Backman & Company Pty Ltd v Boroondara CC [2014] VCAT 1581 - VCAT 2014 case summary — Zoe

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Backman & Company Pty Ltd v Boroondara CC [2014] VCAT 1581

[2014] VCAT 1581

Victorian Civil and Administrative Tribunal|2014-12-19|Before: Mr J

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Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2014-12-19

Before

Mr J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

The Applicant, Backman & Company Pty Ltd, has sought a planning permit from the Boroondara City Council to construct a three-storey apartment building, plus basement car park, on the land at 7 Cherry Road in Balwyn. The Council gave notice of the planning application, and 350 objections to the proposal were received.
The Council's officers undertook an assessment of the proposal against the relevant planning policies and provisions of the Boroondara Planning Scheme and determined to refuse a permit. The grounds of refusal relate to matters of neighbourhood character, the impacts on the amenity of adjoining properties, the on-site amenity for occupants of the proposed development, and car parking. Residents, and others, who objected to the planning application oppose the grant of a permit on similar grounds.
This is an Application to the Tribunal for a review of the Council's decision.
The key issues for determination in this matter can be expressed as follows:
- Will the development respect the existing neighbourhood character or contribute to the preferred neighbourhood character?
- Are the impacts on the amenity of the adjoining residential properties acceptable?
- Is the reduction of one visitor car space justified and will the development result in unacceptable traffic impacts?
- Will occupants of the proposed dwellings experience an acceptable level of amenity?
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to affirm the Council's decision and have refused a permit. My reasons follow.

[2]

[13]

This policy aspiration is specifically expressed in the Objective of Clause 15.01-2, which is formulated in very similar terms. The Local Planning Policy Framework emphasises the importance of achieving built form outcomes which respect and enhance neighbourhood character. This is found at Clauses 21.05 and 21.07 of the MSS and, notably, in Clause 22.07 which is the Planning Scheme's Neighbourhood Character Policy. The sole Objective of this policy is to encourage design solutions which enhance and respond positively and creatively to the existing neighbourhood character of residential areas of the City. The proposal's neighbourhood character implications are a key matter in contention in the circumstances of this Application and I will undertake an assessment of the proposal against this policy in the following section of these reasons.
In order for that assessment to be meaningful, it is necessary to set out a description of the site's physical environs, as the context is a principal consideration in determining whether the development represents an acceptable response.
The first observation to make is that the subject land is not within what may be described as a 'conventional' residential neighbourhood. There is an obvious presence of non-residential land uses and an accompanying variety of built forms which distinguish the immediate surrounds from residential areas further to the south and west, for example. The east side of Cherry Road comprises a church and associated hall, a Maternal and Child Health Centre, a single-storey dual occupancy, a villa unit development comprising of four attached single-storey dwellings, a single-storey detached house (review site), a single-storey house with undercroft garage, a two-storey dwelling, a car park associated with Fintona Girls' School ('Fintona'), two residential properties owned by Fintona, and the two-storey Fintona Music School.
In respect of the direct abuttals, the villa units to the north have their open space area adjoining the review site, and the garage wall of the front dwelling is constructed to the common boundary. Several habitable room windows have an outlook toward the site. To the south, the adjoining land has a tennis court which abuts the review site. The principal secluded private open space area is in two parts. One part, which appears to be the main area, is directly adjacent to the dwelling and comprises a paved area surrounding a swimming pool. The other area is a grassed space located in the south-eastern corner of the property, south of the tennis court. Arguably, the tennis court also forms part of the private open space of this land. The dwelling has habitable room windows which face the review site.
On the west side of Cherry Road is the extensive Balwyn Park, which accommodates a range of recreational facilities including an oval, tennis courts, cricket pitches and playgrounds. This land occupies the entire western side of the road.
What is happening to the rear, on properties fronting Balwyn Road, also influences one's perception of the neighbourhood's character, this being from what is commonly termed the 'backyard realm'. As this, too, is an important consideration in this case, I will briefly outline the development and use of that land as a context for the discussion that will follow in later sections of these reasons in respect of character and residential amenity.
To the south-east, the review site has a corner abuttal to a part of the Fintona Girls' School that is occupied by a substantial sports stadium building which rises to an overall height which approximates three storeys. This structure is set back some six or so metres from the subject land. To the east, the site adjoins two properties. The southernmost of these supports a medium density housing development comprised of attached two-storey dwellings. The side of the westernmost dwelling interfaces with the review site. This elevation does not have any habitable room windows, and the setback area functions as a service or utility area. The secluded private open space area of this dwelling is located on its northern side and has a side abuttal to the review site.
The remainder of the eastern boundary adjoins the rear dwelling of a two-dwelling development. That development's rear setback is a secluded private open space area, whose layout and design result in it having its orientation and principal outlook toward the west, which also includes part of the review site.
Having set out the strategic and physical context of the review site, I now turn to consider the proposal's neighbourhood character implications.

