1. The appeal site is located on the western side of Charman Road, at its southern end fairly close to Beach Road. This is an established residential area, with the foreshore further south again from Beach Road. The site is currently improved by a rather tired looking double storey dwelling, and there are a number of other double storey dwellings in the immediate area including on either side of the appeal site. The total area of the appeal site is 697 square metres, and there is a substantial garage located in the rear yard of the site.
2. The most relevant neighbouring properties are 1 Charman Road to the south (owned by Mr King) and 5 Charman Road to the north owned by Ms Paevere. Both of these adjoining dwellings are double storey and fairly prominent dwellings, albeit the No.5 property also has a large canopy tree which provides substantial screening of its dwelling from viewed from the street. The No.1 dwelling includes a sunroom area located in the north western corner of that dwelling. This section of Charman Road slopes downwards from the north to the south, towards the foreshore.
3. Significantly, my inspection confirmed that there are in fact already several attic style dwellings in this southern end of Charman Road. In addition, if one starts at Beach Road and then walks north along the western side of Charman Road (where the appeal site is located), for some distance most dwellings are double storey.
4. Turning now to the proposal, as per the substituted new plans, there will be three new dwellings including a basement carpark and what the Applicant describes as an attic feature[1]. The basement carpark will provide six parking spaces, together with areas for infrastructure, storage space and bin, storage and recycling. At the ground level, the front section of the site features Apartment 1, and the rear section features Apartment 2. Apartment 1 will have a north facing paved courtyard area in the middle section of the site, whereas Apartment 2 will have a paved courtyard area in the north western corner of the land.
5. In contrast to the rear apartment which (as amended) will be single level, the front section of the site then features a first floor level for the proposed Apartment 3. There will be both a lift and stairs to move between the different levels including the basement carpark. The new Apartment 3 will have as its outdoor area a 29 square metre terrace which wraps around the south eastern corner of Apartment 3 (I understand this layout is aimed to take advantage of views towards the coast). Apartment 3 then continues up to a proposed top level area, which provides a master bedroom, ensuite and walk-in-robes.
6. The front two dwellings will each have three bedrooms, whereas the new rear dwelling shown on the substituted plans as having two bedrooms and a "study". Given that this area shown as "study" can be completely closed off and includes a "robe" feature, I think common sense indicates that it should in reality be treated as a defacto third bedroom.
7. Dealing now with the planning framework, we know that the site is zoned Residential 1, and is also affected by a DDO1 and a Vegetation Protection Overlay Schedule 3. However in the course of the hearing it became clear that there is no relevant vegetation within the scope of the VPO3 - hence there is no permit trigger under this vegetation control. On this basis, the only permit triggers are the need for a permit for multiple dwellings on the one site under the Residential 1 Zone, plus the need for a permit under the DDO1.
8. With respect to the DDO1, it is significant that under Clause 2 of the Schedule there is a prohibition on buildings exceeding two stories (excluding any attic or basement). Another relevant and mandatory feature of Clause 2 is that:

"A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch and form and any windows in the roof must be mounted flush to the roof, recessed or of minimal dimensions."

1. With respect to the relevant State Planning Policies, the main ones here are Clause 12, 14, 16.02 and 19.03, keeping in mind that the Melbourne 2030 metropolitan strategy plays a role also. With respect to the Council Municipal Strategic Statement and local policy provisions, there was particular reference to Clauses 29.05-3, 22.07-1 and 22.07-2.
2. In the usual way Clause 55 (ResCode) applies, as does the general Clause 65 Decision making guidelines.
3. It is also significant that there is a Schedule to the Residential 1 Zone, which varies some of the ResCode Standards, which was gazetted as part of Amendment C2 on 18 March 2004.
4. Ms Bowdern for Council also emphasised that pursuant to Council's Neighbourhood Character Policy in Clause 22.07, the appeal site falls within the Precinct H3, for which the "Preferred Future Neighbourhood Statement" is as follows:

"The bushy gardens surrounding the dwellings dominate the streetscapes. Where the topography is hilly, the buildings are set within the landscape, and are sometimes sited to take advantage of water views without dominating the streetscape. Adequate space is provided around dwellings for the retention and planting of vegetation, and indigenous canopy trees are common. Low or open style front fences are usually provided, in order to retain the openness of the front garden to the street."

