With respect to permit application GE/PP-16749/2004, the Responsible Authority's decision to refuse to grant a permit is affirmed.

The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.

Mr P Chiappi of counsel instructed by P&B Commercial Lawyers.

Mr Chiappi called Mr L Sayer, town planner, to give expert evidence and be made available for cross-examination.

1 This is an application to review the decision by Glen Eira City Council ('the Council') to refuse to grant a permit for the development of a three storey building containing 10 residential apartments and basement car parking at 332 Alma Road, Caulfield North.

2 The permit application was lodged with the Council on 9 July 2004. Following the submission of additional information requested by the Council, the application was publicly advertised and 11 objections were received. The Council then considered the merits of the application by delegation and issued a Notice of Refusal to Grant a Permit on 6 December 2004 on the following grounds:

1. The proposal does not satisfy the objectives of Clause 21.04 (Municipal Strategic Statement) and Clause 22.08 (Minimal Change Area Policy) of the Glen Eira Planning Scheme.

2. The proposal does not satisfy various objectives of Clause 55 of the Glen Eira Planning Scheme (ResCode).

3. The proposal is not responsive to the opportunities and constraints of the site or neighbouring properties in terms of visual bulk, mass, scale and siting.

4. The proposal is an overdevelopment of the site.

3 The permit applicant is seeking a review of this decision.

4 Mr Chiappi sought leave to substitute amended plans, which were circulated in accordance with the Tribunal's practice note requirements. None of the other parties opposed this request. I granted leave, therefore the plans considered as part of this review application are those prepared by Amnon Weber dated 2 December 2005 and marked as TP1a, TP2b, TP3d, TP4e, TP5b, TP6b, TP7c, TP8, TP9a, TP10a, TP11a and TP12a.

5 Each of the parties presented written and/or oral submissions. Mr Sayer gave evidence and was made available for cross-examination. I advised the parties at the commencement of the hearing that I had viewed the streetscape of the site and surrounds. Following the hearing, on 17 January 2006, I inspected the site, three of the abutting properties and the surrounding neighbourhood. Various photographs and other documentation were tabled during the hearing, and have been taken into consideration.

6 The site is located on the north side of Alma Road, mid-block between Kooyong Road (to the east) and Cantala Avenue (to the west) in Caulfield North. The site is also about one block south of Dandenong Road.

7 The site has a frontage of 21.63 metres, a depth of 56.43 metres and a total area of 1,222 square metres. It currently contains a 2.1 metre high rendered brick front fence with a metal pedestrian gate at the west end and metal vehicular gates across the existing driveway at the east end. There is an existing house that is setback about 1.2 metres from the west (side) boundary and this setback area is paved with concrete. There is a garage built adjacent to part of the east (side) boundary and vehicles are able to drive through it into the rear of the site. The rear contains a large excavated area that is used to park vehicles at present. It appears the maximum extent of excavation is about 1-1.5 metres at the north (rear) end of the site. There are existing brick walls of about 3 and 4 metres in height along the east boundary with mature cypress trees planted in front of part of these walls. There is a raised lawn area with lemon trees, other vegetation and a shed adjacent to the rear section of the west boundary. A row of mature trees separate the back of the existing house from the large excavated area.

8 The area surrounding the site slopes toward the south, down to Alma Road. As a result the site has a slope of at least 3 metres and its relationship to the abutting properties varies as the natural ground level of these properties differs.

9 The site abuts a total of five properties:

•

At the southern end of the east (side) boundary is townhouse 5 of 11A Kooyong Road (Mr Frydman's property). No. 11A Kooyong Road contains a total of 5 townhouses on the northwest corner of Kooyong and Alma Roads. No. 5/11A is a three storey townhouse that is setback from the site's boundary by a visitor car space and garden. At the rear of the townhouse is a private open space area that extends to the site's boundary. This area appears to be elevated above the natural ground level of the subject site. A brick wall exists along this common boundary.

•

In the middle of the east (side) boundary is the rear car parking area for a two storey block of flats at 11 Kooyong Road. This area appears to be elevated above the natural ground level of the subject site. A brick wall exists along this common boundary.

•

At the rear of the east (side) boundary and to the north (rear) is a car parking area and a three storey block of flats at 9 Kooyong Road. The ground level is elevated above the subject site and the rear section of this building has a view into the rear area of the subject site.

