1. The addition of 400mm of trellis to the north boundary fence opposite the laundry and Bedroom 1 of Unit 2;

1. Screening to the Master bedroom of Unit 3; 2. The location of all airconditioning plant; 3. The foundations of the front fence on Williams Road and the north wall of the garage to Unit 3 excavated under the supervision of a qualified arborist and constructed in accordance with the recommendations of that arborist; 4. The external colours of the building and of fences along street frontages; 5. A landscape plan showing a planting schedule and paving surfaces for the entire site, including information on tree/plant names, size at maturity, planting size, and tree/plant numbers and densities. The landscape plan must include at least two trees that are a minimum of 2.0 metres high at time of planting and of a species with a general height of no less than 8.0 metres located in the Williams Road front setback; 6. The location of bin storage areas within the site for all dwellings. Such areas must be screened from the public realm to the satisfaction of the responsible authority; 7. The location of letterboxes for all dwellings in a position or positions which allow for the convenient delivery of mail.
2. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3. All privacy screening measures shown on the endorsed plans must be fixed and permanent in accordance with Standard B22 of Clause 55.04-6 of the Stonnington Planning Scheme to the satisfaction of the responsible authority.
4. All walls on or facing the boundaries must be cleaned and finished to the satisfaction of the responsible authority.
5. All services to the land and buildings hereby approved must be provided underground to the satisfaction of the responsible authority.
6. Mechanical plant and equipment on the building hereby approved must be positioned and baffled so that no noise disturbance is caused to the occupiers of adjoining properties to the satisfaction of the responsible authority.
7. The proposed vehicle crossing must be designed and constructed in accordance with Council's standard crossing requirements and to the satisfaction of the responsible authority.
8. The existing street verge levels to the west, south and east of the land must no be lowered or altered in any way, to the satisfaction of the responsible authority.
9. the landscaping shown on the endorsed plans must be fully installed prior to the occupation of the dwellings, and must thereafter be maintained (including the replacement of any dead or damaged plants) to the satisfaction of the responsible authority.
10. Any poles, service pits or other structures on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
11. This permit will expire if one of the following circumstances applies:
    1. The development is not commenced within two years of the date of this permit;
    2. The development is not completed within two years of the date of commencement.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1. Polluted and sediment laden runoff must not be discharged directly or indirectly into Melbourne Water's drains or waterways during construction.
2. Finished floor levels of all new dwellings must be a minimum of 300mm above the applicable flood level, to the satisfaction of Melbourne Water.
3. All new garages must be constructed with finished floor levels or surface levels a minimum of 100mm above the applicable flood level, to the satisfaction of Melbourne Water.
4. All new fences must be of an open/porous style to allow passage of overland flows through the property.

Mr I Pitt SC of Best Hooper Solicitors, who called evidence from Mr T Biles, Consultant Town Planner, and Mr R Galbraith, Consultant Arborist.

Mr A Clarke, Town Planner, Stonnington City Council.

Mr L Rigoni, Consultant Town Planner, of Terrain Consulting Group Pty Ltd, appeared for Elizabeth and Peter Game. Mr D Iles Consultant Town Planner, of Hansen Partnership Pty Ltd, appeared for Carol McManus, Lily and Eric Gowans, and Nicholas Bankes. Mr Peter Folan appeared in person.

