A 5m front setback from Maple Street facilitates visitor parking within the driveway of each dwelling, while the 54m2 secluded POS courtyards are located to achieve northern orientation and connection with a living room.

14 The subject site is within a Residential 1 Zone under the Knox Planning Scheme and is not affected by any overlay controls. Pursuant to Clause 32.01-4 a planning permit is required for the development of two or more dwellings on a lot. A development must meet the requirements of Clause 55 (ResCode). Decision guidelines are at Clause 32.01-4.

15 In addition to considering the decision guidelines at Clause 65, consideration must be given, as appropriate, to the State Planning Policy Framework [SPPF] and the Local Planning Policy Framework [LPPF], including the Municipal Strategic Statement [MSS]. The written submissions of both Mr Skinner and Mr Radisich provided thorough descriptions of the relevant policy context. I do not intend to reproduce that material here, but will refer to relevant provisions in considering the issues raised by the parties.

16 The parties agreed that the proposal has substantial compliance with the quantifiable standards of Clause 55, including those relating to frontage and sideage setbacks, building envelopes, site coverage, areas of secluded open space and their access to sunlight. As noted by Mr Radisich, the site offers the advantages of a corner site. There is also the advantage of residential buildings on properties to the south and east being well-removed from common boundaries.

17 Mr Skinner conceded that given the extent and nature of multi unit development in the neighbourhood the attached double storey and single storey form that is proposed is not usual. He also endorsed the contemporary feel of the proposed built form facing Myrtle Street and the conventional development, involving single storey dwellings with gabled roofs, proposed along Maple Street.

18 The Council is, however, concerned about the number of dwellings, or density of development, the proposed fencing and landscaping.

19 Mr Radisich correctly highlighted that there is a major anomaly in that while the revision required by Condition 1.2 would mean a development of four dwellings the preamble to the permit - the statement of what the permit will allow - refers to the Development of the land for two double storey and four single storey dwellings.

20 Mr Radisich argued that the condition does not fairly relate to the permitted development, and there is no real connection between the permission granted and the limitation placed upon it. He also argued that The condition has the hallmarks of a condition seeking to achieve an ulterior purpose rather than fulfilling planning policy.

21 I do not consider that the divergence between what is permitted in the preamble and what is required by the condition is of itself a reason to reject the condition. It is most likely that the wording of the preamble was an oversight by the Council. If I ultimately determined that Condition 1.2 should be retained the preamble could be amended pursuant to Section 127 of the Victorian Civil and Administrative Act 1989. That would be consistent with the decision of the Tribunal in A Lilley and G Tyas v Mornington Peninsula Shire Council [2000] VCAT 2448 (30 November 2000).

22 Nor do I accept Mr Radisich's submission that the condition is invalid in that it seeking to achieve an ulterior purpose. Although there is no record of why the Council imposed the condition, I accept that that it was within its powers to do so. The problem, however, is that as it stands the wording of the condition is uncertain. There is no indication of which dwellings are to be deleted. Nevertheless, while the condition is too vague to be retained in its current form, that is not critical. It would be open to me to elaborate upon the condition so that it was sufficiently certain.

23 Mr Skinner was in the unenviable position of having to justify the Council's position. It was necessary for him to try and second guess the reasons for the Council's decision to limit the number of dwellings. Mr Skinner advised that as a result of discussions with Council officers Condition 1.2 should be interpreted as calling for the deletion of one of the two storey dwellings and the deletion of one of the single storey dwellings.

24 In justifying the deletion of one of the two storey dwellings Mr Skinner referred to concerns about the mass and extent of the attached dwellings facing Myrtle Street, with their private open spaces being pushed forward. He submitted that the proposed double storey element represents a broad, attached form with a vertical façade that is not recessive. He also criticised the sheer two storey wall facing Myrtle Street.

25 Mr Skinner suggested that the development should have one good-sized dwelling at the front, maintaining a northern orientation for its private open space on its eastern side.

