The decision of the responsible authority is affirmed. A permit must not be granted.

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST

Mr N J Tweedie of Counsel instructed by Middletons Lawyers appeared on behalf of the Applicant for Review.

Ms J. Sharp, Town Planner, approved on behalf of the Responsible Authority.

Ms C. Pilatti, Town Planner, appeared on behalf of the objectors.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("The Act") brought F. Basile to review a decision by the City of Moreland ("The Council") to refuse a permit to refurbish and extend an existing dwelling and to construct four double storey attached dwellings located to the rear of the existing dwelling on the site.

2. It is proposed to extend and renovate an existing Edwardian dwelling and to construct four, double storey, attached dwellings at the rear of the site. The extensions to the existing dwelling propose to add a second storey living area, study and balcony with a northerly aspect. The extensions do not increase the height of the building and are largely contained within the existing roof profile.

3. With respect to the four proposed attached dwellings Ms Sharp who appeared on behalf of the Responsible Authority, provided the following useful description which we adopt;

"* The development proposes a two storey block at the rear of the site and built to both side boundaries;

* Each new dwelling is similar comprising ground floor entrance, kitchen, dining, living, bathroom and laundry areas with 2 first floor bedrooms, study and ensuite;

* Each dwelling will have north facing open space of 27sqm;

* Wall heights on boundaries are 3.6m setting back 1.5m to a maximum wall height of 6.8m;

4. At the commencement of the hearing of this matter on 11 July 2002 Ms Jane Sharp for Council and Ms Carol Pilatti for a number of Objectors advised the Tribunal that they did not wish to pursue the issue of the covenant on the subject land which had been the subject of a finding on 24 January 2002 and subsequent submissions.

5. Mr Tweedie tabled submissions on behalf of the Applicant in relation to the covenant.

6. For completeness it is desirable to refer to the previous hearings and determinations of the Tribunal in relation to the covenant.

7. The subject land is contained in Certificates of Title Volume 3627 Folio 208 and Volume 8892 Folio 443, which were produced by Mr Barlow.

8. Volume 3627 Folio 208 is the main title to the land on the north side of The Grove. It is subject to the covenant contained in Instrument of Transfer No137869 which is endorsed on the front of the Certificate of Title. It is made between Montague Charles Dare as vendor and William Henry Felstead as purchaser in 1884 and recites the sale of Lots 22 and 23 of Section B on the Plan of subdivision lodged in the office of titles red ink number 278851 (hereinafter called the said lots), being more particularly described in Certificate of Title Volume 1403 Folio 280413. The covenant states:

"the said transferee does hereby for himself his heirs executors administrators and transferees covenant with the said transferor his executors his heirs executors and administrators [See Note 1] that each of the said lots shall at all times hereafter be maintained and used as a site for one dwelling-house only and that no dwelling house shall be erected on any of the said lots containing less than five rooms and passage with the usual outhouses and offices and of which the cost shall be less than four hundred pounds and that no building to be erected on any of the said lots shall be used as or for a public house beer or wine shop or as or for a shop of any description or for the purpose of carrying on any manufactory or trade or business but for the purpose of a dwelling house only and the said transferee requests that the above covenant may appear as an encumbrance on the certificate of title to be issued on this transfer and run with the land [See Note 2] provided that upon the said transferee his executors and administrators obtaining upon any transfer of the said lots or any of them or any part of the said land a covenant similar to the above covenant by him from his transferee of the said lots or of any of them in favour of the said transferor his heirs and executors and administrators under the above covenant in respect of any buildings which thereafter be erected upon the lots or land so transferred shall immediately cease and determine"

* Note 1: at this point in the hand written text of the Transfer the following words were crossed out:

"and transferrees registered proprietor or proprietors owner or owners for the time being of the land the subject of the said plan of subdivision or any part or parts thereof and also as a separate covenant with the said transferror his heirs executors and administrators"

* Note 2: Bolding is added. These words were also added to the text.

