1. I cannot refuse this application because of the Council and objector concern about 'planning by stealth'. The parties present during the hearing all acknowledged that what has happened thus far on this property in regard to the existing house has occurred legitimately in accordance with the relevant building permit. However, this does not mean this legitimate building is automatically acceptable for conversion to two dwellings under the provisions of the planning scheme when a planning permit is required. As the Tribunal found in Loois v Bayside CC [2005] VCAT 1645[1]:

... just because a single dwelling is lawfully constructed in accordance with a building permit, but where no planning permit is required, this does not mean that it is acceptable if it is proposed to be converted to two dwellings. There are different and higher standards contained in all planning schemes which apply to proposals for an additional dwelling on a lot, notwithstanding that the building, or part of the building which is proposed to become the second dwelling, has already been constructed. ...[2]

1. Hence, there are planning matters that I need to consider in determining whether this particular proposal to convert the existing building into two dwellings is acceptable. In making my decision, I have focussed upon the two key issues raised during the hearing, being neighbourhood character and overlooking.

1. The Council, the Applicant and Mr Crowder agree that building and works are required to convert the house into two dwellings[3], hence planning permission is required under clause 32.01-4 of the Residential 1 Zone to develop the land for two or more dwellings.
2. The Council assessed the proposal against all of the objectives of clause 55, but Mr Crowder's opinion is that the existing house is lawful so the clause 55 assessment should be limited to the new building and works (i.e. the minor internal and external building and works). On this basis, it was Mr Crowder's opinion that the neighbourhood character and amenity impacts are existing, not new, and therefore of limited relevance to the extent of planning consideration.
3. After Mr Crowder's evidence on Day 1 of the hearing, I raised with the Council and the Applicant a question as to the relevance of Munjal v Casey CC [2010] VCAT 1026 where, as part of a proposal for a new dwelling at the rear of the existing house, the Council opposed the retention of the existing house's carport. The Tribunal said:
   1. As long as the owner is content with the existing single detached dwelling on the land, there is not much the responsible authority or the neighbours or anyone else can do about it, even if they consider the carport to be a blight in terms of planning merits. However, the situation changes once there is an application for a planning permit for a second dwelling. When such a proposal is assessed, the assessment must be made in relation to the whole of the allotment, and not just part of it or the rear part or the part where the second dwelling is proposed. The proposal involves the whole of the allotment including the existing house and what is on the land, as well as the proposed new buildings and works. In my opinion, this can give rise to a refusal, or requirement for modifications including the deletion of a front garden carport.
   2. In my opinion, the front garden carport is relevant in assessing the second dwelling application, and it is entirely proper for that to be taken into consideration. I do not think that doing so would be to take into account of an irrelevant matter or to act for an ulterior purpose.
   3. The assertion that the new 'development' namely the proposed new house is prospective is all very well, but the proposal for it must be considered in relation to the existing context in which it is proposed to be constructed. In other words, it is necessary to consider the site as a whole. In that light the whole site, including the front garden carport can be seen as things that fairly and reasonably relate to the prospective development.
4. On Day 2 of the hearing, the Applicant acknowledged this case as well as Fisher v Glen Eira CC [2001] VCAT 576 where, again, a new dwelling was proposed at the rear of the existing house. In that case, the Tribunal held the Responsible Authority was not entitled to consider the impact of the existing dwelling on neighbourhood character and visual bulk except insofar as the existing building is impacted upon by the proposed new single storey dwelling manifesting in changes to the neighbourhood character and a perception of visual bulk.
5. The Applicant pointed out in the Munjal case, the Tribunal was not taken to the Fisher or other relevant cases[4]. However, the Applicant acknowledged that both have since been considered by Member Code in Maroubra House Pty Ltd v Stonnington CC (Amendment) [2011] VCAT 644 concerning the conversion of an existing house with an extension into two dwellings. Member Code preferred the approach adopted by the Tribunal in Munjal and stated:
   1. The application of the principle in Munjal does not mean the proposal must be assessed as if the land is vacant or, in this case, as if only the original dwelling (and not the extension) existed.
   2. If I had decided to grant a permit, I could have included conditions requiring that some of the internal or external changes not be made or be modified. I could also have included conditions requiring some changes to the existing building, not included in the proposal, be made.
   3. The latter kind of changes would normally have to be limited in scope, otherwise there would probably be significant consequential effects and a significant redesign of the proposal may be required. For example, I could require changes to the size or location of windows that were not proposed to be changed. If I were to consider requiring changes that involved demolition of part of the existing building (for example, replacing the roof or requiring removal of some of the floor area in the extension), I would take into account the practicability of those changes, but ultimately that would not determine whether those changes should be made.
6. In light of this and the other relevant cases referred to, the Applicant acknowledged the whole of the site must be considered and the existing house must be considered in terms of the objectives of clause 55. Hence, it is possible that some changes could be required to the existing house if considered to be appropriate and reasonable as part of the planning considerations of its proposed conversion into two dwellings.