•

At the rear of the west (side) boundary is the back garden of 2 Cantala Avenue (Ms Shanai's property) that contains a well maintained garden and swimming pool, both of which appear to be elevated above the natural ground level of the subject site.

•

At the front of the west (side) boundary is the back garden, side of the house and front garden of 330 Alma Road (Mr and Ms Dobbin's property). The setback area between the house and the side boundary with the subject site contains a walkway and a landscaped garden bed with small to medium height vegetation. There is some low to medium height canopy vegetation and a shed located in the rear of the back garden. The ground levels are similar between the two properties.

10 It is proposed to construct a new three storey building containing 10 apartments (8 three bedroom and 2 two bedroom dwellings) and a basement car park containing 21 car spaces, bicycle parking, storage areas and garbage storage.

11 The basement is setback between 7 and 8 metres from the street frontage; 1 metre from the east boundary; between 3 and 4 metres from the rear boundary; and 3 metres from the west boundary. The driveway is provided on the west side of the site and will be setback 0.9 of a metre from the common boundary with 330 Alma Road. A remote controlled black wrought iron gate setback about 1 metre from the street frontage provides secure access to the basement.

12 The ground floor contains four apartments with a front setback of at least 8.9 metres, an east setback of between 0 and 1 metre, a rear setback of 4 metres and a west setback of at least 3 metres (except for the basement driveway). The west setback area contains a retaining wall as the ground floor will be cut into the site.

13 The first floor contains four apartments with a similar layout and the same front setback as the ground floor. The east setback is 2 metres, the rear setback is 4 metres with a balcony setback about 2.8 metres, and the west setback is at least 3 metres with balconies setback 2 metres.

14 The second floor contains 2 apartments with a minimum front setback of 10.4 metres, a minimum east setback of 3.3 metres, a rear setback of at least 9 metres with a balcony setback of 4 metres, and a west setback of at least 6 metres with a balcony setback of about 4.4 metres.

15 The overall height of the building is about 9.5 metres. The proposed front fence has a rendered finish and a height of 2 metres. A roofed front entry portico is provided at the street frontage and has a height of 3.16 metres.

16 The site and surrounding properties are contained within a Residential 1 Zone pursuant to the Glen Eira Planning Scheme ('the Planning Scheme'). A permit is required to construct two or more dwellings on the site and the objectives, standards and decision guidelines of clause 55 (ResCode) must be considered. The schedule to the Residential 1 zone has amended the clause 55 standards relating to site coverage, the rear setback and the size of private open space.

17 The site is affected by a Development Contributions Plan overlay control which requires a monetary contribution to be paid to the Council if a permit is granted.

18 Mr Stanojevic advised the following State planning policies are relevant to this proposal:

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Metropolitan development at clause 12;

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Planning for urban settlement at clause 14.01;

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Energy efficiency at clause 15.12;

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Medium density housing at clause 16.02; and

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Design and built form at clause 19.03.

19 The Municipal Strategic Statement ('the MSS') of the Local Planning Policy Framework acknowledges the municipality has undergone considerable redevelopment due to multi-unit development; and the demand is expected to continue as it is predicted there will be 6,000 new dwellings by 2021 as well as a more diverse housing stock[1]. This means the municipality needs to plan for this growth and accommodate alternate forms of housing, including townhouses and apartments, as part of its projected population growth. The MSS is seeking to manage this growth by "a targeted approach", which means identifying areas where multi-unit development will be encouraged based on factors that include access to services and public transport; capacity of the area to support new development; residential character; and environmental or heritage constraints. This site is not located within an area where multi-unit development is explicitly encouraged; it is located in a "minimal change area". There are quite a number of strategies in the MSS that have relevance to this proposal so I do not intend to quote them all. However, I wish to comment that they do not prohibit medium density housing on this site or the apartment style of housing contained in this proposal. Instead, the strategies seek new development that enhances the neighbourhood character and provides a high level of amenity for future occupants and neighbours.

20 The Council and the permit applicant both referred to the Minimal Change Area local planning policy at clause 22.08 and I will discuss its content and relevance in the reasons for my decision.