26 In justifying the deletion of one of the single storey dwellings Mr Skinner submitted that the form proposed by the applicant results in an absence of private space between the four tightly squeezed dwellings.

27 Mr Skinner suggested that a preferable outcome would be to have three dwellings and thus the opportunity for breathing space between the dwellings. He argued that three wider frontages would reflect the wider lot pattern in the area, including the units on the opposite side of the street. Mr Skinner also argued that a modified layout would have the benefits of reducing one of the double crossovers to a single width and allowing space for the planting of canopy trees.

28 In justifying the Council's position Mr Skinner advised that Amendment C5 to the Knox Planning Scheme has been approved very recently (on 21 October 2004). It amends the MSS by including a section on "Promoting the Identity and Image of Knox" (at Clause 21.05) and introduces a Neighbourhood Character policy at Clause 22.07. The subject site is within a Garden Suburban Character Precinct (GS2), covered by Clause 22.07-5.

29 Mr Skinner drew my attention to the Precinct description and the Statement of Desired Future Character. The key characteristics of the precinct include low level gardens with small shrubs and occasional tall trees, usually no front fences, front setbacks generally 7-8m and single storey dwellings with low pitched, tiled roofs and wide eaves. The future character sought is:

Low scale dwellings set within an open landscape with occasional large native trees and in some precincts, large stands of native and exotic trees.

30 Mr Skinner submitted that it is not the Council's position that double storey development facing Myrtle Street is inappropriate in the light of the Clause 22.07-5 provisions. However, he argued that the provisions warrant a revised from of development, particularly a setting back of the second storey. He also argued that a modified development would assist the maintenance of the "green leafy" character identified in the MSS.

31 My inspection confirmed Mr Radisich's submission that the key characteristics of the GS2 precinct are not consistently evident throughout the broad area covered by the precinct. The immediate neighbourhood of the subject site is not typified by many key characteristics. In particular, the numerous multi unit developments have a different character, with reduced setbacks, prevalent double storey form and limited landscaping.

32 I accept Mr Radisich's submission that the proposed building style and building form are referenced from the immediate area. There are a number of developments with two storey attached form in the area, including developments on the opposite side of both Maple Street and Myrtle Street.

33 My finding is that the proposed development would be consistent with the neighbourhood character. A reduction in the number of dwellings is not warranted in terms of neighbourhood character.

34 In considering the issue of the number of dwellings I have also given weight to Mr Radisich's submission that the proposal provides an opportunity to enhance urban consolidation objectives in State and local policies that have been reinforced by Melbourne 2030. As highlighted by Mr Radisich, the subject site is approximately 400m away from the Bayswater commercial centre that is designated as a Major Activity Centre in Melbourne 2030. The strategy encourages higher density residential development in such areas.

35 I acknowledge Mr Radisich's observation that there was intense development in the area prior to the new metropolitan strategy and it is reasonable to assume that even higher densities will now be appropriate.

36 I have also been influenced by the fact that the concerns mentioned by Mr Skinner were not raised in the officer's report on the application. The condition that calls for the deletion of two of the dwellings was imposed by the Council. It did not form part of the officer's recommendation. The Tribunal and its predecessors have long held that an officer's report is a relevant consideration taken into account in proceedings such as this. While a Council is, of course, not obliged to blindly follow the advice of its officers, such reports represent the professional advice available at the time a Council reaches its decision [See Modern Living Design & Construction Pty Ltd v Box Hill CC & Ors, 19 AATR 166]. The report was thoroughly prepared, comprehensively addressed all relevant issues, and is a document to which I should give weight.

37 The officer's report recommended that amended plans be required showing, inter alia:

The use of picket fencing where fencing is visible from street frontages.

The fence of Dwelling 2 moved 500mm from the west property boundary (Maple Street frontage).

38 The Council adopted the first of those requirements. For some unknown reason, the second requirement was deleted.

39 According to Mr Skinner, picket fencing would provide screening protection, while at the same time providing a softer and better presentation to the street.