9. The second title, Certificate of Title Volume 8892 Folio 443, is a piece of land of the same width and 30 feet deep at the rear of the property. This is also subject to a covenant contained in Transfer 271210 made between Montage Charles Dare as vendor and Asline Collett Mason as purchaser in December 1889 and recites the sale of Lots 5, 6, 7, 8, 9 and 10 of Section B on Plan of Subdivision Number 613, being more particularly described in Certificate of Tile Volume 1403 Folio 280413. The covenant states:

"the said transferee does hereby for himself his heirs executors administrators and transferees covenant with the said transferor his executors his heirs executors and administrators that each of the said lots shall at all times hereafter be maintained and used as a site for one dwelling-house only and that no dwelling house shall be erected on any of the said lots containing less than five rooms and passage with the usual outhouses and offices and of which the cost shall be less than four hundred pounds and that no building to be erected on any of the said lots shall be used as or for a public house beer or wine shop or as or for a shop of any description or for the purpose of carrying on any manufactory or trade or business but for the purpose of a dwelling house only and the said transferee requests that the above covenant may appear as an encumbrance on the certificate of title to be issued on this transfer and run with the land provided that upon the said transferee his executors and administrators obtaining upon any transfer of the said lots or any of them or any part of the said land a covenant similar to the above covenant by him from his transferee of the said lots or of any of them in favour of the said transferor his heirs and executors and administrators under the above covenant in respect of any buildings which thereafter be erected upon the lots or land so transferred shall immediately cease and determine" [my emphasis}

10. There is a side notation which states that the Supreme Court made an order dated the 3rd December 1931 to the effect that the covenant be modified and amended to permit Lot 5 to erect "part of" a second dwelling house on the lot at a cost of less than 400 pounds and otherwise not complying with the covenant ("the side notation").

11. A Directions Hearing was held on 24 January 2002 before Deputy President Horsfall to consider:

i. The issue of notice of the application for review, (under Section 82B of the Planning and Environment Act ), having regard to the existence of a restrictive covenant affecting the land and the provisions of Section 52(1)(a), 52(1AA), and 60(5).

ii. The issue of notice of the application for review if the restrictive covenant does not apply.

iii. Any other matters relevant to the associated applications.

12. At the Directions Hearing Mr Barlow for the Applicant submitted that the two covenants did not give any benefit to any land and only gave a benefit to the transferor and his heirs executors and administrators personally.

13. Deputy President Horsfall found for the reasons set out in the Order made on that day that

* there was no land benefited by the two covenants on the Certificates of Title for the subject land, and that it was a personal covenant only between the original transferor and transferee.

* as there was no land benefited by the covenant there are no "owners or occupiers" affected and thus no obligation under Section 52(1)(ca) and (cb) of the Planning and Environment Act 1987 to give notice under those paragraphs.

14. The Order made no determination in respect of the covenants, but required that notice be given to the owners and occupiers of a number of neighbouring properties and this order was complied with.

15. A number of statements of grounds from objectors were subsequently received, all of which raised the issue of the restrictive covenant. Typical of the relevant grounds included was that "such covenant being regarded as for the benefit of all owners of properties in The Grove since it would maintain the open nature of the street, and the gardens and trees surrounded the property."

16. On 21 March 2002, the Council wrote to the Tribunal seeking to make further submissions in relation to whether there was land benefited by the covenants and in response to that request the Tribunal convened a Directions Hearing on 29 April 2002. In the notice of hearing the Tribunal directed that at the hearing the Council produce evidence of what land it considers that benefited from the covenants and details of the owners of those lots.

17. At that hearing Ms S Porritt of Counsel appeared for the Council, Mr Testro instructed by Middleton's appeared for the permit applicant and a number of objectors appeared personally. Extensive further submissions were made.

18. Deputy President Horsfall accepted Ms Porritt's argument that notice should be given to all persons who might be owners and occupiers of land benefiting from the covenants before the status of the covenant could be decided, and orders dated 30 April 2002 were made to the effect that:

* The consideration of whether there was any owner or occupier of any land benefited by the covenants was adjourned until the hearing of the merits of the application,

* The Council give notice of the application to the owners and occupiers of the land set out in areas A, B and C of the relevant plans of subdivision at its own expense within 14 days and file a statement of serve with the Tribunal.

* The Tribunal to hear the merits will be constituted by Deputy President Horsfall and Mr Hewet.