1. Following the hearing I inspected the subject land and surrounding area.

1. The subject land is located on the north west corner of the T intersection formed by Williams Road and Erica Street in Windsor. It is rectangular in shape and has a frontage to Williams Road of 9.75 metres, a frontage to Erica Street of 30.5 metres, and an area of 297 square metres. It is bounded on the west by a right of way shown on the survey plan as having a width of 2.9 metres.
2. The land is currently occupied by a single storey weatherboard dwelling set back 3.9 metres from Williams Road and 900mm from Erica Street. On the Williams Road frontage is a 1.0 metre high picket fence which wraps around the corner into Erica Street. Extending from the front building line to the west along the Erica Street frontage is a 1.8 metre high paling fence. The dwelling is constructed to the northern boundary and has outbuildings to the rear in the form of a shed and carport. The result is a continuous wall along the boundary for a length of 25.0 metres.
3. The abutting land to the north at 55 Williams Road is occupied by a single storey dwelling on a lot of similar shape and size to the subject land. The dwelling is set back 3.0 metres from Williams Road. It is constructed to the common boundary with the subject land for a distance of approximately 4.2 metres, but the rear 50% of the dwelling is set back 800m from the common boundary and contains two bedroom windows facing the subject land. It has a deck to the rear and a carport accessed via the right of way to the rear. West facing windows look out over this deck. An angled window over the kitchen sink looks out over the deck and faces south west. Because there is a bollard in the right of way to the north of this property, a vehicle exiting No 55 must exit to Erica Street.
4. To the west of the right of way in Erica Street is a group of three single storey attached dwellings. The dwelling to the immediate west of the right of way is 21 Erica Street. The eastern façade of this dwelling contains two bedroom windows. The sills of these windows are 1.7 metres above the level of the right of way.
5. On the southwest corner of the Williams Road and Erica Street intersection, opposite the subject land, is a single storey brick attached dwelling at 51 Williams Road. It is constructed almost to the Erica Street boundary, to which it presents a sideage, and is undergoing renovations/restoration as a result of a fire.

1. It is proposed to demolish the existing dwelling and outbuilding(s) on the land and construct 3 two bedroom dwellings. Mr Pitt sought leave to substitute amended plans for the proposal. None of the other parties raised any objection to the proposed substitution. I ordered that the amended plans be substituted. They are dated 7/5/07.
2. The development has been designed to present as one building. Each dwelling is to have its active frontage orientated to Erica Street, have a single garage which includes storage space, and occupy two or three levels in the building. Approximately the eastern half of the building is to have three storeys and a flat roof, with a maximum roof height of 8.74 metres above ground level. The western half of the building is to have two storeys with a hipped roof at a maximum height of 8.94 metres, stepping down to 8.64 metres.
3. The building is to be set back 3.0 metres from Williams Road, at ground floor level and first floor levels, with an angled balcony on the southeast corner extending 500mm into this setback. At second floor level it is to be set back 4.08 metres, with a balcony extending 800mm into this setback. The width of built form on the Williams Road frontage is to range from 8.0 metres at ground level to 5.0 metres at second floor level.
4. The setback from Erica Street at ground floor level is to vary between 1.07 metres and 2.0 metres. At first floor level it is to vary from 1.3 metres at the western end of the building to 4.0 metres at the eastern end. At first floor level a balcony encroaches to within a metre from the Erica Street frontage and another encroaches to within 1.5 metres from the this frontage.
5. A 2.0 metre high front fence is proposed along the Williams Road frontage, extending around the corner into Erica Street. A 1.2 metre high front fence is proposed for the reminder of the Erica Street frontage, save for pedestrian and vehicular access points.
6. Open space proposed for Dwelling 1 is 30.4 square metres at ground level in the Williams Road setback, plus balconies of 6.0 square metres and 3.5 metres, respectively, at first and second floor levels. Dwelling 2 is to have 14.4 square metres of open space at ground level, abutting the northern boundary, and a first floor balcony facing Erica Street of 10.5 square metres. Dwelling 3 has a balcony at first floor level of 8.5 square metres.
7. The development is to have a site coverage of 65% and permeable areas accounting for 25.5% of the land.

1. The land is in the Residential 1 Zone and is affected by a Special Building Overlay. Pursuant to the zoning a permit is required to construct two or more dwellings on the land and in assessing the proposal the ResCode provisions at Clause 55 must be considered. Pursuant to the Overlay a permit is also required by virtue of Clause 44.05 of the Stonnington Planning Scheme, in respect of which Melbourne Water is a referral authority. Melbourne Water had no objection to the proposal, provided specified conditions were included in any permit issued. These conditions included that the finished floor levels of dwellings and garages be constructed at specified distances above flood level.