[20]

A key concern for the residents in respect of the proposal's neighbourhood character implications is the three-storey height of the development. It was submitted that the prevailing scale of development in the residential areas surrounding the activity centre is one and two-storeys, with the built form being detached dwellings, villa units or townhouses. Three-storey apartment-style development is not apparent within the residential neighbourhoods. In considering this issue, it is important to note that the Schedule to the zone, whilst not applicable to the proposal by virtue of the transitional provisions at Clause 6.0 of the Schedule, allows for development of up to 10.0 metres in height of the review site. This height allows for the construction of a three-storey development on the land, and such an outcome is therefore envisaged by the zoning.
Also relevant is that the Precinct Statement refers to avoiding three storey facades to the street, and includes a design response of ensuring buildings are composed of facades that are no more than two storeys to the street. I agree with the Applicant that the Precinct Statement does not discourage three-storey development. Buildings of this height are contemplated within this precinct but should be designed to ensure that the section closest to the street is limited to two storeys. This is what has occurred here. The topmost level has a setback of some 15.6 metres from the frontage measured to the edge of the balcony, with this setback exceeding that of the levels below by 6.5 metres. This is reflective of an attempt to make the second floor level recessive in the development's presentation to the street.
Consequently, the building has a two-storey façade, which is consistent with what is sought by the guidelines. Continuing along the depth of the lot, the top level is recessed from the ground floor and first floor levels. As I explain in the following section, I have not been persuaded that the siting and size of the first and second floor levels represent an acceptable response to the rear yard areas of adjoining properties. In some ways, this is also a character consideration. While the area is recognised in the Planning Scheme as one without a consistent backyard character, and there are many examples of development that extends the length of allotments, the overall height and massing of the proposed building toward the rear of the site creates a dominant presence. The modifications necessary to address the amenity concerns include increased setbacks from the boundaries and a reduced floor area of the first and second floor levels. This will also go some way to reducing the visual impact of the development from a character perspective.
The diversity of built forms in Cherry Road and the absence of a residential presence on the western side provide sufficient scope for the introduction of a new form of development such as that proposed by this Application. There are examples of contemporary dwellings with flat roof forms and modular elements within this neighbourhood. The design of the development is reflective of these. The front setback is of sufficient depth to allow for the retention of the two trees and provides for some additional planting but, at the northern end, it is not a sympathetic response to the adjoining single-storey dwelling. Due to the fall of the land, the north-western corner of the development is elevated. Consequently, this two-storey, flat roof section has a height in the order of 8.2 metres (referred to in the Council's submission at two-and-a-half storeys) as the basement protrudes 1.2 metres out of the ground in this location. In combination, this response gives the building's north-west corner some prominence in the streetscape, which does not sit comfortably with the low-profile form of the dwelling at 1/5 Cherry Road. The proposed front setback in this location means that the development will protrude further forward into the streetscape than the neighbouring dwelling, which is adds to the prominence and is not a sympathetic outcome. A greater front setback is warranted for the northern portion of the building.