* Leave is given to any objector including any responding to the additional notification to make submissions whether they ore the owners or occupiers of any land benefited by the covenants.

19. Notice was given by the Council in accordance with that Order and the matter was then listed for hearing before us on 11 July 2002.

20. As indicated above neither Council nor the objectors wish to rely on the restrictive covenant issue.

21. Ms Sharp understood that Council did not have leave to make further submissions on the restrictive covenant at this hearing. This was confirmed by a reference to Deputy President Horsfall's notes.

22. The question to be determined by the Tribunal in relation to the two covenants is:

* Whether there is any person who is a owner or occupier of any land benefited by one or other of the covenants, and any one or other of the covenants.

23. This essentially involves the question whether each of the covenants runs with the subject land.

24. This question is determined by Deputy President Horsfall as a member who is a legal practitioner pursuant to Clause 66 of Schedule 1 of the VCAT Act 1998, but Mr Hewet concurs in his decision.

25. I have considered the submissions made by Mr Barlow at the hearing of 24 June 2002, the submissions by Mr Testro for the Applicant and Ms Porritt for the Council on 29 April 2002 and the written submission filed by Mr Tweedie on 11 July 2002. None of the objectors, whether the initial ones or those who responded to the further advertising, wished to raise the issue of whether or not there is any owner or occupier of any land benefited by the covenant.

26. No party has raised any objection to me determining the question of law in view of the fact that I had made a finding on the initial hearing date.

27. At the hearing on 29 April 2002 Mr Testro raised the issue whether the Tribunal had determined the question and had discharged its functions in respect of the issue.

28. I do not accept Mr Testro's submission on this matter.

29. While a finding was made on the issue, no order was made as a determination or declaration. I accept that whilst I consider notice was given to the Council that the issue would be considered at the directions hearing of 24 January 2002, Council's representative later submitted in their letter that she was not prepared and was unable to respond to Mr Barlow's submissions. It would be a denial of natural justice to be finally determined without Council having been given the later opportunity to do so.

30. Further, the demands of natural justice require that no final determination should be made on the issue until those who may be affected had been given notice of the proceedings. This had not taken place until all persons who might be the owners or occupiers of land benefited by the covenant had been given notice given appropriate notice. It was only prior to the last hearing date that this notice was given and the opportunity for those persons to make submissions has been available. As it turned out no objector wished to raise the issue.

31. I consider the finding made at the initial hearing should not be conclusive but at the Tribunal in exercise of its obligation to give natural justice to all parties should not regard the matter as determined until all parties had had the opportunity to make submissions. I am supported in this conclusion by the provisions of section 120 of the Victorian Civil and Administrative Tribunal Act 1998 giving persons affected by a Tribunal decision made in their absence a right of review.

32. The side notation states that the Supreme Court made an order dated the 3rd December 1931 to the effect that the covenant be modified and amended to permit the owners of lot 5 to erect "part of" a second dwelling house on the lot at a cost less than 400 pounds and otherwise not complying the covenant. Ms Porritt advised there is no report of this case, but that the side notation does raise the inference that the Court considered that the covenant was a restrictive covenant binding the property, for why else would it make an order varying if it was inapplicable.

33. I do not consider that the side notation can be taken into account in construing the covenant or in drawing any conclusions as to the intentions of the parties. The proceedings were long after the covenant had been made. The Tribunal cannot know the circumstances surrounding the application to the Court, nor is it known whether the application was made by consent, whether there was any real discussion as to the meaning and intent and legal effect of the covenant, or what was the motivations of the parties. I accept the Applicant's submissions that whatever the situation may have been in relation to the side notation, it does not assist the Tribunal in reaching a conclusion.

34. Ms Porritt in her submission acknowledged that a restrictive covenant, in essence, is a covenant between parties that is intended, not only to create person obligations and rights, but is intended to run with the land and bind successors in title. A restrictive covenant creates a burden on land - in this case a restriction as to the type of dwelling that may be constructed on the land - and a benefit to the covenantee and his successes in title - that is the right to enforce the covenant in favour of certain land.

35. It is common ground that the benefit of a covenant may be passed, in equity, by

36. Council acknowledged that only the question of express annexation is relevant to this proceeding and the issues of passing of the benefit by assignment or under a scheme of development need not be considered.