21 The Council advised that it was not opposed, in principle, to the development of this site for medium density housing but considered this proposal to be inappropriate having regard to the neighbourhood character and the amenity of neighbouring properties. The amenity concern was reiterated by Ms Shanai, Mr Dobbin and Mr Frydman, as they are particularly concerned about the impact upon their back gardens. The objectors raised concerns about traffic and parking; however I do not share these concerns as the car parking provision complies with the objectives and standards of clause 55 and the Council has raised no concerns about the traffic movements into and out of this site. Mr Chiappi succinctly summarised the three key issues associated with this proposal as the minimal change area local planning policy; the neighbourhood character; and the amenity impacts. The reasons for my decision discuss each of these issues in turn.

22 The purpose of the Residential 1 zone seeks, amongst others, to implement the State and local planning policies, which includes the policies set by the State government and the policies set by the local council. In implementing the range of applicable planning policies, the Planning Scheme acknowledges that there may be competing or conflicting policies and, where this occurs, it requires they be balanced "in favour of net community benefit and sustainable development"[2].

23 There was agreement between the Council and the permit applicant that the State planning policies encourage consolidation of existing urban areas, including established residential areas. They also agreed that the policies encourage well designed medium density housing that respects both the neighbourhood character and residential amenity. However, their interpretations of the Minimal Change Area local planning policy differed.

24 Mr Sayer expressed the opinion that the policy is effectively a blanket discouragement for medium density housing within the majority of the municipality; and it has had no regard to the existing apartment buildings in the immediate surrounds of this site. Mr Chiappi submitted it is a broad policy that applies to about 80% of the municipality and hence it cannot be applied strictly or rigorously; instead it needs to be applied in light of the site's context and characteristics.

25 In order to understand this policy, it is necessary to start at the beginning:

i

The policy basis explains minimal change areas are areas where the existing low intensity, low rise character should be protected and enhanced. It seeks development outcomes that contribute positively to neighbourhood character and minimise adverse impacts on neighbouring properties.

ii

The policy states residential development can affect neighbourhood character through excessive visual building bulk causing buildings to dominate the street and neighbouring properties.

iii

The general objectives of the policy include promoting single and two dwelling developments; having some increases in the number of multi-dwelling developments over time; and ensuring new development is sensitive and respectful of the scale of existing development on adjoining sites.

iv

The specific objectives of this policy seek to minimise the effects of multiple storey dwellings on neighbourhood character and adjoining properties; and to ensure building bulk is respectful of neighbourhood character.

v

The specific policy requirements for minimal change areas include:

Consider developments of more than two dwellings provided it is clearly demonstrated that the standards for site coverage, rear setback and private open space in the Schedule to the Residential 1 Zone have been met. Circumstances where more than two dwellings may be achieved could include any of the following:

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Where the site is in an area characterised by larger than conventional lots.

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Where the site is significantly larger than the majority of properties immediately abutting the title boundary and the properties directly opposite.

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Where the prevailing development in the street and neighbouring streets is predominantly characterised by multi-unit development.[3]

26 The Council and the permit applicant both sought to distinguish this site in favour or against the circumstances listed above, but I consider this unnecessary. The above quote states the circumstances "could include any of the following", hence the list is not exhaustive as there could be other circumstances not mentioned. This means (and rightly so) developments of more than two dwellings can be considered in minimal change areas having regard to the particular circumstances of the site and its achievement of the amended clause 55 standards in the Residential 1 zone schedule. The opportunity to propose more than 2 dwellings on a site accords with the other general and specific policy requirements (mentioned above) as the emphasis is to encourage development that contributes to neighbourhood character, and to minimise building bulk and impacts on neighbouring properties.

27 In my opinion, the Minimal Change Area policy does not seek to prevent increases or changes in housing. It does not preclude the construction of a three storey building on this site. Instead, it seeks new development that is respectful of the neighbourhood character, and that takes account of its interface with existing residential development on adjoining sites. Hence, the question in this case is whether the proposed three storey building represents an acceptable fit within this neighbourhood context.

28 The local planning policy, the purpose of the Residential 1 zone and clause 55 (ResCode) all encourage development that respects neighbourhood character. The issue with this proposal appears to be the appropriateness of a three storey apartment style development within this neighbourhood setting.

29 Ms Wright submitted that the neighbourhood consists generally of family homes and there is no shortage of flats, so this area (and this site) should be for families. However, families can be accommodated in a range of dwelling types. As Mr Sayer pointed out, 8 of the 10 proposed apartments contain three bedrooms and may appeal to a family that wishes to have minimal or no garden areas to maintain.

