With respect to permit application P205-0240, the Responsible Authority's decision to refuse to grant a permit is affirmed.

The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.

1 This is an application to review the decision by Macedon Ranges Shire Council ('the Council') to refuse to grant a permit for the development of two dwellings on a lot by extending an existing building to be a second dwelling at 1 Morris Road, Woodend.

2 The site is located in a residential area at the northwest corner of Morris Road and Kinsellas Lane in Woodend. It has an irregular shape with a frontage to Morris Road of about 40 metres, a frontage to Kinsellas Lane of about 67 metres, and a total area of 1,219 square metres.

3 The site contains an existing weatherboard dwelling fronting Morris Road, a large tin shed/garage, and a building approved by Council as a dependent relative unit with an associated carport that has frontage to Kinsellas Lane.

4 The Council described the surrounding neighbourhood as containing modest, single storey dwellings with a sense of openness due to the dominance of post and wire fencing. These characteristics were evident in the photographs tendered by Mr Ludeman.

5 It is proposed to construct a single storey addition comprising a lounge room and rumpus room to the existing building (dependent relative unit), which contains two bedrooms, a bathroom, kitchen, laundry and living room. Mr Theron explained the proposal would double the size of this building to a total floor area of 182 square metres.

6 The permit application was received by the Council on 9 May 2005 for "an extension to existing building". The Council required the application to be amended to state "change of use of existing dependent relative unit to a second dwelling and construct an extension to this building". The application was then advertised and no objections were received. The Council considered the proposal at its Planning Committee Meeting and a Notice of Refusal to Grant a Permit was issued on 20 September 2005 on the following grounds:

1. The existing dependent person's unit was given permission on the understanding that it would be removed in due course. The application is therefore an attempt to gain a second dwelling by stealth.

2. The proposal does not adequately meet the requirements of Rescode with respect to siting solar access, privacy and other key criteria.

3. Attempts to comply with Rescode would have a detrimental impact on the existing neighbourhood character.

4. The proposal would, if approved, promote a poor standard of design and site responsiveness in applications for multi dwellings.

5. The proposal would, if approved, create an undesirable precedent for similar applications.

7 Mr Ludeman and Mr Theron provided written and oral submissions during the hearing. I issued directions at the conclusion of the hearing requiring the Council to provide a set of draft permit conditions[1] and allowing the Applicant the opportunity to comment on the conditions. These documents/comments have been received and considered.

8 At the commencement of the hearing, Mr Ludeman sought leave to amend the application to refer to "construction of an extension to a dwelling", which the Council opposed for a number of reasons, including the conditions of the earlier permit issued for a dependent relative unit on this site and the fact that there is no permit in existence for the development of two dwellings on this site.

9 I refused to grant leave to amend the permit and gave oral reasons explaining why. I wish to elaborate on these reasons in this decision, as determining what this application is seeking approval for forms the basis of how the merits of this application must be considered.

10 The Council stated there is no permit in existence for the development of two dwellings on this site and Mr Ludeman did not dispute this or present any evidence that a permit has been issued for more than one dwelling on this site. It is clear from the permit application form and plans accompanying the application that a second dwelling is being sought to be included on this site, therefore a permit is required to construct two or more dwellings on a lot.

11 The Council referred to the earlier permit issued for a dependent relative unit on this site as part of its opposition to Mr Ludeman's request to amend the application, and in its grounds of refusal. There is no question that this permit exists and that the conditions of this permit remain valid and enforceable. I note Mr Ludeman stated during the hearing that the existing building contained in this application is not a movable dependant relative unit; however this is not a matter that I need to determine as part of this application. I advised the parties during the hearing that compliance with the conditions of the earlier permit for the dependent relative unit does not form part of this application for review as this application is to construct two or more dwellings on a lot. It is a brand new proposal for the site and can, and should be, considered on its own merits.

12 The fact is the Council has the power to enforce its own permits and permit conditions regardless of any subsequent applications for new permits. Therefore, it is up to the Council to ensure compliance of the earlier permit for the existing dwelling and dependent relative unit on this site. If there is any dispute about compliance with permit conditions (for example, whether the building under discussion is being used as a dependent relative unit), the Council can seek an enforcement order from this tribunal requiring compliance.

13 I reiterate my earlier comments that this permit application is seeking approval to construct two or more dwellings on a lot. It is the merits of this application that I am considering.

14 Before discussing the merits of the application, it is important to understand the relevant planning policies and controls of the Macedon Ranges Planning Scheme ('the Planning Scheme'). The site is contained within a Residential 1 Zone and its purpose includes:

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

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To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

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To encourage residential development that respects the neighbourhood character.

15 A permit is required to construct two or more dwellings on a lot and the development must meet the requirements of clause 55 (ResCode), therefore the objectives, standards and decision guidelines of clause 55 must be considered.

16 Neither Mr Theron nor Mr Ludeman raised any concern about this proposal in light of the State and local planning policies. I have noted that both referred to clauses 14, 16.02 and 19.03 of the State planning policies. Mr Theron referred to the Municipal Strategic Statement's acknowledgement of the growth occurring in the Shire and the need to cater to that growth within existing townships by providing for a range of densities and dwelling types whilst enhancing township characteristics. I am satisfied that this proposal is in accordance with the policy directions that provide for increased housing opportunities in existing urban areas. I will consider the appropriateness of this proposal with the context of the township/neighbourhood characteristics in the reasons for my decision.