1. Ms Bowdern highlighted the "Precinct Guidelines for Area H3" which she set out at pages 9 and 10 of her written submission. I note that two of the more relevant objectives under these Guidelines are "To minimise site disturbance and impact of the building on the landscape", together with "To ensure that new buildings provide an articulated and interesting facade to the street".
2. There was discussion at the hearing of the proposed Amendment C52, which will introduce changes to the DDO1. I was told that Amendment C52 is currently before the Minister for Planning awaiting approval. If Amendment C52 is approved in the form before the Minister, it will introduce a new definition of an "attic" as follows:

"A space within a building, contained wholly within the roof pitch, that is not immediately enclosed by vertical external walls and may contain dormer windows or skylights and does not contribute materially to the scale and mass of the building form."

1. The new provisions in Schedule 1 to the Amendment C52 would also set out the following factors as being indicative of an attic:
   • A space which is wholly contained / enclosed within a roof space.
   • A space which is not bordered by any vertical external walls except gable walls.
   • A space used for a purpose which services other storeys within a building.
   • A space which is relatively small in scale in relation to the scale of the remaining built form.
   • The presence of dormer style windows or skylights.
   • Does not contribute significantly to the building form.
   • A space or series of spaces which in total occupy an area no greater than half the floor area of the storey below.

1. I shall now return to the two key issues which I identified above.

Does the proposal meet the mandatory requirements of the DDO1?

1. Taking into account both the submissions made during the hearing and those further written submissions provided pursuant to my directions, I am satisfied that the proposal does meet the mandatory requirements of the DDO1.
2. In particular, I am satisfied that the proposal:
   • can be properly characterised as including an "attic" rather than a third level for the new front building;
   • (in relation to the new front building) meets the requirement that "A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch and form"; and
   • includes upper windows in the roof of the new front building that are "...mounted flush to the roof, recessed or of minimal dimensions" as per the DDO1.
3. I note that there is no definition in the Victorian Planning Provisions of "attic". Furthermore, if one looks up "attic" in the leading dictionaries, the definitions tend to be quite simplistic for our purposes, thereby providing little practical assistance.
4. However subject to one proviso mentioned below, I am satisfied that the top level of the new front dwelling meets the common features one expects of an attic - notably that the windows are flush to the roof, the internal living area is quarantined within the ordinary roof pitch, there are no external vertical walls, and the pitch of the roof is within reasonable parameters. It is also significant that the top level floor area is significantly smaller than the first floor area below.
5. I do not regard the mere fact that this top level has a gable front treatment with a substantial front-facing window as changing the basic position - the reality is that an inspection of the locality will confirm that this would not be the first dwelling with an attic with this type of front-facing treatment.
6. I agree with Mr Deidun that it is a major "plus" for the proposal's compliance with the DDO1 that even if the relevant new provisions of Amendment C52 are applied to the proposal, in most respects it clearly complies with the proposed new definition of "attic" and the relevant new factors which are indicative of an attic.
7. Whilst I accept that there is more roof for debate regarding whether the proposed top level of the new front building is "relatively small in scale in relation to the scale of the remaining built form" and whether the new top level "...does not contribute materially to the scale and mass of the building form", I ultimately regard the new top level as meeting these tests. I consider that the average person would regard the top level living area as subservient to the fairly conventional roof treatment of the new front building in a manner associated with an attic, rather than the top level living area being dominant in a manner that materially exacerbates the bulk of the new front building and suggests it constitutes a conventional third level.
8. The proviso is that I acknowledge that the squaring off of the top section of the roof is not as common a design feature for an attic style dwelling. However bearing in mind the clear intent of this squaring off to reduce the overall height of the building and applying the legal principle of "De minimis non curat lex" (the law does not concern itself with trifles[2]), I am satisfied that this squaring off:
   • does not in itself take the proposed top level outside of what can properly be regarded as an "attic", keeping in mind that the top level otherwise meets the criteria of an attic in spades; and
   • does not change my basic view that the proposed roof treatment of the new front building does "...match typical roof details of the surrounding neighbourhood in terms of roof pitch and form" as per the DDO1.