1. The responsible authority considered the permit application after the Application for Review had been lodged and decided that, had it made a decision within time, it would have refused to grant a permit on seven grounds. In summary, these were that the scale, bulk and height of the proposal were excessive and would have a dominating impact on the streetscape and therefore not respect the character of the neighbourhood, the setbacks of the dwellings and balconies from Erica Street are not sufficient, the site coverage is excessive, and the development would result in unreasonable amenity impacts on abutting properties. The respondents share these concerns.

1. These may be summarised as noise generated by cars exiting the two garages at the rear of the proposed development and also generated from the first floor deck at the rear, the visual presentation of the proposed development to the windows and rear yards of 21 Erica Street and 55 Williams Road, and overlooking of habitable room windows.
2. Mr Iles submitted that cars would not be able to exit the rear garages without multiple manoeuvres, resulting in unreasonable noise impacts on 21 Erica Street. But the garages are to be set back 2.05 metres from the rear boundary and are to have 3.6 metre wide entries to allow vehicles to reverse and then drive forward to exit the right of way without the need for additional turning. The plans meet the design requirements of Clause 52.06-3 of the Stonnington Planning Scheme.
3. As to noise from the rear first floor deck, there is no reason to expect that the noise generated from it will be any greater than the noise generated from a suburban back yard, even though it is elevated. I note that the area of this deck is only 8.45 square metres and the separation distance between it and the wall of the dwelling at 21 Erica Street is to be 4.2 metres. One might reasonably expect that any noise impact on 21 Erica Street would be less than that normally experienced between back yards.
4. The deck is to be screened to a height of 1.7 metres, so there will not be any unreasonable overlooking of the hi-lite windows in the eastern wall of 21 Erica Street. Given that these windows are hi-lite windows and that the separation distance between the upper floor of the proposed development and these windows is to be 5.1 metres, it will not present unreasonably intrusively to them.
5. The only instance of potential unreasonable overlooking from the proposed development arises in relation to overlooking from a bedroom window of a bedroom window at 55 Williams Road, but that can be readily dealt with by a permit condition. I have included such a condition in my Order.
6. The separation distance between the ground floor of the proposed development and the deck at the rear of 55 Williams Road is to be 2.2 metres, increasing to 2.7 metres at upper floor level. In my opinion the proposed development will not be unreasonably intrusive when viewed from this deck, or from the west facing windows which look out onto the deck. There will be a view of the development from a kitchen window above a sink, at a distance of at least 9.5 metres to the upper floor level, and through the branches of cherry plum trees located to the south west of the deck. .But that is not the only window to the kitchen and in any event would not result in an unreasonable visual impact.
7. Mr Rigoni raised concerns about the impact of construction on the health and life expectancy of the cherry plum trees. However, the evidence of Mr Galbraith, which I accept, was that the use of appropriate foundations (such as pier and beam) close to the boundary in the vicinity of these trees will adequately protect them. I have included an appropriate permit condition in my Order.

Side setback from Erica Street and site coverage

1. Standard B6 in the ResCode provisions at Clause 55 of the Stonnington Planning Scheme suggests that the setback of the proposed development from Erica Street should be 3.0 metres. But the operative word is "should". This standard, like all standards in Clause 55, is not a mandatory requirement. The requirement is that the relevant objective must be met. That objective is "To ensure that setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site." The proposed setback from Erica Street varies from 1.07 metres to 2.0 metres. This setback would not be out of character or be significantly different from the setbacks found elsewhere in Erica Street. The dwelling on the opposite side of Erica Street from the subject land has a side setback of 300mm. The sideage of the existing dwelling on the subject land is 800mm. The setback of 21 Erica Street, to the immediate west of the right of way, is 4.5 metres, with the verandah effectively reducing it to 3.5 metres. The intervening right of way will have the effect of "cushioning" the change of setback distance between No 21 and the setback of the proposed building towards the western end of the site, where it is to be 1.37 metres. In my opinion the side setback proposed is acceptably respectful of the site's context.
2. As to the proposed site coverage of 65%, it is certainly higher than the ResCode standard of 60%, but that standard is not a mandatory requirement. The relevant objective to be met is "To ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site". This is local area characterised by high site coverage. The site coverage of the property directly across Erica Street is in excess of 72%. The site coverage of the property abutting the subject land to the north at 55 Williams Road is in excess of 59%. The site coverage of the property immediately to the west of the right of way at 21 Erica Street is 73%. The two storey units on the north east corner of Erica Street and the western leg of Templeton Lane have a site coverage of approximately 68%. In my opinion the site coverage proposed is acceptably respectful of the local context of the land.