37. Ms Porritt pointed out that if the covenant had been made after 1915, the failure to refer to "transferees" by the covenantees would not be a problem as Section 78 of the Property Law 1958, and its precursors would have the effect that the covenant would be deemed to be made with the covenantee and successors in title and the persons deriving title under him or them and that a reference to "successors in title" shall be deemed to include the owners and occupiers for the time being of the land of the covenantee intended to be benefited.

38. However she referred to Section 230 of the Transfer of Land Act 1886, in force at the relevant time of the covenants which provided that:

"Without lessening or prejudicing any of the other rights powers and remedies hereby given and conferred, every proprietor and every transferee when registered of any land lease mortgage or charge shall whilst continuing so registered have the same estates rights powers and remedies and be subject to the same engagements obligations and liabilities and may sue and be sued in his own name at law and in equity in respect thereof or t hereupon, in like manner as if he had been the original proprietor of the land by or with whom the engagement obligation or liability sued upon was entered into or incurred, or the lessee mortgagee or annuitant."

and she argued that the section passes the rights and powers of the original covenantee to all successors in title of all lots falling from the parent title. She referred to Australian Deposit and Mortgage Bank v Law [1876] VicLawRp 49; (1887) 2 VLR L 31 and the reported comment of Fellows J that:

"This section must be taken to relate to covenants which run with the land; it does not say so far as the land concerned, but there must be some limit. It will carry an old liability, but not create a new one."

39. Mr Tweedie referred to the original text of this case and noted that the quotation referred to by Ms Porritt was not in fact the same quotation. The case did not involve a restrictive covenant and reference was made to section 90 of the old Act which provided that in a mortgage made under the provisions of the Act, covenants are implied with the mortgage and as transferee binding the mortgagor and its transferee to pay the principal monies. I accept Mr Tweedie's submission that this decision cannot be interpretated in a way which turns a covenant which would not otherwise be a restrictive covenant at law or in equity into a binding restrictive covenant. The issue really turns on the construction of the actual words of the covenant and the intention of the parties.

40. The critical issue is whether, from a construction of the covenant, it can be objectively construed that the parties intended that the covenant was to be benefit (and burden) identifiable land in perpetuity and not merely benefit the covenant personally.

41. The difficulty with these covenants is the contradictions in them.

43. If one were to identify the land to be benefited by the covenant one cannot find in the covenant the usual reference to the land remaining untransferred in the parent title. What is contained in the covenant is a designation of the land transferred as being a lot in Section B on the Plan of Subdivision which is part of the land in a particular title. This is in the description of the land transferred but there is no express reference to any land to have the benefit of the covenant. There is nothing on the face of the covenant to indicate what land is to be benefited by it.

44. It is not known how much of the land had been sold and transferred before the land subject to the covenants was transferred. Only the remaining lots remaining untransferred could have the benefit of the covenant if the covenant was so expressed.

45. A further contradiction is that whilst the transferee covenants for himself his heirs executors administrators "and transferees" it appears that the covenant over Volume 3627 Folio 208 had significant words expressly deleted in relation to the transferor. These notes are referred to in Paragraph 3 above and do not appear in the second covenant. Their inclusion would have had the effect of annexing the covenant to land remaining un-transferred in the parent title, and their express deletion can only give rise to a conclusion that the parties expressly intended that there be no annexation.

46. Therefore whilst it may be the intention that burden of the covenant may run with the land sold, the question of whether the benefit is annexed or attached to any other land remains in question. In my view the specific deletion of those words negates any intention on the parties that the benefit of the covenant was to be attached to any land.

47. This conclusion is further supported by the proviso providing that if the transferee of the subject land obtains a substitute covenant from a further transferee, the covenant created immediately ceases and determines.

48. The existence of this proviso would not in my view be necessary if the covenant contained the usual words identifying the land benefited by the covenant and annexing the benefit of the covenant to that land.

49. However those provisions are not contained in the covenant, the only reference to running with the land being running with the subject land. I accept that the essential elements of a restrictive covenant and the annexation to land benefited can be implied by the circumstances, but in my view the wording of the covenant and the surrounding circumstances do not clearly indicate the required intention.

