1. The Application to amend Permit No. PA0611665 and endorsed plans is declined.

Mr D Bowden of Daniel Bowden Town Planning with one of his clients. Ms A Venables, owner of No. 20 Bayview Street, was also present.

Mr S Bartlett, Mr I Mather, Ms S Draper-Lee and Mr T Kennedy in person.

Permit PA0611665 allows the construction of two double storey dwellings. The dwellings adopt a side-by-side format. Each would have a double car garage accessed from the rear lane. Works have commenced on-site. The amendments propose changes to the endorsed plans (also translated to changes in the Permit conditions) as follows:

• In the southern unit, modifications to the first floor balcony so as to wrap around to the south. The balcony would be setback 1 metre from the side boundary.
• A reduction in the first floor setback from the southern boundary in the southern unit from 2.5 metres to 2 metres. [This excludes any change to the 1.85 metre setback associated with bedroom 1, robe and ensuite that is shown on the request plan as being 1.35 metres].

Residential 1 Zone; Design & Development Overlay (DDO4)

Clauses 11, 12, 14.01, 15.12, 16.02, 19.03, 21, 22.10 and 65.

The review site is on the east side of Bayview Street opposite a reserve. The land has a frontage of 12.19 metres, a depth of 40.84 metres, and an area of 498 square metres. To the north is a single fronted Victorian house with a rear two storey extension. To the south is a part single storey and part two storey dwelling. A right of way is to the site's rear to which Hannan Street lots also abut. The site is the southern end of Bayview Street; this part of the street is experiencing redevelopment in the form of two storey dwellings or units.

The parties were advised at the commencement of the hearing that the Tribunal visited the site and locality on 2 February 2009. The Tribunal re-visited after the hearing.

1. Permit PA0611665 allows the construction of two double storey dwellings in Bayview Street, Williamstown. Works have commenced on-site following the endorsement of plans under Condition 1 of the Permit. The Permit was issued at the direction of another division of the Tribunal in 2007[3] wherein the Tribunal required a number of modifications to the plans.
2. The permit holder has subsequently applied to the Tribunal to make several amendments to the proposal. Based on the amended Application for Review, the modifications are confined to:
   • a reduction in the setback of the southern elevation of the southern unit from 2.5 to 2 metres.
   • a modification to the first floor balcony to wrap around to the south.

1. The changes are opposed by Respondent Objectors but not by the Council.
2. Respondent Objectors expressed their concern about further changes being made to the development approved by the Tribunal. They referred to the extent to which they regarded the approved design as an overdevelopment of the site and the extent to which the proposed amendments would add additional floor space and bulk to that design. Submissions were made with respect to overlooking from the proposed return to the balcony as well as noise intrusion to adjacent properties from occupants using the balcony. Reference was made to the reduced side setback as setting a precedent for future developments in the street that was said, among other things, to be detrimental to the Hannan Street heritage properties.
3. The grounds relied upon by residents were all challenged by the Applicant through Mr Bowden's submission.[4] He submitted the proposed changes are minor and would enhance the amenity of the southern unit in opening up more views of the Bay. He said that would occur without unreasonable amenity impacts and noted that a screen device could be added to the east side of the balcony so as to prevent views eastwards. Mr Bowden submitted the amendments would not add excessive bulk, would better articulate the front of the dwelling, and are acceptable in streetscape terms noting the form of other dwellings in this part of Bayview Street.

What are the Tribunal's findings on the merits of the request?

1. Having considered all submissions with regard to the provisions of the Hobsons Bay Planning Scheme, and having inspected the site and locality before and after the hearing, I will not allow the requested amendments for the following reasons.
2. Both requested amendments relate to the southern unit, particularly associated with its south-west aspect. The two changes must be considered with respect to the approved form of the northern unit as well because they would all be read together. I understand from Ms Lunn's submission that the amendments to the setback from the southern boundary and balcony would comply with Standard B17 of Clause 55.04. By meeting this numerical standard, the setback is deemed to comply with the applicable objective.[5] That is a test with respect to amenity impacts. I think the more critical issue for my decision is with respect to neighbourhood character. In forming that view, I make three principal findings. First, I am not persuaded that the balcony would give rise to a potential for unreasonable overlooking or noise impacts to surrounding properties in ways that warrant rejection of the amendments. Screening could be added to the eastern elevation of the balcony to protect the adjacent site to the south (I would not consider it warranted for properties to the east fronting Hannan Street given the separation distance). Screening to the southern elevation would impact on Bay views desired by the Applicant and would not be necessary. Secondly, I am not persuaded that the changes would give rise to unreasonable additional visual bulk as perceived by Hannan Street residents or other properties owned by Respondent Objectors. Thirdly, I do not consider the requested amendments fail because of impacts on the heritage values of Hannan Street and wider heritage precinct. Member Fong said:[6]

As for respondent objectors' concern that the proposal would impact on the heritage significance of the properties in Hannan Street, the Tribunal does not agree. The proposal does not affect the intactness, the fabric or the heritage setting of Hannan Street properties.