The siting of the proposal relative to the side boundaries achieves a detached form, which is reflective of the prevailing siting in the street and wider neighbourhood. It is respectful of the established rhythm of development whereby existing buildings are typically set back from boundaries, although there are examples of on-boundary construction associated with garages.
Windows and doors are of regular proportions and the use of a variety of external finishes including render, limestone cladding and face brickwork responds acceptably to what is displayed by the building stock throughout the neighbourhood.
Several of the resident submissions focussed on the proposed landscaping and whether it will be in keeping with the character of the neighbourhood. In summary, the submissions were that the development does not include sufficient opportunity for meaningful planting throughout the site to not only soften the appearance of the development but to contribute to the existing landscaping in the area.
While the area certainly displays a presence of established trees, these are principally within the road reserve and in the front setback areas. This is not a neighbourhood which is characterised by open rear yards with a prominent tree canopy. Indeed, on the sites surrounding the subject land, there are examples of multi-dwelling built form that occupies the rear portions of sites, rather than landscaping. What landscaping does exist in these areas is generally restricted to the perimeter of the properties. I note in passing that the Schedule to the General Residential Zone (whilst not applicable to this proposal) describes the area as being one without a consistent backyard character. From my observations, and from the material presented at the hearing, this is an apt description.
The proposed planting, as depicted on the landscape plan is in keeping with the character of the area. Importantly, two existing trees within the front setback - including a substantial lemon-centred gum which makes a notable contribution the area's tree canopy - are to be retained. The Applicant's arboricultural evidence is that the lemon-scented gum is of a high retention value, while the other retained tree in the front setback (a cedar) is of medium retention value.
The only other tree on the land which is of medium retention value is an elm tree in the rear yard. The evidence is that the elm's long-term viability is limited by a structural defect in the primary trunk union, which also includes decay. The evidence is that the decay cannot be treated.
The remaining trees earmarked for removal have all been assessed as being of low retention value. Some of these are identified as environmental weeds. The Council has no objection to the removal of these trees, although a permit pursuant the Council's Local Law may be required.
Overall, the proposed planting is an acceptable response to the site and its surrounds. The evidence and the subsequent cross-examination, demonstrated that careful thought has been given to species selection and placement to achieve an outcome that adequately responds to the particular characteristics of each of the property's interfaces. Notably, the majority of the planting is in-ground, with the use of a planter being limited to the south-eastern corner where the basement extends close to the southern property boundary. According to the evidence, the planter will contain sufficient soil volume to enable the proposed trees to grow to a mature height of 7 - 8 metres, subject to appropriate irrigation. The extent of tree planting proposed throughout the site is a reasonable response to the site's context, which lacks a strong presence of canopy vegetation at the rear of properties. Ultimately, this development would display more vegetation than many of the surrounding and nearby sites.
The proposed planting would not obscure views of the development, but that is not its purpose. The intent of landscaping within multi-dwelling developments such as this is to enhance the amenity and appearance of the development. The mixture of canopy trees and hedges proposed here will achieve that outcome. Once established, the plants and trees will soften the building's presentation and contribute not only to the amenity of the development's occupants, abut also to the amenity of adjoining properties, which lack this extent of landscaping. An appropriate management regime, as can be required by conditions of permit, would ensure that the envisaged landscaping response is achieved.