50. That the covenant is expressed to run with the subject land and its registration by the Registrar of Titles does not in my view create sufficient circumstances to establish that it is intended that the benefit is to be attached to and run with other land for the benefit of the then owners of that land and his or her transferees. In my view that annexation and intention is absent from the transfer. The wording tends to indicate that whilst the subject land may be burdened, it is only for the personal benefit of the covenantee for whatever reasons may have been existing at the time.

51. Accordingly my finding is that the covenant is not annexed to or benefit any other land and that there are no owners or occupies of land benefited by the covenant within the meaning of the provisions of the Planning and Environment Act 1987 mentioned above.

52. The review site is located on the north side of The Grove and has a frontage to the street of 20.12 metres, a depth of 57.91 metres and an area of 1,165 square metres.

53. A single storey, brick Edwardian dwelling is currently located on the site.

54. Immediately abutting the review site to the west is a single storey Edwardian dwelling while to the east at 23-25 The Grove is a pair of two storey Italianate maisonettes, which according to the Moreland Heritage Review were designed by T J Crouch and which are typologically rare and excellent examples of the use of polychrome brickwork.

55. To the north or rear of the review site are single and double storey dwellings which front Rennie Street with the principal areas of private open space of these dwellings located to the rear where they interface with the review site.

56. While residential development in the area is characterised by substantial dwellings with private open space located to the rear, there is also a strong presence of out buildings located within these private open space areas and these buildings are often located on site boundaries.

57. With respect to the character of the area Mr Whitney, who was called to give town planning evidence on behalf of the Permit Applicant, provided the following useful analysis which we adopt:

"The Grove is an attractive street which contains within it, a wide variety of building types as well as a number of non-residential uses. There are attractive Edwardian and Victorian houses, as well as variety of recent styles of housing. There are single dwellings, flats and units. There are buildings of both single and double storey. In addition there is the dominant 3 storey concrete Kangan Institute of TAFE at the street's western end and the Moorland Bowling Club on the south side of the street, a short distance to the east of the subject site.

Generally houses are set back behind established gardens and the street contains nature strips and street trees.

The Grove appears as a series of sections. Its quality improves towards its eastern end. Between Sydney Road at De Carle Street, at its western end, the TAFE building and the Sydney Road commercial building dominate giving this section a mixed use feel. In the section between De Carle Street and Barrow Street. The Grove takes on a residential character interrupted only by the Moorland Bowling Club which provides for angled on-street parking over its entire frontage. This arrangement detracts somewhat from the street's character and breaks the continuity of residential uses. East of Barrow Street, as far as Nicholson Street and beyond, the street is entirely residential in character and in use.

Specifically, in the section of The Grove in which the subject site is located there are imposing 2 storey Victorian dwellings containing a number of separate tenancies and a single storey Victorian dwelling which each have individual heritage recognition, several Edwardian dwellings (including the subject site), 60's two storey walk up flats, large recent Mediterranean style two storey brick dwellings and single storey town houses.

There is no homogeneity about the type or style of housing that exists or any particular style that predominates.

Rennie Street to the north and The Avenue to the south are both attractive residential streets but again, contain a wide variety of housing types and styles. The site and neighbourhood are conveniently located with respect to transport and all facilities. The area is less than 7 km from the CBD, a short walk to the extensive Sydney Road shopping centre, trams in Sydney Road and Nicholson Street, the Upfield train line and a host of education and community facilities."

58. The review site is zoned Residential 1 under the Moreland Planning Scheme. The relevant purpose of the zone is, in addition to implementing the State and Local Planning Policy Frameworks, to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

59. A dwelling is a Section 1 Permit Not Required Use in the zone. A permit is required however to construct two or more dwellings on a lot pursuant to Clause 32.01-4. Decision guidelines under that clause obligate the Responsible Authority to consider as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The Good Design Guide for Medium Density Housing Revision No.2, April 1998,and any other local variation incorporated in this scheme.

60. Amendment VC12 to the Moreland Planning Scheme was gazetted on 24 August 2001. The amendment introduces a new clause 55 into the planning scheme and this details the provisions applicable to medium density housing applications.