1. While the requested amendments would add to the development's breadth, the impact on the values of the adjacent heritage precinct would not be significant and do not provide a basis for rejecting the Application.
2. It is essential to consider Clause 55 standards and objectives relating to neighbourhood character and integration with the street. Linked with these are the purpose of the Residential 1 Zone and applicable Scheme policies seeking new development that respects neighbourhood character. The street has an emerging character where old and new homes are juxtaposed but there is a clear sense of rhythm and spacing between buildings. Clause 22.10 describes a preferred character for this area and support development that retains identifiable elements such as the building pattern.
3. The proposed reduced setback and revised balcony would together result in the upper level southern elevation being setback 1 metre from the southern boundary for a length of 3 metres, increasing to 2 metres for a length of around 9 metres, then decreasing to 1.85 metres for a length of around 8 metres. The 3 metre section of the development at a 1 metre side setback would sit opposite and forward of the verandah at No. 20 Bayview Street and would align with the ground level of the southern unit. The northern unit would sit further forward of the southern unit in an offset layout.
4. The inclusion of a return to the verandah would not be unique in this area and I do not consider the proposal is problematic because there are very few like balcony forms.
5. My greater concerns are with respect to the reduced side setback and limited articulation of the southern elevation as a whole. This elevation would be open to view given the single storey section of the adjacent dwelling to the south. The change to the southern unit on the review site would result in one, narrow, 150mm offset along the whole length of the southern elevation with the return balcony positioned close to the southern boundary. The proposal would provide a different form of façade articulation than already authorised by the Permit but would add perceptible bulk down the site and across the site's frontage as explained next.
6. As shown on the endorsed plans, the southern unit has a 3.5 metre wide front façade at the upper level with a visible ground level roof element along the side of the dwelling leading to a first floor window setback some 10 metres. The amendments would see the unit presenting with a 5 metre wide façade at the upper level (the balustrade would be partly wire above a rendered section) with the visible ground level roof element removed. A wider, rectangular, form would result detracting from the general symmetry of the units and adding visible bulk. Large contemporary dwellings seen nearby are mostly setback from the street more than the 3.8 - 6 metres endorsed under Permit PA0611665. Where those existing modern dwellings have narrow side setbacks at ground and/or first floor levels, those dwellings have a deeper front setback than 3.8-6 metres.

1. Just because the proposal has been approved in one form does not mean changes cannot be later contemplated. That is the Application before me although such a process has frustrated and concerned nearby residents.
2. Having said that, it can be a "fine line" as to when changes that might seem minor numerically are deemed too much to be able to be acceptable in a particular setting and to meet the outcomes desired by the Planning Scheme. For the above reasons, I am not satisfied that the proposed amendments are acceptable; rather, I find they push too far when considering how the two dwellings would be read as a whole in their neighbourhood and streetscape context. The requested changes to the approved development may improve the amenity of the dwelling but that benefit does not, in my view, outweigh the detrimental impacts on the character of the area.
3. I am not persuaded the proposal represents an acceptable outcome in terms of the provisions of the Hobsons Bay Planning Scheme. I will therefore decline the amendment request.

[1] I granted leave at the commencement of the hearing to amend the amendment request. I deleted points no. 1 and 4 of the s.87 application at the request of the Applicant. I understand that notice of the intention to amend the Application had been given to the parties on 28 January 2009. Thus, changes to include garage lofts and re-position the front door to the southern unit have been deleted from the amendment request. Several parties referred to their concerns about the form of garages on plans endorsed by the Council given the Tribunal's previous decision. I indicated that contentions that the endorsed plans are inconsistent with Permit conditions are not able to be dealt with through this proceeding. Instead, I said that parties may wish to seek their own advice and/or need to pursue any concerns through other proceedings. I also indicated during the hearing that other matters of concern, such as a boundary fence and the balcony to the northern unit, are also unable to be addressed through this proceeding.

[2] The Council's Practice 2 Note correspondence dated 28 August 2008 stated the Council consented to the amendments. At the hearing, Ms Lunn stated the Council opposed the amendments and her written submission was prepared on that basis. I asked for clarification of the Council's position given the inconsistency and, after the matter was stood down, Ms Lunn advised the Tribunal and parties that her instructions were that the Council would not oppose the amendments.

[3] Bussey v Hobsons Bay CC [2007] VCAT 1918 decided by Member Fong.

[4] Mr Bowden offered to call Ms A Venables, owner of the property at No. 20 Bayview Street, to advise the Tribunal of her acceptance of the proposed amendments. I did not consider it necessary for her to be called to explain that position but I did obtain clarification from her as to the rooms serving windows along the north side of her dwelling (facing the review site).

[5] Chak Lai Le v Whitehorse CC [2005] VCAT 1274.

[6] Bussey v Hobsons Bay CC [2007] VCAT 1918 at paragraph 36.

[7] The amendment plans show the window as being retained but, with only a 150mm step in this elevation, I doubt that the window to the bathroom can be kept.

[8] The lesser figure is to the balcony of the northern unit with that dwelling's ground level street setback being 5.3 metres.