[25]

The related Standard B22 then specifies the means by which this Objective can be met. In summary, the Standard requires that any habitable room windows and balconies which allow views of existing secluded private open space and/or habitable room windows within 9 metres (and within a 45º angle of the window plane or perimeter of the balcony) be screened to a height of 1.7 metres above finished floor level.
The plans show the extensive use of screening to the first floor balconies and windows, and to selected elements at the second floor level. The proposed screening is in the form of obscure glazing to the windows and louvres to the balconies. This proposed treatment will ensure that the Objective of Clause 55.04-6 is met.
The extent of screening proposed was the subject of some criticism from the Council, on the basis that it is an indicator of non-site responsive design and will also adversely affect the internal amenity of the dwellings. It is difficult with apartment-style developments on infill sites such as this to achieve a design that avoids the placement of windows and balconies in the side and rear elevation of buildings where they face neighbouring dwellings. This, in turn, gives rise to the need for various treatments to address potential overlooking. I agree with the Council that the extent obscure glazing proposed here is excessive, and whilst effective in screening views, this treatment has the consequential impact of depriving occupants of an outlook. I also agree that it is possible to incorporate recesses or courtyards within the development (such as that located between Dwellings G.02 and G.03) onto which selected windows could face without the need for screening. Furthermore, as discussed at the hearing, an alternative to obscure glazing could be to utilise external screens which allow for the windows themselves to be clear glazed, but suitably angled louvres would act to restrict downward views. The outcome is that dwelling occupants will have the benefit of distant views without compromising the amenity of adjoining properties. I consider this to be preferable, as it will achieve a balance between protecting the amenity of neighbours while allowing a reasonable level of internal amenity for the dwellings.
I acknowledge the concerns of those residents whose properties are located more than 9.0 metres from the development that upper level windows and balconies will allow for views of their land. The provisions of the Planning Scheme only seek to limit views within 9.0 metres of the window or balcony. In instances where the separation is more than 9.0 metres, the Planning Scheme does not recognise any potential views as needing to be screened.

[27]

The development's visual impact on the adjoining open space areas of the surrounding dwellings is a key consideration and, ultimately, the principal reason why I have determined to refuse a permit. The concern lies with the rear section of the first and second floor levels, east of the central void. Put simply, in this location, the development is too close to the boundaries.
The neighbouring open space to the north is a well maintained area of relatively modest dimensions which appears to provide a good level of amenity for occupants of the dwellings on that land. Notwithstanding that it may be common property, and technically not defined as secluded private open space, it is the only area available to occupants for their reasonable recreation and service needs. Further, being at the rear of the dwellings, the area enjoys seclusion from both the public realm and the publicly accessible areas on that site. For all intents and purposes, it functions as secluded private open space. It has an amenity that warrants a reasonable level of protection.
The development does not display a sufficiently sympathetic response to this interface. The northern elevation extends to within 1.95 metres of the boundary, with this setback being partly to two-storey walls and partly to single-storey walls with balconies above. The setback to the wall does not comply with Standard B17 at Clause 55.04-1. At this setback, the building will have as an imposing and overbearing presence when viewed from the adjoining open space. It is positioned too close to the boundary and will significantly detract from the amenity of this neighbouring property. It will be visually overwhelming. Not only do the minimum setbacks fail to meet Standard B17, itself only one measure used in the assessment of visual bulk, they reflect no acknowledgement of the sensitivity of the neighbouring open space. This is not a circumstance where lesser setbacks than those required by Standard B17 can be justified. Indeed, the opposite applies. The dimensions and size of the open space area to the north warrant the provision of greater setbacks to the walls and balconies of the development.
The first floor setbacks from the southern boundary, adjacent to the neighbouring tennis court are generally greater, with the exception of Dwelling 1.06. This is a different interface to that on the north, but it still represents part of the adjoining property's secluded private open space area. The review site is highly exposed from this aspect, with a substantial portion of the proposed development's overall length and height being visible from the entire area to the rear of the dwelling. To reduce the visual impact, the setbacks of Dwelling 1.06 should be increased to match those of Dwellings 1.04 and 1.05. As I will address shortly, the second floor level needs to be reduced in size, which will have the effect on reducing its visual impact.
In respect of the eastern boundary, the proposed siting of the first floor level is reasonable, as the minimum setbacks range between 3.05 metres (to a balcony edge, increasing to 4.55 metres at the wall face) and 5.85 metres. The increased setbacks from the northern boundary will have the consequential effect of reducing the impact on the courtyard of No. 2/91 Balwyn Road, as the first floor level will be positioned further southward. Consideration should be given to deleting the eastern section of the balcony associated with Dwelling 1.03 to reduce the effect on the amenity of the neighbouring courtyard. At the second floor level, the minimum setback is 6.0 metres, measured from the boundary of 2/91 Balwyn Road, and increases to 9.1 metres from No. 89 Balwyn Road. Given the relatively modest size of the courtyard at No. 2/91, a greater setback from this property should be provided, in order to respond appropriately to the sensitivity of this neighbouring area.
I do not have concerns regarding the interface with the property at No. 89 Balwyn Road. The westernmost dwelling on that land presents a side elevation to the review site, with its setback being developed and used as a service or utility area. The secluded private open space of the dwelling is positioned on its northern side. While this space shares a common boundary with the review site at its western end, the proposed setbacks, which are to range between 5.85 metres and 9.1 metres, are sufficient to ensure that any unreasonable visual bulk impacts are avoided.
The eastern section of the second floor level, that is, that portion east of the lift/stairwell core, is quite extensive. It has a relatively large footprint which does not sufficiently acknowledge, or respond to, the adjoining secluded private open spaces. A more recessive form is warranted, in order to achieve a satisfactory interface with these areas. If a second floor level is to be provided in this part of the site, it needs to be much smaller than what is proposed here. It will need to be sited and designed to appear as a genuinely recessive element of the overall development. As proposed, it is a major contributor to the building presenting as a large and imposing structure as viewed from the surrounding residential properties.