61. Clause 52.04 provides for transitional arrangements in relation to the application of provisions under clause 55 in the following terms:

"The requirement of the planning scheme as enforced immediately before 24 August 2001 continue to apply to a permit application made before that date to the extent that, but for this clause, clauses 54, 55 or 56 would apply to such an application."

62. The planning permit application was submitted prior to 24 August 2001 and the provisions of Clause 55 do not therefore apply.

63. The review site is also affected by a Heritage Overlay (HO172). The heritage place described in the schedule to the Heritage Overlay is The Grove - Sydney Road Precinct, Coburg. A permit is required to construct a building, externally alter a building and to construct or carry out works pursuant to Clause 43.01-1. Decision guidelines are at clause 43.01-5.

64. The statement of significance for the precinct contained in the City of Moreland's Heritage Review is as follows:

"The Grove Precinct is of local historical and architectural significance. It is a notable 1880's land boom residential subdivision that contains many individually significant buildings. The precinct also derives significance from its association with speculator Montague Dare and prolific 19th century architect T J Crouch. The canopy of mature street trees together with well maintained private gardens, contributes greatly to the character, and enhance the significance, of the precinct."

65. With respect to the State Planning Policy Framework (SPPF) clauses 14 and 16 of the planning scheme are relevant. These clauses encourage the consolidation of urban development within existing urban areas and the encouragement of higher residential densities in locations with access to physical and community infrastructure. Medium density developments within established areas are also required to be respectful of the character of those areas. The provision of a diversity of housing style is also encouraged through the development of well designed medium density housing which is intended to improve housing choice, make better use of existing infrastructure and improve energy efficiency of housing.

66. Clause 15.11 encourages the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or social significance.

67. The Local Planning Policy Framework (LPPF) provides the local strategic basis for the consideration of planning issues in the municipality and seeks to apply the principles of the SPPF at the local level. The LPPF is also supportive of an increase in residential densities and clause 21.05-2 - Focus Areas for Change - identifies urban villages and other areas identified as having good public transport access, as locations where increased density may occur. The review site is located within a designated urban village (Sydney Road/The Grove urban village). Clause 22.02 is a local policy titled Development Within Designated Urban Villages and, in general terms, this policy reinforces the principles of the urban village concept and the encouragement of attractive, well designed medium density housing within these areas.

68. Other relevant provisions of the LPPF are at clause 21.06-1 Housing, clause 21.06-4 Heritage and Clause 21.06-5 Urban Design, Urban Character and Street Landscapes.

Council consideration and the Application for Review

70. The planning permit application was received by the Council on 31 July 2001 and notification of the application was not required to be given.

71. The Council refused the application in October 2001 on the following grounds:

1. The proposed development would breach the restrictive covenant contained in Instrument of Transfer 137869 as contained on Certificate of Title Vol. 3627 Fol. 725208 and pursuant to Section 61(4) of the Planning and Environment At, 1987 must be refused.

2. The proposed development fundamentally fails to satisfy the objectives of the Good Design Guide. In particular it:

1. Fails to adequately justify how it is representative of site responsive design and as a result produces a development which is excessive in height and bulk, insufficiently setback, at odds with predominant neighbourhood character and poorly laid our.

2. The siting and massing of the proposed development and its resultant impact on neighbourhood character does not make a positive contribution to the area, nor establish a desirable precedent. Consequently it does not satisfy Element 3 - Neighbourhood Character and in particular Objectives 1 and 2;

3. The proposed sheer two storey bulk particularly as it abuts private open space is unacceptable and has little regard for Element 6 - Building Envelope and in particular Objective 1;

4. Site layout is not well integrated with the neighbourhood. Consequently, it does not satisfy Element 4 and in particular Objective 1;

3. The development is not consistent with the City of Moreland's strategic vision for residential development and in particular is not justified against the State and Local Planning Policy Frameworks including the Municipal Strategic Statement.

4. The siting and massing of the proposed development and its resultant impact on neighbourhood character is contrary to the objectives of the City of Moreland's Urban Character Policy.

5. The development does not satisfy the objectives, requirements and assessment guidelines as contained at Clauses 32.01, 43.01 and 65 of the Moreland Planning Scheme.