1. Given the whole of the site needs to be considered and the proposal is for two dwellings that are similar to what was considered by the Tribunal in 2000, the Applicant acknowledged the principles for repeat applications for review are also relevant to my consideration. In K & B Reichert v City of Banyule and ors (1996/38819), the Tribunal identified a number of tests of relevance to the consideration of repeat applications for review that may justify a departure from an earlier decision:

While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier. ... It seemed to me that the factors which might justify a departure from an earlier determination could include:

• Significant changes in the application itself;
• Changes in the circumstances of the land and its surrounds;
• Changes in planning policy; and/or
• Changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

1. In this case, the parties agreed the design details in the applications are very similar. Mr Crowder gave evidence that the current planning policies and controls are very similar to those previously considered by the Tribunal except for VPO3, which is a new control. The Applicant pointed out no expert landscape evidence was called in the previous case. Hence, the factors which might justify a departure from the earlier determination include the changes that have occurred in the neighbourhood including the existing house on this site; the expert landscape evidence; and the merits of these changes in considering clause 55 and the relevant planning policies and controls.

1. Having inspected the site and surrounding neighbourhood, I find the following description of the neighbourhood character from the previous Tribunal determination in 2000 remains relevant:
   1. The Eaglemont locality is characterised by undulating topography with residential dwellings set amongst well established gardens. There is a curvilinear street pattern and the streets are lined with large deciduous canopy trees. Property sizes general [sic] range from 500 to 1000sqm in area with frontages of between 15 and 20m. Typically the housing is a mix of inter-war and post-war eras, interspersed with some instances by modern infill redevelopment. Front fences are generally low or non-existent.
2. What has changed in the neighbourhood since 2000 is:
   • The existing house has been built;
   • The land to the northeast (rear) contains two storey multi-dwellings;
   • The land to the south (opposite) at the corner of Odenwald Road and Carlyle Jackson Lane contains multi-dwellings;
   • There is a vacant lot on each side of Odenwald Road to the southeast of this site; and
   • There is a tall and wide two storey house under construction to the northwest of this site at No. 22 Odenwald Road.
3. The Applicant submits the previous Tribunal decision is more than a decade old; the existing house is part of the established character of the neighbourhood; and vegetation now softens the built form.
4. In my view, there are three issues that arise from the previous Tribunal decision in regard to neighbourhood character:
   1. The presentation of the building form in the streetscape;
   2. The extent of driveways and garages located at the front of the site; and
   3. The opportunity for landscaping that might assist the integration of the development with the streetscape.

1. The previous Tribunal decision described the proposed development to be of "larger width and height" than the modest dwellings on and either side of the site. It found the development sitting forward of adjoining dwellings would make it "unacceptably bulky" when viewed from the streetscape.
2. My inspection of the neighbourhood revealed a variety of building forms and styles including more recent buildings with sheer two storey walls. Within this context, I find the existing building form is not unacceptably bulky when viewed from the street. The hipped roofs at ground and first floor levels assist to limit the perception of bulk as viewed from the street.