30 Desiring families in this neighbourhood is not the appropriate test for the neighbourhood character, particularly as the planning policies and controls encourage a variety of dwelling types to cater for a range of households. Neighbourhood character is assessed having regard to the combination of physical elements found in both the public and private realms of an area. When any new residential development is proposed, it is necessary to consider the features and characteristics of an area, how they contribute to the character of the neighbourhood and, hence, which features and characteristics are important for new development to respect.

31 Respecting a neighbourhood's character does not mean that there can be no change, instead it means that a development should try to fit in. The Department of Sustainability and Environment's general practice note "Understanding Neighbourhood Character" suggests two broad approaches to respecting neighbourhood character. The first is to respect the scale and form of surrounding development and the second is to respect the architectural style of surrounding development. Deciding whether one or both of these approaches should be used in each proposal depends upon the identified characteristics of the neighbourhood.

32 In identifying the neighbourhood characteristics of this site, I have inspected the site and surrounds and had regard to the identified prevailing character elements that contribute to the Caulfield North neighbourhood[4]. I note the following:

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The site and surrounding allotments have a subdivision pattern in which the size, shape and configuration of allotments generally accord with other blocks found in this area of Caulfield North;

•

Kooyong Road contains a mix of 2-3 storey apartment buildings and 1-2 storey detached dwellings;

•

Alma Road contains predominantly 1-2 storey detached dwellings interspersed with 2 storey townhouses or apartment buildings; and there are three storey townhouses on the northwest corner of Kooyong and Alma Roads;

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A mix of architectural styles including Edwardian, Californian Bungalow, Interwar and post war;

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A predominance of brick and rendered finishes with tiled roofs;

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Numerous examples of medium to tall solid front fencing; and

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Well established gardens and scattered canopy trees.

33 In light of these characteristics, I am of the opinion the proposed development should be respectful of the scale and form of surrounding development rather than the architectural style of the neighbourhood as there is so much variation in the architectural styles found in this neighbourhood. Indeed, I note the Council has focussed their concern upon the scale and form of the proposed building.

34 In terms of scale and form, the pertinent facts are:

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The site and surrounding properties are on a hillside that slopes to the south (toward Alma Road);

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There are existing 2 and 3 storey buildings to the north (rear) and east (side) of the site that are setback from the common property boundaries;

•

There are existing 1 and 2 storey buildings to the west (side) of the site containing rear private open space areas and a minimal side setback to the dwelling at 330 Alma Road; and

•

There is an existing rear private open space area adjacent to the east (side) of the site.

35 The site therefore has higher building forms with large footprints to the rear and the east (side) that, in my opinion, create an opportunity for the construction of a building form of a similar scale on this site. However, this opportunity is tempered by the minimal change area policy requirements that new development display an appropriate transition to lower scale neighbours such as the dwellings to the west. One of the specific policy requirements elaborates on this by seeking changes in building height that are graduated both across the width and along the length of a site. Hence, the design for this site must respond to each of these interfaces.

36 I am satisfied that the height and setbacks of the front of the proposed building are appropriate. The height of the building sits comfortably between the three storey height of the townhouses at 11A Kooyong Road and the roof pitch of 330 Alma Road. The majority of the third floor of the building is setback about 15 metres from the frontage, other than the master bedroom width of 4.6 metres that is setback about 10.4 metres, and I find that the articulation from the front façade of this floor is respectful of the scale and siting of the adjoining buildings.

37 Mr Stanojevic suggested the building will have a dominant visual bulk when viewed from further west along Alma Road, looking across the frontage of 330 Alma Road. I agree that the building will be visible but it is limited to an oblique view that could really only be appreciated by a pedestrian walking along the southern footpath. In my opinion, the design response has paid particular attention to the fact that the southwest front edge of the building will be visible. This edge contains architectural detailing that creates visual interest with curving walls, projecting eaves, rendered finishes and balustrading, all of which create an appropriate transition between the house at 330 Alma Road and the townhouses at 11A Kooyong Road.

38 The Council supported the height and solid design of the front fencing and I agree this is acceptable given there are numerous examples of high solid front fencing in this neighbourhood. However, the Council expressed concern about the front entry portico as it is over 3 metres in height, it is roofed and is generous in size. Such a feature is not commonplace in this neighbourhood and I note that the immediately adjoining properties have either low front fences or hedging rather than fencing. Therefore, I agree with the Council that this feature does not fit in with the surrounding context of this neighbourhood.