40 The plans show 1200mm high picket fencing along sections of the Maple Street sideage. Along the Myrtle Street frontage there are 6.065m lengths of 1650mm screen batten fence enclosing the northern side of the areas of private open space. They are set back 1.5m from Myrtle Street. However, the plans also show a 1.650m high timber paling fence as the western boundary of the private open space for Dwelling 2. It abuts the Maple Street boundary over a length of 13m.

41 I consider that the proposed screen batten fencing facing Myrtle Street is an acceptable design response_._ Although the enclosure of front gardens is not prevalent in the area, Mr Radisich pointed to a number of examples where private open spaces at the front of properties are enclosed by high fences. The property abutting to the east (6 Myrtle Street) is one such example. The private open space of the front unit is enclosed by a brick wall. It has overhanging roses which result in a very attractive presentation to the street. Batten-style fencing would provide some privacy for the private open spaces, without resulting in a solid interface with the street. As there is no footpath along the southern side of Myrtle Street, the wide nature strip provides a sense of openness. The proposed fencing would generally satisfy the Council's desire, according to Mr Skinner, for a more open style of fencing.

42 I consider that it would be desirable to also provide screen batten fencing along the north west section of the site, rather than paling fencing. It would integrate with the treatment along Myrtle Street. Marginally setting back the fence, as recommended in the officer's report and accepted by Mr Radisich, would provide an opportunity for a landscaping strip to further enhance the appearance.

43 There was a landscaping plan submitted with the application. Condition 6.7 requires it to be modified so that the private open space of each dwelling has at least one canopy tree from Council's Preferred Species List A and one tree/shrub from the Preferred Species List B. Mr Skinner submitted that the condition should be retained as it is standard practice to require species from those lists.

44 Mr Skinner was also critical of specific aspects of the plan. For instance, he noted that the ornamental pear species shown within the eastern boundary has an undesirable narrow form that is necessary due to space constraints.

45 As highlighted by Mr Radisich, although the landscape plan did not include species listed on Preferred Species lists A & B, there was no objection offered when it was referred to the Council's Landscape Architect. The report commented that the planting selection is acceptable, although there was a need to increase the density of specified ground cover.

46 According to Mr Radisich the plan includes 12 species of canopy trees, as well as 5 new street trees. He highlighted that the proposed ornamental pears are an exotic species with a height of up to 11m. There are also a number of Acacia implexa proposed within the Maple Street boundary. They are an evergreen species with a height of up to 10m. Mr Radisich argued that they are species included on the Council's Landscape Guidelines for Town Planning Permits.

47 It is unclear whether the Landscape Architect's failure to rely on the Preferred Species lists was an oversight or deliberate. Nevertheless, I endorse the view that the planting selection is acceptable. It would provide an appropriate mix of species, many of which have substantial canopy. As large street trees are a critical contributor to the character of this area, it is important that the proposal involves new street trees, of species to be approved by the Council.

48 The failure to include adequate landscaping around new developments can quickly change the landscaping character of an area. Many of the recent unit developments in the neighbourhood of the subject site have minimal landscaping that does not contribute to the valued landscape character. However, I am satisfied that the proposed landscaping would result in a superior outcome to most of those sites.

49 I appreciate that urban consolidation opportunities need to be tempered by a requirement for new medium density development to respond sympathetically to neighbourhood character. I am satisfied that in this neighbourhood - which is close to a Major Activity Centre, is an area where many redevelopments are likely to occur, has a mixed character and many examples of similar form to that proposed - an acceptable balance has been struck.

50 The proposal represents a form of housing strongly endorsed by the Council's planning officer. A condition requiring a reduction in the number of dwellings is not warranted. With minor modifications the proposed fencing is also acceptable. The submitted landscape plan, endorsed by the Council's Landscape Architect, will lead to an appropriate setting for the proposed dwellings.