P2390/2014
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Monash Housing Strategy
10
Through recent strategic work by the Council, being the adopted Monash
Housing Strategy October 2014, the subject land is within the “Accessible
Areas”. This recognises the proximity and accessibility of the subject land
to services and facilities while also seeking to maintain the emphasis on the
achievement of a Garden City character and respect for neighbourhood
character in future development. An aim is to form a transition between the
activity centres, which are intended to be areas of higher density
development (residential and commercial), and the Garden City Suburbs
which will continue to be occupied by more traditional forms of residential
development. Some diversity can be expected while retaining key elements
of built form and landscape character. Improved building design, quality
and comfort for future residents and neighbours are encouraged.
11
The Strategy is progressing through consultation and a Scheme amendment.
It is not advanced so as to enable it to be influential in this case. My
decision must be based on the Scheme as it exists today mindful although
consideration can be given to the approach being taken in the adopted
Strategy.
IS THE NEIGHBOURHOOD CHARACTER RESPONSE ACCEPTABLE?
12
Mr Bowden submitted the proposal is excessive to the rear of the subject
land but raised little issue with the streetscape outcome per se. He was
critical of the design response in its failure to properly assess the context,
particularly with respect to No. 12 Avondale Grove. While not suggesting
development at the rear must be single storey, Mr Bowden submitted the
proposed dwellings do not follow the slope, do not allow for any
meaningful landscaping on side boundaries or between dwellings and there
is no existing pattern such as that proposed in this case with respect to rear
lot development. He further argued that the size of the upper level of
proposed Unit 3 is too large and the northern wall face has a sheer two
storey form to which his clients would be exposed.
13
In response, Ms Moser and Mr Skinner argued that there is a presence of
two storey development toward the rear of lots in the near and wider area.
They submitted the proposal has responded to the adjacent two storey
development and the extent of boundary development is acceptable. They
emphasised that the upper level of Unit 3 is well articulated.
14
Having considered all submissions, assisted by my inspection, I accept
submissions on behalf of the Council and permit applicant that the built form
and character outcome are acceptable for a combination of key reasons:

The area has a mix of single and double storey dwellings, sometimes
stepped to respond to the fall of the land, to which the proposal
responds by a pair of two storey dwellings across this wide lot
frontage and an articulated double storey rear unit.
VCAT Reference No. P2390/2014
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15

The pair of proposed dwellings fronting Avondale Grove transitions in
height between the two storey dwellings at Nos. 8 and 12 Avondale
Grove, with spacing provided from both side boundaries at ground
and first floor levels.

The front setback of each of the two front dwellings responds to the
position of dwellings on the abutting lots.

The retention of a large tree at the north-west corner of the subject
land assists to integrate the development in this locale.

The use of two crossovers is acceptable because of the site’s wider
than average frontage, angled frontage alignment and adequate space
for landscaping in the frontage – these factors work together to
achieve an acceptable outcome.

There is a presence of buildings in rear yards on two lots abutting the
subject land comprising two storeys even though double storey units
at the rear of lots may be less prevalent in the wider area.

A sizeable break is provided between the front two dwellings and Unit
3 as well as good separation from the northern aspect of the two storey
units at No. 21 Cheviot Road. These breaks provide sufficient space
for new tree planting. There is not a strong pattern of side boundary
planting associated with either Nos. 8 and 12 Avondale Grove and the
proposal has the potential to provide more garden setting than exists
today on several adjacent lots.

The architectural style provides for articulation particularly Unit 3.
Changes I will direct to Unit 3, as further discussed below, will add to
the recessiveness of the eastern elevation of Unit 3. The northern
elevation of Unit 3 is acceptable with the additional setback that will
reduce the width of the two storey part of the northern wall of Unit 3.

There is not a need for the development to the rear of the land (Unit 3)
to step down in response to the landform provided the east elevation is
sufficiently respectful of the adjacent sensitive private open spaces.