Does the proposal constitute an over-development of the site?

1. Whilst recognising the Council's grounds of refusal raise several other points apart from the "prohibited versus permissive" issue, at the end of the day I see there are two ways this debate can go. That is, either the proposed three new dwellings:
   • are a reasonable site response that are consistent with the policy framework, meet the ResCode objectives, are suitably respectful of the existing neighbourhood character and have no unreasonable external amenity impacts (ie the proposal is not an over-development); or
   • the proposal involves cramming too much development onto the site, raising fatal problems when one considers these various factors in totality (ie the proposal is an over-development).
2. Particularly with the benefit of a site inspection, my finding is that the proposal is not an over-development but is a reasonable planning outcome that deserves approval, taking into account the factors set out in the first bullet point above.
3. I see the most critical factor here as being the existing neighbourhood character in this southern end of Charman Road. That is, the reality is that this end of Charman Road already features many large and prominent dwellings, with a variety of different building styles. Putting this another way, tall and bulky residential dwellings of varying degrees of attractiveness are already evident if one is looking around the front or back yard of the appeal site.
4. In summary, I consider that this southern end of Charman Road already has a very robust and varied neighbourhood character, which makes it more suited to accommodating a larger development such as proposed here. The fact that there are already other nearby attic style dwellings with a front-facing attic window reinforces this suitability. Whilst there would have been a real prospect of the original proposal for four dwellings failing this "over-development assessment", the Applicant to its credit has deleted one of the originally proposed two rear dwellings (I endorse this decision).
5. In relation to the design fit of the new dwelling vis-à-vis the features of the existing dwellings at No. 1 and No. 5 Charman Road, in this regard I was provided with a good submission at the hearing by Mr Deidun of how the setbacks and articulation of the proposal (particularly the new double storey front building) respectfully respond to the context (which I endorse). In particular, the double storey/attic element at the front of the site steps in from both side boundaries, involves the more recessive feature of the large front balcony, and incorporates suitable screening of the more sensitive north and south facing upper windows and of the southern side of the upper front balcony. It is also a positive feature that this front upper built form has been restricted to essentially sit alongside the existing double storey dwellings on either side, rather than extending deep into the appeal site.
6. In relation to No. 5 Charman Road, I am satisfied that the proposal will have no undue affects on the use of their backyard, which will have only a single storey new dwelling alongside, set off the common boundary by 2-3 metres. To the extent that Ms Paevere at the hearing raised general traffic concerns plus noise concerns regarding the basement car park ramp, I see these aspects of the proposal as being within reasonable parameters. The new basement ramp drops down lower as vehicles move further away from the front boundary, which in itself should shield noise moving towards the No. 5 dwelling. If there has been some degree of history of traffic accidents where Charman Road meets Beach Road, as I said at the hearing, this is an issue whether or not this proposal is approved, and it would seem unfair for me to refuse the proposal on this basis alone.
7. In relation to the No. 1 Charman Road dwelling to the south, I agree with Mr Deidun that whilst there is the additional factor of potential overshadowing, the situation here is ultimately still acceptable given that:
   • it is already the common pattern in this locality to have large and tall dwellings sitting north-south alongside each other, which inevitably involves a degree of overshadowing at certain times of day;
   • the No. 1 back yard has the benefit of the generous sized garage which extends out from the rear northern boundary, which provides a good level of visual screening; and
   • from my inspection of the contentious rear sunroom of the No. 1 dwelling, my impression is that this is a secondary rather than a primary living area of this dwelling. In addition, the upper level roof of the new front dwelling does step in alongside this sun room, which assists the solar penetration situation.
8. Finally, it needs to be recognised that the No 1 and the No. 5 Charman Road dwellings are themselves large and prominent dwellings with relatively high rooflines, as reinforced by the "street elevation" aspect of the Plan A06. When this is combined with the presence of many other large double storey dwellings on both sides of this bottom end of Charman Road, I agree with Mr Deidun that "the horse has bolted" if Council is wanting to avoid this bottom end taking on a "Beach Road flavour".
9. In relation to the proposed detailing of the front of the dwelling, while I queried at the hearing whether the treatment might be too fussy, on balance my view is that there is already sufficient built form diversity in the street to reasonably accommodate a more bold treatment such as proposed here.