1. The previous Tribunal decision found "the streetscape appropriateness of the development is reduced by the extent of driveways and garages" that occupy "an excessively large part of the ground floor" frontage, and have a "prominence" in the front elevation.
2. There was no suggestion during the hearing that the plans of this proposal are different in terms of the extent of driveways and garages across the frontage of the site. The garage of dwelling 2 is particularly prominent in the streetscape because it is at ground level and is open to the street because of the extent of the driveway and the width of the opening to the street. Dwelling 1's garage is not prominent because of its under-croft location but there is a large expanse of driveway and paved areas in front of it. In combination, I find the extent of driveways and garages has a prominence in the frontage and detracts from the streetscape presentation. It was suggested during the hearing that No. 22 may have a garage and carport on either side of the house under construction. It certainly appears that may be the case, but the allotment appears wider than this site; the house is still under construction; the extent of paving and landscaping at the time of this hearing was unknown; and the Council advised there is no permission for a second crossover to this property. This is only one property in the neighbourhood and one possible example of two garages/carports in a frontage, hence it does not persuade me that the proposed driveways and garages on this site are respectful of the neighbourhood character.

1. I accept Mr Howe's evidence that a new crossover to dwelling 2's driveway will not unreasonably affect the health of the street tree. However, it is my view that the landscape character evident in this neighbourhood is not just derived from the street trees but also from the quality of landscaping in many front gardens and the scattering of canopy trees throughout private properties (as well as in the public streets and nearby park).
2. The previous Tribunal decision found two crossovers, associated driveways and a limited front setback "would restrict the opportunity for substantial planting at the front of the dwellings which might assist the integration of the development with the streetscape". In my opinion, this remains a critical failing of this proposal. The one tree and small shrubs existing in the front setback are not sufficient contribution to the landscape character.
3. A contribution to the landscape character of the neighbourhood was important in the previous Tribunal decision, and remains important in the planning policies and neighbourhood character now. The planning policies in the planning scheme are very similar to those that applied in 2000, including a strong emphasis on landscape character. The identified key characteristics of the Garden Suburban character area type in the Residential Neighbourhood Character policy are:

... a spacious leafy character in generally formal garden settings, with space around and between dwellings, a relatively wide and open street space, and garden style vegetation, often mature and exotic, in both the private and public domain, creating an attractive, tree-dominated landscape setting in some streets. The most important characteristics of the area type are the scale, siting and style of the dwellings and the vegetation and topography of their settings.

1. The Statement of Desired Future Character for this precinct includes retaining and enhancing the valued garden and treed landscape by (amongst others) "retaining existing tall trees and encouraging further planting of trees". The objectives and design responses in the policy include:

To minimise loss of front garden space, and the dominance of car storage facilities. (objective)

Locate carports and garages at or behind the line of the dwelling or in the rear yard. (design response)

To retain the existing dominance of vegetation in many streetscapes. (objective)

1. Ms Dowey provided landscape evidence in this case based on an August 2012 landscape plan. There are minimal proposed increases in the landscaping in the front of the site, for example replacing one tree with two new trees and including a new shrub under the street tree canopy. Ms Dowey acknowledged under cross-examination that the opportunities for planting in the frontage are limited by the driveways, pathways, etc. I agree with this and find the landscaping opportunities available are insufficient due to the extent of paved areas for driveways and pathways. In addition, I am not persuaded by Ms Dowey's evidence about the content of the landscape plan and whether it contributes to the neighbourhood character for the following reasons:
   • Ms Dowey advised she was instructed to look at the landscape plan submitted with the permit application and "make sure it was right for the site";
   • The original concept was prepared by Mr Howe and the initials on the plan alongside the words "drawn" and "checked" are not her initials;
   • She looked at the planning scheme provisions (and relevant planning policies) after the August 2012 landscape plan was prepared; and
   • She visited the site after the August 2012 landscape plan was prepared.
2. On Day 2 of the hearing, the Applicant acknowledged Ms Dowey's evidence was "a little confused about instructions and who did what", but assured me the landscape plan was created in "a team environment" and commended the plan to me. The Applicant says the species selection and rationale are very sound including the planting opportunities to the west end of the frontage, under the canopy of the street tree. Even if I accept the landscape plan is "sound", I am still not persuaded that the landscaping opportunities across the frontage of the site are sufficient. I agree with the previous Tribunal decision that two crossovers and associated driveways restrict the opportunity for substantial planting at the front of the dwellings which might assist the integration of the development with the streetscape.
3. I note the previous Tribunal decision suggested the adequacy of landscaping in the frontage could be improved if at least one garage for the dwellings were relocated to the rear of the site. It was suggested during this hearing that dwelling 2's garage could be converted into a room with windows facing the street; the driveway converted into landscaping; and a garage provided at the rear via the right of way. I raised this with Mr Connor during the hearing who acknowledged this could be an alternate access point if the level differences between the site and the right of way could be dealt with. Whilst this may be a possibility, it is not the proposal before me and any such design change would need to be considered on its own merits in terms of private open space provision to the dwellings, internal and external amenity impacts, and any associated character issues.
4. Hence, my conclusion in regard to the neighbourhood character is that this proposal fails to contribute adequately to the character, particularly the landscape character, due to the expanse of garaging, driveways and pathways across the frontage of the site.