Materials are not inconsistent with other development in the environs
of the subject land.
For these reasons, I find that the proposed dwellings would result in an
acceptable outcome taking into account the site’s immediate context and the
desired future character for Character Area ‘C’, associated guidelines in
Clause 22.01, the purpose of Clause 32.08, and the objective of Clause
55.02-1.
WOULD THERE BE UNREASONABLE OFF-SITE AMENITY IMPACTS?
16
Mr Bowden submitted that the relationship with the abutting lot to the east
is not acceptable. He referred to inaccuracies on the plans with respect to
the existing conditions of his clients’ property.
VCAT Reference No. P2390/2014
Page 7 of 12
17
Mr Bowden was most critical of the excessive visual bulk of the
development when viewed from his clients’ dwelling, deck and open space.
He emphasised the shadowing impacts that would not be resolved by
conditions imposed by the Council through the Notice of Decision because
the proposal would not meet Standard B21 of Clause 55 of the Scheme.
Moreover, he expressed concern about the lack of landscaping at the
interface with the secluded open space at No. 12 Avondale Grove. In
response to my questions at the hearing, the extent of Unit 3’s ground level
boundary wall was regarded as a concern with any approved development
desired by the applicants for review to retain the side boundary fence rather
than the proposed boundary wall.
18
Mr Skinner submitted that the proposed boundary wall would not be higher
than the existing fence mindful that Condition 1(a) requires shadowing to
not be increased after 2pm at the equinox. Without objection from any
party, he tendered plans showing that this would mean the wall would be
lowered.
19
Mr Bowden said the diagrams were not accurate because the fence height is
wrong. Moreover, as more than 40 square metres of the open space does
not receive 5 hours of sunlight as described in Standard B21 then there
should be no increase between 9am and 3pm. He argued Condition 1(a)
will not achieve what it has set out to do. Mr Skinner did not agree with Mr
Bowden’s interpretation of Standard B21, with these arguments being
elaborated upon by the parties in supplementary submissions provided by
all parties.
20
Notwithstanding the interpretation of Standard B21, Mr Skinner submitted
any increase in shadowing is marginal and not of consequence having
regard to the decision guidelines in Clause 55.04-5.
21
A diagram was included with Mr Skinner’s supplementary submission
showing an increased setback to bedroom 4 of Unit 3 to 4 metres which he
submitted would remove the dispute about compliance with Standard B21.
22
As indicated, Mr Skinner and Mr Bowden raised concerns about the
accuracy and veracity of the diagrams relied upon by each other.
23
The key issues therefore, focus on shadowing and visual bulk. There was
also some discussion at the hearing about the potential for inter-viewing
between the adjacent dwelling and proposed units.
Visual bulk
24
The particular circumstances of the adjacent development and its open
space require specific consideration of the length and height of the ground
level boundary wall adjacent to the pool and the scale and position of the
upper level of Unit 3.
25
The pool, spa and raised deck are amenity areas that are reasonable to
protect notwithstanding the substantial form associated with the two storey
wing of the dwelling at No. 12 Avondale Grove.
VCAT Reference No. P2390/2014
Page 8 of 12
26
While I have accepted the principle of a two storey building associated with
Unit 3 from a character perspective, I have formed the view that the visual
impact of Unit 3 is an unreasonable impost on the amenity of the raised
deck and secluded open space of No. 12 Avondale Grove. I reach that view
because of the extent of boundary wall abutting the pool at ground level as
well as the size and position of the upper level west elevation. The
boundary wall at ground level is over 9 metres long and abuts half of the
pool surrounds. It is higher than the existing trellis fence addition. The
wall is of less concern to the rear of the secluded open space, beyond the
pool, where there are steps leading to the service area of No. 12. In
addition, the upper level is setback only 2.9 metres from the common
boundary for a length of over 11 metres except for an inset for the stairs.
27
Landscaping is not required for the whole of this interface but cutting back
the length of wall associated with the pantry and northern end of the kitchen
by 2 metres, adopting a 3.0 metre boundary wall height, and retaining the
boundary fence, will appreciably reduce the impacts on the amenity of the
adjacent deck and pool environs. That is coupled with the increased
setback of bedroom 4 to four metres from the common boundary. The
latter change would achieve a more recessive upper storey form pushed
further away from the sensitive adjacent private open space. I have adopted
4 metres having regard to the shadowing issues I address next and have not
found it necessary to direct increased setbacks to the whole upper floor
eastern elevation. The loss of floor area can be accommodated in my view
without changing other setbacks associated with Unit 3 and without unduly
compromising internal amenity for future occupants of the dwelling. These
types of changes were canvassed through the course of the proceeding.
Overshadowing
28
The applicable objective and standard of Clause 55.04-5 are:
55.04-5 Overshadowing open space objective
To ensure buildings do not significantly overshadow existing secluded
private open space.
Standard B21
Where sunlight to the secluded private open space of an existing
dwelling is reduced, at least 75 per cent, or 40 square metres with
minimum dimension of 3 metres, whichever is the lesser area, of the
secluded private open space should receive a minimum of five hours
of sunlight between 9 am and 3 pm on 22 September.
If existing sunlight to the secluded private open space of an existing
dwelling is less than the requirements of this standard, the amount of
sunlight should not be further reduced.
Decision guidelines
Before deciding on an application, the responsible authority must
consider:
VCAT Reference No. P2390/2014
Page 9 of 12

The design response.

The impact on the amenity of existing dwellings.

Existing sunlight penetration to the secluded private open space
of the existing dwelling.

The time of day that sunlight will be available to the secluded
private open space of the existing dwelling.