17 This application has been sought to extend an existing building and create two dwellings on the site. The Council refused this proposal, in part, on the basis that it is an application by stealth, a concern that may well have been based upon a presumption that there are existing buildings/conditions on this site, which precludes the necessity to comply with all of the objectives of clause 55. Indeed, I note Mr Ludeman responded to a number of the Council's concerns by suggesting compliance with clause 55 was not relevant given the existing conditions of the site and the small scale of the proposed extension. This is not the case. The fact is, in planning terms, this site currently contains one dwelling and a dependent relative unit, and this application seeks approval to create two dwellings. In doing so, clause 55 must be considered and the requirements of this clause state "a development must meet all of the objectives of this clause". This is mandatory, so this application is effectively considering the site as a 'clean slate'. In order to meet all of the objectives, it may be necessary for alterations to be made to the existing conditions of the site. Mr Ludeman made reference to the ownership of the land and the tenants of each of the buildings on the land in explaining why compliance with various clause 55 objectives was not warranted. However, planning permits are issued to the land itself regardless of ownership or tenancy; therefore all of the objectives must be met. Accordingly, in considering whether to grant a permit for two dwellings on this site, I must be satisfied that all of the objectives have been met and I am not.

18 The detail of the application lacks a site and neighbourhood description plan as well as any detail on the existing buildings on the site (other than the dependent relative unit) and an analysis as to how this design responds to the identified opportunities and constraints of the site. I acknowledge this has come about because of the way in which the applicant and the Council have considered and processed the application (essentially as an extension to one of the existing buildings within the existing conditions of the site). However, the lack of detail means the achievement of the clause 55 objectives in regard to the existing dwelling is unknown; a number of the clause 55 objectives have not been met; and I am not persuaded that this proposal is a good design response for the site. There are a number of design matters which require further consideration and the following comments should not be considered an exhaustive list of the design matters that need to be addressed; instead these comments are merely responding to the specific matters of concern raised by the Council in their submission.

19 The Council expressed concern about the vehicular access from the proposed second dwelling onto Kinsellas Lane as it is "unmade and not considered a public thoroughfare" and suggested that the entry will be hidden from Morris Road. Mr Ludeman referred to a copy of Title that shows Kinsellas Lane is a road and this site abuts this road. On the basis of this, I am satisfied that vehicular and pedestrian access to the proposed dwelling along Kinsellas Lane would not be inappropriate; however, the location of the dwelling needs to be clearly identifiable from Morris Road and this may require street numbering or removal of existing buildings and vegetation in the frontage of the site so that the dwelling can be identified.

20 The Council expressed concern that the proposed second dwelling has a lack of north facing windows. I note the proposed extension is to increase the number of main habitable rooms in the dwelling, one of which (the rumpus room) has 2 north facing windows. Having reviewed the proposed plans and elevations, I see no reason why it would not be possible to include a north facing window in the proposed lounge room as well; or better yet, alter the internal layout of the proposed dwelling so that all of the main habitable rooms benefit from northern light.

21 The Council expressed concern that external storage areas have not been provided. There are a number of sheds or garages on the property and I am satisfied that either these existing storage facilities or new storage facilities could be provided to address this matter. This detail should be included in any subsequent permit application.

22 In regard to the Council's concern about the difficulty of access to the proposed dwelling for people of limited mobility, I am of the view that this could be addressed by undertaking some design modifications to one or both dwellings.

23 The remaining matters of concern raised by the Council included the lack of any private open space areas for each dwelling; the lack of any fencing to demarcate the extent of each allotment, including communal and private areas; the lack of new landscaping; and the possibility of overlooking between each of the dwellings. I am of the opinion that the site area to be allocated to each dwelling, including private and secluded open space areas is an important consideration and should be provided. Mr Ludeman and Mr Theron both pointed out the prevalence of post and wire fencing in the neighbourhood and Mr Ludeman submitted it is therefore inappropriate to require solid fencing to delineate the extent of site area for each dwelling and/or to provide privacy between the dwellings. I agree that solid fencing throughout the site may not be appropriate given the predominant neighbourhood characteristic of post and wire fencing; however that does not mean that there can be no solid fencing at all on the site. It may be suitable to provide some solid fencing within the site to address particular concerns about overlooking or, as an alternative, new landscaping could also be utilised to provide screening between each dwelling's private open space areas. It is also important that the private open space areas have convenient access from a living room[2], and this may require some modifications to the existing buildings on the site. All of this detail would need to be thought through carefully as part of any subsequent permit application.

24 I also note that there is no clear delineation of the available car parking for the existing dwelling on the site and this should be incorporated into any new permit application.

25 In summary, I find that there is a lack of detail in the proposal. I agree with a number of the Council's concerns and I find a number of the clause 55 objectives have not been met. Any new permit application for two dwellings on this site will need to demonstrate that all of the clause 55 objectives have been met as required by the Planning Scheme.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.

[1] As required under section 4.5 of Practice Note No. 1 of the Planning and Environment List of VCAT (PNPE1)

[2] Refer to clause 55.05-4 of the Planning Scheme