1. For the reasons set out above, I consider the proposal to be a reasonable site response that is deserving of planning approval. Hence I have made orders above to this effect, and refer to the conditions set out in the Appendix to this decision. In particular:
   • I suggest that Council review/proof read the drafting of their standard conditions, as there seems some duplication involved. For example, with the proposed conditions 11 - 19 dealing with tree protection, Conditions 12 and 16 are identical and Condition 15 appears to already be covered off by Condition 11. Also query whether all of these conditions are needed in a situation where there is no specific permit trigger for vegetation removal?;
   • I have added some new sub-clauses at the end of Condition 1to deal with some design points raised during the hearing, plus I have amended the primary landscaping condition to also require that a new canopy tree be planted in the open space are mid way along the northern boundary.

1. Before the development starts three copies of revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the Amended Plans (dated July 2008) but modified to show to the satisfaction of the Responsible Authority to show:
   • (a) All wall heights above ground level to be nominated on the plans.
   • (b) All paving (except driveways) to be permeable. Details of the permeability of the paving must be supplied to the satisfaction of the Responsible Authority.
   • (c) A schedule of all external materials and finishes to be provided to the buildings and works Jon the land. The schedule shall show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car park surfacing).
   • (d) The proposed landscape treatment for the site including the existing and proposed species.
   • (e) The ramp must be 3m wide at its intersection with the footpath, with a 1.0m offset from the northern property boundary. These dimensions must be shown on the Ground Floor Plan. Adequate pedestrian visibility must be provided at the top of the ramp, to the satisfaction of the Responsible Authority.
   • (f) A longitudinal section of the ramp must be provided that shows all relevant design levels, grades, transition and main ramp lengths, a 4m vertical curve at the 8.33% - 20% grade change and headroom clearance, to the satisfaction of the Responsible Authority.
   • (g) The car parking layout in the basement must be modified as necessary so that each space is accessible in one parking manoeuvre as per the relevant Australian Standards to the satisfaction of the Responsible Authority. In addition, the width of each parking space must meet the requirements of the applicable Australian Standards.
   • (h) In relation to that part of the common side boundary with the No. 1 Charman Road property extending forward from the north-eastern corner of the existing 1 Charman Road dwelling, a notation is to be added to the applicable plans specifying that this section of the boundary must at the permit holder's expense have contructed on it a new solid 1.8 metre high solid paling fence.
   • (i) A new security gate for the side pathway running alongside the front southern boundary of the land, with the gate to be located adjacent to the front southern corner of the new front building.
2. The development as shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.
3. Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.
4. The alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall shall be the sole responsibility of the owner/developer.
5. Street numbers contrasting in colour to the background must be fixed at the front boundary of the property as near as practicable to, or on the letterboxes in order to clearly establish the identity of the property. Separate unit numbers shall be placed adjacent to the front entrance of each dwelling, such numbers to be clearly legible from the access driveway.
6. All service pipes, fixtures and fittings with the exception of downpipes must be concealed on exposed elevations to the satisfaction of the Responsible Authority.
7. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority
8. All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered to the satisfaction of the Responsible Authority.
9. Before any construction or demolition works commence on the site, to the extent that the site perimeter is unfenced and/or is not fenced to the satisfaction of the Responsible Authority, a secure fence is to be erected around the perimeter of the site to prevent access to the site from unauthorised persons. This fence is to be maintained for the duration of the construction and demolition, be a minimum height of 1.8 metres or such alternative height as is approved by the Responsible Authority and to be constructed and sited to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work has ceased on the site.
10. Before the development starts, a Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must show:
    • (a) the planting of a minimum of two (2) canopy trees within the front setback to the satisfaction of the Responsible Authority;
    • (b) the planting of a minimum of two (2) canopy trees within the rear open space to the satisfaction of the Responsible Authority;
    • (c) the planting of a minimum of one (1) canopy tree in the open space area mid way along the northern boundary of the land;
    • (d) a survey (including botanical names) of all existing vegetation to be retained and/or removed;
    • (e) buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
    • (f) details of surface finishes of pathways and driveways;
    • (g) a planting schedule of all proposed frees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
    • (h) landscaping and planting within all open areas of the site.