[29]

The car parking requirements are set out at Clause 52.06 of the Planning Scheme. These are: two car spaces for each three-bedroom dwelling; one car space for each one and two-bedroom dwelling; and one visitor car space for every five dwellings. Application of these rates to the proposal generates a requirement for a total of 28 car spaces. This total comprises 25 spaces for residents and three for visitors.
It is proposed to accommodate a total of 27 car spaces within the basement - with 25 being allocated for residents of the development and the remaining two for visitors. This provision is one visitor car space short of meeting the Planning Scheme's requirement. Pursuant to Clause 52.06-3, a permit may be granted to reduce this requirement, and permission to do so is sought by the Applicant as part of this Application.
The Council and the residents argue that the development should be self-sufficient and provide all its car parking on the review site. They oppose the shortfall of one visitor car space. In support of this position, their submissions referred to the high demand for on-street car parking in Cherry Road as a consequence of the sporting activities conducted at Balwyn Park, in particular. This includes football matches and cricket games on weekends. It was further submitted that demand for parking is also high during the drop-off and pick-up times associated with Fintona Girls' School, and the nearby Balwyn Primary School, and generally throughout the day due to the site's proximity to the Neighbourhood Activity Centre. Many photographs showing the car parking conditions in Cherry Road at times of peak demand were tendered. These clearly demonstrated that the street experiences high levels of on-street parking at various times during the week. I can understand why the residents are concerned about proposals which may place further demand on the available parking.
I have already noted that the Council opposes the proposed car parking reduction. This is notwithstanding the fact that its Traffic Engineers do not object to the proposed accommodation of one visitor car space on the street. Based on survey evidence provided by the Applicant, which confirmed the availability of on-street parking spaces in the locality, the Traffic Engineers concluded that there is sufficient capacity to accommodate the visitor parking shortfall. I note that during one of the surveys referred to, there were only five available spaces within a 'catchment' of some 200 metres of the review site. This occurred at 3.00pm on a Saturday afternoon when a seniors football match was being hosted at Balwyn Park.
The Applicant's evidence is that the proposed car parking provision is adequate. It relies on the parking surveys in support of its position that the shortfall of one visitor car space is acceptable given that, even at times of peak demand, one on-street car space can be found within a reasonable walking distance of the land. Furthermore, reliance was placed on surveys of apartment developments at Beacon Cove which indicated a visitor car parking demand of between 0.06 and 0.10 space per apartment. Application of these rates to the proposal results in a peak demand for two visitor spaces (evenings and weekends), which is met by the proposal on-site.
The evidence goes on to state:

[31]

I do not consider that I need to make a finding on this issue, given I am refusing a permit. However, I will observe that, with the reduction in the size of the development discussed in the earlier sections of these reasons, it should be possible to provide sufficient car parking on the land to meet the Planning Scheme's requirements for both residents and their visitors.
Significant concerns are also held by the residents in relation to the proposal's traffic impacts. Again, many photographs showing the traffic congestion which occurs in Cherry Road during the school drop-off and pick-up times were tendered. This occurs as vehicles attempt to park and/or manoeuvre along the street in order to exit onto Whitehorse Road or onto Balwyn Road via Millah Street. Congestion also occurs during popular sporting events at Balwyn Park, when ceremonies are held at the church, and when buses associated with Fintona student excursions, camps, sporting carnivals and the like park in the street to collect or drop-off students. At these busy times, queuing occurs at both Whitehorse and Balwyn Roads, causing delays for motorists and for residents, who also encounter difficulties exiting their properties. I was also advised that Millah Street and Cherry Road experience levels of through-traffic associated with motorists who use this route to avoid the intersection of Balwyn and Whitehorse Roads, further adding to the traffic volumes and congestion. A contributor to the congestion is the narrower width of Cherry Road in its approximate southern half, where it reduces to a single lane of traffic when vehicles are parked on both sides.
The residents' concerns also encapsulate the safety of pedestrians using the footpath in Cherry Road, which is confined to the eastern side only, given the existence of a park opposite. The fear is that vehicles exiting the basement car park of the development may result in a safety hazard for pedestrians.
It is apparent from the submissions and material provided at the hearing that the traffic conditions in Cherry Road can, at times, be more challenging than what would be anticipated within a conventional residential street. In particular, relatively high levels of traffic may be experienced on a daily basis during the school drop-off and pick-up times, and on weekends when sporting events are held at Balwyn Park. From what I was told, motorists seeking to avoid the intersection of two major roads contribute to this traffic. The residents' concerns regarding the proposal's traffic implications are understandable.
The analysis of this issue, however, must be evidence-based, and regard must be had to the residential nature of the proposal and the implications of this for the resultant traffic within Cherry Road.
I commence by observing that the Council's Traffic Engineers did not express any concerns in respect of the development's likely traffic impacts. What they state in their referral comments is that traffic data collected by the Council in August 2014 shows a current volume of 1265 vehicles per day in Cherry Road. The comments confirm that Cherry Road is classified as a Local Road under the Council's Road Hierarchy and has a design capacity of 2000-2500 vehicles. That being the case, the Traffic Engineers consider that the anticipated additional traffic of 114 vehicles per day, and 11 movements in the peak periods, "will not unduly impact on Cherry Road or the surrounding street network".
Similar conclusions are detailed in the Applicant's evidence. In summary, the evidence is:
- Cherry Road is most appropriately classified as an Access Street Level 2 using the classifications provided in Clause 56 and therefore has a theoretical capacity of 2000 - 3000 vehicles per day.
- The development is expected to contribute 108 vehicle movements per day, based on an anticipated traffic generation of six vehicle movements per dwelling per day. With this additional traffic, Cherry Road will carry a volume of 1373 vehicles, which is within the acceptable range for this street.
- The morning commuter peak coincides with the school drop-off time associated with Fintona. Currently 250 vehicle movements are experienced at this time. The development is anticipated to contribute 11 additional movements, which equates to one movement every five minutes. This level of traffic is unlikely to be discernible to other road users.
- In the afternoon, the school pick-up and the commuter peak do not coincide. Accordingly, any potential impacts associated with the development are further reduced.
The congestion and challenging parking conditions which can occur in Cherry Road during weekdays are an existing condition which arises from the proximity to Fintona and to Balwyn Primary School. A development cannot be expected to resolve this issue, but I agree that it should not exacerbate it such that it manifests as an unacceptable outcome, to the detriment of local amenity. The evidence is that, over the course of an hour during the morning peak, up to 11 vehicles will exit the site and enter Cherry Road. This averages out to one vehicle every five minutes. This contribution is not of such a magnitude that justifies refusal of the Application. The impact is confined to a discrete period of time in the morning, and due to the number of anticipated movements and the current operating conditions of Cherry Road, it is unlikely to make a noticeable change to the traffic conditions within the road network.
While the same number of traffic movements are projected for the evening commuter peak, this is after the school pick-up time, when Cherry Road does not experience school-related traffic. At this time, the impact is less.
Traffic conditions can become congested during the morning and afternoon school peaks, and on days when sporting events are held at Balwyn Park. The development's principal contribution will be on weekday mornings when the commuter and school peaks coincide. At this time, the additional traffic will be minor and unlikely to manifest in a noticeable change to existing conditions. To minimise their own inconvenience, occupants of the development may time their departure to avoid the school peak drop-off time, further reducing any impact on traffic conditions.
I acknowledge the concerns relating to the safety of pedestrians who walk along the eastern footpath. It is important that the access driveway is designed in compliance with the requirements of the Planning Scheme to ensure that adequate visibility is provided for both drivers and pedestrians. Pursuant to Clause 52.06-8 (Design Standard 3), accessway grades must not be steeper than 1:10 within 5 metres of the frontage to ensure safety for pedestrians and vehicles. In addition, Design Standard 1 states that accessways must:

[38]

The two key concerns expressed in the submissions in respect of the development's internal amenity relate to the provision of south-facing dwellings, and the placement of a dwelling in the south-eastern corner of the land where excavation will be occurring.
In instances where an apartment-style development is proposed on an allotment which has an east-west axis such as this, it is often difficult to avoid south-facing dwellings. This proposal displays five dwellings which have their sole aspect to the south. Two of these are at ground level, with the remainder being at the first floor level. The dwellings themselves are well-proportioned, adopt layouts which ensure that all habitable rooms have direct access to daylight, and are provided with useable outdoor spaces. Furthermore, as they are located adjacent to a recess in the building, the balconies of Dwellings 1.06 and 1.07 may also have the opportunity to gain some westerly and easterly sunlight respectively at some times during the year. In addition, the site's proximity to Balwyn Park means that occupants would have ready access to an open space area that receives direct sunlight and may choose to avail themselves to this option, on occasion.
I have been unable to conclude that occupants of the south-facing dwellings will not experience a reasonable level of amenity, notwithstanding that their orientation does not represent an optimal outcome in terms of solar access.
The floor level of Dwelling G.05 and the surface level of its outdoor space will be approximately 2.0 metres below the natural ground level proximate to the site's south-east corner. The design response incorporates a terraced retaining wall profile to open up this area to the east, providing a useable outdoor space and a landscaped outlook from within the dwelling. It is apparent from the design that this dwelling has been designed to have an easterly aspect. The proposed 5.9 metre setback from the eastern boundary assists in creating an openness to this area which will contribute to the occupants experiencing an acceptable level of amenity.
I note that retaining walls will also be provided along the southern boundary in this location, and are positioned adjacent to a secondary outdoor area. Bedroom windows and minor living room windows (all of which have a height of 2.5 metres and the bedroom windows having a width of 1.4 metres) face this area, which is of sufficient dimension to ensure adequate daylight is provided to these rooms. This is a reasonable outcome.