The effect of a reduction in sunlight on the existing use of the
existing secluded private open space.
29
In addition, Practice Note 27 Understanding the Residential Development
Standards, which was referred to by the parties, provides further guidance.
The key points in dispute include the relevance of the trellis atop of the
solid boundary fence and the “base case” for assessment under Standard
B21. There are also differences between the parties with respect to the
facts, such as fence height.
30
The secluded private open space of No. 12 Avondale Grove has restricted
sunlight access given its orientation, the high side boundary fence, and the
built form associated with the dwelling itself. The deck is roofed. I accept
Mr Bowden’s submission that to comply with Standard B21, the sunlight
access should not be reduced. I accept that the existing sunlight to the
secluded private open space of the dwelling is less than the requirements of
Standard B21 and consequently the amount of sunlight should not be
further reduced even at 3pm. I prefer that interpretation to the submissions
by the Council and Mr Skinner. The existing shadows provide the base
point for the assessment. The existing situation does not comply with
Standard B21 and the Standard seeks no further reduction in this case.
31
Based on the information available and my own review of the shadow
diagrams, I find that Unit 3 would have an unreasonable shadowing impact.
I further find that the performance measure proposed in Condition 1(a) of
the Notice will not produce a certain outcome given the dispute in
interpretations. However, adopting a setback of 4 metres for bedroom 4 of
Unit 3 and other changes I have referred to earlier in these reasons would
limit shadowing to a very marginal change only in the mid afternoon at the
equinox compared with the existing conditions. Having regard to the
decision guidelines set out above, I am satisfied the existing use and
amenity of the existing secluded private open space will not be
unacceptably affected and that sufficient solar access would be retained
subject to the package of modifications I have identified.
Overlooking
32
Overlooking concerns have substantially been addressed by ensuring
compliance with Standard B22 of Clause 55. However, because of the
raised deck and spa associated with No. 12 Avondale Grove, there is the
potential for overlooking from these areas into the ground level east-facing
windows of proposed Units 1 and 3.
VCAT Reference No. P2390/2014
Page 10 of 12
33
It is appropriate to consider screening of these windows (a family room in
Unit 1 and an en-suite in Unit 3) to protect the amenity of occupants of
these two dwellings. This can be addressed by a new permit condition.
HAVE EXISTING TREES BEEN PROPERLY CONSIDERED?
34
Mr Bowden submitted that retention of existing vegetation has not been
properly considered as there is little detail about tree retention nor permit
conditions addressing tree protection. He stressed that the subject land is
near a Vegetation Protection Overlay and landscaping is an important part
of the character of the area and desired character. He contended that
landscaping has been an after-thought.
35
Mr Skinner agreed to a permit condition addressing tree protection. This
primarily relates to the large tree at the north-west corner of the site.
Smaller trees (such as a fruit tree) to the rear of the land are less likely to be
affected by proposed works and also have little character benefit.
36
I have already found that the proposal provides adequate space for new
trees within the front setback, between the proposed dwellings centrally on
the land, and at the rear. It is sufficiently responsive to the type of
landscaping seen in the area particularly associated with the newer and
larger detached dwelling as well as multi-unit sites. The inclusion of a
condition addressing tree protection is appropriate and I am satisfied that
this will enable the retention of the major tree at the north-west corner
which abuts a driveway.
IS VEHICLE ACCESS ACCEPTABLE?
37
Mr Bowden referred to Clause 52.06-9 of the Scheme in submitting the
ramp grades for Units 1 and 2 and reversing required for vehicles using the
garage in Unit 3 are of concern. He did not suggest the proposal fails
Clauses 55.03-9 and 55.03-10.
38
The proposal relies on shared basement access to Units 1 and 2 and a
lengthy driveway to Unit 3. The design has been assessed as being to the
satisfaction of the Responsible Authority. As I indicated at the hearing,
there is no third party review right with respect to that conclusion reached
by the Council. I do not consider it is open to review the design through
this proceeding for that reason.
39
Mr Bowden said that there might be consequences for the building height
should the ramp grades require revision. Based on Mr Skinner’s response,
this does not seem likely as head room clearance is achieved.
WHAT IS THE TRIBUNAL’S CONCLUSION?
40
For the above reasons, I will vary the Responsible Authority’s decision to
accord with my findings.
VCAT Reference No. P2390/2014
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41
Specifically, I will require modifications to Unit 3 to reduce the building
mass and overshadowing at the interface with the private open space of No.
12 Avondale Grove and to provide for tree protection measures with respect
to retained vegetation.
42
Changes to the built form can be readily accommodated, albeit not preferred
by the permit applicant. The changes are warranted to achieve an acceptable
balance with respect to the amenity of No. 12 Avondale Grove.
Margaret Baird
Senior Member
VCAT Reference No. P2390/2014
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