All species selected must be to the satisfaction of the Responsible Authority.

The Landscape Plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

1. Before occupation, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
2. The existing street tree/trees must not be removed or damaged.
3. Any tree removal hereby approved shall be in accordance with the endorsed plan. The endorsed plan shall not be altered or modified unless further consent is obtained from the Responsible Authority.
4. All existing vegetation shown on the endorsed plans as being retained must not be removed, destroyed, pruned or lopped without the written consent of the Responsible Authority, all tree pruning must be carried out by a qualified Arborist to AS 4373, Pruning of Amenity Trees.
5. Prior to the commencement of any development or demolition works a Tree Protection Zone Fence of cyclone wire or similar construction must be erected to a height of at least 1.8 metres at a minimum distance (metres) in radius from the centre of the following tree(s):

• Barrier fences must stop access by persons, vehicles or machinery to the area it encloses and be maintained throughout the entire construction period and must have a sign attached stating `Tree Protection Zone Fence'. (Access may be permitted only with the consent of the Site Manager or the Consultant Arborist)
• There is to be no excavation in the area enclosed by this fence and a layer of organic mulch (woodchips) to a depth of not less than 100mm, must be laid to assist moisture retention and reduce the impact of soil compaction.
• No materials, chemicals, paints etc, equipment, temporary building or otherwise, must not be dumped, stored or erected within this fence.

1. • The installation of utility services must be bored under the root systems of the trees to be retained.
   • Supplementary watering must be provided to all trees as per current water restrictions.
   • Nothing whatsoever shall be attached to any tree including temporary services, wires, nails, screws or any other fixing device.
   • All root zones shall be bridged using timber planks, to assist in reducing soil compaction and consequent root damage.
   • An experienced Qualified Arborist must attend the site during site cut and excavation to ensure that all affected tree roots are managed correctly and to ensure any damaged or exposed tree roots are pruned cleanly and the cut ends sprayed with a root hormone solution before covering with soil.
   • Any backfill material must be a mixture of quality topsoil and organic composted material and the trees must be monitored on a regular basis during and after construction, by the Consultant Arborist.
   • Open trenching must be avoided - bore under the root system as an alternative.
2. Crossings shall be constructed in a manner that will not damage the root systems of any mature street trees. No work shall be carried out without approval of the Responsible Authority.

3. This permit will expire if one of the following circumstances applies:
   • The development is not started within two (2) years of the date of this permit.
   • The development is not completed within two (2) years of the date of the commencement of the works.

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.

• Prior to commencement of any building works, an Asset Protection Application must be taken out. This can be arranged by calling Bernadette Brown, Asset Protection Administrator, Mon-Fri 9.00am-1.00pm on 9599 4638.
• A permit must be obtained from Council for all vehicular crossings. These must be constructed under Council's supervision for which 24 hours notice is required.
• Building approval must be obtained prior to the commencement of the above approved works.
• The existing street tree/s must not be removed or damaged.
• Reticulated sewerage must be provided to the requirements of the Sewerage Authority.
• Construction of any fence/wall/letterbox structures may necessitate removal/damage of some sections of the footpath. If this is the case, a Road Opening Permit' must be obtained to facilitate such work.
• A Road Opening / Stormwater Tapping Permit' is to be obtained from the Bayside City Council Infrastructure Department prior to the commencement of the connection to the kerb/channel.

[1] Noting that Council disputes that the top level of the new front building constitutes an attic - Council believes this aspect of the proposal goes beyond "attic" to be another level of development

[2] See Osborn's Concise Law Dictionary, 7th Edition.