1. The decision of the Responsible Authority is affirmed. In permit application P2007 - 187 a permit is granted and directed to be issued for the land at 36 Merri Street, Warrnambool. The permit allows the construction of two dwellings on a lot and the subdivision of the land in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 23 April, 2008, amended as follows:
2. The following additional conditions must be included:

• (a) The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

• (b) All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
  • (c) he plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

Construction of two dwellings and the subdivision of the land into two lots. The dwellings have a two to three storey scale with a maximum overall height of 8.8m. The dwellings are designed to be side by side, under a single roof form with a party wall. One of the dwellings has a sub floor garage.

Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit.

Construct two or more dwellings on a lot pursuant to Clause 32.01-4.

Merri Street East and Raglan Parade Design Guidelines, Analysis and Issues Report, May 2008).

The site is located on the north side of Merri Street with a frontage of 16.4m, a depth of 59.3 m and an area of 970.82 m2. A single storey dwelling currently occupies the site.

The site is located approximately 1.5 klms from the centre of Warrnambool's activity centre. A railway line and the coastal reserve are located on the opposite side of Merri Street. A lane runs along the rear of the site, providing access to the review site and adjoining lots. Also to the rear is a State Emergency Services depot. A single storey dwelling abuts the review site to the east and to the west there is a double storey dwelling.

1. Dean Picken Design applied to the City of Warrnambool for a permit to construct two dwellings on the land at 36 Merri Street Warrnambool, and to subdivide that land into two lots. The Council gave notice of the application and received six objections to the application. The Council decided to approve the application and some of the objectors have applied to the Tribunal for a review of that decision.
2. The main issues in this case are:
   • Is the proposal supported by the policy framework of the planning scheme?
   • Does the proposal respect the character of the neighbourhood?
   • Does the proposal have an unacceptable adverse affect on the amenity of residents of neighbouring properties?
3. Having considered the submissions of the parties and having inspected the site, the neighbouring properties and the neighbourhood, I have concluded that a permit should issue. The proposal is supported by the policy framework of the planning scheme and the review site is in my view a suitable site for a medium density housing development. I am also satisfied that that proposal respects the existing character of the neighbourhood. In arriving at that conclusion I have had regard to the Council's Merri Street East and Raglan Parade Design Guidelines, but I have not been able to give these guidelines significant weight because they have not been introduced into the planning scheme through a scheme amendment process and they have not therefore been subject to an independent review. I am also satisfied that the amenity impacts of the proposed development have been contained within acceptable limits.
4. My reasons are set out below.

Is the proposal supported by the policy framework of the planning scheme?

1. In relation to the current proposal the state and local planning policy framework seeks to:
   • Encourage urban consolidation in established urban areas;
   • Encourage development that improves housing choice and accommodates future housing needs;
   • Ensure that development achieves a reasonable standard of amenity for existing and new residents;
   • Encourage the design of energy efficient buildings;
   • Ensure that development respects the existing or preferred neighbourhood character;
   • Achieve high quality urban design and architecture;
2. The Council's Municipal Strategic Statement (MSS) identifies the need for Warrnambool to accommodate an additional 6000 people by the year 2019 which equates to an additional 275 dwellings per year. An urban growth boundary has been defined and areas within which residential development and redevelopment are encouraged have been identified[1]. Within established residential areas, scope for increased residential densities is acknowledged. The MSS also identifies the importance of residential development in existing neighbourhoods respecting the established character of those neighbourhoods.
3. I will address the issue of this proposal's response to neighbourhood character subsequently, but in terms of determining whether this site is suitable for some form of medium density housing, I have been influenced by the following considerations:
   1. The review site is zoned Residential 1 and the zone encourages residential development at a range of densities with a variety of dwellings to meet the housing needs of all households. While the site is also affected by a Design and Development Overlay, this control only applies to single dwellings. The site is not otherwise affected by planning scheme controls which constrain the development of the land.
   2. The applicable policy framework encourages medium density housing in established residential areas to assist in the accommodation of a growing and an increasingly diverse population.
   3. The site is relatively large (970.82 m2) with a regular configuration. The site is located about 1.5 klms from the Warrnambool's activity centre and is well serviced by and is accessible to public open space, community facilities and services, retail facilities and employment opportunities.
   4. The site has a non sensitive interface to the rear in the form of the State Emergency Services depot.
4. In my view the review site is suitable for a medium density housing development and such a development is supported by the provisions of the planning scheme.

Does the proposal respect the character of the neighbourhood?

1. The objectors placed considerable weight on the document titled Merri Street East and Raglan Parade Design Guidelines, Analysis and Issues Report, May 2008) in support of their submission that the proposal does not adequately respond to the existing or preferred character of the area.
2. This document does not form part of the planning scheme although the Council has resolved to proceed with a planning scheme amendment to give effect to the Guidelines.
3. I advised the parties at the hearing that while the guidelines are relevant, I have not been able to give them significant weight because they have not been introduced into the planning scheme through a scheme amendment process and they have not therefore been subject to an independent review[2].
4. In my view there are provisions contained within the guidelines which may not survive the scrutiny of an independent review. I refer for example to mandatory setbacks and height limits which conflict with the standards of Clause 55. I also note that there are existing dwellings within the area affected by the guidelines which would not comply with at least some of the of the guideline's mandatory provisions. In my view it would be unusual for the guidelines to seek to introduce mandatory setbacks and heights in a context in which those setbacks and heights are already exceeded or not complied with by existing development within the neighbourhood. I do acknowledge that a panel appointed to review the planning scheme amendment to give effect to the guidelines may conclude that the guidelines are appropriate and may recommend their inclusion in the planning scheme. However because the guidelines are at the embryonic stage in terms of their inclusion in the planning scheme, I cannot have a high degree of confidence about such an outcome. It would be inappropriate therefore to assess this application against those detailed provisions of the guidelines.
5. Notwithstanding the above, the guidelines do provide a useful analysis of the built form character of this part of Warrnambool, an analysis which I broadly agree with. The guidelines describe the area as follows:

This area includes the majority of residential properties within the study area with the exception of a small area of townhouses and apartments at the western edge of the study area.