1. The character of Williams Road is different from the character of Erica Street. That is reflected in a sense by Clause 22.02 of the Stonnington Planning Scheme, which encourages all new development to respect the one to two storey built form character of the City's residential areas, but also states that medium density is encouraged to locate on land identified on the Strategic Framework Plan, including land with a frontage to a Road Zone - Category 1. William Road is in a Road Zone - Category 1. On the Strategic Framework Plan the subject land is shown as being in an area within which "higher scale development may be supported".
2. On balance, I agree with Mr Biles that the development will sit comfortably in the streetscape of both Williams Road and Erica Street. The context for the site includes the two storey dwelling at 22 Erica Street, the relatively recent two storey infill development at 13, 15 and 15A Erica Street, the three storey flats at 43 Williams Road, the three storey flats at 45 Williams Road, the two storey flats at the corner of Bowen Street and Williams Road, diagonally opposite the subject site, and the three storey flats at 76 Williams Road. The proposed development is to have a narrow presentation to Williams Road with a roof height less than the ResCode standard of 9.0 metres. It is to be approximately 1.7 metres higher than the roof ridge of the abutting building to the north, although it must be noted that the highest point of the roof on the abutting property is set back 11.6 metres from the street and so will appear lower due to the effect of perspective.
3. The roof height of the proposed development as it presents to Erica Street steps down by 1.8 metres from the three storey flat roofed section to the hipped roof two storey section, and then steps down again by another 300mm, with the roof sloping down to the rear. The eave height at the rear is to be 600mm higher than the roof of the dwelling to the west at 21 Erica Street. The change in height between the proposed building and 21 Erica Street will be ameliorated by the width of the right of way.
4. It was suggested at the hearing that the three storey section of the proposal should have a pitched roof because pitched roofs are characteristic of the area. I don't think that is necessary. The building has obviously been designed to be inserted into the streetscapes of Williams Road and Erica Street in a manner which responds to the different characteristics of those streetscapes. The stepping in at the sides on the Williams Road frontage and the progressive stepping down in height in Erica Street are clear indicators of that. The addition of a pitched roof to the three storey section would have no great design advantage and would increase the height of the building.
5. While the proposed building is acceptable within its local context, it is my opinion that some care needs to be taken with external colours. I note that while the plans specify external materials, they do not specify colours. I would be concerned if the colours chosen were those which appear on the photomontage of the proposal. In my opinion the colour of the lower part of the building as shown on the photomontage would have the effect of reducing the degree of recessiveness of the building otherwise achieved by its overall design and articulation. I have included a permit condition in my Order that the external colours be shown on the plans to the satisfaction of the responsible authority.

1. The issue of floor levels arose during the hearing. Mr Clarke questioned whether the finished floor levels for the dwellings and garages as shown on the plans were in accordance with the specified heights above flood level required by Melbourne Water. He suggested that the flood levels may be such that the building would have to be 280mm higher than shown on the plans. Mr Pitt stated that the finished floor levels shown were in accordance with the specified heights above flood level, but he would accept that the floor levels be above flood level to the satisfaction of Melbourne Water. He also invited the Tribunal to make a finding as to the impact in planning terms of a 280mm increase in the height of the proposed. In my opinion such an increase in height would not be sufficient to justify refusal of the proposal. In other words, if Mr Clarke is proved to be correct, that has no bearing on the acceptability of the proposed development.

1. In summary, I have concluded that the proposed development would not result in any unreasonable amenity impacts on abutting or nearby properties. I have also concluded that in the context of the site and local neighbourhood the height, setbacks and site coverage proposed are acceptable and that the development is acceptably responsive. For these reasons I have formally set aside the decision of the responsible authority and granted a permit subject to conditions.