1. The Council highlighted there are opportunities for overlooking between the two proposed dwellings and between dwelling 2 and the adjoining property to the west at No. 18 Odenwald Road that should be addressed by screening.
2. Mr Crowder said the extent of overlooking of No. 18 is existing because the house already exists and pointed out one of the overlooking decision guidelines is to consider "the existing extent of overlooking into the secluded private open space and habitable room windows of existing dwellings". Mr Crowder's opinion is "the nature" of proposed dwelling 2, the topography and existing landscaping ensure there is no unreasonable overlooking to this property.
3. I have inspected dwelling 2 and the existing extent of overlooking. The bedroom windows have limited views of No. 18 because of the existing trees located along the common boundary. There is a view of the front entry area to No. 18 from dwelling 2's upstairs central open plan living area, but as it is a view of a front entry rather than of habitable rooms or private open space, screening is not necessary. If I had been of a mind to grant a permit, I would have required screening of the rear terraces of dwelling 2 to limit overlooking of the decking and rear garden area of No. 18. Screening to limit rear overlooking between the proposed dwellings would also be required.

1. For the above reasons I have decided to affirm the Council's decision and order that no permit be issued.

[1] The Loois decision relies on the decision of the Tribunal in Jurkic v Manningham CC (Red Dot) [2005] VCAT 1162 that states in part_: I note that a single dwelling may be erected on the subject land without a planning permit. Such a dwelling would be subject to certain performance requirements imposed pursuant to building regulations, these requirements would not include a requirement in relation to solar access similar to standard B10. Hence it is possible that a single dwelling erected on the subject land may significantly reduce solar access to the Smith dwelling, in much the same way as the existing building has this effect upon the living room of the Smith dwelling. This leads me to pose the question: what is the point of refusing permission for two dwellings on the basis that it will adversely affect solar access to the Smith dwelling if much the same impact will result from a development which does not require planning permission? I think the answer to this question is that planning controls in relation to single detached dwellings involve a compromise between protecting the amenity of nearby properties and the certainty and efficiency achieved by allowing single dwellings to be constructed without the need for a planning permit. Thus the fact that a particular detached dwelling may be erected does not mean that the dwelling will achieve acceptable amenity outcomes. Hence the fact that solar access to the Smith dwelling may, or is even likely to, be impaired by the erection of a complying single_ dwelling does not provide justification for approving two dwellings which would have the same effect.

[2] An extract from paragraph 29 of the Loois decision

[3] Albeit they are minor internal and external building and works described by the Applicant as a new crossover, new front door for the second dwelling, closing internal wall openings to separate the dwellings, installing a full kitchen and laundry in one dwelling, a new wing wall on the front porch to separate it into two, ground level fencing, and a screen on dwelling 2's terrace to limit overlooking of dwelling 1.

[4] Mr Connor provided a comprehensive submission regarding a number of cases on the ambit of discretion including Loois, Libbis v Knox CC [2012] VCAT 15, Lateral Building Design v Yarra Ranges SC [2012] VCAT 697 and JK Building Design Pty Ltd v Monash CC & Ors [2012] VCAT 1141