6. The proposal is an overdevelopment of the site.

7. The proposed development would be detrimental to the amenity of the area.

72. An application to review the Council's refusal was subsequently commenced by the Permit Applicant on grounds generally refuting the council's grounds of refusal.

73. Notice of the application was required to be given by the Tribunal following a directions hearing in January 2002 with further and more extensive notification being directed following a further directions hearing in April 2002.

74. As a consequence of the directions to give notice, 34 parties have submitted statements of grounds objecting to the proposal.

75. At the review hearing all parties tabled and read from written submissions and supplemented these with oral argument.

76. Mr Tweedie called Mr David Whitney, Town Planner of Whitney Planning and Mr Steven Hunt, Traffic Engineer of Grogran Richards Pty Ltd, to give evidence. The witnesses tabled and spoke to written reports and gave oral evidence, and were made available for cross examination.

77. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The evidence submitted in documentary form, together with the written submissions have been retained on the Tribunal's file.

78. The review site is a suitable site for the provision of medium density housing by virtue of the fact that it is zoned Residential 1, one of the purposes of which is to encourage residential development at a variety of densities, and because it is located within a designated urban village pursuant to the LPPF of the planning scheme. The site is also relatively large (1,165 square metres) and is of a regular configuration. The site also enjoys excellent access to public transport and a wide range of services and facilities normally associated with this well established locality. The suitability of the site for medium density housing however is tempered by the existence of the heritage overlay and the provisions of the planning scheme which, in contrast to the designation of the site as an urban village, seeks to protect and enhance the significance of the heritage place and to ensure that new development responds to and is respectful of the established character of the neighbourhood.

79. It is apparent therefore that those provisions of the planning scheme which lend support to the development of this site for medium density housing must be balanced against other provisions of the planning scheme which impose constraints on the form, scale and intensity of the development of the site.

80. The single most significant constraint to the development of this site for medium density housing is the existence of the heritage overlay which has the effect of encouraging the retention of the existing dwelling on the site and imposes a significant constraint on the possibility of the existing dwelling being demolished. In any event of course, it is not proposed to demolish the existing dwelling as part of this application, but the retention of the dwelling does create a number of difficulties for the design of a medium density development on the site, not the least of which is that it forces the location of the new development into the rear yard of the site where the most sensitive interfaces with neighbouring properties exist. In addition the retention of the dwelling also creates design problems in terms of how a new development will interface with the existing dwelling on the site.

81. In our view these two specific problems have not been adequately resolved by the proposal which is before us.

82. With respect to issues related to the location of the proposed development to the rear of the existing dwelling, it was the Council's submission that the design is inappropriate and inconsistent with the established neighbourhood character and the predominant garden character of the area. It was further submitted that the proposal fails to respond to the objectives and criteria of Element 4 of the Good Design Guide which encourages new dwellings to front existing streets, encourages multi storey components of developments to be located towards the street where their impact on the amenity of adjacent secluded private open spaces will be limited, and encourages dwellings to be arranged across blocks to maximise cumulative open space adjoining dwellings and to provide greater buffers for adjoining property. Ms Pilatti made submissions which generally supported the Council's submission and emphasised that the boundary to boundary construction minimises opportunity for the provision of landscaping and planting to soften the visual impact of the proposal.

83. Mr Tweedie emphasised the proposal's compliance with the techniques of the Good Design Guide in support of his submission that the proposal would not give rise to any significant or unacceptable off site amenity impacts on adjoining neighbours. Mr Tweedie further submitted that there is no support in the planning scheme for the Council's assertion that the character of the area is such that development in the rear of the property is inappropriate or that the valued character attribute of the area relates to expansive rear gardens. Mr Tweedie relied on the evidence of Mr Whitney with respect to this aspect of the proposal and it was Mr Whitney's evidence that the pattern of development in this area is characterised by high site coverage and development at the rear of blocks. Mr Whitney referred in particular to the often quite substantial out buildings which exist in this neighbourhood, including on the neighbouring sites, the two storey dwelling to the rear of the review site and the adjacent two storey Victorian dwellings to the east which far exceed the height of the proposal.