Dwellings are from a variety of eras including Victorian, Edwardian, 1920s, 1950s-60s, and recently developed buildings. Building materials include a mix of weatherboard, brick and render.

The streetscape has a low scale appearance due to the mix of one and two storey dwellings. Recently developed dwellings are generally two storeys and there are a number of more recent two storey additions to existing single storey buildings.

Although architectural styles, building materials and heights are mixed, the presence of generous front and side setbacks is a common element in this area which contributes to the spacious appearance of streetscapes. Buildings are generally set back from both side boundaries however recent developments tend to have reduced front and side setbacks. Another urban design element that contributes to the open and spacious qualities of the streetscape is the low and open front fencing or the lack of front fences[3].

1. The threats to the character of the area are identified as developments with reduced front and side setbacks, large, bulky unarticulated buildings, taller buildings that dominate the low scale streetscapes, and developments with high, solid front fencing[4].
2. The guidelines recommend the introduction of height and setback controls or guidelines to ensure the spacious and low scale character of streets are maintained[5].
3. The character of this neighbourhood is very mixed, as is recognised in the guidelines. It is also an area in which developments from a range of periods are evident. As a consequence I do not think that a development such as is proposed in this application which exhibits a contemporary typology will be out of place in this neighbourhood. In my view this proposal cannot be described as a bulky, unarticulated building. The design in fact exhibits a high degree of articulation which is achieved not only through the use of a variety of materials and finishes but also through the use of a sloping roof form and varied setbacks.
4. The height of the building is not excessive. At its maximum height it is equivalent to the height of the first floor extension on the dwelling abutting to the west. The maximum height of the proposal at about 8.8 m is below the maximum height specified in Standard B7 of Clause 55 of the Planning Scheme (9.0 m). It is also significant that because of the sloping roof structure, the maximum height is limited to a small portion of the building on the eastern side and the height reduces to a height of about 5.0 m above ground level at the pitching point of the western wall.
5. The proposed building's front setback varies between 8.7 m and 6.2 m and is generally aligned with the front setback of the abutting dwellings. At sub floor level the proposal is built to both side boundaries but I agree with the Council's assessment that the setbacks at ground and first floor level are sufficient to provide a degree of separation from both boundaries. In addition the on boundary construction complies with Standard B18 of Clause 55.
6. Having regard to the above, I find myself agreeing with Mr Berry's assessment of the proposal's response to neighbourhood character. Mr Berry said:

Thus the combination of an appropriate material palette, articulation, varying height created through an angled roof form, side setbacks at elevated levels and a generous street setback has provided for an appropriate design response in the context of the character of Merri Street and environs[6].

Does the proposal have an unacceptable adverse affect on the amenity on residents of neighbouring properties?

1. The concerns raised by objectors about amenity impacts related to visual bulk, overlooking and overshadowing.
2. In terms of visual bulk, the side by side siting of the two proposed dwellings allows them to be generally aligned with the neighbouring dwellings to the east and west. The bulk of the proposed dwellings does not therefore extend significantly into the rear private open space of the neighbouring dwellings. The greatest level of bulk associated with the proposal is located on the eastern side but the height and setback of the wall is in compliance with standard B17 of Clause 55 of the planning scheme. On the western side the proposal also complies with standard B17 except for that part of a balcony which abuts an existing wall constructed on the common boundary. The extent of on boundary construction is also in compliance with the Clause 55 standard except where the wall abuts the existing wall on the neighbouring property.
3. With respect to overlooking, upper levels windows and balconies which are likely to have views into secluded private space or habitable room windows, have been designed to have sill heights of 1.7 m or are screened to a height of 1.7 m in accordance with standard B22 of Clause 55. Subject to the inclusion of the condition imposed by the Council on the Notice of Decision to Grant a Permit which requires the treatment of a west facing window, I am satisfied that the objective of clause 55.04-6[7] is met.
4. The shadow diagrams prepared by the applicant adequately demonstrate that while the proposal will contribute to some additional overshadowing of neighbouring properties, the impact is quite small and is well within the parameters set by standard B21 of Clause 55. I also note that the proposal complies with standard B19 which relates to daylight to existing windows and I am satisfied that the objective is met[8].

1. The issues in dispute in this matter related to the built form of the proposed development. The proposed subdivision of the land into two lots was not a matter about which I received substantive submissions. I agree with Council's submission that the proposal meets the relevant objectives of Clause 56 of the planning scheme.
2. I note however that Clause 66 of the planning scheme exempts applications for two lots subdivisions from being referred to authorities but it is mandatory for specified conditions to be included on any permit issued. These conditions were not included on the Notice of Decision to Grant a Permit. The Order requires these conditions to be included.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be affirmed and a permit be granted.
2. The permit will include the conditions contained in the notice of decision to grant a Permit issued by the responsible authority.

[2] Lyndale and Black Pty Ltd v Melbourne & Metropolitan Board of Works 1 PABR 207continues to be regarded as authority for setting out principles as to the weight to be given to a proposed amendment to a planning scheme.

[3] Merri Street East and Raglan Parade Design Guidelines, Analysis and Issues Report, May 2008)Page 14

[6] Submission of Mr M Berry on behalf of the responsible authority to the Victorian Civil and Administrative Tribunal, 10 November, 2008, page 16.

[7] To limit views into existing secluded private open space and habitable room windows.

[8] To allow adequate daylight into existing habitable room windows