39 In regard to the overall size and shape of the building, I note that there is a fairly hard edge with minimal setbacks proposed along the east boundary; a generous setback from the rear boundary of at least 4 metres, and a setback of 2 metres or more from the west boundary. I support the minimal setbacks from the east boundary given the existing brick walls along this boundary, and the lack of sensitive interfaces with the blocks of flats and car parking areas of the properties fronting Kooyong Road. However, I do feel the amenity of Mr Frydman's private open space area has not been adequately addressed and I will comment on this later in my decision.

40 I find that the overall size and shape of the proposed building fails to adequately respond to the amenity of Ms Shanai's property and Mr Dobbins' property. It appears to me that the design's endeavour to comply with the amended clause 55 standard in the Residential 1 zone schedule for a 4 metre rear setback has impacted upon the ability to appropriately respond to these sensitive interfaces. The minimal change area specific policy requirements state developments of more than two dwellings will be considered when it is demonstrated that the amended standards for site coverage, rear setback and private open space have been met. In my opinion, this approach to achieving a good design outcome on a site is flawed. The purpose of clause 55 is to achieve its objectives and each standard in clause 55 is only one way of achieving an objective. Achieving a standard does not mean that the context of a site has been properly considered and therefore a design may not be site responsive and an acceptable fit within the neighbourhood. In this instance, I find the compliance with the amended 4 metre rear setback standard creates a building size and shape that has an unacceptable impact upon the amenity of the neighbouring properties to the west.

41 The minimal change area specific policy requirements include, firstly, the discouragement of the siting of two storey or multiple storey dwellings at the rear of sites; but, secondly, a requirement that such dwellings are respectful of adjoining buildings and neighbouring secluded open space. The requirements also talk about low site coverage; minimising building bulk through articulation, appropriate roof forms, pitches and building materials; front and rear garden areas to plant canopy vegetation; providing separation between dwellings; and retaining a sense of openness.

42 I find the inclusion of a 4 metre rear setback in this design creates a sense of openness and separation where it is not warranted (adjacent to the sideage of a block of flats and a car park). As a result, it also creates visual bulk in proximity to the private open space areas of 330 Alma Road and 2 Cantala Avenue. In my opinion, the sense of visual bulk and the perception that there may be overlooking is exacerbated by the retaining wall along this boundary, the proximity of windows and the overhanging balconies that are setback a minimum of 2 metres from the boundary. I am also of the view these features limit the opportunity for any meaningful landscaping that could assist to break up the appearance of the proposed building.

43 Whilst the specific policy requirements discourage two storey or multiple storey dwellings at the rear; I have already found that the characteristics on the east side of this site do create an opportunity to build a medium scale building such as that proposed. However, the two and three storey sections of such a building need to provide an appropriate transition to the rear private open space areas of the two properties to the west. The specific policy requirements seek a graduation in building height across the length and width of the site and, in my opinion, this means that any third storey would need to align with the house at 330 Alma Road (and I note apartment 9 generally does this).

44 In order to achieve an appropriate graduation in height at the rear of the site, I am of the opinion a two storey building form may be appropriate with a smaller rear setback if the western interface is appropriately dealt with. What I mean is there needs to be adequate landscaping opportunities, including opportunities for trees along this boundary, and a greater separation between any proposed building, including balconies, and the western boundary. However, these comments should only be considered as suggestions to assist all parties in the event that a revised design is prepared. I am of the opinion that substantial design changes would be required to address my concerns. If a new design was prepared, the merits of the design would still need to be considered as part of a new planning application.

45 In regard to townhouse 5/11A Kooyong Road, I have already noted that there is a rear private open space area adjacent to the site's east boundary and this area includes a built in spa. Whilst I am comfortable with the scale of the proposed building in proximity to this area, I am not satisfied that the potential for overlooking into this space has been adequately addressed. Any new design should ensure that the potential for overlooking into this space is dealt with in accordance with the objectives of clause 55.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.

[2] Clause 11.01 of the State Planning Policy Framework in the Planning Scheme

[3] Clause 22.08-3.1 of the Minimal Change Area local planning policy

[4] Identified in clause 22.08-3.4 of the Minimal Change Area local planning policy