84. In terms of how this proposal responds to the prevailing character of this area Mr Whitney said

"The design response indicates how the proposal is designed not to be at odds with adjacent open areas. The properties on either side have their driveways/garages abutting the rear of the subject site where the proposal will sit as does the building to the rear north east. The building to the rear north will have the units largely screened by the retention of existing trees while the building to the rear north west will obtain an oblique view in which the impact of the height is minimised by the angled roof line."

85. We acknowledge Mr Tweedie's submissions and Mr Whitney's evidence with respect to these matters and we also acknowledge that within an area which is designated to encourage increased residential densities, there is almost an inevitability that development will encroach into rear open space areas. Whether or not the impact of that encroachment is acceptable is dependent upon the scale and form of the proposed development, the characteristics of the individual site and its neighbouring uses and development, and the neighbourhood context within which the site is located. We agree with Ms Sharp's submission that the objectives and criteria of the Good Design Guide seeks to encourage the double storey component of medium density housing developments towards the street frontage and in our view where this is not proposed it is necessary to demonstrate that the particular proposal is justified either on the basis of the nature of surrounding land uses and development and/or the proposal has been designed in such a way as to minimise the impact on the neighbouring properties.

86. We are not satisfied that this proposal adequately responds to any of the tests we have referred to above. In forming this view we do recognise that the proposal demonstrates a high degree of compliance with the techniques of the Good Design Guide and that is clearly a significant factor for us to have regard to. Compliance with the techniques of the Guide however does not automatically lead to a conclusion that the impact of a proposal is acceptable and on this site, in this neighbourhood context, we do not think that compliance with the techniques is sufficient to ensure that the impact of this proposal falls within acceptable limits. Our concerns in this respect focus primarily on the boundary to boundary construction, the double storey height and the roof pitch, all of which would contribute to the creation of a built form which will be excessive in this neighbourhood context. As we have indicated above we acknowledge that there is built form located in the rear corridor of open space in this neighbourhood, and in particular we note the recent double storey extension to the dwelling to the rear of the review site which is certainly visually prominent. It is our view however that the scale and form of the current proposal is of a different magnitude to that of existing development and, while it may not represent an alien built form in this neighbourhood, its visual impact would nevertheless be unacceptable.

87. We also have reservations about the interface between the proposed development and the existing dwelling on the land. That interface comprises a car park and associated access lane located between the front entries of each of the four proposed dwellings and the rear wall of the existing dwelling. This design response is in our view, almost utilitarian and we can see no evidence of any meaningful attempt to integrate the existing dwelling with the proposed development beyond creating an 11.6 metre expanse of concrete carparking and driveway in front of the four proposed dwellings. The proposal in its present form provides virtually no opportunity for the provision of landscaping within this area and we do not think that the outcome is consistent with the objectives and criteria of the Good Design Guide to encourage well designed and site responsive medium density housing developments.

88. We are also of the view that the proposal compromises the amenity of the existing dwelling by eliminating the opportunity for the provision of north facing open space and by placing reliance on the front setback and upper level balconies for the provision of private open space. This is in our view unacceptable in terms of providing basic amenities for what is already a substantial dwelling which is proposed to be further extended.

89. As we have indicated above the assessment of this application necessitates an exercise which balances those provisions of the planning scheme which encourage increased residential densities and increased diversity of housing against those provisions which emphasise the protection of neighbourhood character, residential amenity and the significance of the heritage place, and which encourage high standards in the design of medium density housing. Given the failings of this proposal which we have identified above we consider that this proposal falls well short of achieving an acceptable planning outcome and an appropriate balance between the conflicting provisions of the scheme

90. We think it is worth recording our views that with respect to the proposed extensions to the existing dwelling we consider these are of a form and scale which are an appropriate response to the decision guidelines of the heritage overlay. With respect to the provision of car parking, an aspect of the proposal which was criticised by Ms Pilatti, we are satisfied that, apart from the location and configuration of the car parking area which we have commented adversely upon previously, we accept Mr Hunt's evidence that the quantum of car parking proposed to be provided would be acceptable.

91. It follows from the above that the decision of the Responsible Authority is affirmed and it is directed that no permit issue.

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